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Chinese Drywall Lawsuits Face Difficulties in Louisiana

Jul 15, 2009 | Parker Waichman LLP As the Chinese drywall problems becomes ever larger, there are concerns that affected homeowners in Louisiana may have a difficult time obtaining relief for their damages.  According to an article in the Greater Baton Rouge Business Report,  without a federal- or state-sponsored measure to assume burden of proof, homeowners with Chinese drywall in Louisiana may have trouble proving their case.

As we’ve been reporting for months now, homeowners living with Chinese drywall have reported that it fills homes with a putrid, “rotten-eggs” odor and causes metals to corrode. Some have complained of sinus and respiratory problems that occur while they are in their homes. According to tests conducted by the Environmental Protection Agency (EPA), ) Chinese drywall samples were found to contain sulfur and two organic compounds associated with acrylic paint in that were not present in the American wallboard. Recently, new concerns were raised that some Chinese drywall could also be radioactive. According to an LA Times investigation, some Chinese drywall manufacturers use phosphogypsum – a radioactive phosphorous substance – to make wallboard. At least four firms told the Times that drywall made with phosphogypsum was shipped to the U.S. in 2006.

According to the latest status report from the Consumer Products Safety Commission (CPSC), it has received a total of 608 complaints about Chinese drywall, with most coming from Florida, Louisiana and Virginia.   But that number is probably well below the actual number of homes affected.  According to the Business Report, at least 12 class action suits involving Chinese drywall have been filed  in 33 states  against builders, suppliers and manufacturers since late last year.

Right now,  according to the Business Report, Louisiana  homeowners can sue for defective drywall under the state's Home Warranty Act.   But under that law, there's strict timetable for what is covered under warranty based on when the lawsuit is filed and when the home was built.  If drywall problems were not immediately identifiable shortly after a house was built, that avenue of relief could be closed  to them, the Business Report said.

Homeowners might also have recourse under  the Louisiana Products Liability Act.  But under that law, homeowners must be able to prove a strong scientific basis for their claim that a product is defective, the Business Report said.  That generally means hiring experts and conducting tests to prove the drywall was defective.

A federal or state law that assumed the burden of proof would eliminate that need.  As we reported earlier this year, such a law was proposed in Louisiana by state Sen. Julie Quinn, a Metairie Republican.  The proposed law would have allowed homeowners to sue for 100 percent of their damages, plus attorneys fees from either the manufacturer, distributor, or seller of the contaminated drywall. Critics had claimed that the litigation allowed under the proposal could bankrupt some businesses. Others asserted that it isn’t fair to sue those companies who didn’t know the materials they purchased from China were toxic.  The measure was eventually dropped.

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