High court refuses to hear Elam appeal

The Illinois Supreme Court refused to hear the appeal of defendants in a $1 million Madison County jury verdict -- the only welding rod trial successfully litigated in the United States.

That leaves standing the opinion of the 5th Appellate Court, which in December upheld Collinsville plaintiff Larry Elam's claim that manganese in welding rods caused his Parkinson's Disease.

The court denied the petition of Lincoln Electric, Hobart Brothers and The BOC Group for leave to appeal the case of Elam v. A.O. Smith et.al. on March 29.

"The opinion of the Fifth District affirmed the verdict based upon both the industry's failure to warn about the link between welding fumes and neurological injury and the failure of the industry to investigate the connection," stated Elam's attorney Robert McCoy of Vaughan Cascino Law Offices in Chicago, in a press release.

Elam filed suit in July 2001 claiming the defendants were negligent in failing to investigate welding health hazards and providing adequate warnings. He also claimed they should be held strictly liable because of lack of investigation and adequate warnings.

After a four-week trial in 2003 and $1 million verdict, presiding Associate Judge Ralph Mendelsohn's reduced the award to $925,000 because of a prior settlement made by Elam.

The defendants argued on appeal that Mendelsohn erred as a matter of law in refusing to enter a judgment in favor of defendants because warnings were issued--which Elam admitted he did not read--and therefore the "failure to warn" claim did not cause plaintiff's injuries.

Defendants also claimed there was no credible medical evidence linking manganese in welding fumes to plaintiff's Parkinson's Disease, yet the plaintiff relied on it as evidence. In the alternative, defendants contend they are entitled to a new trial due to numerous alleged errors and/or abuses of discretion on the part of the trial court.

Writing the opinion for the court, Appellate Judge Richard P. Goldenhersh writes, "Defendants rely on Kane v. R.D. Werner Co., 275 Ill. App. 3d 1035, 657 N.E.2d 37 (1995), in which our colleagues in the First District held that a plaintiff cannot maintain a products liability action premised on a failure-to-adequately-warn theory where a plaintiff admits he never read the given warnings.

"The Kane court determined that because the plaintiff failed to read the warnings, any inadequacy in the content of the warnings could not have proximately caused the plaintiff's injuries and the trial court properly granted a summary judgment.

"Here, the evidence indicates defendants packaged the relevant warnings in a way that virtually guaranteed plaintiff and others within the welding trade would not read them.

"The evidence at the trial showed that the warnings were placed on the cartons in which the welding rods were distributed. Testimony was presented that welders tended not to see the cartons.

"Dr. Zimmerman, an expert in industrial hygiene, reviewed the warning labels and testified that the first warning label issued in 1967 was not effectively communicated because it was only placed on the welding rod can, not on the rod. Dr. Zimmerman explained that because the label was only on the can, the welders would often not even see the warning because they tended to get the rods from a location other than the can."

Goldenhersh also writes, "Contrary to defendants' assertions, there is significant evidence in the record showing a link between Parkinson's Disease and manganese in welding fumes, and there is significant evidence supporting plaintiff's claim that defendants breached their duty to investigate the health hazards associated with welding."

"The final argument raised by defendants is that the verdict was against the manifest weight of the evidence. A verdict is only against the manifest weight of the evidence where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary, and not based upon the evidence."

"Our review of the evidence at the trial establishes that the jury's verdict is not against the manifest weight of the evidence."

"The record does not indicate that the jury's verdict was inconsistent with the evidence or the result of undue prejudice. We find the trial court properly denied defendants' motions for a directed verdict and for a judgment.. Likewise, defendants have failed to convince us they are entitled to a new trial due to any single error or the cumulation of errors."

Steve Gonzalez contributed to this report.