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).

Court of Appeals Vacates Jury Verdict for Plaintiff in Welding Case

The Sixth Circuit last week vacated one of the rare plaintiff verdicts in the welding rod litigation.  Tamraz  v. Lincoln Electric Co., et al., 2010 WL  3489002 (6th Cir. 9/8/10).  The key issue in the appeal was the trial court's decision to allow a causation expert, Dr. Walter Carlini, to testify on behalf of the plaintiff Jeff Tamraz over defendants' Daubert challenge.

From roughly 1979 to 2004, Jeff Tamraz worked as an independent-contracting welder in California, on bridges and buildings.  Plaintiffs contended that Mr. Tamraz suffers from manganese-induced Parkinsonism as a result of exposure to manganese-containing welding fumes on these jobs.

The case went to trial in 2007, and the jury in the Northern District of Ohio (plaintiffs are from Oregon) returned a plaintiff verdict, awarding $17.5 million to Jeff Tamraz in compensatory damages and $3 million to his wife, Terry Tamraz, for loss of consortium.

Defendants, including Lincoln Electric, Hobart Brothers Co. and ESAB Group Inc., appealed on various grounds, including the trial court's decision to permit the testimony of Dr. Carlini on causation issues despite the Daubert challenge.

The opinion offers a number of useful observations for toxic tort litigation, especially on the almost-always central issue of causation.

It begins with a nice overview of the science on the spectrum of movement disorders often termed "parkinsonism" that have different causes and different but overlapping symptoms.  No one disputed that plaintiff here suffered from parkinsonism; the questions were what kind and from what cause. Apparently, every doctor to examine Tamraz reached a different conclusion about one or both of those issues.  Plaintiff's expert concluded that Tamraz suffers from “manganese-induced parkinsonism,” but not in the sense of a manifestation of the disease "manganism," as that phrase is sometimes used in these welding cases. Rather, he believed that manganese exposure caused something closely akin to traditional Parkinson's Disease in Tamraz.  Dr. Carlini hypothesized that Tamraz might have a genetic predisposition to Parkinson's Disease, and that manganese in lower levels than necessary to cause true manganism might nevertheless “trigger” the symptoms of Parkinson's Disease, like “the straw that broke the camel's back.” He did not believe that Tamraz has Parkinson's Disease in the strict medical sense, but manganese caused a disease that he believed to be otherwise similar to Parkinson's Disease. 

Defendants disputed this conclusion that manganese exposure caused the illness; that is, they challenged Dr. Carlini's etiology (what caused the disorder diagnosed?), not the methodology to arrive at his general spectrum diagnosis (what disorder caused the set of symptoms observed?).  And the Sixth Circuit agreed there were serious issues here. The problem here was that, when Dr. Carlini testified that manganese exposure caused Tamraz's condition, he went beyond the boundaries of allowable testimony under Rule 702.

The opinion was at most a working hypothesis, not admissible scientific “knowledge.” Fed.R.Evid. 702. His theory was a "plausible hypothesis. It may even be right. But it is no more than a hypothesis."  For example, the expert admitted that the literature hypothesizing a link between environmental toxins and latent genetic Parkinson's Disease was “all theoretical.”  He also conceded there were no studies finding a link between manganese and true Parkinson's Disease.  He further he conceded that he was speculating that Tamraz had an underlying predisposition to Parkinson's Disease, even though Tamraz had no family history of Parkinson's Disease. 

And finally, even if manganese could cause Parkinson's Disease in someone like Tamraz, that did not show that manganese did cause Tamraz's Parkinson's Disease. Parkinson's Disease occurs commonly in the general population and usually without any known cause. Any given case of Parkinson's Disease thus might have occurred regardless of the manganese exposure, making it hard to attribute one case to manganese exposure over all of the other possible causes.

Plaintiffs stressed on appeal that Dr. Carlini opined “with a reasonable degree of medical certainty,” but the court of appeals correctly noted that the phrase --the conclusion by itself-- does not make a causation opinion admissible. The “ipse dixit of the expert” alone is not sufficient to permit the admission of an opinion. General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). Minus that one phrase, nothing in this testimony took the opinion beyond speculation, theory, hypothesis. 

Plaintiffs, understandably, also tried to bolster the opinion by emphasizing areas of agreement among experts on the general diagnosis of some parkinsonism disorder.  But in conflating “manganese-induced parkinsonism” with manganism, plaintiff conflated diagnosis with etiology, erasing the distinction between Tamraz's disease and what caused it. Diagnosis and etiology, however, both were in play in this case. Because Dr. Carlini diagnosed Tamraz with something akin to Parkinson's Disease, not manganism, and because Parkinson's Disease unlike manganism has no standard etiology and lots of idiopathic cases, Dr. Carlini's etiology opinion had to rise or fall on its own.

Plaintiffs also trotted out the standard "differential diagnosis" argument, the tent that supposedly (and too often does) covers all kinds of unreliable causation opinions from medical experts.  The court here made some very useful observations about this issue. 

1) Most treating physicians have more training in and experience with diagnosis than etiology. See D. Faigman, Judges as “Amateur Scientists”, 86 B . U. L.Rev. 1207, 1221-22 (2006); E. Imwinkelried, The Admissibility and Legal Sufficiency of Testimony About Differential Diagnosis (Etiology), 56 Baylor L.Rev. 391, 405 (2004); M. Henefin, Reference Guide on Medical Testimony, in Reference Manual on Scientific Evidence 439, 471-72 (2d ed.2000). 

2) When physicians think about etiology in a clinical setting, moreover, they may think about it in a different way from the way judges and juries think about it in a courtroom. 

3) Getting the diagnosis right matters greatly to a treating physician, as a bungled diagnosis can lead to unnecessary procedures at best and death at worst. See Bowers v. Norfolk S. Corp., 537 F.Supp.2d 1343, 1361 (M.D.Ga.2007). But with etiology, the same physician may often follow a precautionary principle: If a particular factor might cause a disease, and the factor is readily avoidable, why not advise the patient to avoid it? Such advice  --telling a worker, say, to use a respirator-- can do little harm, think the doctors, and might do some good. See J. Hollingsworth & E. Lasker, The Case Against Differential Diagnosis: Daubert, Medical Causation Testimony, and the Scientific Method, 37 J. Health L. 85, 98 (2004). A lower threshold for making a causation decision serves well in the clinic but not in the courtroom, said the court. 

Of course, some courts permit the physician to testify as to etiology using this methodology, e.g., Hardyman v. Norfolk & W. Ry. Co., 243 F.3d 255, 260-67 (6th Cir.2001), but even these courts must apply the Daubert principles carefully in considering it. The ability to diagnose medical conditions is not remotely the same as the ability to deduce, in a scientifically reliable manner, the causes of those medical conditions. Gass v. Marriott Hotel Servs., Inc., 501 F.Supp.2d 1011, 1019 (W.D.Mich.2007), rev'd on other grounds, 558 F.3d 419 (6th Cir.2009). Doctors thus may testify to both, at least in the Sixth Circuit, but the reliability of one does not guarantee the reliability of the other. 

Thus, whether plaintiffs described Dr. Carlini's causation methodology as “differential etiology” or “differential diagnosis,” that label does not make it reliable. Using the differential diagnosis method is not some "incantation that opens the Daubert gate.”  The issues remain, did the expert make an accurate diagnosis of the nature of the disease? Did the expert reliably rule in the possible causes of it? Did the expert reliably rule out the rejected causes? If the court answers “no” to any of these questions, the court must exclude the ultimate conclusion reached. See Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171, 179 (6th Cir .2009).

Here, Dr. Carlini's opinion failed the last two prongs because his efforts to “rule in” manganese exposure as a possible cause, or to “rule out” other possible causes, turned on speculation and theory and hypothesis, not a valid methodology. 

While expressing sympathy for the plaintiffs, the court observed that ignoring Rule 702 — allowing the law to "get ahead of science" — would be just as unfair. Such an approach eventually would destroy jobs and stifle innovation unnecessarily, because it would impose liability on business based on speculation, not science.

Case remanded for new trial, with different evidence obviously. 

(The dissent would have found the challenge going to the weight, not admissibility of the testimony, and the trial court's decision not an abuse of discretion.)

California Jury Returns Defense Verdict In Welding Fumes Trial

Jurors in Oakland, CA., concluded last week that welding products manufacturers were not liable for any neurological impairments suffered by a long-time welder. See Thomas v. A.O. Smith Corp., at al. (Calif. Super. Ct., Alameda Cty.).The trial lasted about 3 weeks, and the Alameda County jury delivered its verdict after approximately three and a half hours of deliberations. Judge Robert B. Freedman presided. Trial defendants included Lincoln Electric Co., ESAB Group, and Hobart Brothers Co.

The Thomas trial marks the first time allegations that a worker became ill from exposure to welding rod fumes has been heard by a California state court jury. Thomas had alleged that welding rod manufacturers knew that welding fumes were toxic and failed to adequately warn of the risk of neurological disorders. As a result of his exposure, Thomas alleged he suffered severe physical and emotional injuries.


On the eve of trial, Judge Freedman had denied defense motions to exclude testimony by Thomas’ medical experts and industrial hygienist, but granted a motion to preclude a plaintiff warning expert from offering an opinion as to whether defendants had a duty to warn or on the effectiveness of defendants’ warning labels.

Judge Freedman also barred plaintiffs from making pejorative references to the “welding industry,” or making plaintiffs' typical, inappropriate comparisons to tobacco or asbestos companies. However, the judge denied a defense motion to prevent plaintiffs from referring to defendants’ lobbying activities.

The jury’s finding was that welding fumes did not cause the plaintiff’s injury, and this seems to support what defendants have contended: there is no sufficient link between welding fumes and Parkinson’s disease. By our count that is 22 of the last 26 verdicts for defendants in this mass tort.