Defense Wins in Welding Fumes Exposure Case
A federal jury has returned a defense verdict in the first welding fumes exposure case among approximately 3,800 pending before U.S. District Judge Kathleen O’Malley of the Northern District of Ohio, Eastern Division, in Cleveland.
On Tuesday, after deliberating for approximately 25 hours over a five-day period, the jury in Ernest Solis v. Lincoln Electric Co., et al. — a case that originated in Texas — found that the defendants did not distribute a product with a marketing defect.
Defendants in the case are past and current makers of welding rods: Lincoln Electric Holdings Inc., Hobart Brothers Co., TDY Industries Inc. and the ESAB Group Inc.
Richard Crews, one of the defense lawyers in Solis, says he’s pleased with the verdict. Solis is the first case to be tried in federal court as part of the multidistrict litigation proceeding over which O’Malley presides. Crews, of counsel at Hartline, Dacus, Barger, Dreyer & Kern in Corpus Christi, Texas, says discovery in the MDL welding fumes cases is ongoing.
“I certainly don’t think it’s going to be an end to it,” Crews says of the verdict in Solis. “But it certainly gives everybody some indication of what one jury thought of the issues involved in the marketing of the product.”
Brandy Bergman, spokeswoman for the welding industry, says juries have returned defense verdicts in 11 of the 12 welding fume cases that have gone to trial. The other cases were tried in state courts, Bergman says.
Larry Elam, a retired welder from Collinsville, Ill., received a $1 million judgment in Elam v. Lincoln Electric, tried in a state court in Madison County, Ill., in 2003. The Illinois Appellate Court, 5th District, affirmed the judgment in Elam in December 2005.
Although there has been only one plaintiffs verdict, the welding rod industry has settled numerous cases with brain-damaged welders, says Eric Wetzel, spokesman for the welding fume plaintiffs.
Wetzel says two welding manufacturers settled Ruth v. A.O. Smith Corp., the first MDL suit that was scheduled for trial. The confidential settlement came on the eve of trial in 2005, he says.
Drew Ranier, a partner in the Louisiana-based firm Ranier, Gayle and Elliott and a member of the Plaintiffs’ Executive Committee in the MDL consolidation, says, “[W]e believe that this trial [in Solis] firmly established the very real danger of manganese-laced welding fumes.”
Mikal Watts, the principal in the Watts Law Firm in Corpus Christi, originally filed Solis, which was joined with another case, in 2003 in Nueces County Court-at-Law No. 1. Watts did not immediately return a telephone call seeking comment.
Solis, a former welder at the U.S. Naval base in Corpus Christi, alleged in his original petition that exposure to welding fumes at his job caused him to develop manganese poisoning, also known as Parkinson’s disease, a neurological illness that diminishes movement and speech. Solis further alleged in the petition that the defendants failed to provide him with adequate warnings about the dangers of welding rods.
The defendants transferred Solis’ case to the multidistrict litigation court, over which O’Malley presides, in 2004.
Scott Bickford, an attorney representing Solis and a partner in Martzell & Bickford, says, “The defendants hand-picked this case out of the thousands currently filed against the welding industry, mainly because Mr. Solis is in the early stages of what is unfortunately a progressive illness. He has not yet developed many of the symptoms that afflict thousands of this nation’s welders.”
Crews says both sides have had input in determining which cases would go to trial. “I wouldn’t say it was a hand-picked case,” Crews says of Solis.