April 2, 2015, Trial News
Dozens of class actions filed over potentially toxic wood flooring
Alyssa E. Lambert
Lumber Liquidators’ Chinese-made wood laminate flooring emits levels of formaldehyde six to seven times higher than emissions standards allow, and the manufacturer lied about the product’s safety, plaintiffs allege. State and federal agencies are investigating.
Between 30 and 50 class actions have been filed against Delaware-based Lumber Liquidators alleging its Chinese-made wood laminate flooring emits levels of formaldehyde six to seven times higher than emissions standards allow. The known carcinogen, used in the glue that binds the wood together, can cause various respiratory issues, from shortness of breath to pneumonia. The plaintiffs allege the manufacturer—the largest seller of engineered wood in the United States—lied about the product’s safety. State and federal agencies are investigating.
Plaintiffs have filed motions with the Judicial Panel on Multidistrict Litigation (JPML) to consolidate the growing number of federal lawsuits: They anticipate hundreds, if not thousands, more. (In re Lumber Liquidators Flooring Prods. Mktg. & Sales Practices Litig., MDL No. 2627 (J.P.M.L. filed Mar. 9, 2015).)
California has strict standards regarding how much formaldehyde a product can emit, known as the California Air Resources Board (CARB) emission standards. The U.S. Environmental Protection Agency has adopted those standards but has not yet adopted all the state’s consequences for not complying, which it is scheduled to do in 2016. In early March, a 60 Minutes segment revealed that only one of 31 samples of Lumber Liquidators Chinese-made wood flooring bought in Florida, New York, Texas, and Virginia stores met the standards, called CARB 2. The rest were an average of six to seven times over the emissions limit, in some cases 20 times over. The segment also showed Chinese plant workers admitting that the Lumber Liquidators flooring was not CARB 2 compliant, despite labels indicating that it was.
“It’s not surprising to see another product come from China where apparently little if any quality control is exhibited. What we saw in the 60 Minutes video—that was just shocking,” said Raleigh, N.C., attorney Daniel Bryson, who has represented owners in defective construction product litigation. “It really is a tragedy. These homeowners trust the manufacturers to provide them with safe products.”
The first class action was filed in California in December, but the news segment sent shock waves through the consumer public, and now class actions have been filed in federal courts in California, Florida, Illinois, Nevada, New Jersey, North Carolina, Oklahoma, and Pennsylvania. The plaintiffs allege that Lumber Liquidators falsely advertised that their flooring was safe and sold a defective and harmful product. They seek compensatory and punitive damages. (Groton v. Lumber Liquidators Holdings, Inc., No. 2:2015-cv-00475 (D. Nev. filed Mar. 16, 2015); Latta v. Lumber Liquidators, Inc., No. 2:15-313 (E.D. Cal. filed Mar. 6, 2015); and Badias v. Lumber Liquidators, Inc., No. 1:15-cv-20876-RNS (S.D. Fla. filed Mar. 5, 2015).)
Most of Lumber Liquidators’ customers are residential homeowners. The New York Attorney General’s office is investigating the allegations, and the Consumer Product Safety Commission announced it is also evaluating the product’s safety. Sen. Bill Nelson (D-Fla.) has requested a hearing.
“I get at least three calls per day, and the question that everyone is asking is: Should I tear it out?” said West Palm Beach, Fla., attorney Ted Babbitt, who represents Joaquin Badias. Babbitt recommends having the flooring professionally tested before removing it.
Bryson, who represents some of the plaintiffs, said significant research and testing still need to be done. “We don’t really know to what extent the emissions are going to continue, so if you remove the flooring, you could face a potential spoliation claim,” he said.
West Hollywood, Calif., attorney Robert Ahdoot, who represents Sara Latta, said many people are removing the flooring anyway. “We advise them how to save the flooring so that it can be tested later and to maintain a chain of custody,” he said.
Lumber Liquidators is offering free formaldehyde testing kits to any customer who requests one. Consumers can send the results to a lab that will respond within 10 days. Attorneys called the test kits problematic.
“We have many people reporting difficulty getting the kits. We do not know what kits they are using or how reliable they are at determining home occupants’ actual exposure to formaldehyde,” said Oakland, Calif., attorney Eric Gibbs, who also represents some of the plaintiffs.
“Testing air on a short-term basis rarely gives you any useful information. What you need to know is what is being emitted over weeks, months, and years. . . . The only effective testing will be done by qualified experts,” Bryson said.
Although consumers have reported various respiratory effects, such as coughing, difficulty breathing, and even the onset of asthma, plaintiff attorneys said it is too early to tell what personal injury claims will be filed.
“What it really boils down to is how long does this formaldehyde emit, at what levels, and what kind of damage—property or personal injury—is it causing?,” said Bryson, who compared the problem to the Chinese drywall litigation, in which drywall released sulfur gases into thousands of homes. “It was difficult to pursue personal injury claims in the Chinese drywall cases because once someone left the environment, the gas dissipated. We don’t know if the off-gassing from formaldehyde has a similar effect.”
“The litigation will ultimately ferret out whether such ailments are sufficiently related to Lumber Liquidators’ flooring,” Gibbs said. “The cases, as currently framed, allege and seek recovery for significant economic harm to customers. People have spent thousands of dollars in the course of purchasing and installing this flooring.”