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Cases & Controversies
The Prudent Jurist By William H. Simon
Dickie Scruggs takes on the welding industry.
RICHARD SCRUGGSDICKIE TO EVERYONE HE MEETSstrode down the aisle of a federal district courtroom in Cleveland, Ohio, one morning last October. "Mornin'!'' he cried, grabbing the hands and slapping the backs of the pinch-mouthed defense attorneys who filled the benches of Judge Kathleen O'Malley's court. Lean and jaunty, without the paunch he acquired during his battle against cigarette companies in the 1990s, the 59-year-old Scruggs turned to a man with puffy gray hair who, like him, was wearing the navy-suit uniform favored by many in the room.
"He made a lot of money off me in the tobacco litigation," Scruggs said to introduce Don Barrett, his co-lead counsel and fellow member of the Ole Miss plaintiffs' bar (the University of Mississippi, to those up North). Scruggs kept smiling as he shook hands with the five lawyers on his side of the aisle. Just when the tight smile seemed in danger of breaking, he turned to glad-hand four of the defense attorneys as their co-counselors trailed in. Scruggs then worked the room's periphery, bestowing best wishes and how-de-do's on the court clerk, the paralegals, and, finally, on a law clerk seated alone in a back corner who was assembling papers in white binders. "Do you remember me?" asked the young man, who had met Scruggs at an earlier hearing. Scruggs responded without hesitation, "Yes, I do."
The niceties of etiquette are Scruggs's hallmarks, as are messy class action suits and spectacular winnings. In the 1980s, he secured settlements in the millions of dollars by proving that shipyards had failed to protect workers from asbestos dust that caused respiratory illnesses. After that, Scruggs and his cadre wrestled a $206 billion settlement from tobacco companies whose executives had lied and scuttled research to keep consumers from discovering the deadly nature of their products. (From the tobacco litigation alone, Scruggs said he will make $240 million.) Last year, he turned his sights on not-for-profit hospitals, filing dozens of cases nationwide that accused them of charging uninsured patients far more than people with coverage. This year belongs to the welding rod.
Welding litigation may lack the sexiness of asbestos or tobacco, but the verdicts that Scruggs is aiming for could wreak financial havoc on the welding industry. His clients are thousands of welders who complain of tremors and neurological problems that impair their thinking, talking, eating, and sleeping. They blame their ailments on manganese, which is emitted when welding rods are heated, and they contend that the industry failed to warn them that small amounts of manganese released in the air and inhaled could damage their central nervous systems.
The welders have sued nearly 30 entities, including rod manufacturers, companies that marketed and used the rods, and the trade group called the American Welding Society. Judge O'Malley has merged more than 6,000 claims into a multidistrict litigation, and the first case, brought by Charles Ruth of Lucedale, Miss., who suffers from neurological damage, is scheduled for trial this summer. The suits allege that members of the society (much of the welding industry) conspired to conceal information about the risks of welding. For example, they accuse some companies of suppressing a 1932 medical article that linked welding to a disease similar to Parkinson's.
During a pretrial motion in O'Malley's courtroom, George Ruttinger of Crowell & Moring in Washington, D.C., struggled to extricate the $30 billion company Caterpillar from the fight. He argued that the plaintiffs hadn't specified what role, if any, his client had played in the alleged conspiracy. "Caterpillar doesn't make these," he said, holding up a welding rod. "Caterpillar makes these." The lawyer unwrapped a toy version of an earthmover. Caterpillar and its fellow defendants, Ruttinger continued, were being penalized for joining the trade associationwhich was "probably inconsistent" with the First Amendment right to association.
But O'Malley wouldn't let Caterpillar off so easily. While noting that the plaintiffs would have to prove that collusion took place, she said the defendants might have had plausible motives for conspiring to hide the ill effects of manganesethe desire to keep products cheap. "This is bad public policy," Ruttinger grumbled. "The idea that someone can undertake a duty just by joining a trade association is untenable."
Some defendants will likely wriggle out of the case, Scruggs acknowledged privately, but not all of them, for there is precedent for the plaintiffs' success. In 2003, Lawrence Elam, a 65-year-old welder with Parkinson's disease, sued a host of manufacturers for negligence in plaintiff-friendly Madison County, Ill. Elam accused them of conspiring to withhold information about the link between manganese fumes and neurological injury. The jury found that the three manufacturers who went to trial were liable for either failing to warn Elam about the dangers of welding or for failing to provide him with proper safety directions. Though it wasn't certain what the companies had done wrong, the jury awarded Elam $1 million. Soon after, Scruggs set to work on his lawsuits.
How Scruggs fares will hinge on the murky question of what sickened the former welders. Doctors have long known that inhaling manganese can trigger health problems. Manganism, as the disease is known, can cause welders to experience hallucinations, and later suffer from symptoms similar to Parkinson's. Those afflicted may develop an odd gait, a stiff trunk, and difficulties with balance. Some may go on to develop sleeplessness and a kind of psychosis known as "manganese madness."
Scruggs insists that manganism and Parkinson's are medically indistinguishable. An even stronger piece of evidence is a 2001 study at Washington University School of Medicine in St. Louis, Mo., of 15 welders who developed Parkinson's earlier than most patientsin their 40s as opposed to their 60s. The study suggested that manganese fumes could be a factor.
Defense counsel disputes that study, among others, insisting that there is no conclusive proof that welding causes either manganism or Parkinson's, the cause of which is unknown. "What you have is a big campaign to identify welders who have Parkinson's,'' said John Beisner, the lead defense counsel from O'Melveny & Myers, referring to Scruggs's technique of advertising for clients. "Welding has been around for a hundred years. If you have that many welders with a disease, you would have been notified earlier."
To prove the Parkinson's link, Scruggs has hired a squadron of experts to collect the minutes of the American Welding Society's meetings and to run more tests on the effects of welding. The evidence-gathering is bankrolled by the 40 firms working with Scruggs; each chips in $50,000 to $100,000 to join the litigation, and Scruggs and his co-lead counsel seek additional contributions to cover costs as the need arises. (The defense has commissioned its own study to prove that there is no conclusive link between welding and Parkinson's.)
In O'Malley's court, however, Scruggs wasn't waiting for the results of his or defense counsel's research, as he worked to keep as many deep-pocketed defendants as possible in the case. He stood before the judge, buttoned his jacket, and began with the palate cleansing, "May it please the court."
Caterpillar was a member of the American Welding Society, which sets safety standards for the industry, Scruggs explained. He was direct, and not preachy. No matter that Caterpillar is not involved in welding now. "When you have a conspiracy, everyone is tied to the conspiracy,'' Scruggs said. "Those who come early. Those who come late."
"Do you have access to the membership rolls?" O'Malley queried.
"We're getting it,'' Scruggs promised. "We're learning more and more every day." If his past is prologue, Scruggs's war chest should be able to drum up plenty of evidence.