For about a year, Lupe Gaytan climbed up and down the 50-foot cofferdam ladders to weld inside the steel legs of the partially built Bay Bridge. When he started, his lungs were fine, he said, referring to a piece of paper indicating he was healthy enough to be fully cleared to use a safety respirator while welding on June 19, 2003.
Today, Gaytan climbs into bed every night and straps on a mask that helps him breathe while he sleeps. The Union City man said he never had such problems before he worked on the Bay Bridge. “I don’t smoke”, the 49-year-old Gaytan said. “Now I’ve been diagnosed with restrictive pulmonary disease.”
Gaytan and more than a dozen other current and former welders on the bridge job came forward after an Oakland Tribune report in June showing the contractor for more than a year knowingly exposed workers to welding particulate and fumes, including manganese, in excess of Cal-OSHA standards. Cal-OSHA records show prime contractor KFM Joint Venture didn’t tell the workers about the overexposure, require respirators or fix the problem.
Now dozens of welders have filed workers compensation claims which were denied and are on appeal based on the exposure. They say a class-action lawsuit is in the works.
Did complaints spur layoffs? Many of the welders were from the night shift, which was eliminated a year ago after the contractor said it no longer needed two welding shifts. A few workers were transferred to the day shift. The others were laid off.
The Pile Drivers Union, Local 34, which represents the workers, contested the layoffs, claiming the welders were laid off because they complained of safety issues, including ventilation, and harassment. An arbitration panel ruled against the union in late March. Welder James Krudwig testified in an arbitration hearing on March 10 that he often wore a respirator even though they weren’t required, but that management sometimes lacked new filters for it. Krudwig, who declined to comment for this story, also said in the sworn statement that ventilation was inadequate; night-crew welders would watch welding smoke and particulates float up in the cofferdams but be pushed back down by the cold night air.
Several welders testified and said in interviews that their personal air quality monitors beeped so often, they turned them off, much like apartment tenants often take the batteries out of overly finicky smoke detectors. Work site photos show some ventilation hoses bent double, sending fumes back on welders heads. Other pictures show globs of residue gathering on the undersides of plastic sheets which shielded welders from rain.
In a June 2004 memo to Cal-OSHA, KFM disputed that workers were continuously exposed to manganese or other welding fumes during the documented period from March 2003 to June 2004; the contractor also claimed workers changed or altered ventilation systems.
In preparation for the workers compensation claims and possible civil lawsuit, up to 50 current and former welders have undergone physical and mental aptitude tests, with results pending. Several say they have suffered bouts of pneumonia, joint pain, memory loss and other conditions. One current worker said he has seen several cases of summertime pneumonia in the last two years. He and several co-workers said they feel fatigued and out of breath. We call it the KFM flu, the worker said, asking for anonymity for fear of losing his job.
Research is fuzzy when it comes to the amount of manganese and duration of exposure required to produce symptoms, but breathing excessive levels of manganese welding fumes can cause symptoms referred to manganism or manganese madness. According to the National Safety Council, inhalation or ingestion of manganese dust or fumes can cause symptoms similar to those of Parkinsons disease including tremors, rigidity, slowed movement, loss of muscular control and impaired mental function. It also can cause coughing, flu-like fever, vomiting and fatigue.
KFM declined to comment on the welding fume and particulate exposure, citing the litigation. If KFM is sued, it would both be part of a national trend and a foray into new legal territory.
Medical problems resulting from manganese fumes were noted in scientific journals as early in 1837, and welders began claiming harm and suing welding-rod makers in the 1970s. For decades, none succeeded eight lawsuits in five states ended with verdicts in the rod-makers favor. But in October 2003 a Madison County, Ill., jury awarded Larry Elam, then 65, $1 million in his case against three welding-rod manufacturers. Elam developed symptoms similar to those of Parkinson’s disease after 30 years of welding. The (welding rod) industry did what it could to keep everybody in the dark, including the employers, said Elam’s attorney, Robert Bosslet. They had known for a long, long time about these hazards and just put their heads in the sand.
Today, thousands of individual federal lawsuits from across the nation have been consolidated into a massive multi-district litigation pending before one judge in Cleveland. Similarly, Alameda County Superior Court Ronald Sabraw of Oakland now presides over a coordinated proceeding an assembly of similar lawsuits from state courts in several California counties on welding-related manganese poisoning.
Berkeley attorney Philip Hanley said his plaintiffs in the California cases are welders or pipe fitters who worked near welders for roughly 20 to 40 years. But he noted two major differences between California and the federal litigation. The state cases involve only true manganese poisoning cases with symptoms similar to Parkinson’s, Harley said. Many of the federal cases allege welding fumes caused actual Parkinson’s.
The other difference is that while the federal cases are almost solely against welding-rod manufacturers, the state lawsuits in part target owners of the job sites where they claim the exposure
occurred. For example, ChevronTexaco was sued by welders who worked at the oil giants refineries.
New legal ground
California workers compensation laws bar most claims against the welders employers. This is where a lawsuit against KFM could break new ground. The case Bay Bridge workers are putting together could be similar to a class-action lawsuit filed in March 2004 against contractors working on the U.S. Energy Departments radioactive-waste disposal facility at Nevada’s Yucca Mountain. That suit claims contractors knowingly exposed the tunnel projects workers and visitors to toxic silica dust, which when inhaled can cause silicosis a progressive, incurable, debilitating and sometimes fatal lung disease. Among the Yucca Mountain contractors sued was Kiewit Group of Delaware another arm of the company leading the Bay Bridge KFM Joint Venture.
When it comes to manganese, there isn’t much case law establishing how much exposure amounts to liability. Elam’s case remains the only plaintiffs verdict, with a recent civil trial in Texas ending with a hung jury. Some similarities have been noted between manganese litigation and the early days of asbestos litigation, which became a legal industry unto itself. Hanley said the number of people exposed to welding fumes is orders of magnitude lower than those who were exposed to asbestos, but he also noted that in the first 10 asbestos cases tried, nine of them were defense verdicts much like with manganese so far. When you’re dealing with an emerging toxic injury, it takes a while to develop the evidence and the testimony so people can understand it, he said.
An Illinois appeals court heard welding-rod makers appeal of Elam’s victory March 1, and will rule in the coming months. As for Elam, Bosslet said, He’s already moved because his house was two stories and he has trouble with stairs. He’s treating with the doctor who testified for him, he no longer drives.
And he’s not getting any better.