Plaintiffs Come Up Empty in Chinese Drywall Lawsuits

When the fox is after the chicken, some days its chicken and other days its feathers. For instance, Boston Trial Lawyers found they were  running on empty in their pursuit of big dollars for their clients’ damages.

The Trial Lawyers found it was easier to get a judgment than to collect the money when it came to suing and collecting against  Chinese Drywall Manufacturers.  Courts and Juries handed down verdicts against Taishan Gypsum Co. for manufacturing drywall products that were proven to cause destruction to electronic devices, cause respiratory ailments and cause hardware erosion (metal corrosion).  However, the payday remains elusive.

The offending drywall contained sulfur, a highly reactive element, that readily combined with moisture and other elements (hydrogen and oxygen) found in the air to form sulfuric acid (H2SO4).  The fumes from the sulfuric acid, found in the immediate area of the drywall, though weak, caused metal corrosion, awful smell, respiratory illness and general mayhem in the home environment.  An intelligent person would be sure to avoid drinking, breathing, or touching the harsh chemical.  Home owners were surrounded by the contaminated drywall and suffered damages.

Sulfuric acid (alternative spelling sulphuric acid) is a highly corrosive strong mineral acid with the molecular formula H2SO4. It is a colorless to slightly yellow viscous liquid which is soluble in water at all concentrations.[2] Sometimes, it may be dark brown as dyed during industrial production process in order to alert people to its hazards.[3] The historical name of this acid is oil of vitriol.[4]

It is a diprotic acid which may show different properties depending upon its concentration. Its corrosiveness on metalsstones,skineyes and flesh or other materials can be mainly ascribed to its strong acidic nature and, if concentrated, strong dehydratingand oxidizing properties. Concentrated sulfuric acid can cause very serious damage upon contact as not only does it hydrolyzeproteins and lipids leading to chemical burn, but also dehydrates carbohydrates resulting in secondary thermal burn. If it contactseyes, permanent blindness may occur.[2] So, safety precautions should always be taken when using it. Moreover, it ishygroscopic, readily absorbing water vapour from the air.[2]

Possessing different chemical properties, the sulfuric acid has a wide range of applications including domestic acidic drain cleaner,[5] electrolyte in lead-acid batteries and various cleaning agents. It is also a central substance in the chemical industry. Principal uses include mineral processingfertilizer manufacturing, oil refiningwastewater processing, and chemical synthesis. It is widely produced with different methods, such as contact processwet sulfuric acid process and some other methods. (source Wikipedia)

Kimberly Atkins, Lawyers USA, wrote a story featured below:

For Chinese drywall plaintiffs, a cashless victory

By Kimberly Atkins
Lawyers USA
Posted: 04:01 PM Wednesday, September 19, 2012

A large chunk of Chinese drywall from a home in Davie, Fla., leans against the wall. (AP file photo)

BOSTON – For attorney Russ M. Herman, a verdict in favor of a few among thousands of plaintiffs who saw their homes – and in some cases their livelihoods – ruined by toxic, crumbling walls was only the beginning of the battle. “ Collect-ability is going to be a serious problem,” said Herman, plaintiffs’ liaison counsel in the drywall cases and senior partner at Herman, Herman, & Katz in New Orleans.

Since the bellwether $2.6 million bench verdict in 2010 in favor of seven Virginia homeowners for the damage they sustained from Chinese drywall installed in their homes, other courts and juries have handed down verdicts against Taishan Gypsum Co. and other Chinese drywall manufacturers whose products eroded walls, destroyed electronic devices and caused respiratory injuries.

But attorneys and advocates for the homeowners say that legal maneuvering and the unfavorable state of the law regarding foreign civil defendants have left even victorious plaintiffs with nothing to show for it. In the case of the Virginia homeowners, more than two years after their verdict the chances of actually collecting the award any time soon are small.

The defendants “are undercutting the process because they don’t have to comply,” said Herman. “They could completely withdraw and go to China and say that you will never be able to collect here.”

Further, he said, the effect extends beyond Chinese drywall litigation. “This case is about drywall, but another could be about flammable pajamas that are going to be marketed to children.”

Push for statutory solution

This month, U.S. District Court Judge Eldon E. Fallon denied Taishan’s request to vacate the judgment against it on jurisdictional grounds. But that won’t be the end of the story. An appeal is expected, and the company has already requested a stay of the verdict while the process plays out. Even if the company loses at the appellate level, collectability is expected to be an issue.

Meanwhile, at least one couple who were plaintiffs in the Virginia case have lost their home to foreclosure due to the mounting costs of trying to replace faulty materials and hefty medical bills.

Hundreds of other lawsuits against drywall manufacturers, builders, contractors and suppliers have been filed across the country involving thousands of homeowners. An estimated 500 million pounds of Chinese drywall has been imported into the country, 10 million pounds by Taishan Gypsum alone. Remediation efforts could cost billions of dollars.

The American Association for Justice, the nation’s largest trial lawyer lobbying group, says the solution rests with Congress.

“Congress needs to pass the bipartisan Foreign Manufacturers Legal Accountability Act,” AAJ President Mary Alice McLarty told Lawyers USA. “Whether a product is made in America, China or Timbuktu, it is the American consumer that suffers when a foreign maker cannot be held to responsible for their products.”

The measure has been introduced in both houses of Congress, and the bill’s sponsors say it is needed to hold manufacturers of defective products such as Chinese drywall and toys with unsafe lead levels responsible.

The legislation would require foreign manufacturers of products that enter the U.S. market to establish registered agents within the country to accept service of process. The bill would also require foreign importers to agree to be sued in U.S. courts before they can do business in the country.

But the bills are sitting in committee in the both the House and Senate. A spokesperson for co-sponsor Sen. Sheldon Whitehouse, D-R.I., said there were no scheduled plans for immediate action on the measure.

Meanwhile, a separate bill is expected to be taken up by the House on Sept. 19. The Contaminated Drywall Safety Act of 2012, H.R. 4212, would designate drywall manufactured in China a banned hazardous product, prevent hazardous Chinese drywall from being imported into the United States and ensure that existing drywall is properly disposed of.

Creative collection plans

In the meantime, plaintiffs’ lawyers are thinking creatively.

First, attorneys are conducting discovery to determine the amount of Taishan Gypsum’s U.S.-based assets, which could be seized to satisfy some of the judgment. Herman said the plaintiffs will then look to seize the company’s ships as they deliver goods to the United States.

“We are particularly looking at those ports of entry for the products that are defective, such as Louisiana, Mississippi, New York, New Jersey and California,” he said.

The next option will involve seeking to satisfy the judgment through the billions of dollars in debt the U.S. Government owes to China.

“We are seriously considering seizing part of that debt,” Herman said.

He remains optimistic that the plaintiffs will receive some relief, someday.

“I’m not a predictor,” Herman said. “I’ve been in this business for 46 years, and I find that predictions are either horn blowing or sabre rattling. The only thing I can predict is that we won’t stop.”

The fox remains hungry but determined and all he got was a mouthful of feathers from the Chinese chicken.

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