MRO Magazine

Illinois Tool Unit fined for withholding documents in welding fume case

Cleveland, OH -- (Bloomberg) A U.S. federal judge fined an Illinois Tool Works Inc. unit $45,000 and ordered it and...


Environment

June 13, 2006
By MRO Magazine
MRO Magazine

Cleveland, OH — (Bloomberg) A U.S. federal judge fined an Illinois Tool Works Inc. unit $45,000 and ordered it and other welding rod makers to turn over secret documents as punishment for producing evidence late before a trial.

The Illinois Tool unit, Hobart Brothers Co., released 15,000 pages of documents just days before a trial began June 5 in Cleveland in a lawsuit by a 57-year-old welder diagnosed with Parkinson’s-like symptoms. The welder, Ernesto Solis, claims he was sickened by toxic fumes released from welding products made by Hobart, ESAB Group Inc., TDY Industries Inc. and Lincoln Electric Co., the world’s largest maker of welding equipment.

Hobart’s late disclosures “constitute not only violation of the parties’ obligations under the civil rules, but they constitute blatant violations of this court’s orders,” U.S. District Judge Kathleen O’Malley said, according to a June 7 transcript of remarks she made with the jury out of the courtroom. The documents “are clearly relevant, clearly should have been produced a long time ago.”

The lawsuit in federal court in Cleveland is one of several thousand against welding-equipment makers, contending that the fumes released when welding rods are heated cause neurological disorders. Welding-equipment companies have lost one of the 11 lawsuits that have gone to trial. The disclosure of additional documents may give welders a better chance of winning, law professor Carl Tobias said.

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“There could be nothing, but there could be a smoking gun,” said Tobias, who teaches product liability law at the University of Richmond Law School in Virginia.

The companies won’t appeal the order, industry spokeswoman Brandy Bergman said. The documents will play no role in the Solis trial, which hasn’t gone to the jury yet, she said.

“We don’t believe the court’s decision on this motion will prevent this Cleveland jury from reaching the right decision in this case,” Bergman said. “The bottom line is, welding is not responsible for Mr. Solis’s ailments.”

Eric Wetzel, a spokesman for Solis’s attorneys, said the documents will have an impact on future welding-fume cases around the U.S.

“It is unfortunate that these key industry documents were turned over so late in the game,” he said. “We remain confident in the jury hearing Mr. Solis’s case.”

The trial is the first of about 4,000 federal cases consolidated in Cleveland. Thousands of additional lawsuits have been filed in state courts. A federal class action asking for medical monitoring for welders in eight states also is pending in Cleveland.

Welders have sued the four defendants in the Solis case and more than 70 other companies, including General Electric Co., BOC Group Inc. and Westinghouse Electric Corp., claiming they failed to warn about the risk of manganese poisoning. Manganese is released in fumes when welding rods or wires are subjected to intense heat during welding.

The plaintiffs say the fumes can cause neurological symptoms, including tremors, which mimic Parkinson’s. The defendants said last week during the trial that their products are safe when used with adequate ventilation.

Judge O’Malley ordered Hobart to pay Solis’s attorneys $45,000 to cover the costs of going through the new papers. O’Malley also criticized Hobart and other defendants for designating more than 300 other documents as privileged just before trial, meaning they didn’t have to be handed over.

Under ordinary evidence-handling procedures, the court would review those documents to determine whether the defendants could prevent the plaintiffs’ lawyers from seeing or using them because of attorney-client privilege, said Oscar Chase, a law professor at New York University School of Law. Judge O’Malley said there will be no such review.

“I will direct the special master to turn the documents over to plaintiffs’ counsel,” O’Malley said. “The right to assert the privilege as to those documents was forfeited by the defendants’ complete failure to abide by their discovery obligations and the court orders on this issue.”

The lawsuit in trial is Solis v. Lincoln Electric Co., No. 04-17363, U.S. District Court, Northern District of Ohio (Cleveland).