On June 15, 2009, in response to a rising tide of complaints and Chinese drywall lawsuits, the Judicial Panel on Multidistrict Litigation ruled that cases involving contaminated imported drywall would be sent to the Eastern District of Louisiana. Judge Eldon E. Fallon of U.S. District Court will preside over MDL Docket No. 2047 which allows the common issues of many claims to be consolidated into one court, sent to another court only for pre-trial proceeding then remanded to the original court for trial. Plaintiff’s attorneys pursue the MDL litigation through a committee of lawyers (PSC) appointed by the court.
Judge Fallon announced on August 12, 2009 that he plans “bellwether” trials on the Chinese drywall lawsuit to begin in January 2010. Bellwether trials are used to present a random sample of mass tort cases to a jury and extrapolate the results to resolve the remainder of cases. The term derives from bellwether sheep where a bell on one animal would help a shepherd locate the entire flock if they wandered.
Profile sheets will speed the discovery process avoiding standard interrogatories that may become mired in procedural delays. The profile sheets will provide 5-6 pages of detailed questions such as date house was built, name of builder, drywall identifiers, corrosion observed, insurance claims filed and more. Judge Fallon asked for a protocol for inspections be designed within two days. The purpose of inspections will be to determine if Chinese drywall was used and, if so, what damage has been caused to the home.
Twelve attorneys were appointed by the court to manage the cases. With subtopics such as discovery, briefing, expert witnesses and coordination between federal and state entities, a total of 50 lawyers nationwide will work on the Chinese drywall lawsuit. Court appointed inspectors from an independent company will initially conduct several hundred inspections. From those results, plaintiffs and defendants will select approximately 20 cases that could potentially go to trial. From the resulting 20 cases, defendants will choose 5 and plaintiffs will pick 5. The court will select 6 cases from those final 10 and those 6 will go to trial in early 2010.
While the selected cases are being tried, home inspections using profile sheets and inspection protocol will proceed for all cases filed. The inspectors will not take health concerns into consideration but will focus on the home construction and document odors, metal corrosion and note drywall markings to determine manufacturers, distributors and supplies.
Inspections began in September 2009. 15 homes in Florida, 8 homes in Louisiana and 7 homes in other states are to be inspected by Crawford & Co. of Atlanta using the protocol approved by the court. One of the Florida homes chosen is in the Cobblestone Creek community in Boynton Beach.
In early 2009, Paul and Alli Siroto hired an independent inspection which confirmed the presence of contaminated Chinese drywall. Last spring, the Sirotos moved out of their $700,000 home.
In the same neighborhood, Heather DeSola and her husband built their home two years ago. Copper has turned black, the A/C unit had to be replaced and the family is experiencing health problems. The DeSola’s oldest son has nose bleeds, both DeSola children have developed respiratory problems, Heather suffers from migraines and her husband has developed severe allergies. The DeSolas also moved out of their home last spring. As many as 45 homes in the Cobblestone Creek area may be included in the Chinese drywall lawsuit.
Judge Fallon is experienced in class action suits and the use of bellwether trials and has expressed his determination to expedite the Chinese drywall lawsuit. Affected homeowners should not have to wait years to go to trial and the speed of litigation may encourage settlements.
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