What is Multi-District Litigation (also known as an MDL)?
Multi-district litigation (MDL) refers to a special federal legal procedure designed to speed the process of handling complex cases such as Chinese Drywall litigation or complex product liability suits like spray foam lawsuits.
MDL cases occur when “civil actions involving one or more common questions of fact are pending in different districts throughout the United States. In order to efficiently process cases that could involve hundreds (or thousands) of plaintiffs in dozens of different federal courts which all share common issues, the Judicial Panel on Multidistrict Litigation decides whether cases should be consolidated under MDL and where to transfer the cases. Cases subject to the MDL are sent from one court, known as the transferor, to another, known as the transferee, for all pretrial proceedings and discovery.
The MDL is a legal procedure to consolidate similar cases for the purpose of, among other things, conserving resources and preventing inconsistent rulings in different courts. All such cases are assigned to a judge in one federal district court. Once the MDL consolidation request is granted, the Plaintiffs can also bring in any subsequent federal cases (and most state cases as well) as so-called “tag-along” cases.
How is a Class Action Lawsuit Different from a Mass Tort?
In a class action lawsuit, the plaintiffs are grouped together in one lawsuit against the defendant. In this form of legal action, the lawsuit is filed on behalf of everyone in the class, that class being a group of people who share similar circumstances, injuries and damages. To be part of a class action, the plaintiff must show that his experience with the defendant is similar to that of other people in the class. Plaintiffs must also show that the evidence against the defendants is similar for everyone in the class and that individual lawsuits against the company would not be an efficient use of the court’s time, nor would it be cost-effective.
In a mass tort, a defendant is sued by a large group of people, but those people actually retain their individual lawsuit rather than becoming part of a “class”. An attorney or group of attorneys can represent multiple injured parties in their individual cases and plaintiff’s lawyers can share information. Cases that are similar can then be argued together.
Defective drug lawsuits are often mass torts because plaintiffs may have suffered different damages from the same drug—for example a person taking a drug may have suffered a fatal heart attack while another suffered a minor stroke—and based on their different injuries, their awards would likely be different. Large-scale accidents, such as plane crashes are also argued as mass torts.
The key difference between a class action lawsuit and a mass tort is the extent to which the plaintiffs’ injuries are the same. In a class action, plaintiffs experience similar harm or injury; in a mass tort, the injuries can differ from plaintiff to plaintiff.
Who Will Be Legally Responsible for the Spray Foam Problems?
Multiple parties may responsible for all of the damages to homes and personal injuries caused by spray foam insulation problems. The spray foam manufacturing industry storyline is that “urethanes are non-toxic and only require protection for our operators during installations, but the finished product is completely safe and has no formaldehydes.” Accordingly, when personal injury claims arise associated with use of their product, manufacturers like to point the finger at the mixer or installer of the product. However, companies that are able to purchase and apply these commercial spray foam insulation products are required to have training and be certified by the manufacturer that they are competent to install the product according to manufacturers’ specifications. The problem is that not all employees in every company that installs such products are required to be trained on how to properly apply the product. Hence, the manufacturers as well as the installation companies should bear responsibility for all such claims.
Claims may also be available against the party who either mixed the product during application or the party who is responsible for clean up or ventilation of the product at the project. Builders and general contractors who recommend the product may have responsibility as well. One thing is certain: there will be a lot of finger pointing back and forth between manufacturers, mixers, installers and others in an effort to avoid responsibility for injuries caused by spray foam insulation application. Thus, parties who have been exposed and injured by insulation need an experienced attorney who knows the claims involved, the mechanisms of the exposure and the potentially responsible parties to hold accountable.
What Causes Spray Foam Problems?
SPF is formed during an onsite polymerization reaction of two chemical compounds that contain isocyanates and polyols (alcohols), as well as “other additives.” The Environmental Protection Agency, other federal agencies, states, industry and other countries have taken action to address health risks posed by exposure to isocyanates and the “other additives,” which include chlorinated TRIS. TRIS is a flame retardant and known carcinogen that was banned in 1979 from children’s sleepwear. Recently, New York banned TRIS from any children’s products because studies show it can mutate DNA, cause harm to the developing brain, disrupt hormones and cause cancer.
Why does the spray foam smell? What are the spray foam problems? Homes containing SPF often have a slight fish-like or some find to be almost a “new home, chemical smell.” Tests have shown that off-gassing can occur with scary results, including the presence of abnormal levels of formaldehyde. During the application process, there are far too many variables at stake that undertrained and untrained applicators simply cannot overcome. For example, if the mix is off ratio and that causes a contaminate (moisture) on the surface between lifts, the result can be an off-gassing and odors from the uncured amine catalyst and other aldehydes and chemicals that fail to properly cure.
Another example of spray foam problems comes when the foam is slightly under processed. This can happen when the proper application temperatures, at the gun, are not followed; and these temperatures vary with the weather conditions and the substrate. When the proper temperatures are not followed, the spray foam problems become realized as the foam fails to properly cure. Moreover, spray foams problems can occur when the spray foam is applied in greater than a 2-inch pass, or by applying a second pass over the first without allowing the first pass to properly cure (about an hour or more). There are far too many variables that come into play when your family’s health and welfare is on the line.
High exposure to SPF, including vapors, aerosols and dust during and after installation can cause asthma, lung damage, neurological problems, other respiratory and breathing problems, and skin and eye irritation. Once sensitized, people have found it virtually impossible to continue residing in the hole with SPF, and removal of the product has been extremely difficult or can make the matter worse because of the particularization that can occur during the process.
What Information to Gather for Spray Foam Problems and Smells?
Spray foam insulation – polyurethane-based foam system –(SPF) is currently being applied and sprayed in hundreds of thousands of homes across America. When the SPF is not installed properly, or the formula is off, or the temperature is off, if the foam fails to completely cure, there can be a smell (chemical, fish, ammonia, new home). Tests have shown that off-gassing can occur with scary results, including the presence of abnormal levels of formaldehyde, isocyanates, TRIS and other chemicals.
If you believe that your home may have spray foam that is off-gassing, when you contact our firm for help, we are going to ask you for information and documentation. Please locate all contracts, paperwork, invoices, MSDS sheets, product sheets, and all other documentation that you may have regarding the spray foam that was installed in your home. The following are questions we need answered by you:
Home owner(s) name(s):
All contact information: (Phone(s), mailing address, email)
Address of home with spray foam problem:
If new construction, builder’s name, address, phone:
Date of spray foam insulation:
Spray foam manufacturer and product: (BASF, Demilec etc.)
Where was it installed?
Any problems that you know of during installation? (Equipmentmalfunctions etc.)
How long did installation take?
Weather and temp during installation? (You can check with local weather station)
Are you still living in the home and if not, when did you vacate?
Were you or anyone in your family in the home during the application? Explain.
Physical problems: respiratory, throat, eyes, skin, asthma, neurological etc.
Has anyone taken samples or did testing, if yes, who and what were the results?
Do you have the testing results?
Is the insulation still in the home, if not, who removed it and how was it removed?