While many homeowners effected by the Chinese drywall crisis are joining classes (class action suits), the Pilot Online (Hamptonroads.com, see article here) reported that one couple is taking a stand alone.
A Virginia Beach couple discovered their home was built with Chinese drywall, so defective that the emissions from the sulfuric compounds have caused great damage to appliances. The family has since moved out of the home. This family has taken on insurance companies, lenders, builders, among others. Negotiations have ensued, but as of yet, little progress has been made. (Instead of being part of the action pending in New Orleans, this particular family is filing in local court).
This particular homeowner has noted that the entities privy to his family’s communication have pointed fingers to others. After mounting frustration, the family filed suit in the Virginia Beach Circuit Court. They seek $660,000 in damages (to fix/remediate the home and compensate for expenses incurred).
As we reported yesterday, the first of the Chinese drywall trials in federal court (Eastern District of Louisiana, Multi District Litigation), is scheduled to start February 19, 2010. That trial though, is only pertinent to the Chinese-owned manufacturer, Taishan Gypsum.
Should homeowners try to take on their cases alone, or obtain an attorney?
This is a question that is ultimately up to the individual homeowner/family, however, some factors to keep in mind when making such a decision include:
- Product liability issues can entail drastic consequences to victims in some situations.
- For example, previous defective Chinese imports have included instances of dangerous compounds in toys.
- Since the consequences are great, it may be a good idea to obtain an experienced attorney who has previously litigated or settled product liability matters.
- International matters sometimes require certain procedures that are not normally applicable to cases where only U.S. parties are involved. Thus they are generally more complicated.
- For example, some of the defendants named in the Chinese drywall suits are Chinese owned manufacturers.
- Complying with court orders, rules, and guidelines, requires much time and dedication to fully understand and comply with such standards.
- Most families involved in the Chinese drywall crisis are hard working members of the community. To represent oneself in a suit and maintain a full time job may prove to be very stressful and inefficient for some.
Virginia’s new secretary of commerce and trade, Jim Cheng, is expected to tour homes affected by Chinese drywall in the very near future. Although bad weather has stopped him from making as much progress as he would like, it is safe to say that Cheng is aware of the importance of his visit to these sites.
Tainted Chinese drywall was used to build thousands of homes across the state of Virginia. In addition to damaging metal and appliances, Chinese drywall gives off a foul odor while also causing a myriad of health problems for those who are exposed. This has led to many Virginians moving from their homes. That being said, they must still pay for them – obviously this has put a stress on the finances of many people.
So, why is it a big deal that Cheng is getting involved? It is the hopes of many that his involvement will help to keep Chinese drywall a high priority. Despite the fact that this issue has been discussed time after time, not much progress has been made in terms of help for victims.
Will Cheng’s tour of Chinese drywall ridden homes lead to help for these homeowners? Only time will tell – but it can’t hurt.
Brief Update on the Chinese Drywall Trials
*Trial scheduled to start February 19, 2010*
Chinese-controlled “Taishan Gypsum” never responded to the lawsuit filed in the Eastern District of Louisiana last year. Judge Eldon Fallon entered “default judgment” against the company, meaning that that there will not be future arguments regarding whether Taishan did something “wrong.”
What does this imply? – Judge Fallon and the Court must still assess damage amounts, but can move forward in the case since China didn’t show up or respond. Currently, evidentiary hearings are in progress and the trial is nearing its scheduled beginning (2/19).
Want to brush up on your legal vocabulary or terminology knowledge? Wikipedia provides a nice article containing definitions, comparisons, and examples of default judgments.
The trial starting Feb. 19, 2010, will be focused on Taishan Gypsum and will not bind other defendants in the case. The trial, however, will be of great importance as it may create a standard for remediation. Hopefully this will serve to save time in future trials against other manufacturers.
In product liability cases, defendants often include suppliers, distributors, and manufacturers among others. In the context of Chinese goods, the products are manufactured by non-U.S. entities. The rest of the supply chain can be addressed by the American legal system with relative ease compared to having hail into court a business controlled, and in most cases, owned by the Chinese government. The above example of Taishan Gypsum’s failure to appear or respond to the lawsuit is indicative of this point.
Federal agencies are taking serious efforts to disseminate information and tips aimed to assist homeowners determine whether the drywall in their homes is Chinese drywall. Chinese drywall has emerged as a problematic consumer good over the past year – after thousands of consumer complaints. It is allegedly toxic and may be behind corrosion and health symptoms.. Lawsuits are in progress in the Eastern District of Louisiana.
You can check out another article regarding federal agency assistance here.
Among the agencies involved in the investigation of the Chinese drywall issue are the Consumer Product Safety Commission (CPSC), the Environmental Protection Agency (EPA), and the U.S. Department of Housing and Urban Development (DHUD). Other agencies may also be involved with the Chinese drywall issue at large as the situation progresses: the Small Business Administration (SBA) is one agency arising in discussions. Some lawmakers have suggested “disaster loans” as solution to financial woes homeowners are facing.
It seems as if there are two primary concerns with regard to the Chinese drywall debacle: increased financial strain in an unsettling economy, and health related problems associated with sulfuric compounds (and perhaps other compounds in addition to sulfur). The aforementioned disaster loan idea would provide homeowners with favorable loans. As some families discover the home they reside in contains Chinese drywall, the swift transport of possessions and residences to untainted homes is a step many are taking. The consequences though, include second mortgages, rental payments, and remediation costs.
Federal agencies will most likely continue to react and respond to legislative measures, consumer issues, and the developing lawsuits taking place in the federal court system.
Homeowners affected by Chinese drywall all share the same goal: to find a solution sooner rather than later. After all, living in a home with Chinese drywall is not an option. This means that families either find a solution, or find a place to live for the time being.
A recent article on WAFB.com details the stories of homeowners in Baton Rouge, Louisiana that are taking different approaches towards fixing their Chinese drywall problem.
One family has decided to get the home from top to bottom to remove the tainted drywall. While expensive and time consuming, it is one of the best ways to solve the problem once and for all.
Another family decided to try something a bit different: they used the blow dry method to get rid of their Chinese drywall. By emitting chlorine dioxide from a heavy duty blower, the drywall is now considered safe – after only a couple days and much less of a cost. That being said, the family that used this method has no chance of receiving any damage settlement in the future.
As you can see, homeowners are relying on a wide range of treatment methods. Whatever they can do to get rid of Chinese drywall is something that is being considered.
Many people have reported their Chinese drywall related issues to both the U.S. Consumer Product Safety Commission, as well as their state health department. What are they reporting, you may ask?
To start, Chinese drywall is usually associated with the smell of rotten eggs or the smell of matches. Along with this, the material often times leads to corroded metal components and damage to appliances.
Of course, health concerns related to Chinese drywall are also becoming very serious. Drywall can be replaced, but your body cannot. Here are some of the more common health symptoms being reported by those who have lived in a home with Chinese drywall:
1. Itchy skin and eyes
2. Persistent cough
3. Difficulty breathing
4. Runny nose
5. Bloody nose
6. Sinus infections
7. Recurrent asthma attacks
These are the most common short term Chinese drywall health concerns. It is not thought that exposure will lead to long term effects, but it is hard to say as this problem has just surfaced in the last couple of years.
Most doctors suggest leaving a home that was built with Chinese drywall. Living alongside this tainted material can lead to many health concerns.
As more and more people find Chinese drywall in their home, more and more news outlets continue to cover this developing story. The main topic of Chinese drywall is a serious one, but as you dig down deeper there are many sub-stories that are receiving just as much attention. One thing is for sure, if you want to learn more about Chinese drywall you can easily do so by keeping one eye on the news.
Here are three recent Chinese drywall stories that provide solid information and advice:
1. “Snoop” in training to sniff out Chinese drywall
2. Va. Senate passes bill to halt insurance drops for Chinese drywall
3. Chinese drywall victims get U.S. rules on documenting problems
Finding Chinese drywall in your home can be one of the worst experiences of your life. Not only does this mean that your health is at risk, but it also leads to many financial changes. For some homeowners the end result is a major “renovation” project.
A recent story in the HeraldTribune.com outlines the struggles of one couple to get rid of Chinese drywall in their home. After realizing that this was the problem there were facing, the couple decided to spend $100k of their own money to have all of the drywall in their home replaced. While this is an expense they should not have incurred, it is one that they needed to take on in order to have a place to live.
Some homeowners try to live with Chinese drywall; some file a lawsuit against the builder or supplier; and others, such as those detailed in this story, take matters into their own hands. The main issue with this is the money that it costs to replace Chinese drywall with quality material. As you can imagine the bigger the home the more it costs to complete this project.
Many homeowners across the country are tearing their walls back to the studs, throwing Chinese drywall to the curb, and having it replaced with the material they were expecting the first time around.
As consumers across the nation are struggling to cope with the burdens associated with Chinese drywall (financial or/and health), a question beginning to be asked with some consistency is, “What caused or allowed the Chinese drywall crisis to take place? . . . What are its origins?” This two-part article will explore in brevity the backdrop of the issue, and the relationship between China and the U.S
Please Read Part I of this Article First
The SPS agreement imposes limits on regulatory standards relating to food, animal, and plant safety.[1] The TBT agreement similarly limits testing and certification issues.[2] These limits restrict adoption of appropriate health and safety standards because there is a legitimate fear that China and other countries would view such standards as barriers to trade.[3] The treatment of both the SPS and TBT agreements by the U.S., as well as by the private sector in international negotiations, sheds some light on the underpinnings of the burden that is shifted to U.S. consumers.
Since implementation of the SPS and TBT agreements, the SPS agreement has garnered the most attention. One commentator put it this way:
“[W]hen looking through the Federal Register . . . references to the SPS agreement outnumber references to the TBT agreement by a ratio of roughly five to one. One possible explanation for this phenomenon might be that in the United States, most top-down regulation occurs in the areas of food, animal, and plant health. Thus, most regulations covered under the TBT agreement remain within the province of voluntary, consensus-based standards often negotiated by industry members themselves.”[4]
With this backdrop, it is not difficult to observe that the U.S. approach to free-trade policy has historically sought to place its domestic businesses on an equal playing field with that of global competition. Ensuring the safety and quality of imported consumer goods, on the other hand, has not been a recurring concern brought to the forefront of negotiations.
Now that thousands of U.S. consumers are facing financial strains and health related issues associated by the Consumer Product Safety Commission with Chinese drywall, legislators must take notice. Imported goods from China have been flowing into the U.S. with such regularity and health and safety concerns have gone overlooked. However, we have reached a point where it is necessary to take a step back; consumers, businesses, and government all must recognize the need for ensuring the integrity and safety of the American marketplace.
REFERENCES
[1] Agreement on Technical Barriers to Trade, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Ann. 1A, Legal Instruments-Results of the Uruguay Round, 1868 U.N.T.S. 120 (1994) [hereinafter TBT Agreement].
[2] Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments–Results of the Uruguay Round, 1867 U.N.T.S. 493 (1994) [hereinafter SPS Agreement].
[3] Rebecca Mowbray, Chinese Drywall Problems Have Spotlighted Flaws in the U.S. Legal System, The Times-Picayune, Oct. 4, 2009, available at http://www.nola.com/business/index.ssf/2009/10/chinese_drywall_problems_have.html.
[4] David Livshiz, Updating American Administrative Law: WTO, International Standards, Domestic Implementation and Public Participation, 24 Wis. Int’l L.J. 961(2007) (discussing the trend of TBT Agreements being left to industry stakeholders as opposed to Executive branch action).
As consumers across the nation are struggling to cope with the burdens associated with Chinese drywall (financial or/and health), a question beginning to be asked with some consistency is, “What caused or allowed the Chinese drywall crisis to take place? . . . What are its origins?” This two-part article will explore in brevity the backdrop of the issue, and the relationship between China and the U.S
Globalization efforts and principles of free-trade bolstered world economies in the late 20th century, particularly between the United States and China. The economic relationship between the two, however, evolved with an eye towards growth, expedience, and flexibility rather than domestic consumer protection.
Read an interesting article by Vicky Hu on Chinese economic reform here.
In the broadest sense, there are two issues presently confronting domestic consumers: A widespread lack of quality control and a lack of an effective remedial system when the culpable entity is a Chinese manufacturer. Consumers who do not have an experienced attorney to represent them in complicated international matters face extraordinary obstacles. For example, certain documents may be required to be translated into a specific dialect of the Chinese language when serving foreign defendants.
Beginning in the 1980’s, GATT tariff negotiations came under fire from some exporting business interest groups due to concerns that regulatory policies might serve as a potential barrier to trade, in a non-tariff capacity. These groups argued that the price of exports would increase, if compliance with competing regulations were to be scrupulously adhered to, thus resulting in unfair and discriminatory results to such exporters in the global arena. As a result of these concerns, the Uruguay Round Agreements included two components aimed at reducing these regulatory barriers.
The Technical Barrier to Trade Agreement[1] and the Sanitary and Phytosanitary Measures Agreement[2] sought to eliminate regulatory policies that were not promoted in good faith, or were arbitrarily imposed to benefit local businesses. It seems that the intention was to combat localized practices of squeezing out global competition that were disguised as regulatory policies.[3] Measures taken to facilitate domestic protectionism in the traditional sense (i.e., to protect domestic businesses) must be watered down from the outset as a result of these limitations.[4]
For a continued analysis of these measures the their implications, please read Part II.
REFERENCES:
[1] Agreement on Technical Barriers to Trade, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Ann. 1A, Legal Instruments-Results of the Uruguay Round, 1868 U.N.T.S. 120 (1994) [hereinafter TBT Agreement].
[2] Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, Legal Instruments–Results of the Uruguay Round, 1867 U.N.T.S. 493 (1994) [hereinafter SPS Agreement].
[3] TBT Agreement, pmbl.; SPS Agreement, pmbl.
[4] Watered down domestic protectionism in the traditional sense is not a bad thing, as it simply alludes to the fact that free-trade is facilitated in a more efficient manner. The problem arises at a later point in the consumer protectionism context, where the TBT and SPS agreements are so limiting upon government that certain standards are left to industries.
