Is My Drywall Chinese? - HB Litigation Conferences

strategy Merck obtained several favorable judgments after proving a lack of specific
causation, that is Merck was able to show that there was insufficient evidence to
conclude that a specific plaintiff’s heart attack was due to Vioxx rather than the
numerous other risk factors. This success was largely responsible for the nationwide
settlement.
Finally, in asbestos litigation, most of the general causation issues were worked out in
numerous state court proceedings. Other than the chrysotile defense, defendants do
not currently argue that occupational asbestos exposure cannot cause asbestosis, lung
cancer or mesothelioma. Rather, defenses are focused on such case‐specific issues as
the accuracy of the diagnosis, the presence of alternative causes and risk factors and the
sufficiency of the exposure to particular products. Such individualized issues are not
generally appropriate for centralized resolution. Although their traditional role of
resolving general issues is largely moot, the asbestos litigation MDLs have been actively
engaged in promoting settlements of both individual cases and inventories of cases.
A Look Ahead
Unlike the situation presented in the asbestos litigation MDLs, the factual and
procedural environment of drywall litigation is rapidly evolving and should present
numerous common issues of law and fact for resolution in the MDL.
Defining the Defendants Initially it appeared that the involved drywall was produced
by a single Chinese/German manufacturer and was sold and distributed through a
limited supply chain. However, new potential defendants seem to be identified daily.
These include construction materials suppliers, home builders and sellers. Further,
there is now speculation that domestically manufactured drywall that contained fly ash
may cause the same types of problems as the Chinese drywall. Fundamental common
issues related to the identity and nature of the defendants include:
Who are the appropriate defendants?
Which defendants are subject to jurisdiction in a US district court?
What standard of liability is applicable to each type of defendant?
The MDL should provide a means of efficiently resolving the first two issues for all of the
consolidated cases. Resolving the third issue, what standard of liability is applicable, will
be more complex. Most, if not all, states impose strict products liability on the
manufacturer of a defective product. Further, most states allow some distributors to be
treated as manufacturers under certain conditions. Finally, on the other end of the
spectrum, house builders and sellers may be liable only for negligence or there may be
state‐specific remedies. With regard to the distributors, builders and sellers, the MDL
will have to consider whether state laws and remedies make a material difference in the