Welding rod litigation heats up; workers claim toxic fumes cause illness.

In 1969, neurologist Oliver Sacks discovered a seemingly miraculous treatment for patients suffering from a rare and especially debilitating form of parkinsonism that was thought to have been triggered by a viral epidemic shortly after World War I. The virus attacked the central nervous systems of its victims, weakening their muscles, giving them a fixed gaze, and leaving some in a permanent catatonic state.

While working with these patients in a mental hospital, Sacks discovered that those who were given the then-new drug L-dopa seemed to come back to life within hours of treatment. After spending decades in frozen silence, these patients were suddenly walking, talking, and laughing. Sacks wrote a book about the experience that was later made into an Oscar-nominated 1990 movie: Both were titled Awakenings.

Plaintiff lawyers are using the same word to explain why thousands of people with Parkinson's disease or parkinsonism--Parkinson's-like symptoms--have filed suit in the past year against welding rod manufacturers. Recent legal and medical developments, these lawyers say, have "awakened" welders and those who work near them to realize that their symptoms may have been caused not by a 50-year-old virus, but by toxic manganese fumes emitted during the welding process.

Class-action lawsuits await certification in several states, hundreds of claims have been consolidated in a multidistrict litigation (MDL) in federal court in Cleveland, and plaintiff lawyers estimate that individual claims now number in the thousands, with more being filed every day. (In re: Welding Rod Prods. Liab. Litig., No. 1535 (N.D. Ohio consolidated June 26, 2003).)

Don Barrett of Lexington, Mississippi, co-lead plaintiff counsel in the MDL, said his firm is handling about 2,500 cases. "We've had doctors screen potential clients in Alabama, Arkansas, California, Florida, Mississippi, Oklahoma, and Tennessee in the last two months," he said, "and a lot of other firms are doing the same thing."

About 10 percent of the people Barrett's firm screens have a solid case. "If every welder in the country gets tested, that's going to translate into probably 35,000 cases," he said. "The industry is in serious trouble."

In addition to rod manufacturers, defendants include designers, distributors, and sellers of welding equipment, as well as industry associations like the American Welding Society. The plaintiffs allege that the defendants did not do enough to warn of the danger of inhaling manganese fumes emitted during the welding process. Welding involves joining two metals together by using a filler material--the rod--which is heated to the melting point by electric current. As the rod melts, it releases small particles and gases into the air; including manganese.

Defense counsel contacted for this story did not return calls, but The BOC Group, Inc.--one of the world's largest manufacturers of welding rods and a defendant in the litigation--posted a statement denying liability, on its Web site: "BOC believes that there are strong defenses to the claims asserted in these various proceedings related to alleged injury from exposure to welding fumes.... BOC is not aware of any credible scientific evidence linking manganese in welding fumes to neurological damages under typical welding conditions."

In its 2003 annual report, Praxair Technologies, Inc.--a self-described international leader in welding technology--announced that by early February 2004 the company had been named as a co-defendant in 170 lawsuits alleging personal injury caused by manganese in welding fumes and seeking unspecified compensatory and, in most instances, punitive damages. "Praxair believes that it has meritorious defenses to these cases and intends to defend itself vigorously," the report states.

Unsafe exposure

No one denies that manganese, although essential to human health in small amounts, is poisonous in large quantities. High concentrations of manganese fumes have been associated with neurological injuries since 1837, when a scientist reported in a British journal that ore miners who inhaled the fumes over long periods in confined spaces suffered Parkinson's-like symptoms: fixed gaze, weakness, slowed movements, rigidity, and tremors. The condition was called manganism--a form of parkinsonism.

But scientists have yet to agree on how much exposure is too much. Even the National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA) disagree on what level is safe for workers. NIOSH's exposure limit allows a concentration no higher than 1 milligram of manganese per cubic meter of air over an 8- to 10-hour time-weighted exposure, while OSHA permits 5 milligrams per cubic meter of air for an 8-hour day in a 40-hour work week.

Plaintiff attorneys say defendants have known for decades that the typical exposure welders experience puts them at an increased risk of developing the symptoms of Parkinson's disease.

"The defendants have been successfully suppressing information about this problem since the 1930s," Barrett said. "For example, in 1937 [the insurance company] Metlife put out a safety pamphlet concerning the dangers of welding, and the primary danger [listed] was manganese poisoning from welding fumes. The welding industry appointed a committee to go talk to Metlife, and guess what? [The pamphlet] was all re-done and all that was removed.

"We have [defendants'] letters that say, 'We've got to put a warning on, but let's make it innocuous. If we do, that will get us by the next 10 or 12 years.' And we have another one that says, 'No, we can't put any warnings on, because if we did that, it would cost us 10 [percent] to 30 percent of our business.' And then finally we have one that says, 'We've got to put warnings on, but let's stick them on the bottom of the welding rod cans where nobody can see them.'"

The first six cases, during the 1990s, ended with defense victories. But in October 2003, a jury in Madison County, Illinois, returned a verdict in tarot of plaintiff Larry Elam, a part-time welder who claimed that exposure to manganese fumes caused him to develop Parkinson's at age 57. It was the second time the case had gone to trial; the first trial ended in a hung jury. The defendants are appealing. (Elam v. Lincoln Elec. Co., No. 01-L-/213 (III., Madison County Cir. Ct. Oct. 29, 2003).)

Supportive studies

Robert Bosslet Jr., one of Elam's lawyers, said he used industry documents to show that defendants BOC Group, Lincoln Electric Co., and Hobart Brothers were liable for failure to warn. Another key piece of evidence, Bosslet said, was an epidemiological study published in 2001 in the journal Neurology. Neurologist Brad Racette and several colleagues at the University of Washington in St. Louis studied 15 career welders with parkinsonism who were among 953 new patients at the university's movement-disorders clinic between 1996 and 2000.

Racette and his colleagues found that the welders had developed their symptoms an average of 17 years earlier than the control group. Although the researchers acknowledged that their study was limited, they concluded that "welding exposure acts as an accelerant to cause Parkinson's disease."

The study was a boon to plaintiffs, because defendants argue that while high manganese exposures can cause manganism, that condition is distinct from Parkinson's disease--the illness many plaintiffs, like Elam, claim they suffer from. Defendants claim that if a plaintiff has Parkinson's disease, he or she probably did not get it from exposure to manganese in welding fumes.

Bosslet said his client's case was also helped by the testimony of neurologist Paul Nausieda, the medical director of the Regional Parkinson's Center in Milwaukee. Nausieda testified that he had found a direct link between welding fumes and Parkinson's disease after studying roughly 12,000 welders. "He found Parkinson's disease in about 1,000 of those welders, so that's roughly an 8 percent incidence," Bosslet said. Only 1 percent of people in the general population over age 50 have Parkinson's disease.

Nausieda's findings are expected to be published soon, said Robert McCoy of Chicago, who also represented Elam. In the meantime, Racette is doing additional research that will refute defense claims that manganism and Parkinson's disease are two distinct maladies, McCoy said: "He's doing [more] research, into the diagnostic testing claims by the defendants that yon can distinguish Parkinson's from manganese by looking at the results of imaging tests like CT scans, PET scans, or MRIs."

Barrett said any difference between the conditions is irrelevant because none of his cases allege "pure Parkinson's disease. We don't have those in the MDL. We've elected to just try manganism cases."

But, he added, even if he had clients with Parkinson's disease, he would not be concerned that only one published study to date has suggested a link between welding and Parkinson's. "The medicine right now is not its strong on straight Parkinson's disease [as on manganism], but I think it's certainly strong enough to withstand a Daubert challenge. With manganism, the defendants couldn't even make a Daubert challenge; they concede manganism. With Parkinson's, the defense will make a Daubert challenge, and they will probably lose," he said.

McCoy said Daubert was not an issue in Elam's case because Illinois did not adopt Daubert rules, but he is looking forward to seeing Racette's and Nausieda's research published. "The sooner, the better. We've got the law. Now we have to get the medicine," he said.

Some plaintiff lawyers say welding rod cases may be the "next asbestos," but Bosslet disagrees. He said one key difference is that unlike asbestos manufacturers, welding rod makers started to warn workers of the dangers of inhaling manganese in the mid-1960s with a general admonition to use "adequate ventilation." The warnings became graver and more visible over the next 30 years moving from the material-safety data sheets distributed with the rods to the actual cans that contained them.

McCoy said even these were "inadequate and misleading." Another big difference from asbestos cases, he noted, is that there will not be as many claims.

But Barrett says the asbestos comparison is a fair one: "One reason the asbestos cases were so successful is the documents were so damning against the defendants. The welding rod litigation is going to be the same way in that we have very damaging documents. The juries are not going to like it."

And although he agrees with McCoy that there will probably be "considerably fewer cases," Barrett added, "the damages are greater in individual cases. With asbestosis you have shortened breath, but a person with manganism can't talk, they shake, they can hardly walk, their personality changes. It's just horrible."

The workers' compensatory damages will be considerable in these cases, he said, "and that's not even considering loss-of-consortium claims and punitive damages claims. This is a punitive damages claim if there ever was one. The industry's problems are just starting."