Is My Drywall Chinese? - HB Litigation Conferences

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Outline Chinese Drywall A Practical Protocol HB Litigation Conferences Ritz Carlton, New Orleans, LA June 18, 2009 • Is My Drywall of Chinese Origin? Factors to Examine Just because it IS does NOT mean it will be a problem and just because it is NOT does not mean it will NOT be a problem. Testing-lessons learned from the old days of mold • Impact to Homes/Scope of Repair • Costs • Geographical Distribution • Can this get any worse? 2
Is My Drywall Chinese? Factors to Examine a) Smell 1. Variable odors (most common- rotten egg or burnt match) and not all homes have it 2. Low odor threshold for sulfur compounds (.0047 ppm) 3. Odor differences may have to do with manufacturing origins 4. Odor will not dissipate as sulfur continues to leach but MAY lessen as time goes on 5. Time of day- earlier may be worse 6. Location- confined spaces, upper levels, cutouts will have greatest odors-back side of drywall smells worse Is My Drywall Chinese? • Smell-Red Herrings In Florida- the presence of a shallow water well on the property along with a high sulfur content in the water may lead to similar odors and problems. 3 4
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HB Litigation Conferences Presents
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FACULTY Jeremy Alters is the foundi
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works include FasTrain: Florida Civ
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a Superfund case that resulted in a
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clerk in the United States District
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The “Writing On The Wall”: Impo
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STATES WHERE IMPORTED DRYWALL HAS B
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Florida Reports of Drywall “Cases
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STATE RESPOND ● Florida ● Louis
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Glenn Cambre, Esq. Director Directo
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PHONE SURVEY INFORMATION: Identifie
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LOUISIANA DRYWALL IMPACT MAPS 6/17/
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FLORIDA VS LOUISIANA DRYWALL • Fl
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Remediation Standard? ● Presently
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Chairman Pryor, Ranking Member Wick
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the German manufacturer, Knauf, onl
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companies, the homeowners, and the
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Chinese drywall spins off 'silent h
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The EPA said these results are not
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Get out of house with Chinese drywa
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The Consumer Product Safety Commiss
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“We’re trying to get the federa
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claims, but it's still a significan
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Imported Drywall and Health - A Gui
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Who is at risk? • insomnia • he
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"The Writing Is on the Wall": Defec
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significant indemnification or cont
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The Walls Are Closing In: Chinese D
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An Introduction to Our Firm Duane M
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• Utilizing the Construction Grou
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Occupational Safety and Health Act
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The Walls Are Closing In: Chinese D
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"The Writing Is on the Wall": Defec
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significant indemnification or cont
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Sheila Raftery Wiggins, Partner Dua
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Real Estate Litigation • Represen
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Selected Publications • "The Wall
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TRIGGER OF COVERAGE cont. 2. “Rel
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TRIGGER OF COVERAGE cont. 6. Triple
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OTHER CONSIDERATIONS • Deductible
Page 166 and 167: *Overused and Overwrought Metaphor?
Page 168 and 169: Reduced Sulfur Compounds are Diffic
Page 170 and 171: Analysis Methods— Electrochemical
Page 172 and 173: Conc. (ppmv) 1.0 0.9 0.8 0.7 0.6 0.
Page 174 and 175: Key Reactions* • H2S + H2O + M =
Page 176 and 177: Chemistry of Emissions from Drywall
Page 178 and 179: What is Damaged? Problems we’re s
Page 180 and 181: Copper Wires Blacken Paul G. Philli
Page 182 and 183: Pitted Bath Tub Stoppers Paul G. Ph
Page 184 and 185: What MAY BE Damaged Problems we’r
Page 186 and 187: What’s Reportedly Damaged Other p
Page 188 and 189: Black Copper Sulfide TYPICAL BLACKE
Page 190 and 191: Reaction Progresses Paul G. Phillip
Page 192 and 193: COATED COIL IS ALL BLACK Open Quest
Page 194 and 195: PUSH-IN WIRING CONNECTION Open Ques
Page 196 and 197: Open Questions • How and where ar
Page 200 and 201: Is My Drywall Chinese? b) Visual Ap
Page 202 and 203: Is My Drywall Chinese? Is My Drywal
Page 204 and 205: Is My Drywall Chinese? • To Test
Page 206 and 207: Costs Risk Management 101 • Lesso
Page 208: Can This Get Any Worse? • Emergin
Page 212 and 213: The Expected Primary Defense: “Po
Page 214 and 215: Revisions to the “APE APE” Demo
Page 216 and 217: Cases Interpreting the Pollution Ex
Page 218 and 219: Other Issues Additional coverage pa
Page 220 and 221: contradicts the plain language and
Page 222 and 223: partial off-site exclusion for some
Page 224 and 225: With respect to the new, absolute p
Page 226 and 227: Even when courts find that an APE s
Page 228 and 229: Setting aside expectations of cover
Page 230 and 231: The LDI’s Advisory Letter warned
Page 232 and 233: Decisions by the High Courts in Cal
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Page 236 and 237: exclusion should not reflexively be
Page 238 and 239: The court in Koloms criticized the
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Page 242 and 243: that reject coverage for non-enviro
Page 244 and 245: Survey of Appellate Court Decisions
Page 246 and 247: State Limiting Exclusion to “Indu
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State Limiting Exclusion to “Indu
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L:\MASTERLS\Seminar\HB Chinese Dryw
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OCCURRENCE “Property Damage”
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OCCURRENCE Majority View: Liabili
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CHOICE OF LAW Starting point for c
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CHOICE OF LAW “Significant Conta
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Which Contractors Will Be Covered b
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Which Contractors Will Be Covered b
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that has not been physically injure
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In sum, in most states the damage c
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the several Chinese drywall claims
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V. The “Absolute Pollution Exclus
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to test for, monitor, clean up, rem
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spraying of pesticide in apartment
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exclusion are not met because the
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VI. Choice of Law As discussed abov
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homes containing Chinese drywall ar
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“legally obligated to pay as dama
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By: Veronica M. Bates TRIGGER OF CO
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TRIGGER OF COVERAGE cont. 4. “Inj
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ALLOCATION 1. Pro Rata • Time on
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Chinese Drywall Litigation NELSON
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NELSON • LEVINE • de LUCA & HOR
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Additional Insured Issues • The m
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Additional Insured Issues • 2004
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Subrogation Opportunities Targets a
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Subrogation Opportunities • Contr
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Subrogation Opportunities • Hurdl
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Liability Issues Hugh J. Turner Jr.
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Manufacturers • Knauf Gips, KG (e
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Suppliers 84 Lumber Co. All Flori
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Drywall Lawsuit Models • Type 1:
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Express Warranty • Elements - Exp
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Medical Monitoring • Elements: -
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Vicarious Liability A corporation
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What Are The Defenses? Economic Lo
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DEFENSES Florida - Strict Liabilit
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DEFENSES Lack of Privity of Contra
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What Are The Current Issues In The
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Current Issues • Case Assignments
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Current Issues Insurance Coverage
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Issues In Florida • Chapter 558 R
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Chinese Drywall Conference Sander L
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Are Chinese Drywall Issues Similar
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Search for New Defendants • Contr
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How does Chinese drywall impact hom
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How does Chinese drywall impact hom
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Home H Value Over 10 Yeaars How doe
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Home H Value Over 10 Yeaars Home H
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Use of Mass Appraisal Models Event
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Use of Mass Appraisal Models Cross-
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SUITE 650, FOURTH AVENUE SEATTLE, W
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concern at the moment remain 2004
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able, in which case rather than a
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subject properties and the data use
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CHINESE DRYWALL LITIGATION UPDATE A
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5 6
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WHERE WAS THE CHINESE DRYWALL USED
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WHAT KIND OF EXPERTS YOU’LL NEED
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Hydrogen Sulfide Exposure • Belie
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BACKGROUND PROCEDURE MULTIDISTRICT
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that there is a much smaller chance
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applicable standard of liability. D
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RULES OF PROCEDURE OF THE JUDICIAL
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- 3 - transferred under Section 140
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- 5 - (c) Copies of motions for tra
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- 7 - (c) Once a corporate disclosu
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- 9 - designating such a pleading a
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RULE 7.6: TERMINATION AND REMAND In
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- 13 - (b) Each party filing a moti
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- 15 - (C) the circuit court of app
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UNITED STATES JUDICIAL PANEL ON MUL
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Drywall Common building material ty
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Chinese Drywall Analysis ( incomple
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Coal combustion residues Derived f
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Coal Mine Waste Coal may be sold a
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Coal Fly Ash Resident complaints E
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Skin Acne Skin rashes Hives Per
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Sensitive populations Infants Chi
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Carbon Disulfide Gas—evaporates
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Sulfur Dioxide Sulfur Dioxide An E
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SO 2 Symptoms of Chronic Exposure t
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Exposure to lower concentrations of
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GI Symptoms of H 2S Nausea Vomiti
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Particulate Matter Particulate Matt
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Airways of Lungs Lungs
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Clearance from the lungs is not cle
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Particles containing Heavy metals a
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Natural Decay Series: Uranium-238 U
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PAHs Benzo[a]pyrene Group 1 Human c
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