The Northern District of Ohio recently held in In re Welding Fume Litigation that participation by a non-manufacturer's employees in an industry association, even on association committees with a product safety focus, does not create any legal duty on the part of that corporation toward users of products manufactured by other association members. Approximately 1,775 cases are currently pending in national welding fume multidistrict litigation in federal district court in Cleveland. In all of these lawsuits, the plaintiffs allege: (1) they inhaled fumes given off by welding rods; (2) these fumes contained manganese; (3) this manganese caused them permanent neurological injury and other harm; and (4) the defendants knew or should have known that the use of welding rods would cause these damages.
In this Emerging Issues Commentary, Hugh Webster of Webster, Chamberlain & Bean in Washington, D.C., notes that if a trade association owes no duty to the end users of products in that trade, then the various members of that trade association who are not themselves product manufacturers are even further removed from owing a duty to end users. Just as the relationship between the trade association and the product user is far too attenuated to rise to the level of a duty flowing between them, the relationship between the association's many non-manufacturer members and the product user is too weak to support negligence liability. Certainly, trade association membership, alone, cannot be the foundation for liability.
Also influencing the court’s decision was the fact that there were several representatives on the AWS Safety & Health Committee from organizations or entities that are not manufacturers of welding products or even part of any allied industries, such as universities and government agencies. This is a key point that association counsel would be well advised to take note of. If an association can add non-industry representatives to its safety or other sensitive committees, including persons from academia, government, organized labor, and even consumer groups, this can be effective in blunting conspiracy allegations.
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