Several new toxic tort decisions have recently been handed down which have the potential to expand the field and create areas of mass tort litigation unseen until this point.

The first, Tamraz v. BOC Group, ESAB Group, Hobart Brothers, Lincoln Electric, and TDY Industries (2004 CV 18948), concerns the welding fume multidistrict litigation (MDL) venued in the Northern District of Ohio. The second, Tellez v. Dole Food Co., Cal. Sup. Ct. No. BC 312852, relates to claims brought by foreign farm workers who were exposed to soil fumigants used in other countries by U.S. multi-national corporations.

A discussion of each case appears below.

Tamraz v. BOC Group, ESAB Group,  HobartBrothers, LincolnElectric, and TDY Industries (2004 CV 18948)

Tamraz is one of 3,000 cases currently consolidated in an MDL in Northern Ohio concerning the alleged harmful effects of inhaling welding fumes. In Tamraz, a welder and his wife sued a group of welding rod manufacturers for the tremors, headaches and Parkinson’s-type symptoms he exhibited after being exposed to welding fumes for 27 years. The plaintiff contended that the manufacturers were strictly liable, negligently failed to warn of the fumes’ dangers, and fraudulently concealed the harm of the fumes. The plaintiff also claimed loss of consortium.

A jury determined that the manufacturers were strictly liable, had negligently failed to warn the plaintiff about the dangers of inhaling the ultra-fine manganese particles, and awarded compensatory damages to the wife for loss of consortium. However, the jury concluded that the manufacturers had not fraudulently concealed the dangers presented by the fumes and refused to award punitive damages. Of note, the welder did not have any other toxic exposures in his occupational background that would have offered a possible alternative causation theory. Hence, there was no issue of where his ill effects may have originated. Overall, the welder was awarded $17.5 million and his wife was awarded $3 million in compensatory damages.

The verdict in Tamraz represents the first victory for the plaintiffs in the MDL litigation since 2003. To date, the welding rod manufacturers have won 16 of 18 cases taken to verdict. However, at no point in the past has a verdict of comparable size been handed down.

In commenting on the award, John Climaco, one of the lawyers for the plaintiffs, said, “[w]e believe this is a turning point…We would hope the manufacturers would take the necessary steps in the future to properly warn welders and take the necessary steps to protect them from the manganese hazards in welding fumes.” All of the defendant manufacturers plan to appeal the verdict.

Tellez v. Dole Food Co. & Dow Chemical Co., Cal. Super. Ct.No. BC 312852

As a case of first impression, in Tellez 12 Nicaraguan farm workers sued two U.S. multi-national corporations claiming their exposure to the soil fumigant known as DBCP caused their sterility. Six of the workers were awarded $3.3 million, in toto, for their claims. In that case, the jury found that DBCP was a substantial factor in causing the workers’ sterility.

Of note, DBCP was banned by California in 1977, and the U.S. EPA banned registration of pesticides containing the substance in 1979. The EPA also linked the chemical to kidney and liver damage, testicular atrophy, miscarriages, and several forms of cancer. The chemical’s producer, Dow Chemical, recalled it from all U.S. customers around the same time. However, Dole sued Dow for breach of contract and for not providing the fumigant for use on its foreign banana plantations. As a result, Dow insisted in a later agreement that it be protected from liability for the chemical’s use by Dole.

Nonetheless, when the $3.3 million verdict was recently awarded, Dow was held 20 percent liable for the workers’ damages. Dole was allotted the other 80 percent of liability. The case represents the first of many other similar cases presently pending in Los Angeles Superior Court.

Significance

These two areas of potential mass toxic tort litigation will be closely watched in the future by the plaintiffs’ bar and industry alike. Each decision has implications for creating similar cases and has carried multimillion-dollar verdicts –much to the chagrin of all defendants involved.

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For further information, please contact the editors, Daniel W. McGrath, Craig T. Liljestrand or Jason S. Bentley, or your regular Hinshaw attorney.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.