Jowers v. BOC Group, Inc. (608 F. Supp. 2d 724, 2009)

Citations

608 F. Supp. 2d 724

Full opinion text

MEMORANDUM & ORDER

KATHLEEN McDONALD O’MALLEY, District Judge.

This product liability action was brought by husband-and-wife plaintiffs Robert and Donna Jowers against the following three defendants, each of which manufactured welding rods that Mr. Jowers used: (1) BOC Group, Inc., (2) ESAB Group, Inc., and (3) Lincoln Electric Company. The case was assigned to the undersigned as related to the Multi-District Litigation known as In re Welding Fumes Products Liability Litigation, MDL No. 1501, case no. 03-CV-17000. Trial of this matter began on February 7, 2008 and culminated on March 6, 2008 with a jury verdict in favor of the plaintiffs. Specifically, the jury found: (1) against all three defendants on Mr. Jowers’ claim for failure to warn, and awarded him $1.2 million in compensatory damages; (2) in favor of all three defendants on Mrs. Jowers’ claim for loss of consortium; and (3) against all three defendants on Mr. Jowers’ claim for punitive damages, and awarded him a total of $1.7 million in punitive damages. The jury further found, under comparative fault principles, that Mr. Jowers’ own negligence was 40% of the cause of his injuries. On March 13, 2008, the Court entered judgment consistent with this verdict.

Twice during the course of trial — after the close of plaintiffs’ case, and then after the close of their own case — defendants moved for judgment as a matter of law, pursuant to Fed.R.Civ.P. 50(a). The Court granted the first motion in part, and denied the second motion. Defendants now renew their earlier motions for judgment as a matter of law, pursuant to Fed. R.Civ.P. 50(b), and also ask, in the alternative, for a new trial. The Court rules on these motions as follows:

• Defendants’ Renewed Motion for Judgment as a Matter of Law on All Claims, or for New Trial (docket no. 441) is DENIED.

• Defendants’ Renewed Motion for Judgment as a Matter of Law on Punitive Damages (docket no. 445) is DENIED.

In addition, the Court rules as follows on the two post-judgment motions filed by plaintiffs:

• Plaintiffs’ Motion to Amend the Judgment or for New Trial on the Loss of Consortium Claim (docket no. 442) is DENIED.

• Plaintiffs’ Motion for Attorney Fees and Expenses (docket no. 447) is GRANTED. As explained in section III.B.4 of this opinion below, defendants shall, on or before the date 28 days from the date of this Order, file either a stipulation or a challenge to the amount of Fees and Expenses claimed by the Jowerses.

I. Legal Standards — Rules 50 and 59.

Federal Rule of Civil Procedure 50(a) states that, “[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue,” then the court may “grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.” If, as did the undersigned in this case, the Court denies the Rule 50(a) motion made during trial, “the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion.” The movant may then “renew its request for judgment as a matter of law by filing a motion no later than 10 days after the entry of judgment.” The defendants timely filed their motions for judgment or new trial pursuant to Rules 50(b) and 59(b).

After a verdict is returned, the Court may rule on a renewed Rule 50(b) motion by: (a) allowing the judgment to stand, (b) ordering a new trial, or (c) directing entry of judgment as a matter of law. The Court may properly choose the third option and “grant[] a motion for judgment as a matter of law only if the facts and inferences point so strongly in favor of one party that reasonable minds could not disagree.” When examining a Rule 50 motion based on sufficiency of the evidence, the court must “consider all of the evidence — not just that evidence which supports the non-mov[ant’s] case — but in the light and with all reasonable inferences most favorable to the [non-movant].” The trial judge cannot re-weigh the evidence, nor assess the credibility of witnesses, nor substitute its own judgment for that of the jury. When the evidence would permit reasonable minds to differ on the issues decided by the jury, a motion for judgment as a matter of law must be denied. If there is “substantial evidence in the record raising a relevant fact issue for determination by the jury, the decision of that issue may neither be taken from the jury nor its decision of that issue reversed by the trial judge.” In short, every effort must be made to uphold the verdict, if reasonably possible; the Court must “show appropriate deference for the jury’s determination.”

As to Rule 59, “the rule governing new trial is less strict.” A trial court “should not grant a new trial on evidentiary grounds unless the verdict is against the great weight of the evidence.” “In making this determination, the district court weighs all the evidence, but need not view it in the light most favorable to the nonmoving party. While the court is to respect the jury’s collective wisdom and must not simply substitute its opinion for the jury’s, ‘[i]f the trial judge is not satisfied with the verdict of a jury, he has the right — and indeed the duty — to set the verdict aside and order a new trial.’ ”

11. Defendants’ Motions.

A. Causation.

With their first post-judgment motion, defendants offer a single argument supporting their contention that the jury did not have a legally sufficient evidentiary basis to find in the Jowerses’ favor. Defendants note the evidence was undisputed that, in addition to suffering exposure to welding fumes given off by products manufactured by the three defendants in suit (Lincoln, BOC, and ESAB), Mr. Jowers was also exposed to welding fumes given off by at least two other manufacturers— Hobart and Select Arc. Defendants argue that “plaintiffs needed to prove that, if Mr. Jowers was overexposed, it was to fumes generated by welding consumables made by the defendants, rather than non-defendant manufacturers.” Defendants argue that plaintiffs failed to so prove and therefore any jury verdict against them is based only on speculation.

The evidence adduced at trial pertinent to this issue is as follows. Mr. Jowers worked at Ingalls Shipbuilding in Pascagoula, Mississippi from 1972 to 2005, with the exception of about a four-year gap between 1981-85. During his roughly 30 years at Ingalls, Mr. Jowers worked as a shipfitter, shipfitter supervisor, and ship-fitter foreman. One of the primary tasks of a shipfitter is cutting and joining steel with, respectively, a torch and a welding machine.

The process of joining steel by welding generally involves the melting of a “welding consumable,” which is used to fuse together two pieces of metal. Welding consumables come in two categories: (1) stick electrodes, which are relatively short; and (2) wire, which comes on spools in longer lengths. When using stick electrodes, the welder has to pause periodically to attach a new stick to his welding apparatus; when using wire, the welder pauses to “reload” much less frequently. Both stick and wire consumables give off fumes that contain manganese, with wire consumables generally producing more copious fumes. For the vast majority of his career, Mr. Jowers used stick electrodes. Specifically, he worked on the “fillet weld machine,” which used wire, for about 14 months; during the rest of his career he used stick electrodes. Mr. Jowers inhaled fumes given off by the consumables he used, as well as the consumables (both stick and wire) used by the other shipfitters and welders with whom he worked.

The breakdown of the welding consumable products that Ingalls purchased during Mr. Jowers’ career, and the subset of those products that Mr. Jowers actually used, may be summarized as follows. When Mr. Jowers began welding for In-galls in 1972, the vast majority of welding consumables Ingalls purchased were stick electrodes. Beginning in the early 1980s, Ingalls began purchasing more wire consumables, and by the mid-1980s about 70% of the welding consumables that Ingalls purchased were spools of wire, with the remaining 30% being stick electrodes. Those percentages have remained fairly constant ever since.

Of the wire consumables, during the 1980s, Hobart and ESAB each provided to Ingalls about half its total supply. Subsequently, Hobart, ESAB, and Select Arc each supplied about one third of Ingalls’ total supply. Thus, during the latter part of Mr. Jowers’ career, Hobart and Select Arc — who were not defendants at the time of trial — together supplied two thirds of the wire consumables purchased by In-galls, and thus as much as half of the total amount of the welding consumables (wire and stick) purchased by Ingalls. The wire consumable that Mr. Jowers used during his 14 months on the fillet welding machine could have been manufactured by ESAB, Hobart, or Select Arc. Mr. Jowers recalls using wire consumables manufactured by ESAB and Hobart.

As to stick electrodes, when Mr. Jowers started welding, Ingalls purchased products manufactured by Airco (a BOC predecessor) almost exclusively. Then, between 1975 and 1986, Ingalls purchased stick electrodes primarily from Airco and Alloy Rods (an ESAB predecessor), with smaller amounts purchased from Lincoln and Hobart. Thus, during the first 11 years of his welding career, virtually all of the stick electrodes that Mr. Jowers used were manufactured by the three defendants who were at trial, and he used them “every day.” After 1986, the primary suppliers of stick electrodes to Ingalls were defendants Lincoln and ESAB and non-defendant Hobart.

With regard to Mr. Jowers’ fume exposure levels, the evidence at trial was that, when he worked as a shipfítter, Mr. Jowers spent about three hours every day welding and breathing fumes given off by his own welding process. He was in close quarters with other welders, however, and so was actually exposed to welding fumes — produced either by himself or others — for a total of about seven hours every day. When he worked as a supervisor, Mr. Jowers spent only about two hours per week welding himself, but was again exposed to welding fumes produced by others about six hours every day. The vast majority of the fumes he produced himself came from welding rods, as opposed to welding wire; the fumes produced by other welders were from both types of consumable. Mr. Jowers was a shipfítter between one third and one half of his career, and a supervisor during the rest.

Mr. Jowers was never required by his employer to wear a respirator during his entire career, and he never felt as though he needed a respirator, or was receiving inadequate ventilation. Although he was “generally satisfied” with the ventilation levels in the areas he worked, Mr. Jowers testified there was still always smoke in a “properly ventilated” room. Mr. Jowers, did see other welders using respirators in confined areas with no ventilation, and sometimes passed through such areas, but he never welded in a confined area with no ventilation himself. Certain areas where Mr. Jowers worked, such as the “Stacking Hull,” tended to produce higher fume exposures because of the number of welders and the configuration of the work area; Mr. Jowers tried to avoid these areas once his neurologist told him his fume exposure was causing him injury. During his career, Mr. Jowers never observed any industrial hygienists engage in air monitoring or sampling to measure workers’ fume exposure levels.

To support their argument that they are entitled to judgment as a matter of law, defendants first asserted that “Mr. Jowers had only minimal exposure to [their] products regardless of whether they were wire or stick.” But the record summarized above does not support this assertion. As noted, of the roughly 30 years that Mr. Jowers worked at Ingalls, he used wire consumables for only about one year; the rest of the time, he used stick electrodes. Further, for the first half of his career— through 1986 — virtually every electrode Mr. Jowers used was manufactured by the three defendants who were at trial: BOC, ESAB, and Lincoln. And during the second half of his career, Ingalls continued to purchase stick electrodes from defendants Lincoln and ESAB, as well as from non-defendant Hobart. This all translates not to “minimal exposure” to their products, but rather to Mr. Jowers’ substantial exposure to welding consumables manufactured by defendants BOC, ESAB, and Lincoln over the entirety of his career.

It is true, as defendants point out, that, in addition to his exposure to the fumes produced by welding consumables he used himself, Mr. Jowers also suffered exposure to the fumes produced by welding consumables used by his co-workers. Defendants seize on this fact and infer that, because these co-workers may have been using more consumables manufactured by non-defendants — for example, these co-workers were, in toto, probably using more wire than stick, and thus more consumables manufactured by non-defendants Hobart and Select Arc than by defendants — Mr. Jowers’ total fume exposure attributable to BOC, ESAB, and Lincoln is lower than suggested by an examination of only the brands of stick electrodes he used himself. Even accepting this inference, however, a reasonable juror could still conclude that Mr. Jowers suffered substantial exposure to fumes from welding consumables manufactured by defendants BOC, ESAB, and Lincoln over the course of his career. After all, through the mid-1980s, Mr. Jowers’ co-workers were — like Mr. Jowers, himself — using stick electrodes manufactured almost exclusively by the three defendants who were at trial. And thereafter, BOC, ESAB, and Lincoln continued to supply a very large fraction of the stick and wire consumables purchased by Ingalls.

At best, defendants’ “passive fume exposure” argument establishes that, later in his career, Mr. Jowers inhaled increasing amounts of fumes given off by welding consumables manufactured by non-defendants; but this is certainly not tantamount to a necessary conclusion that, over the course of his entire career, Mr. Jowers was exposed to insubstantial amounts of fumes given off by welding consumables manufactured by BOC, ESAB, and Lincoln. Put more succinctly, defendants are simply incorrect that Mr. Jowers adduced insufficient evidence of substantial exposure to their products. Considering all of the evidence in the light and with all reasonable inferences most favorable to Mr. Jowers, as the Court must, a reasonable jury could conclude there was sufficient evidence of exposure to defendants’ products to support a verdict in Mr. Jowers’ favor.

In their reply brief, defendants change their focus somewhat and explain that, even if Mr. Jowers proved he had substantial exposure to welding consumables manufactured by both defendants and non-defendants, he did not prove it was defendants’ products that actually caused him harm. Defendants explain:

[E]ven if there is proof that exposure to welding fumes caused plaintiffs injury, there are several cause-in-fact scenarios, including but not limited to the following:

• The one and only cause of plaintiffs injury was exposure to fumes generated by non-defendants’ products;

• The one and only cause of plaintiffs injury was exposure to fumes generated by defendants’ products; or •

• There were several causes of plaintiffs injury, including his exposure to fumes generated by defendants’ products and non-defendants’ products.

* * * Mr. Jowers cannot hold [defendants] liable when it is entirely possible that the only liable parties were not joined, and plaintiffs have offered no evidence that would permit the jury to decide who is actually liable — defendants, non-defendants, or some combination.

Essentially, defendants argue it is conceivable that Mr. Jowers’ manganese-induced parkinsonism (“MIP”) may have been caused by inhaling the manganese-containing fumes produced only by the stick electrodes and wire manufactured by non-defendants; therefore, the jury had to speculate impermissibly and the three defendants at trial cannot be held hable.

This refined argument has more force than defendants’ initial “minimal exposure” argument. It is one, moreover, that requires a far more detailed analysis of the exposure evidence presented at trial, including the medical and scientific evidence regarding the mechanics of overexposure to manganese in the workplace and the nature of MIP.

In this case, viewing the evidence and inferences that may be drawn therefrom in a light most favorable to Mr. Jowers, the jury was presented with the following evidence relevant to overexposure. Several governmental and professional entities have established various measures to define safe exposure limits to toxins, including manganese. These measures include: (1) Threshold Limit -Values (“TLVs”), which are promulgated by the American Conference of Governmental Industrial Hygienists (“ACGIH”); and (2) Permissible Exposure Limits (“PELs”), which are promulgated by the Occupational Safety and Health Agency (“OSHA”). The TLV is the maximum average amount to which, it is believed, a person may be safely exposed over an 8-hour time period. The PEL is the maximum ceiling amount to which a person may be safely exposed at any moment in time. Thus, a welder may suffer momentary manganese fume exposures in excess of the PEL ceiling limit, but not suffer an average exposure over his workday in excess of the TLV; similarly, a welder may suffer average exposures in excess of the 8-hour limit imposed by the TLV, but not momentary exposures in excess of the PEL absolute ceiling.

Over time, the ACGIH has reduced the TLV for manganese exposure. In 1948, the TLV was an 8-hour time-weighted average of 6.0 mg/m3; in the late 1970s, shortly after Mr. Jowers started welding, the TLV was 5.0 mg/m3; and today, it is an 8-hour time-weighted average of 0.2 mg/m3. This decrease reflects the ACGIH’s increasing concern over the toxicity of manganese exposure. OSHA’s current PEL for manganese, which has been in effect since the early 1970s, is 5.0 mg/m3. OSHA’s PEL incorporates concerns regarding the cost to businesses of compliance with exposure limits, while the ACGIH’s TLVs are concerned exclusively with worker safety.

Documents authored by the defendants, and by trade organizations to which the defendants belong, discuss manganese in welding fumes and the applicable PELs and TLVs — especially during times when the TLVs were lowered. One such document, circulated widely within the welding industry at about the time Mr. Jowers started welding, is known as the Battelle Survey; it was sponsored by the American Welding Society (“AWS”) in 1972. The Survey stated:

The fumes from manganese are highly toxic, and they can produce total disablement even after exposures as short as a few months to high-fume concentrations .... Exposure to manganese dioxide may cause a neurological lesion involving the basal ganglia, the frontal cortex, and occasionally the pyramidal system. Symptoms are similar to Parkinson’s syndrome and include ‘weakness of the legs,’ difficulty in walking downhill, instability, and weakness while doing heavy work.

The Survey also stated that several welding rods “produced manganese and vanadium fumes that exceeded recommended TLVs,” which were 5.0 mg/m3 at the time.

Regarding these TLVs, documents produced by defendant Lincoln Electric concede that “early limits are outdated and insufficiently protective of worker health.” More specifically, AWS meeting minutes written in 1981 state: “some cases of manganism have been documented at levels below five milligrams per cubic meter, and that this was the reason that the current threshold limit value was lowered to one milligram per cubic meter.” Further, defense witnesses admitted that the level at which manganese exposure becomes unsafe is not known for certain; and plaintiffs’ expert Kahane testified there is at least one report of a documented case of Manganese-Induced Parkinson-ism — a welder who was also employed at Ingalls — that occurred with exposure levels below the current TLV of 0.2 mg/m3.

In addition to setting manganese exposure limits, OSHA agents travel to various worksites around the country to audit whether employees, including welders, are experiencing exposures in excess of the legal limits. These measurements are collected in an OSHA database. OSHA’s measurements of manganese exposures endured by welders include all types of circumstances: indoor and outdoor welding, use of high- and low-manganese welding rods, well- and poorly-ventilated conditions, and so on. Analysis of the OSHA database — which includes thousands of measurements taken over the last 20 years — shows that: (1) about 30% of the welders were, at the time of measurement, experiencing manganese exposure in excess of OSHA’s current time-weighted-average TLV of 0.2 mg/m3; (2) about 5% of the welders were, at the time of measurement, experiencing manganese exposure in excess of the ACGIH’s current TLV-C “ceiling limit” of 1.0 mg/m3; (3) welders were about five times as likely to be experiencing manganese exposure in excess of OSHA’s current TLV as were non-welders; and (4) these statistics have held fairly constant over the duration of the 20-year measurement period.

Beyond these generalized observations regarding welding fume exposures experienced by the “typical” or “average” welder, Mr. Kahane testified about Mr. Jowers’ own welding experiences and the air sample monitoring data kept by Ingalls. Mr. Kahane found that Ingalls’ own data revealed “many, many” instances where workers at Ingalls suffered exposures above the TLV of 0.2 mg/m3. Mr. Kahane further testified that, based on his review of the data and his discussions with Mr. Jowers regarding Mr. Jowers’ own welding activity (summarized above) and the industrial hygiene practices in his workplace: (1) Mr. Jowers was routinely overexposed above the 0.2 mg/m3 TLV during his 30-year career at Ingalls, and (2) these overexposures occurred more frequently during the first seven years of Mr. Jowers’ career, when he was not a supervisor, before wire consumables predominated.

Finally, the jury was presented with evidence that: (1) excessive exposure to manganese can cause a disease known as Manganism, or Manganese-Induced Parkinsonism (“MIP”); (2) the symptoms of MIP are similar to those of Idiopathic Parkinson’s Disease (which is what defendants maintain Mr. Jowers has); and (3) individual susceptibility to the adverse effects of manganese varies considerably. Indeed, defendants’ own experts and documents concede each of these points. For example, ESAB’s warning labels now state: “Overexposure to manganese and manganese compounds above safe exposure limits can cause irreversible damage to the central nervous system, including the brain.” Lincoln has acknowledged, in a letter to one of its customers, that “[mjedical studies link welding fume exposure to neurological conditions resembling Parkinson’s disease. * * * Manganese welding is identified as one of the more dangerous types of welding with regard to fume exposure.” Dr. Anthony Lang, a defense expert neurologist specializing in movement disorders, agrees that welders can get Manganese-Induced Parkinsonism from welding fume exposure. And defense expert Dr. Howard Hurtig agrees that susceptibility to the adverse effects of manganese varies from individual to individual.

The sum of this evidence, along with fair inferences, allowed a reasonable jury to reach two relevant conclusions. First, Mr. Jowers’ exposure to manganese did not exceed safe levels only at a single point in time, when he was using a particular welding consumable; rather, the jury could (and apparently did) conclude there were innumerable instances during his career when the manganese he inhaled from welding fumes exceeded the TLV of 0.2 mg/m3. As stated by Lincoln in 1994, this TLV, which is an 8-hour-per-day, 40-hour-per-week time-weighted average, is probably “exceeded in most workplace atmospheres.” Thus, there was substantial evidence to support a jury determination that, during the course of his 30-year career at Ingalls, Mr. Jowers suffered overexposure to manganese due to inhaling fumes from products manufactured by every substantial supplier of welding consumables to Ingalls — both defendants and non-defendants.

Second, the effects of exposure to manganese are cumulative. The jury could conclude that each and every overexposure that Mr. Jowers suffered added to the damage of that portion of Mr. Jowers’ brain which governs voluntary movement. There was substantial evidence to support a jury determination that the many over-exposures Mr. Jowers suffered combined to cause a single, indivisible injury, a type of brain damage diagnosed by his treating neurologist as Manganese-Induced Parkinsonism. No single exposure and no single welding consumable was, alone, the cause of Mr. Jowers’ injury.

While defendants argue it is theoretically conceivable that “the one and only cause of Mr. Jowers’ injury is his exposure to non-defendants’ products,” defendants had every opportunity to make this argument to the jury and had the benefit of instructions requiring the jury to find each defendant, individually, was a proximate cause of harm to Mr. Jowers. More important, the jury had the benefit of both direct and circumstantial evidence — including expert opinions and sufficient facts upon which those opinions could be reasonably and reliably based— from which it could conclude that the possibility defendants posit did not actually occur. To the contrary, the evidence sufficed to allow a reasonable jury to infer and conclude that Mr. Jowers was regularly overexposed to manganese contained in fumes given off by welding consumables manufactured, in substantial part, by each defendant, and that the sum of those over-exposures was a proximate cause of his injuries.

Significantly, the fact that Mr. Jowers was also exposed (or overexposed) to fumes from welding consumables manufactured by two non-defendants does not affect the legitimacy of the jury’s verdict. That is, there is no factual or legal requirement that, in order to recover at trial, the harm caused to Mr. Jowers by his exposure to welding fumes be caused only — or even mostly — by the products manufactured by defendants BOC, ESAB, and Lincoln. Mississippi common law recognizes that: (1) a plaintiffs injuries may have been proximately caused by more than one defendant, and (2) the plaintiff may pursue fewer than all defendants who proximately caused his injury. In Hall v. Hilbun, for example, the plaintiffs executor sued the decedent’s doctor, but not the decedent’s nurses. The Mississippi Supreme Court observed that defendant “Dr. Hilbun’s failures in the area of post-operative care were not so substantial as the nurses’ failures. Under established law, however, if Dr. Hilbun breached the duty of care he owed to Mrs. Hall and if such breach, if any, was a proximate cause of Mrs. Hall’s death, plaintiff may recover full damages of and from Dr. Hilbun, notwithstanding that others may have been more at fault and that their fault was the more substantial factor causing Mrs. Hall’s death.”

Similarly, in Brake v. Speed, the Mississippi Supreme Court examined the common law applicable to several defendants who combined to cause a plaintiff an indivisible injury. The Brake court discussed a case it had decided earlier, known as Collier, where a commercial catfish farm sued “several [farmer] defendants for damages resulting from killing or contaminating fish in the [plaintiffs] ponds through the use of poisonous agricultural chemicals applied by the farmers and their crop duster agents.” The Collier court reasoned that

the damage and injury to [the catfish farm] was a gradual process over a period of several weeks.... Probably ... the application of the poison by any one [farmer] would not have been sufficient to contaminate the fish, but the combined applications of two, three or more [farmers] were sufficient to cause the resulting damage. The [farmers] knew, or by the exercise of reasonable care should have known of [the plaintiffs] catfish operations, the toxic effect of the application of agricultural poison on the fish and that all the [farmers] were or had been, making the applications of poison.

Thus, the Collier court held that the “separate, concurrent, and successive negligent acts of the [farmers] which combined to proximately produce the single, indivisible injury to [plaintiffs] property ... rendered [farmers] jointly and severally liable.” The Brake court reaffirmed this analysis, adding: “Additionally, for all intents and purposes, the successive applications of the poison, were concurrent and there was no way to apportion the damage.”

Currently, Mississippi does not provide for joint and several liability except in cases of deliberate tortious conduct. Specifically, Miss.Code § 85-5-7(2) states that, “in any civil action based on fault [including claims for strict liability and failure to warn], the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated to him in direct proportion to his percentage of fault.” But this apportionment statute continues to recognize the concept of a “joint tort-feasor,” where two or more persons may concurrently engage in “an act or omission of a person which is a proximate cause of injury or death to another person.” And the statute also continues to recognize that not all joint tortfeasors— indeed, not even those with the majority of fault — need be named as defendants by the plaintiff. So long as the actions of a defendant were a “substantial factor” in causing harm to the plaintiff, that defendant may be held liable.

In this case, while defendants BOC, ESAB, and Lincoln did argue to the jury that the presence of non-defendants’ welding products in the workplace was relevant to causation, defendants never asked the Court to instruct the jury to allocate fault to other, absent welding consumable manufacturers, such as Hobart and Select Arc. Indeed, BOC, ESAB, and Lincoln agreed that the jury need not allocate percentages of fault even amongst the three of them when determining compensatory damages. Whatever their reasons for not seeking allocation of fault against other, non-defendant manufacturers of welding consumables used by Mr. Jowers, there was sufficient evidence that each of the three defendants at trial was a proximate cause of harm to Mr. Jowers. That other defendants may have also proximately caused those same indivisible injuries is not a valid basis for granting judgment notwithstanding the verdict.

Finally, the Court does not perceive that the jury’s verdict is against the great weight of the evidence. Accordingly, the defendants’ motion for new trial, premised on the assertion that the jury must have speculated about whether it was defendants’ welding consumables that proximately caused harm to Mr. Jowers, must also be denied.

B. Punitive Damages.

With their second post-judgment motion, defendants seek judgment as a matter of law on Mr. Jowers’ claim for punitive damages. Before trial, the Court denied defendants’ motion for summary judgment on the punitive damages claim; during trial, the Court also denied two Rule 50 motions directed at the same claim. Defendants now renew their motion for judgment as a matter of law on the question of punitive damages, arguing that plaintiffs failed to carry their evidentiary burden of proving that any defendant engaged in the type of conduct for which Mississippi law allows punishment by imposition of exemplary damages.

In Mississippi, statutory law provides that punitive damages may be awarded only if the plaintiff proves “by clear and convincing evidence that the defendant against whom punitive damages are sought acted with actual malice, gross negligence which evidences a willful, wanton or reckless disregard for the safety of others, or committed actual fraud.” In light of the Court’s grant of defendants’ Rule 50 motion directed at plaintiffs’ claim for conscious misrepresentation, the parties and the Court agreed to excise from the jury instructions the statutory references to actual malice and to fraud. Accordingly, to obtain punitive damages, Mr. Jowers was required to show at trial, by clear and convincing evidence, that defendants acted with “gross negligence which evidences a willful, wanton or reckless disregard for the safety of others.”

The Mississippi Supreme Court has explained that “there is no right to an award of punitive damages and such damages are to be awarded only in extreme cases.” Putting it differently, the same court has stated that punitive damages “are not favored in the law and are to be allowed only with caution and within narrow limits.” Accordingly, “[i]n order to warrant the recovery of punitive damages, there must enter into the injuries some element of aggression or some coloring of insult, ... or gross negligence, evincing ruthless disregard for the rights of others, so as to take the case out of the ordinary rule.” “In regards to gross negligence, ‘punitive damages are ordinarily recoverable only in cases where the negligence is so gross as to indicate reckless or wanton disregard of the safety of others.’ ” Ultimately, it is the combination of misconduct with a negative mens rea that justifies punitive damages.

In this case, the defendants offer three arguments why no reasonable jury could find they displayed a reckless disregard for the safety of welders: (1) “manufacturers cannot be liable for punitive damages where they make some effort to warn about possible hazards associated with the use of their products;” (2) “a defendant cannot be held hable for punitive damages when there is scientific debate regarding the validity of the plaintiffs’ allegations;” and (3) “defendants’ warnings complied with OSHA and industry standards — as well as military specifications.” The essence of all of three of these arguments is that, even if defendants failed to warn welders that inhaling welding fumes can cause permanent brain damage, the context surrounding this failure shows it was not so egregious that it warrants punishment through exemplary damages. The Jowerses respond that, to the contrary, they presented sufficient evidence upon which a jury could reasonably conclude that “the defendants had knowledge of the debilitating dangers of their products, but time and time again they recklessly disregarded the safety of welders in order to protect their own pecuniary interests.” The Court first recapitulates below the evidence presented at trial pertinent to all three of these arguments and to the question of punitive damages, viewed in a light most favorable to Mr. Jowers. Following its review of the evidence, the Court analyzes each of defendants’ three arguments separately.

1. Defendants’ Knowledge of and Warnings about Welding Fume Toxicity.

The defendants first obtained knowledge of the toxicity of welding fumes over 75 years ago. Specifically, in 1932, Dr. Erich Beintker published a report titled “The Effect of Manganese During Arc Welding.” Although written in German, the report was translated and came to the attention of the welding rod industry in America. Dr. Beintker was one of the first persons to suggest that exposure to manganese in welding fumes could be neurologically hazardous. The Metropolitan Life Insurance Company, in a 1937 Booklet titled “Health Protection of Welders,” summarized Dr. Beintker’s report as follows:

Two cases of poisoning in a mild form, by manganese oxide fumes given off from the electrodes in arc welding of tanks and boilers, have been reported from Germany. The electrode used contained 0.2 percent manganese. It is stated that protective filter respirators or air helmets are necessary in tank and boiler work, although in open rooms it is improbable that these precautions will be needed.

The Booklet went on to explain the symptoms of manganese poisoning:

Manganese is an important poison from the point of view of its effects rather than from frequency of exposure to it. Manganese has a selective action on some of the nerve centers of the brain. It causes a disease similar to paralysis agitans, which in chronic cases is seldom fatal, but which, owing to the fact that no satisfactory treatment is known, is always disabling. Prevention, therefore, is the measure to be stressed when the possibility of manganese dioxide fumes or dust is present. Industry trade group documents, as well as defendants’ internal memoranda, show that the MetLife Booklet and its conclusions regarding the toxicity of manganese in welding fumes were widely discussed when they appeared.

Despite defendants’ having obtained this knowledge, there are documents showing that, over the course of the following three decades, certain defendants in this case decided, both individually and jointly, not to supply warnings with their welding rods, and, in some cases, to explicitly discount any threat of welding fume health hazards. A few examples include:

• In a 1949 internal BOC memorandum, the history of the product manufacturers’ use of warnings was summarized as follows: “the arc welding industry at one time desired to take every precaution to guard against injury, and the [National Electrical Manufacturers Association “(NEMA”) ] decided to incorporate a warning clause on all electrode box labels. It turned out, however, that some of the manufacturers did not do this and as a result immediately capitalized on the advantage of being able to sell an electrode which did not have to be marked ‘poison.’ As a result, one by one all of the various manufacturers took this information off the label and all were very glad to get it off.” The memo added that “My own personal feeling is that we would lose at least from 10% to 30% of our business if we were the only ones to [put a warning on our welding rods,] and from correspondence I have had with over half a dozen other manufacturers I am sure none of them would consider such a clause on their labels under any circumstance whatever. In discussing this 10% to 30% possible loss, Mr. Tin-non, of Metal & Thermit Corporation, told me he was sure such percentages were low, and Mr. Lincoln of the Lincoln Electric Company said that if his company did anything like that it would put him out of business.”

• In 1950, an employee of defendant BOC, writing to another BOC employee regarding welding rod instruction sheets, stated: “the fumes are far worse than I had any reason to suspect,” and observed “there are no caution notices in any of the instruction sheets issued by Amsco.” Nonetheless, the employee took the position that, “[i]f the other members of the Committee are agreed that the instruction sheets should go through without a caution notice, I have no intention of holding up approval.”

• Later in 1950, a BOC memorandum discloses that “the Safety Engineer recommends that [BOC’s] instruction sheets [that are] distributed with the subject electrode be amended to contain the following caution notice:

‘Arc-welding of manganese steels may create manganese fumes in toxic concentrations. All such welding operations should be provided with adequate ventilation or fume removal facilities. Where such ventilation or fume removal facilities cannot readily be provided, an approved respirator should be used.’

“This recommendation is made despite the possible loss of electrode sales, since it is believed that the recent development of data indicating the degree of hazard involved in arc-welding high manganese steels might subject the Company to possible claims for damages that could far exceed any loss of sales that a frank Warning Label might create.” BOC did not, however, follow this recommendation: a subsequent internal memorandum discloses that “The safe practices committee, at their meeting on Thursday, December 7, 1950, decided that the use of a manganese fume caution in the subject electrode instruction sheet should be avoided for the time being since other industrial manufacturers and vendors of similar high manganese and nickel manganese steel electrodes do not use fume cautions.”

• In 1955, defendant Lincoln Electric published a booklet for use by welders, “Procedure Handbook of Arc Welding,” which stated that “[m]uch research has been done which has proven that the fumes and smoke obtained when welding steel and the ferrous alloys are not harmful,” The research cited in the Handbook to support this contention, however, did not at all prove that the fumes were not harmful; further, Lincoln itself had a hand in rewriting the research articles.

• In 1965, in response to a request for information from a NASA industrial hygienist, Lincoln Electric wrote that it knew “of no difficulties from [use of its JetWeld rods] from a health point of view where adequate ventilation is provided,” and enclosed an article titled “Welding ‘Hazards’: Our Modern Day Mythology,” which ridiculed those who associated welding with any health risk, while stating that “toxic gases are not produced by electrode coatings,” and that “[l]ead poisoning is the only chronic ailment that can be caused by welding fumes; other illnesses attributable to fumes dissipate quickly and have no cumulative effect.”

While defendants contend there are explanations for the statements in these documents that rebut the point, these materials did constitute substantial evidence from which a jury could reasonably conclude that, while the defendants (and the welding consumable industry generally) were acknowledging privately during this period that welding fumes could cause permanent neurological injury, the defendants were not being candid about this hazard with the general public for fear of how candor might affect sales.

In the late 1960s, practices regarding warnings on welding rod products changed. Specifically, in 1966, prompted by the tobacco industry’s use of a warning for cigarettes, the American Welding Society’s (“AWS’s”) Committee on Filler Metal — which had members employed by the defendants in this case — addressed the question of whether there should be mandatory warning labels for welding rods. Eventually, in April of 1967, the AWS did adopt a mandatory warning label. The warning label, however, did not make any mention of the hazard of permanent brain damage. It read:

Caution. Welding may produce fumes and gases hazardous to health. Avoid breathing these fumes and gases. Use adequate ventilation. See USAS Z49.1, ‘Safety in Welding & Cutting’ published by the American Welding Society.

The various versions of the cited Z49.1 publication, in turn, have also never mentioned the risk of neurological injury from manganese in welding fumes.

Further, after this mandatory warning was adopted, the defendants took actions that plaintiffs claim were designed to mitigate the force of the new warning. For example, shortly after the warning was adopted, Lincoln Electric wrote a letter to the AWS Committee on Filler Metal, stating its policy would be to place this warning “on all its cartons” but not “on the product which is inside the carton.” Lincoln Electric recognized what the effect of this policy would be: “Obviously, many welders using the electrode will never see the container and will therefore never see the warning label.” Also, once it became apparent that a majority of the welding rod manufacturers were going to agree to adopt the mandatory warning label, the AWS Committee on Filler Metal appointed a task force “to prepare an article slanted toward reassuring the users that the health hazards are minimal and thus allaying suspicions of some new evidence or change in the extent of hazards, as a result of the appearance of these warning labels.” When this “slanted article” was published, it stated, among other things: “Over the years, the number of welders who have shown any effects from these fumes has been extremely small, and their disability temporary, usually less than 24 [hours],” and “The appearance of the precautionary label should not be interpreted as an indication of any change in the potential health hazard from welding-fumes.” As described further below, plaintiffs’ experts have referred to this type of communication, meant to mitigate the force and effect of a warning, as an “anti-warning.”

Plaintiffs adduced evidence at trial that, subsequently, the defendants continued to acknowledge that welding fumes could cause permanent neurological injury, yet also continued not to include any warning to this effect with their products. In 1970, the AWS commissioned the Battelle Memorial Institute to produce a report entitled “Survey of Welding Fumes and Gases.” The Survey, which was widely distributed within AWS and the welding consumables manufacturing industry, reported that manganese in welding fumes could cause welders to suffer brain damage. Specifically, the study stated:

The Survey also reported on research done in 1966 to “determine the concentration of selected toxic components” in fumes generated from “commercially available” welding rods. According to the Survey, this research showed that “several” welding rods “produced manganese and vanadium fumes that exceeded recommended [Threshold Limit Values, or ‘TLVs’].” As the Survey acknowledged, the then-applicable manganese TLV was 5.0 mg/m3. Thus, as of the time that Mr. Jowers started welding in 1972, defendants knew the AWS was reporting that overexposure to manganese in welding fumes could cause permanent neurological damage— even “total disablement ... after exposures as short as a few months to high-fume concentrations” — and that commonly-used welding rods could generate fumes so copious that worker exposure would exceed healthy limits established by industrial hygienists. By this time, foreign researchers had also reached the same conclusion.

Other documents show that, from 1972 forwards, the neurotoxicity of welding fumes was a recurring topic amongst the defendants. For example, in 1979, a widely-distributed AWS literature review noted that “[potential exposure to manganese occurs whenever this metal is used in electrode coatings or in electrode wire,” and that manganese is “poisonous to the nervous system.” This literature review went on to state that the “observation that manganism resembles Parkinson’s disease deserves emphasis. Although no data on the prevalence of parkinsonism in welders are available, there is a concern that some cases of manganese poisoning could be mistakenly diagnosed as Parkinson’s disease. Further investigations may be warranted.”

In 1979, largely in response to two lawsuits, the AWS adopted a new, mandatory, industry-wide warning label, which stated, in pertinent part:

FUMES AND GASES can be dangerous to your health.

• Keep your head out of fumes.

• Use enough ventilation or exhaust at the arc or both.

• Keep fumes and gases from your breathing zone and general area.

* * *

See American National Standard Z49. 1, “Safety in Welding and Cutting,” published by the American Welding Society.

As before, this warning contained no language specifically addressing: (1) the danger of permanent neurological harm from manganese in welding fumes; or (2) under what circumstances the “ventilation or exhaust at the arc” was “enough.” Indeed, although the AWS considered including some language regarding the possible consequences of inhaling welding fumes, this language was rejected.

In 1980, commenting on another welding fume lawsuit that was widely discussed within the industry, one manufacturer wrote the following summary: “[the plaintiffs] complained of the fumes for 3 weeks, then came down with symptoms of manganese poisoning. They have severe neurological damage which ... is doubtless due to the welding in a confined area with the Hadfield Manganese rods. The damage is irreversible — these guys are impaired for life.” Addressing this and other lawsuits, the AWS Safety & Health Committee, in 1981, “discussed the fact that some cases of manganism have been documented at levels below 5 milligrams per cubic meter and that this was the reason that the current [TLV] was lowered to 1 milligram per cubic meter.”

In 1985, the Secretary of Labor promulgated the Hazard Communication Standard (“HazCom Standard”), which, among other things, directed product manufacturers to “ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked with ... [the] [identity of the hazardous chemical(s); [and] [appropriate hazard warnings.” The Secretary further defined an “appropriate hazard warning” as one that “conveyed] the specific physical and health hazard(s), including target organ effects, of the chemieal(s) in the container(s).” The AWS’s Safety & Health Committee met and discussed the HazCom standard shortly after it was issued. Lincoln Electric’s representative explained to the Committee the new HazCom requirements as follows: “Hazard Communication — Additional Warning Label Requirements: Ken Brown called attention to the added OSHA requirement to include hazard notification on the Label, as well as the MSDS, for certain chemicals. In addition, target organ information if known should be put on the label (e.g., manganese can cause nervous system damage.).” In the wake of the new federal HazCom Standard, however, no defendant added this known target organ information to their warning labels.

As noted above in footnote 108, the TLV for manganese promulgated by the ACGIH has dropped over time. When first published in 1948, the TLV was an 8-hour time-weighted average of 6.0 mg/m3; it was dropped in 1960 to 5.0 mg/m3; dropped again in 1979 to 1.0 mg/m3; and then dropped again in 1995 to 0.2 mg/m3. These reductions in the manganese TLV reflect a consensus among industrial hygienists that the more that is known regarding the toxicity of manganese, the lower the exposure limits must be set to ensure “no adverse health effects,” and particularly to protect against brain damage. Of course, the lower the TLV of a given substance, the more difficult — and expensive — it becomes to ensure workers’ exposures do not exceed it.

In 1994, members of the American Welding Society (“AWS”) met to discuss the then-proposed reduction of the manganese exposure TLV from 1.0 to 0.2 mg/m3. The AWS meeting minutes state that defendant Lincoln “estimated that if the TLV is lowered to 0.2 milligrams per cubic meter, then the overall welding fume limit ... would be exceeded in most workplace atmospheres.” Similarly, AWS-member Caterpillar wrote a letter to the Ferroalloys Association in 1995 arguing against reduction of the TLV, because “approximately 50% [of Caterpillar welders] would be over exposed to manganese at [a TLV] of 0.2.” Caterpillar noted that, if the TLV was lowered to 0.2 mg/m3, the only-way to ensure its workers were not subjected to excessive manganese levels would be to provide welding fume extraction systems and/or respirators, which would come at substantial expense. On behalf of the AWS, Lincoln wrote'to the ACGIH objecting to the proposed reduction of the TLV to 0.2 mg/m3.

Despite the fact that the ACGIH did, in fact, later reduce the manganese TLV to 0.2 mg/m3, none of the defendants changed their warning language. After the reduction of the TLV, the AWS Committee on Fumes and Gases explicitly recognized, once again, that the new limit will “be exceeded in most workplace atmospheres.” But neither Caterpillar nor the “entire welding industry” has ever warned or required welders to wear respirators as a matter of routine.

The evidence adduced at trial showed that, to at least some extent, the defendants (and the trade organizations to which they belong) continue today to refrain from warning explicitly about the danger of permanent brain damage. Even though virtually all of AWS’s more recent health and safety publications touch upon the harmful effects of manganese fume exposure, many do not mention the degree to which manganism can be debilitating. For example, a 2003 AWS welding safety publication entitled “Fumes and Gases” has a section addressing “Possible Effects of Overexposure.” This section states that “manganese overexposure can affect the central nervous system resulting in impaired speech and movement.” The Fact Sheet does not make mention of the information contained in the 1970 Battelle survey, that “fumes from manganese are highly toxic, and they can produce total disablement even after exposures as short as a few months to high-fume concentrations.” Nor does the Fact Sheet state that symptoms of this disablement are “similar to Parkinson’s syndrome,” get worse with time, can be permanent, and may be commonly mis-diagnosed.

More to the point, most of the warnings affixed today by the defendants to their welding consumables also continue not to disclose the risk of permanent brain damage. The only defendant that has strengthened its warnings to reflect this information is ESAB. Specifically, in 2006, ESAB began including the following language in the warnings attached to some of its welding consumables: “Overexposure to manganese and manganese compounds above safe exposure limits can cause irreversible damage to the central nervous system, including the brain.” This warning appeared about five years after Mr. Jowers began experiencing his first symptoms of neurological disease.

2. Scientific Studies of Welding Fume Toxicity.

The evidence at trial showed it is no coincidence that, over the past 75 years, the number of studies and articles published in the medical and scientific literature regarding welding fume toxicity mirrors the number of welding fume lawsuits that have been filed around the country. Thus, until about 10 years ago, a literature review reveals only a few scientific studies and articles directed specifically at welding fume neurotoxicity and the biological mechanisms involved in transporting manganese through the human body. In contrast, since the 2003 inception of this MDL, there have been published dozens, if not hundreds, of such papers. And many of the authors of these papers have received funding from the parties, especially from the defendants.

There is no evidence that the defendants or the welding consumable manufacturing industry ever considered, much less undertook, a medico-scientific study of the effects of welding fumes on welders before the late 1970s. In 1978, however, the defendants, acting through their trade group, broached the subject of doing formal research on the toxicity of welding fumes. Specifically, in 1978, the AWS Safety & Health Committee discussed undertaking a prospective epidemiological study of mild steel welding. The AWS envisioned that this prospective epidemiological study would examine welders’ risks of suffering chronic lung disease, cancer, and eye injuries; there was no mention initially of examining the risk of neurological injury. In a follow-up meeting in 1979, however, an AWS member commented on the then-existing draft of AWS’s request for proposal (“RFP”) to the Franklin Institute, as follows:

Mr. Kinser observed that in mild steel welding a significant amount of manganese appears in the fume. In view of the several court cases alleging manganese poisoning, it would seem appropriate to include some kind of neurological examination to indicate the possible connection with manganese exposure in the epidemiological study.

Ultimately, “the proposed epidemiological study [was] shelfed [sic] because of lack of funds for this project.”

More recently, both the plaintiffs and the defendants have funded a number of scientific papers and medical and epidemiological studies addressing the bioavailability and toxicity of welding fumes, and the question of whether welders suffer disproportionately from movement disorders. In 2005, the Court cited a number of such papers and studies in a Dauberb opinion that addressed the question, among others, of whether “the sum of the epidemiological and other evidence proffered by the parties [is] sufficiently reliable to support the assertion that exposure to welding fumes can cause, contribute to, or accelerate a parkinsonian syndrome that some doctors will diagnose as [Parkinson’s Disease]?” (The Court concluded that, “at least in the abstract as the question is presented here, the answer is yes.”) Subsequently, the Court relied on these same studies to conclude that “[t]he evidence so far presented is sufficiently reliable to support the assertion that exposure to low-manganese welding fumes can cause, contribute to, or accelerate a movement disorder, including a parkinsonian syndrome that some doctors will diagnose as [Parkinson’s Disease].” And, in the few years since the Court issued these opinions, a large number of additional studies and articles examining the relationship between welding fume exposure and development of movement disorders have appeared.

Indeed, a great number of these articles and studies have been produced by authors who received funding from the defendants. The full extent to which defendants have provided such funding was revealed only recently, during the course of Mr. Jowers’ trial; in response to a Discovery Order, the defendants furnished charts showing payments to several dozen “authors of authoritative articles and studies used during trial” totaling about $13 million. Plaintiffs’ counsel produced a chart showing they made similar payments to a dozen authors totaling about a half million dollars.

At trial, the parties’ expert witnesses discussed many of these papers and characterized the state of the scientific research. For example, defense expert neurologist Dr. Anthony Schapira testified that “the vast majority of [the epidemiological] studies have shown that people exposed to manganese are not at an increased risk for developing neurological injury.” Similarly, defense expert toxicologist Dr. Brent Furbee quoted and agreed with a study that concluded: “there is an absence of reliable exposure and epidemiology studies to support a causal association between clinical neurotoxicity and exposure to manganese during welding.” And plaintiffs’ public health expert Dr. David Burns conceded that “there is some epidemiologic work from other countries and a study in the U.S. that looks at medical records, and those medical records don’t show an increased frequency of movement disorder in welders.”

In opposition, however, Dr. Burns further testified that both the U.S. Public Health Service (“US-PHS”) and the United Nations World Health Organization (“UN-WHO”) have drafted “consensus documents” regarding the