Recent Ruling in Ohio Incites New Welding Rod Lawsuits in California

Within the past few weeks, there have been several new lawsuits filed in California alleging injuries from products used in the process of welding. While there have been previous matters involving allegations of exposure to welding rod fumes, this is the first concerted effort to file multiple welding rod fume matters in California. Many believe that this is the result of a recent ruling in Ohio, which will allow workers exposed to welding rod fumes to claim that it was a significant factor in causing early onset of Parkinson's Disease.

United States District Judge Kathleen O'Malley has indicated recently in Ohio that she will allow workers who claim they developed Parkinson's disease after inhaling fumes from welding rods to sue the manufacturers and other welding industry companies, according to a draft ruling issued last week. Lawyers for manufacturer Lincoln Electric Holdings Inc., based in the Cleveland suburb of Euclid, and other companies asked Judge Kathleen O'Malley about a year ago to bar arguments linking welding and Parkinson's, which they say are not related. O'Malley's draft ruling would allow thousands of lawsuits to go forward because a federal panel consolidated them into her district to simplify legal issues. Attorneys for welders say it will allow them to provide evidence in court that workers suffered neurological damage from welding rod fumes that contain manganese, which stabilizes and hardens the weld. As a result of this ruling, additional matters alleging exposure to welding rod fumes have been filed with increased frequency in a number of states including California.

Like asbestos, welding rods present a tempting target for claims because of their ubiquitous use. A 2003 report issued by the investment bank HSBC estimates that there are 700,000 to 800,000 current and former welders in the United States. That number does not count other persons who may have been exposed to welding fumes even though they did not themselves perform any welding. Nonwelders pose significant potential liability. The plaintiff in the recent, widely reported Elam case was a maintenance worker at Union Electric Company, and not a welder. Nevertheless, a jury awarded Mr. Elam $1 million for his injuries allegedly resulting from exposure to welding fumes.

Prior to Elam, claims that welding rod exposure causes Parkinson's-like disease generally did not succeed. Such diseases are poorly understood, and plaintiffs generally could not establish causation. Plaintiffs' causation case changed in 2001, when Dr. Brad A. Racette of Washington University School of Medicine compared 15 welders who suffered from Parkinsonism with two groups of Parkinson's disease patients. Dr. Racette concluded that welding fumes could be a risk factor for Parkinson's disease. He also concluded that welders' symptoms appeared at an earlier age than nonwelders' symptoms. Despite the limited size of Dr. Racette's study and the limited scope of his conclusion, plaintiff's counsel in Elam utilized that study and supporting expert testimony to reach the jury on causation. The jury concluded that Mr. Elam's disease resulted from his exposure to welding fumes.

Industry experts recently have asked whether personal injury claims based on exposure to welding rod fumes could become the "next asbestos" litigation. Asbestos mass tort litigation during the last several decades has consumed billions of dollars and caused the demise of numerous businesses and insurance companies. Because plaintiffs only have begun to bring large groups of welding rod claims, no one can yet determine whether welding rod litigation will follow that same path. Nevertheless, companies with potential welding rod liability would be well-advised to prepare now as though welding rod litigation could become the next asbestos.

Although a recent analysis by Goldman Sachs has concluded that welding rod litigation does not pose the same threat as recent asbestos cases, welding rod liability could develop into mass tort litigation because it presents many of the same factors that continue to drive asbestos litigation: an enormous pool of potential plaintiffs, allegations of serious injuries, a large pool of potential defendants and significant financial investment by plaintiffs' counsel in an effort to develop a new category of mass tort litigation. Potential defendant companies should begin to implement their responses to the threat of welding rod liability by implementing lessons learned in asbestos litigation.

Gordon & Rees, LLP has defended cases throughout the Southwestern region of the United States involving alleged exposure involving a wide array of chemicals, including fumes from welding rods, both from occupational and non-occupational exposure, including refineries, mills, factories, and municipalities. Its attorneys have also given numerous presentations on this topic and are well-published in this area. Gordon & Rees attorneys have significant experience in extracting clients from chemical exposure litigation and are versed in the underlying science of claims-alleging welding fumes exposure. These skills help Gordon & Rees attorneys to vigorously defend and identify all chemical exposure claims (frivolous or meritorious) at the earliest stages of litigation.

This update was authored by Thomas J. Tobin, Senior Counsel in our San Diego and Los Angeles offices.