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Chinese Drywall - Case Update and Warning
Attorney Daniel Becnel says the judge set a schedule to have thousands of homes inspected, almost immediately. "We're going to have this over with really quickly for the people across the country who have been victimized by this Chinese drywall. Most of their houses will be inspected within 60 days,†Becnel said. “In addition to that, most of their cases will be on a docket to be set for trial beginning in 6 months, it’s unheard of." About 600 tainted Chinese drywall lawsuits, a number bound to grow, have been consolidated in multi-district litigation under U.S. District Judge Eldon E. Fallon for pretrial issues. With the help of plaintiff and defense steering committees, Fallon will select five cases to test the waters
Chinese Drywall - Case Update and Warning
August 13, 2009 - New Orleans – COMBINED DISPATCHES - U.S. District Court Judge Eldon Fallon held the second Chinese drywall status conference earlier this week as part of the court’s effort to fast-track such cases through the federal system.
This time, attorneys discussed guidelines for inspecting the affected homes. Attorney Daniel Becnel says the judge set a schedule to have thousands of homes inspected, almost immediately.
"We're going to have this over with really quickly for the people across the country who have been victimized by this Chinese drywall. Most of their houses will be inspected within 60 days,†Becnel said. “In addition to that, most of their cases will be on a docket to be set for trial beginning in 6 months, it’s unheard of."
New Orleans will be the stage where hundreds of drywall lawsuits play out.
“He is moving extremely fast, which is the right thing because people are living in homes that are toxic to them,†said Victor Diaz, a partner at Podhurst Orseck in Miami and a member of the MDL plaintiff steering committee.
Most attorneys involved in these cases indicate that trying a Chinese Drywall class action case in 6 months is frankly impossible, and homeowner attorneys have advised their clients not to let this news get their hopes up for a quick remedy.
About 600 tainted Chinese drywall lawsuits, a number bound to grow, have been consolidated in multi-district litigation under U.S. District Judge Eldon E. Fallon for pretrial issues. With the help of plaintiff and defense steering committees, Fallon will select five cases to test the waters.
Ervin Gonzalez, a class-action specialist with Colson Hicks Eidson in Coral Gables advised that Fallon has ordered each side to select 10 cases to jump start the process of turning over documents and other information. He has said the initial trials most likely will involve claims limited to property damage as opposed to personal injury.
The plaintiff bar has been in a feeding frenzy on Chinese drywall litigation, filing a litany of lawsuits in federal and state courts, naming Chinese drywall manufacturers as well as developers, builders, subcontractors and suppliers.
Knauf Plasterboard Tianjin, one of the leading manufacturers named in the federal litigation, responded to a series of questions with a statement. “Even today there remains wild and unsubstantiated speculation as to the size and scope of the issues relating to the Chinese drywall that is claimed to be causing problems in the affected homes,†the Knauf statement said.
Defendants including KPT are represented by several South Florida attorneys — Donald J. Hayden of Baker & McKenzie in Miami, Hilarie Bass and Mark A. Salky of Greenberg Traurig in Miami, and Jan Douglas Atlas and Jeffrey Backman of Adorno & Yoss in Fort Lauderdale. Bass was defense liaison counsel as an attorney for Aetna in a racketeering class action against major managed care companies, which produced several settlements.
In the drywall cases, KPT said Fallon’s inspection order and a requirement that all claimants fill out fact sheets “will substantially narrow the scope of the litigation and finally put to rest the speculation as to the number of homes that are impacted by Chinese drywall.â€
About 500 million pounds of Chinese drywall was imported during the U.S. housing boom from 2004 to 2007, meaning as many as 100,000 homes could contain the tainted material, plaintiffs claim. KPT and sister companies in China are related to Germany’s building materials maker Knauf Group. Whether plaintiff attorneys can tap into the German company’s or Chinese company’s deep pockets will be major point of contention. KPT responds it sees no basis in law to extend liability to the German group.
Some U.S. drywall makers have been named as defendants in a few lawsuits, and KPT claims other Chinese manufacturers supplied U.S. builders as well.
How the litigation plays out won’t be simple. Homeowners claim the only solution is to tear down affected homes nearly to the foundation. In response, KTP said it “continues to thoroughly investigate complaints made by homeowners and to investigate practical solutions that could resolve the issues raised in affected homes in a cost-effective and less intrusive manner.â€
Gonzalez and Diaz say new evidence indicates the gas can be absorbed into the wood in wood-frame homes as well as linen, mattresses, furniture and other household items.
Diaz said the manufacturing process also will be an issue. Whether materials came from a mine with high sulphur concentrations or if drywall was made with synthetic gypsum. Natural gypsum is the main ingredient in drywall. The personal injury aspect also is a significant issue because some residents complained of respiratory problems such as asthma as well as headaches, rashes and other ailments, he said. “Whether that is a permanent health link is an open question,†Diaz said. The Environmental Protection Agency, Consumer Product Safety Commission and state Health Department are conducting drywall investigations.
The KPT defense team said the company’s primary focus has been ensuring the health and safety of its end users and has responded to inquiries by builders that raised health concerns. But the company said its experts have found no health risk to residents. “No evidence to date has been provided that changes KPT’s original determination that there are no health risks to the homeowners,†the Knauf statement said.
Telltale signs of trouble to many owners is the smell of rotten eggs and corrosion, especially in appliances like air conditioning units. Some of the Chinese drywall has been found by plaintiff experts to contain biological material that decays, especially in humid climates, and reacts with gypsum or other materials that should not be present. Homes with Chinese drywall have been found throughout the nation, but plaintiff attorneys say the epicenter for problem homes is Florida.
Diaz blames “a combination of cost-cutting as well as lack of regulation and government oversight in China.â€
At present, the cases have been consolidated in front of Fallon for pretrial purposes. Trials would be conducted where the cases were filed unless the parties agree to have them litigated in New Orleans.
The next status conference in the U.S. District court is scheduled for September.
Warning to those conducting remediation on homes and buildings with Chinese drywall
Spiderman S. Mulholland, of U S Building Consultants, is Issuing a Warning About Conducting Remediation on Homes with Defective Chinese Drywall. Mulholland stated that it should be noted that remediation protocols have not been established, and cross-contamination is occurring, even after homes have the sheetrock torn out and replaced, out gassing of sulfur compounds and other elements continues to occur. Mulholland alleges that remediation further jeopardizes public health when it is done without adequate safeguards or by unqualified individuals.
Mulholland contends that the problem is that out-gassing will continue because the protocol for removal and replacement are greatly flawed. Scientific tests and analysis of construction materials and their out-gassing properties associated to other materials found that absorption rates, higher levels of toxicity, and cross contamination to be a serious factor; and other dynamics which will go unnamed at this time. Many builders and remediation companies have not fully understood all the dynamics which are at work here. Mulholland says that simply removing drywall from the home and replacing it with new drywall will not protect the homeowner from future problems. In fact, under current remediation practices, we are observing the situation getting worse because the proper controls are not in place; and there have been several unknowns that are just now being revealed through new science.
Mulholland believes that if people are remediating now, they are probably doing it wrong. He states that we have changed our own remediation protocols which are under development numerous times in the last two months because of mockup testing and ongoing field inspections in five states. we have been warning builders, remediation companies, and homeowners for months not to start the remediation process yet. Without a proven standardized protocol for remediation, a secondary crisis can occur on top of the main crisis, essentially having to remediate a second time.
On a positive note, Mulholland claims to have completed the preliminary testing on a specialized active carbon process that has been fitted in air machines that can temporarily stabilize the Chinese and/or other defective drywall out-gassing problems. These machines and there scientific process can be found at www.usbuildinglabs.com
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