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Recent developments in welding-rod cases in three state courts suggest that the demise of this litigation is not imminent, despite an Ohio hearing set for this week on whether to sanction plaintiffs’ counsel for filing two allegedly questionable federal cases. Plaintiffs’ verdicts were recently upheld by intermediate appellate courts in Illinois and New York, and the Maryland high court was the first to hold that an insurer’s pollution exclusion does not shield it from a duty to defend and indemnify a welding-rod defendant. About 10,000 such cases are pending in state and federal courts nationwide. In the sanctions motion in the federal multidistrict litigation, set to be heard this week in Cleveland, defendants compared the plaintiffs’ expert witness, neurologist Dr. Paul Nausieda, to a radiologist accused of generating thousands of allegedly false claims in federal silica litigation in Texas. In the federal welding-rod litigation, Nausieda diagnosed “manganism,” a nervous disorder caused by exposure to manganese fumes, in most plaintiffs. But at least one plaintiff, court papers allege, lied to both sides and their experts about the extent of his condition, prompting plaintiffs’ counsel to dismiss their cases. In re Welding Fume Products Liability Litigation, No. 03-cv-17000/MDL 1535 (N.D. Ohio). The first case in the federal multidistrict litigation settled before trial in September 2005 for a reported $1.5 million. Plaintiffs’ wins in state courts An Illinois appellate court unanimously affirmed a $1 million Madison County jury verdict that for the first time linked a retired welder’s Parkinson’s disease with manganese fumes from welding rods. Elam v. Lincoln Electric Co., No. 5-04-0120 (Ill. App. Ct.). Robert W. Bosslet Jr., an attorney with Bosslet & O’Leary in Granite City, Ill., who represents plaintiff Lawrence E. Elam in the Illinois case, said he is “cautiously optimistic.” Bosslet added, “We have an unanimous appellate court opinion, no dissents.” He and co-counsel Robert G. McCoy of Chicago’s Cascino Vaughan Law Offices were opposed at trial by Chicago’s Cassiday Schade & Gloor (which changed its name last week), and Burroughs, Hepler, Broom, MacDonald, Hebrank & True of Edwardsville, Ill. The plaintiff’s lawyers were opposed on appeal by Chicago’s Kirkland & Ellis. The BOC Group of Murray Hill, N.J., a welding-rod defendant, said in a statement that the Elam verdict was “clearly an aberration”-the only one of nine cases it has lost at trial so far. Another element favoring the plaintiffs in the Elam appellate opinion is the court’s acceptance of the testimony of plaintiffs’ expert Nausieda, the Milwaukee neurologist who diagnosed the majority of welding-rod plaintiffs, and whose work in Elam and other cases the defense has derided as “false.” The Elam court was satisfied that the jury resolved the “disagreement among experts about the precise symptoms associated with manganese exposure.” The court held that “the evidence here supports the jury’s finding that [Elam] suffers from a central nervous system injury caused by the manganese in welding fumes.” Elsewhere, New York’s intermediate appellate court affirmed a pair of first-ever verdicts linking two welders’ lung cancer/mesothelioma with their exposure to welding-rod fumes. Wiegman v. A C & S Inc. and Gomez v. A C & S Inc., 2005 N.Y. Slip Op. 10215 (N.Y. App. Div.). And Maryland’s Court of Appeals was the first state high court to hold that an insurance policy’s total pollution exclusion does not shield an insurer from its duty to defend and indemnify a welding-rod manufacturer in lawsuits involving localized, noxious workplace fumes. Clendenin Brothers Inc. v. United States Fire Insurance Co., 2006 CA Misc. No. 2 (Md.). The issue before the Clendenin court was raised in a declaratory judgment action filed in Maryland federal court, which certified the question to the state’s Court of Appeals. United States Fire Insurance Co. v. Clendenin Brothers Inc., No. 03-3308 (D. Md.) In the only other state or federal case to address the insurance issue in the context of manganese welding fumes, the 4th U.S. Circuit Court of Appeals held that the pollution exclusion shielded an insurer from a duty to defend. National Electrical Manufacturers Association v. Gulf Underwriters Insurance Co., 162 F.3d 821 (4th Cir. 1998).

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