- the damage to insulated electrical wiring, and
- the apparent ineffectiveness of vacuuming alone to remove residual drywall particles

Lennar started remediating homes last year, stating that it knew what needed to be fixed and how they will go about fixing the problem. Initially, Lennar stated that insulated wiring within the walls of the homes were not affected, and therefore, it could snip off the exposed ends of copper wires and could use the rest. However, recent findings conclude that its not that simple.

During the trial, scientists presented several cases in which insulated wiring had been damaged in homes. Lennar appears to have reached the same conclusion sometime last year, as its protocol has changed, and they now remove all affected wiring in homes.

Though the change to the remediation process has been made for the future, but what about the early homes where the remaining wiring was left behind? That is something we will have to keep an eye out for in the future.

If you suspect your home may be built with defective Chinese drywall, contact us here for a free no obligation case review.

It is well-settled that the drafting of statutory language to carry out prevailing policy preferences is a legislative, not a judicial, function. Yet, in Travelers, the Third Circuit Court appeared to substitute the judicial policy pronouncements embodied in the economic loss doctrine for the plain language of the NJPLA. At issue was whether a commercial purchaser of a defective product could sue under the NJPLA for “physical damage to property, other than to the product itself,” N.J.S.A. 2A:58C-1(b)(2), when the “other property” damage was a reasonably foreseeable result of a breach at the time of the original contracting. While acknowledging that “the NJPLA clearly permits a plaintiff to pursue a tort remedy in the event of harm to ‘other property,’” Id. at *6, the Third Circuit nevertheless predicted that the New Jersey Supreme Court would apply the common-law construct of the economic loss doctrine to preclude such a recovery. “After surveying the law in other jurisdictions,” the court explained, “we predict that the New Jersey Supreme Court would interpret the doctrine to bar tort claims where a plaintiff seeks economic damages for foreseeable losses for which the plaintiff could have contractually allocated risk[,] . . . without reference to whether the loss stems from damage to ‘the product itself’ or ‘other property.’“ Id. at *2, 6 (emphasis added).

Applying this test to the facts before it, the court concluded that the sale of mercury-tainted vanilla beans to International Flavors & Fragrances Inc. (IFF), a manufacturer of vanilla extract, did not give rise to a cognizable tort claim against the bean supplier, Dammann & Co., Inc., even though the adulterated beans allegedly caused damage to the other ingredients in the manufacturer’s flavoring extract and the equipment used in the extraction process. The controlling inquiry, the court explained, is “not whether the damage extends beyond the physical dimensions of the purchased product,” but whether the “property damage experienced by the owner. . . was a foreseeable result of a defect at the time the parties contractually determined their respective exposure to risk.” Id. at *8, 9 (internal quotation marks and citations omitted). The manufacturer’s losses were “purely economic” because, in the court’s assessment, they were “within the contemplation of sophisticated business entities with equal bargaining power and. . . could have been the subject of their negotiations.” Id. at 8. Thus, IFF was precluded from seeking a tort recovery under the doctrine.

The Third Circuit’s holding achieves a result that the New Jersey Supreme Court has time and again admonished courts to avoid—the judicial rewriting of a plainly worded statute. The NJPLA, by its terms, encompasses “any claim or action brought by a claimant for harm caused by a product.” N.J.S.A. 2A:58C-1 (emphasis added), including “physical damage to property other than to the product itself[.]” N.J.S.A. 2A:58C-1(b)(2) (emphasis added). It prescribes a single, statutorily defined theory of recovery for any such claim, adopting, generally, the methods of proof recognized for strict liability in tort. “The language chosen by the Legislature in enacting [the statute] was both expansive and inclusive, encompassing virtually all possible causes of action relating to harms caused by consumer and other products.” In re Lead Paint Litigation, 191 N.J. 405, 436-37 (2007). As the New Jersey Supreme Court recently observed in Rowe v. Hoffman-La Roche, Inc., 189 N.J. 615 (2007), the NJPLA “was intended ‘to establish clear rules with respect to specific matters as to which the decisions of the courts in New Jersey have created uncertainty.’” Id. at 624 (quoting Senate Judiciary Committee, Statement to Senate Committee Substitute for S.B. No. 2805, at 1 (Mar. 23, 1987)).

In Travelers, the Third Circuit gave short shrift to this legislative prerogative. While acknowledging the NJPLA’s remedial purpose of “establish[ing] clear rules” with respect to product liability claims, the court found the Legislature’s efforts wanting. “The statute,” the court opined, “obscures more than it elucidates, especially when juxtaposed with other elements of New Jersey law.” Id. at *15 n. 5. Yet, the only “juxtaposition” presented in the court’s opinion is to extra-jurisdictional case law limiting, or abrogating, the “other property” exception of the economic loss rule. The court readily acknowledged that “[n]o New Jersey court has delineated the contours of ‘the product itself’ and ‘other property’” and that “[n]either the Supreme Court of New Jersey nor any other New Jersey court has directly clarified the interaction between the NJPLA and the economic loss doctrine.” Id. at *3.

Addressing the “apparent tension” between its formulation of the doctrine and the plain language of the NJPLA, the court stated:

It might be argued, of course, that a court is more at liberty to work around a judicially-created doctrine than a legislative act, which a court must do its utmost to respect and enforce. Whatever the merit of that argument, it is not relevant here, as we are not ignoring the NJPLA's “other property” exception. Instead, we seek to reconcile two seemingly conflicting strains of New Jersey law to the best of our ability given all available, relevant data.

Id. at *15 n. 8. In view of the acknowledged absence of New Jersey precedent directly on point, it is not entirely clear what “seemingly conflicting strains of New Jersey law” informed the court’s construction in this case. Id. However, the effect of that construction is unmistakable; it imposes additional requirements on a statutory remedy where they are not plainly expressed.

The court, evidently, saw “no principled reason. . . why a legislatively-created ‘other property’ exception should be interpreted any differently from its judicially-created counterpart.” Id. at *9. An examination of the statute, however, discloses at least two reasons. First, the presumed “exception” for “other property” is found nowhere in the provisions of the Act. Rather, the Act excepts “damage to the product itself” from the general rule that “physical damage to property” caused by a product is a “harm” actionable in strict liability. N.J.S.A. 2A:58C-1(b)(2). Second, if the Legislature intended to incorporate the judicial construct of the economic loss doctrine, it easily could have done so by including a provision that explicitly forecloses the recovery of purely “economic loss.” A number of state legislatures have done just that in their product liability statutes. See, e.g., R.C. Wa. 7.72.010(6); La. R.S. 9:2800.53(5). The New Jersey Legislature, advisedly, did not.

The Third Circuit’s use of the economic-loss doctrine as a policy-construction tool led it to conclude that “harm” under the NJPLA does not mean what the statute plainly says, but rather is code for the prevailing common-law view of tort damages. New Jersey law, however, presumes that Legislative enactments are written in plain English, not code. Recognizing the consequences of unbridled judicial forays into the legislative sphere, the New Jersey Supreme Court has cautioned courts to “enforce the legislative will as written and not according to some unexpressed intention,” Dacunzo v. Edgye, 19 N.J. 443, 451 (1955), and, further, to avoid “extending judicial doctrines that might dislocate the legislative structure.” Spring Motors Distributors, Inc. v. Ford Motor Company, 98 N.J. 555, 557 (1985).

The Third Circuit’s opinion represents not only a judicial abrogation of a statutory remedy but also a troubling extension of one of the most “quickly and confoundingly expanding legal doctrine[s.]” Paul J. Schwiep, The Economic Loss Rule Outbreak: The Monster That Ate Commercial Torts, Fla. B.J., Nov. 1995, at 34. As one jurist colorfully put it:

Like the ever-expanding, all-consuming alien life form portrayed in the 1958 B-movie classic The Blob, the economic loss doctrine seems to be a swelling globule on the legal landscape of this state.

Grams v. Milk Products, Inc., 283 Wis.2d 511, 540 (2005) (Abrahamson, C.J., dissenting). Previously well-established remedies under the common law have already succumbed to the rapidly expanding doctrine, as demonstrated most recently by the New Jersey Appellate Division’s decision in Dean v. Barrett Homes, Inc., 406 N.J.Super. 453, 202 (2009) cert. granted, 200 N.J. 207, 976 (2009). It now appears that even plainly worded enactments of the Legislature are not immune.

You can read more on this story online here.

If you suspect your home may be built with defective Chinese drywall, contact us here for a free no obligation case review.

You can read the full story online here.

If you suspect your home may be built with defective Chinese drywall, contact us here for a free no obligation case review.

What’s also unclear is the percentage of this final number that will be covered from property and casualty insurance. This means builders, suppliers and manufacturers of the defective drywall should prepare for numerous lawsuits in the near future from homeowners facing thousands of dollars in damages and repair costs.

I found an article online recently which details the estimated costs associated with the Chinese drywall problem, and those who are most likely to be affected by the current litigation. You can read the full article here.

If you suspect your home may be built with defective Chinese drywall, contact us here for a free no obligation case review.

The suit was filed on behalf of four homeowners, and seeks class action status for all residents of the state who are suffering from health problems due to the defective drywall. The suit names subsidiaries of the Miami-based home builder, Lennar Corp., and drywall manufacturers, Georgia-Pacific Corp. of Atlanta, Georgia as defendants. Though the drywall epidemic has ravaged the east coast, reports of the drywall reaching as far west as Las Vegas will certainly cause speculation of a national drywall epidemic and will surely lead to homeowners in every state looking into whether or not their homes were constructed with Chinese drywall.

If you suspect your home may be built with defective Chinese drywall, contact us here for a free no obligation case review.

Officials are urging homeowners to keep meticulous records of any expenses incurred due to the drywall problems – such as medical bills, home renovation costs, and in some situations, relocation expenses. Tax refunds will be easier to distribute to those who have a clear outline of the financial burden this has placed on them. Also, obtaining assistance from an attorney may help expedite the situation when handling any sort of settlement or claim that may be made once the government has decided who is eligible to receive the refunds.

If you suspect your home may be built with defective Chinese drywall, contact us here for a free no obligation case review.

According to a statement from the CPSC, federal and state technical teams of scientists from the CPSC, Environmental Protection Agency, the Florida Health Department, Centers for Disease Control and Prevention, Agency for Toxic Substances and Disease Registry, Louisiana Department of Health and Hospitals, and Virginia Department of Health has concluded that the samples had no elevated levels of radioactivity.

While this may serve as relief to those homeowners living with Chinese drywall, there are still several problems facing those homeowners. Residents in 24 states have filed a total of 1046 Chinese drywall complaints with the CPSC. The Florida health department is expected to release additional test results later this year which could offer more information as to the potential health hazards posed by the drywall.

If you suspect your home may be built with defective Chinese drywall, contact us here for a free no obligation case review.

Centek uses Whole Air Sampling By Method TO-15 to monitor the areas believed to have been built with the defective Chinese drywall. Centek also has the capability to conduct headspace testing. In a headspace test, a sample of the drywall is placed in an air tight headspace chamber, which is then purged, extracting a sample of what gasses are being emitted from the product.

If you suspect your home may be built with defective Chinese drywall, contact us here for a free no obligation case review.

Last week, United States Senator Bill Nelson, sent a letter to the White House requesting the President to "create a 'one-stop' federal Drywall Assistance Center" that homeowners can go to for information and resources regarding the defective drywall.

You can read more on Pestenski’s story online here.

If you suspect your home may be built with defective Chinese drywall, contact us here for a free no obligation case review.