MADISON - ST. CLAIR RECORD

In a 2-1 decision, the Fifth District Appellate Court affirmed Madison County Circuit Judge Nicholas Byron's order to give welder Steve Boren a new welding rod trial.

In a decision released Sept. 12, the appellate court ruled Byron did not abuse his discretion in granting Boren a new trial.

On Dec. 1, 2005, after a month long trial, a Madison County jury issued a defense verdict after two hours of deliberations.

Boren of Cape Girardeau, filed suit in 2001 alleging he suffered neurological injuries after being exposed to manganese-containing welding fumes. He was seeking close to $7 million in damages.

The defendants on trial included Praxair, Viacom, Union Carbide, The BOC Group, Sandvik Inc, Lincoln Electric and Hobart Brothers.

The case was originally set for trial in May 2005, but Byron declared a mistrial when the parties agreed that an impartial jury could not be selected from the prospective jurors.

Prior to selecting a jury for the second trial, Byron informed attorneys from both sides that it was important to have a fair trial.

"Neither side will be allowed to talk to the press given the tenor of some of the publications in this county and some of the newspaper articles in this county," the judge said.

"I'm concerned here with a fair trial, and so I'm going to impose a restriction on all parties and counsel not to talk to the press except to say you're here, whom you represent, or some statistical information," he added.

Prior to Boren's trial, Byron also granted several of Boren's motions in limine.

Byron banned defense lawyers from arguing that "welding lawsuits, or plaintiff's claims, are 'lawyer-made' or 'cottage industry' lawsuits or claims, or that such cases are generated or caused by plaintiff's counsel."

When the trial began on Nov. 1, 2005, Boren testified that he began employment in the welding industry in 1976 and that he worked as a welder until he was diagnosed with Parkinson's disease in 1998.

Boren presented expert testimony that manganese in welding fumes from the defendants' products could have caused his Parkinson's disease, while the defense argued that there was no relationship between welding fumes and Parkinson's disease.

According to court documents, one of Boren's key experts, Dr. Nausieda, a neurologist who practices in Milwaukee, Wis., testified that manganese can cause central nervous system disorders, such as Parkinson's disease, and that there is a link between welding and central nervous system disorders.

During the cross-examination of Dr. Nausieda, the defense questioned him about the basis for his opinions, which included a "Gulf Coast study" in which he screened various welders from shipyards from the Gulf Coast states for Parkinson's disease.

Nausieda testified that he became involved in this Gulf Coast study at the request of a law firm in Louisiana

Welders who wanted a screening showed up at a union hall for their examination, and Nausieda testified that he did not know "exactly how they got there."

Next, defense counsel put up a photo of a billboard on the overhead screen that stated, "WELDING ROD INJURIES? call 1-800-INJURED Milwaukee."

Since the billboard was not associated with anyone or any study related to Boren's case, Boren's legal team wanted a mistrial.

After a conversation in Byron's chambers, he said he would not call a mistrial, but would tell the jury that the billboard had absolutely nothing to do with the trial.

Boren was represented by Goldenberg Miller Heller & Antognoli of Edwardsville and the Vaughan Cascino Law Offices in Chicago. He stayed at a Collinsville hotel during the trial.

Jeff Hebrank of the Hepler Broom law firm in Edwardsville represented the defendants. Chicago attorney Pat Gloor also was a member of the defense team.

Bryon granted a directed verdict in favor of Hobart on Nov. 17, 2005, after Boren finished with his case.

Byron then entered the judgment of the jury in favor of the remaining defendants on Dec. 7.

In February 2006, Boren filed a motion asking for a new trial arguing that during the trial, defense counsel made inflammatory and prejudicial comments relating to frivolous lawsuits, which might have improperly influenced the jury's verdict.

Boren took issue with defense counsel's use of the billboard advertisement during the cross-examination of Dr. Nausieda and also argued counsel made improper comments during closing arguments.

According to court documents, the defense made several references to welding lawsuits being a "cottage industry " and in criticizing Dr. Nausieda stated to the jury: "It is a cottage industry, and we're the heavies. Let's see if we can get a jury to believe that Parkinson's disease is caused by welding."

Before Byron could rule on the motion, the defendants produced more than 457,000 pages of new discovery material in a federal multi-district litigation that had not been produced in the Boren case.

The discovery material contained information revealing that they had failed to disclose payments of approximately $600,000 toward several studies relating to welding fumes and central nervous system injuries in Boren's case.

The studies were used by several key defense witnesses during their testimony that welding was not associated with increased frequency of Parkinson's disease.

On June 20, 2006, while Byron had the motion for a new trial under advisement, Boren filed a motion to reopen arguments on the motion for a new trial, alleging that the defendants failure to furnish the documents impaired his ability to cross-examine key defense witnesses.

Byron granted Boren's motion on Nov. 22, 2006 causing the defense to appeal.

On appeal, they argued Byron abused his discretion in granting the new trial.

Writing the opinion for the majority, presiding justice Bruce Stewart writes, "The decision of a trial court to grant a new trial is an exercise of discretion which should not be disturbed unless a clear abuse of that discretion is shown."

Citing the decision in Magnani v. Trogi, Stewart adds, "Reviewing courts defer to the trial court's discretion because 'the trial court has had the opportunity to consider the conduct of the trial as a whole[] and therefore is in a superior position to consider the effects of errors which occurred, the fairness of the trial to all parties, and whether substantial justice was accomplished."'

"A trial judge's discretion is given deference because he is in a position to observe
the trial attorneys' manner of speaking and the impact their comments had on the jury," Stewart added.

"Upon reviewing the record in the present case, we cannot say that the cumulative effect of the errors noted by the circuit court did not affect the verdict."

Justice Richard Goldenhersh concurred with Stewart.

On dissenting with the majority, justice Stephem Spomer writes, "I respectfully dissent. I believe the trial judge abused his discretion, and I would reverse his order granting a new trial."

"I fail to see how the defendants' failure to disclose the exact amount of funding they provided to studies could reasonably be said to have prejudiced Boren's ability to challenge the impartiality of Dr. Olanow."

"In light of this absence of prejudice, I believe that the judge's sanction of granting a new trial was far out of proportion to the gravity of the defendants' discovery violation–assuming, arguendo, that one occurred–and was therefore unreasonable."

"With regard to the billboard issue, the judge noted in his order that he initially
believed that his admonishment to the jury was sufficient to cure any prejudice that might have resulted."

"It was only after the judge became aware of the purported discovery violation that he reversed his position on the photo issue, found his previous admonishment to no longer be sufficient, and declared Boren's argument to be 'well taken."'

"I do not believe that it is reasonable to take the view adopted by the trial judge in his order granting a new trial. To the contrary, close scrutiny of the view adopted by the trial judge, and of the record as a whole, leads to the conclusion that the reasons given by the judge are insufficient and that the order really amounts to nothing more than an opportunity for a plaintiff who did not prove his case to have another bite at the apple."

"Accordingly, I would reverse the order. Because my colleagues have decided to do otherwise, I respectfully dissent from their decision."