Distributors Beware: New Lawsuits Filed In Federal Court
Name Distributors As Defendants

By Donald J. Cayea, Esq., and Adam R. Bialek, Esq.

After attacking manufacturers in welding rod litigation, an enterprising Louisiana lawyer has followed the progression of other toxic tort litigations and has fired the first shots at distributors, seeking to hold them liable based upon their involvement in trade associations. Claiming that distributors not only have liability for stream of commerce claims, lawsuits have been filed claiming that distributors are independently liable as part of an industry-wide conspiracy to conceal the dangers of the welding rods they were selling. Three new welding rod cases have been filed in which numerous manufacturing defendants are identified, but which also name “John Doe” defendants to include distributors whose identities will become known during discovery. These cases are being closely monitored, as adverse results will likely lead to the filing of many more such claims, opening the flood gates to many years of potentially crippling litigation for the industry.

The Louisiana-based Law Offices of Daniel E. Becnel Jr. filed Complaints on behalf of the LeBlancs¹ and Blanks² in the U.S. District Court, Western District of Louisiana, and on behalf of the Davises³ in the U.S. District Court, Northern District of Alabama. The Complaints, which contain allegations that mirror each other, include three causes of action: negligence, negligent sale of a product and strict liability in tort. It is alleged that the plaintiffs were exposed to toxic fumes resulting from welding while working. Moreover, it is claimed that “the ordinary and intended use of welding products causes emission of fumes that contain manganese.”⁴ According to the Complaints, “manganese exposure for a period as short as 49 days can cause manganese poisoning” and Parkinson-like syndrome.⁵ The Complaints assert that in 1984, the chairperson of the Safety and Health Committee of the American Welding Society “admitted that manganese fumes can cause a disease quite similar to Parkinson's Disease after six months to two years of exposure” and that the Defendants (which would include the distributors) “were aware of this admission.”⁶

While the Complaints are not cast as class actions, Becnel claims to represent thousands of workers who were exposed to manganese fumes. The three actions filed will no doubt serve as test cases for the remaining exposed workers.

The Three New Welding Rod Cases
In all three Complaints, the plaintiff alleges that at various times he was exposed to toxic fumes when using defendants' products while working as a welder. The three plaintiffs claim that the welding fumes consisted of manganese, known since 1837 to be toxic to the human central nervous system if it exceeds the level typically found in the human body. The plaintiffs contend that the manganese exposure by inhalation has caused them to develop permanent neurological and physical damage that has resulted in symptoms similar to Parkinson's Disease. They allege that they suffer permanent neurological, emotional and physical damage; pain; loss of wages, earning capacity and the ability to enjoy life; and mounting medical expenses as the direct and proximate result of exposure to welding rod fumes.

All three claim that they were ignorant of the dangers of breathing manganese in the welding fumes. They allege that the defendants, consisting of manufacturers, sellers, distributors, suppliers and large industrial consumers of welding products, “knew or should have known of the health hazards inherent in the products they were selling, distributing or using.”⁷

General Electric Company has filed uniform motions to dismiss all three Complaints, arguing that a welding rod suit should be dismissed for failure to state a claim for negligence because it owed no duty of care to the plaintiff. GE argues that the Complaints' theory of trade member liability has been rejected in both state and federal courts; by the U.S. Supreme Court in NAACP v. Claiborne Hardware Co.⁸; by the Third Circuit U.S. Court of Appeals in In Re: Asbestos School Litigation⁹; by the Seventh Circuit U.S. Court of Appeals in Moore v. Boating Industrial Association¹⁰; and by the Alabama Supreme Court in Barnes v. Liberty Mutual Insurance Co.¹¹ GE urged in its motions:

While plaintiffs appear to base their negligence allegations entirely on the presumed involvement of all Defendants, including GE, in one or more trade organizations, there is a telling absence of authority for Plaintiff 's unstated proposition that mere membership or involvement in a trade organization creates a tort duty between members of the trade association and users of products in that trade. Absent such a duty, Plaintiffs cannot sustain their claim of negligence against GE.¹²

“Daubert” Issues Still Loom
If any of the recently filed Complaints survive the Rule 12 motions, the next likely attack by the defense will be a Daubert motion with respect to the medical expert testimony to be offered concerning causation. In Daubert v. Merrell Dow Pharmaceuticals,¹³ followed by General Electric Company v. Joiner¹⁴ and Kumho Tire Co. v. Carmichael,¹⁵ the Supreme Court recast the traditional evidentiary standard of “general acceptance within the relevant scientific community,”¹⁶ which had been the law for nearly 70 years, to one requiring the trial court to consider five different factors before admitting an expert's testimony is admissible. The five factors that must now be considered are:

1. Whether the expert's theory has been or can be tested for validity
2. Whether the theory has been subject to peer review and publication
3. The known or potential rate of error when the theory is applied
4. The existence and maintenance of standards of control, and
5. The degree to which the theory is accepted in the scientific community. ¹⁷

Fed. R. Evid. 702 now incorporates the Daubert reliability requirements. The Dec. 1, 2000, amendment to FRE 703 specifically provides that an expert may testify if: (1) the proffered testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the particular case at hand. It is important to note that a trial court's role is not to test the expert's conclusion, but rather his or her methodology in arriving at that conclusion.

The Advisory Committee Notes to Fed R. Evid. 702 reference a 3rd Circuit U.S. Court of Appeals case, In re Paoli R.R. Yard P.C.B. Litigation, 35 F.3d 717 (3rd Cir. 1994), to illustrate the “reliability factors” a court must consider in deciding whether or not to admit proffered testimony by an expert. These include:

1. Whether the method consists of a testable hypothesis
2. Whether the method has been subject to peer review
3. The known or potential rate of error
4. The existence and maintenance of standards controlling the technique's operation
5. Whether the method is generally accepted
6. The relationship of the technique to methods that have been established as reliable
7. The qualifications of the expert witness testifying based upon the methodology, and
8. The non-judicial uses to which the method has been put.

While expert testimony is usually challenged by a motion in limine, filed under Fed R. Evid. 104,¹⁸ summary judgment has been obtained in at least one reported decision involving a welding rod case: Burleson v. Nolan Glass, et al., 268 F. Supp. 2d 699 (W.D. Texas 2003). In Burleson, the U.S. District Court, Western District of Texas, granted a defense motion for summary judgment based upon its finding that the plaintiff 's expert was unreliable pursuant to Rule 702 of the Fed. R. Evid.

Burleson sued the Texas Department of Criminal Justice and Texas Correctional Industries, among others, claiming that the defendants were indifferent to his health when they allowed him to perform welding tasks using two percent thoriated tungsten electrodes during the two years he worked at the Boyd Unit's stainless steel plant. This, he claimed, exposed him to thorium dioxide. He alleges that the exposure resulted in right, non-small cell lung and throat cancer as well as right tonsillar squamous cell (throat) cancer. Interestingly, Burleson was a 45-year-old, two-pack-per-day smoker with a family history of cancer.

After the District Court dismissed the defendants, the case was remanded from the 5th Circuit Court of Appeals as to three defendants, finding that the District Court Magistrate Judge erred in finding no genuine issues of material fact as to whether the thoriated tungsten posed a significant health risk. The defense subsequently filed another motion for summary judgment, annexing two depositions of plaintiff 's expert, Dr. Arch Carson.

Dr. Carson rendered an opinion that Burleson inhaled radioactive particles while engaged in thoriated tungsten welding operations at the Boyd Unit and that the inhalation of radioactive materials led to the development of his tumors. He termed this a “radiation hot spot” or “microscopic flux” theory, claiming that the particles he inhaled provided “a continual radiation hazard to the few local cells near it.” Using the Daubert trilogy and Fed. R. Evid. 702, the court concluded that because Dr. Carson could not pinpoint any epidemiological studies to support his theory and because his theory had never been submitted for peer review, the testimony had to be excluded.

How Should Your Company Respond To Welding Rod Claims? Read how lawyers Richard Fields, Katherine Henry and Joel Fischman answered this question in the Summer issue by clicking here.

Other factors which apparently influenced the court were Dr. Carson's inability to indicate whether the “radiation hot spot” theory had any potential rate of error, the fact that Burleson's chest cancer developed in the identical latency period for a heavy smoker, and the fact that both the lung and throat cancers had been directly linked to cigarette smoking. Based upon the amalgam of these factors, the court concluded that the scientific community did not generally accept the proposition that exposure to thoriated tungsten welding rods causes cancer. The Court also excluded Dr. Carson's testimony on relevancy grounds, i.e., the expert had not determined the radiation dose to which Burleson was subjected, and since his “radiation hot spot” theory assumes a high dose, the evidence used to support the hypothesis was not reliable. The Court found that Dr. Carson was relying upon speculation and guesswork to support his theory and opinions.

Insurance Coverage Issues Beginning to Emerge
The causes of action asserted against the welding rod manufacturers and distributors are varied. With novel and unique claims being asserted by aggressive attorneys, more attention is being paid by manufacturers and distributors and their insurers to the issues involving coverage for such claims. Timely notice and pollution exclusions are two issues likely to be areas where disputes may arise and manufacturers and distributors must be aware of their rights and obligations. At least one insurer has commenced a declaratory judgment action seeking an adjudication of its rights under the policy which it issued to a distributor based upon the “Total Pollution Exclusion.” See U.S. Fire Insurance Co. v. Clendenin Bros., No.03-3308 (D.Md). This case is being closely watched as more litigation involving welding rods emerges.

FOOTNOTES:
 ¹ LeBlanc v. Lincoln Electric, et al, No. 04-0738, W.D. Ala. (filed March, 26, 2004).
 ² Blank v. Lincoln Electric, et al, No. 04-0971, W.D. La. (filed April 28, 2004).
 ³ Davis v. Lincoln Electric, et al, No. 04-0404, N.D. Ala. (filed Feb. 27, 2004).
 ⁴ See Blank Complaint, supra, at ¶7-8.
 ⁵ See Blank Complaint, supra, at ¶10-12.
 ⁶ See Blank Complaint, supra, at ¶41.
 ⁷ See Blank Complaint, supra, at ¶16-17.
 ⁸ 458 U.S. 886 (1982).
 ⁹ 46 F.3d 1284 (3rd Cir. 1994).
¹⁰ 819 F.2d 693 (7th Cir. 1987).
¹¹ 468 So.2d 124 (Ala. 1985).
¹² See GE's Memorandum in Support of Motion to Dismiss in LeBlanc, P.2.
¹³ 509 U.S. 579 (1993).
¹⁴ 522 U.S. 136 (1997).
¹⁵ 526 U.S. 137 (1999).
¹⁶ See, e.g., Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
¹⁷ See, Daubert, 509 U.S. at 593-595. 18
¹⁸ See, Daubert, 509 U.S. at 592.

(This article originally appeared in the July 2004 edition of HarrisMartin Publishing's LitigationWatch: Welding Rods, a monthly newsletter tracking case news and research in emerging welding rod and related litigation, available at www.harrismartin.com.)