The Welding Fume Case and the Preemptive Effect of OSHA’s HazCom Standard on Common Law Failure-to-Warn Claims

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The Occupational Health and Safety Act (the OSH Act) affects more than ninety million workers in the United States. The OSH Act is administered by the Occupational Health and Safety Administration (OSHA), which promulgates health and safety standards for the workplace. Although OSHA standards do not regulate product manufacturers directly, they may affect liability when manufacturers are sued by workers who are injured by allegedly defective products provided by their employers. With increasing frequency, manufacturers are contending that the OSH Act or OSHA standards preempt these claims. In particular, manufacturers argue that the Hazard Communication Standard (HazCom Standard) should preempt failure-to-warn claims. This issue recently came to a head in Welding Fume Products Liability Litigation, which was decided by a federal district court in 2005.

In 2003, a large number of lawsuits against various manufacturers, suppliers, and distributors of welding rod products were transferred to the Northern District of Ohio under the federal Multi-District Litigation Statute. The plaintiffs were injured as a result of inhaling manganese fumes given off during welding operations and maintained that the defendants had failed to adequately warn them about this danger. The defendants moved to dismiss, arguing that the OSH Act and the HazCom Standard preempted the plaintiffs' failure-to-warn claims. In April, 2005, District Judge Kathleen O'Malley denied the defendants' motion and ruled that the plaintiffs' claims were not preempted.

The issue of OSH Act preemption is one of great importance to the chemical industry and other product manufacturers. Consequently, many parties participated in the proceedings and argued their respective positions vigorously and skillfully in pretrial briefs and motions. Judge O'Malley's opinion in Welding Fume was comprehensive, well reasoned and a major contribution to OSH Act preemption jurisprudence. For these reasons, the Welding Fume case and the question of OSH Act preemption are worth discussing in some detail and I will do so in this Article. Part I describes the OSH Act and the HazCom Standard. Part II discusses the law of federal preemption, particularly those cases that involved the preemption of common law tort claims. Part III examines the preemption of state law by the OSH Act and the HazCom Standard. The Welding Fume case is evaluated in Part IV and the Article concludes by predicting that the decision in that case will be upheld on appeal.
Original languageEnglish
Pages (from-to)103-155
Number of pages53
JournalBuffalo Law Review
Issue number1
StatePublished - May 2006

ASJC Scopus subject areas

  • Law


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