State Supreme Court Reverses Plaintiff Verdict in Welding Rod Litigation

While a handful of large plaintiff verdicts has garnered much of the media attention, most of the trials involving welding fume claims have been favorable to defendants. Something like 26 out of 31 trials have resulted in defense verdicts. Since January 2006, thousands of plaintiffs have abandoned their claims. In fact, plaintiffs have dismissed about 2/3 of the cases they had certified as trial‐worthy in the federal MDL court. Plaintiffs are now actively pursuing fewer than 750 cases in the MDL proceeding, a reduction of approximately 85 percent from the number of pending MDL cases in 2005.

The latest development in this mass tort sees the Mississippi Supreme Court overturning
a $1.86 million jury verdict in favor of a welder who claimed welding rods manufactured by
The Lincoln Electric Co. and ESAB Group Inc. caused his magnesium-related neurological
disease. Lincoln Electric Co. et al. v. McLemore, No. 09-CA-00320 (Miss. 12/9/10).

Plaintiff Stanley McLemore worked as a welder for almost thirty years. In the course of his
career, McLemore worked all over the country, with two long stints at Grand Gulf Nuclear
Power Station from 1980 through 1984 and from 1993 through 1998. He developed symptoms in 2001 and went to the doctor. While McLemore saw a host of physicians between December 2001 and his trial date in 2008, they determined that he had some form of Parkinsonism. A few considered manganism, but ultimately decided against that diagnosis. Dr. Swash was McLemore’s main expert witness at trial. This doctor was the only physician to diagnose McLemore with manganism. According to Dr. Swash, manganism is a syndrome with features of atypical Parkinsonism that is caused by exposure to manganese.

McLemore stated that he first learned that he suffered from manganism in 2005, and then he sued in late 2005. However, defendants claimed he had been diagnosed with a welding-related  neurological illness in early 2002.  McLemore filed various lawsuits claiming neurological injuries from exposure to welding products as early as February 2004, against various corporations for injuries suffered from those defendants’ sale and/or distribution of defective welding consumables. The complaint did not name either Lincoln Electric or ESAB.

Mississippi has a three year statute of limitations, and defendants therefore sought summary judgment. McLemore contended that he had no cause of action until he knew that he had manganism. Pursuant to Mississippi law, a plaintiff’s cause of action accrues at the point at which he discovered, or by reasonable diligence should have discovered, the injury. Therefore, the Court had to consider the application of the latent-injury/discovery rule and whether McLemore’s statute of limitations began to run when either (1) he knew of his diagnosis of Parkinsonism, or (2) he knew of the diagnosis of manganism. 

In Angle v. Koppers, Inc., 42 So. 3d 1 (Miss. 2010), the state Court determined that the plain
language of the state act supported an interpretation “that the cause of action accrued upon
discovery of the injury, not discovery of the injury and its cause.” Id. at 5. Applying Angle to the instant case, McLemore knew of his injury in September, 2002. At that time, his doctor informed him of the correlation between his symptoms and welding; that is, informed McLemore that he had Parkinsonism and that it might have been related to his welding work.. The statute does not require a plaintiff to know the actual cause of the injury before accrual of the cause of action.  McLemore
thereafter sought legal advice which resulted in an initial filing of a lawsuit in 2004 claiming
“serious neurological injury” from exposure to manganese products. Consequently,
McLemore’s argument that he had no knowledge of his injury and its relation to welding
until his diagnosis of manganism failed. The Court rejected the plaintiff's distinction between knowledge of a diagnosis of a welding-related illness (Parkinsonism) and a welding-related injury (manganism).

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