As investigators with the Consumer Product Safety Commission prepared for a visit to China next week to look into tainted drywall, the federal judge overseeing the massive basket of legal cases reiterated his plan to speed the proceedings along.
In a report to Congress, the federal agency — leading the investigation into Chinese drywall — said it had received permission from Chinese officials for the trip, scheduled to begin on Monday.
Meanwhile, Judge Eldon E. Fallon, who plans to begin “bellwether” trials in January, told both sides during a status conference in New Orleans on Tuesday that he expected discovery to begin in a few weeks.
The process will be sped along by the use of “profile forms” rather than traditional interrogatories that can get mired in procedural delays.
Fallon also said he wanted an agreed-upon plan for inspecting and identifying affected homes by Friday. The inspections should determine whether a home had Chinese drywall and, if so, what kind of damage was present, Fallon said.
He also wanted the chain that led to the drywall being installed in each home to be identified in short order, including the manufacturer, supplier, installer and builder.
“I need a protocol by the end of this week,” Fallon said, adding that he expected a few dozen homes to then be inspected within the next month or two. After that, the protocol could be tweaked if necessary, and then it would be time to “step it up to 1,500 or 2,000 homes throughout the country.”
Fallon plans to pre-certify all inspection firms, as well as other experts in the case, so that neither side can later raise objections to the findings.
Moving toward bellwether trials quickly is seen as a way for both sides to take stock and evaluate the strength of their positions.
“You can think about a case, you can plan a case, you can visualize a case. But until you put on a case, you don’t know what that case is about. That’s just the way it works,” Fallon said.
One challenging aspect of the Chinese drywall lawsuits has revolved around serving the suits in the first place. This has been a particular problem with foreign companies such as the Chinese manufacturers because current regulations are a maze of red tape that can result in months or even years of delay.
Fallon already has suggested that the foreign defendants consider waiving those requirements. He reiterated those views Tuesday, saying that delays in joining the multi-district litigation case would not ultimately prove fruitful.
“The train is leaving, folks, and you’re not going to be able to catch up to it. The MDL is going to get it eventually, you might as well shortcut it,” Fallon said. “I think it’s to everybody’s advantage that you get into this as quickly as possible.”
Attorneys indicated that there may be movement on that issue.
“There have been intense discussions which have become even more intense in the last three days,” said Russ Herman, the plaintiffs’ liaison counsel. “Folks on both sides are encouraged that there may be, with the consent of their clients, a waiver of service under some circumstances.”
Kerry Miller, the defendants’ liaison counsel, partially echoed that sentiment.
“I know some of the foreign defendants are considering the issue,” Miller said, indicating they expected to have a decision before the next status conference. That meeting is scheduled for Sept. 3.
But not all attorneys are hopeful the Chinese manufacturers will consent to being part of the massive litigation. Darren Inverso, who represents Lakewood Ranch homeowner Kristin Culliton, believes many of the foreign defendants could likely wait until the first trials and weigh their options at that point.
“They could wait and see what their exposure is going to be,” Inverso said. “Then they could come in as part of a global settlement.”
As far as the host of mostly domestic defendants who already have been served but have been slow to file an appearance with Fallon’s court, the judge indicated they had better get on the ball.
“I need to know who’s in the litigation,” Fallon said. “If they don’t make the appearance, I’m going to instruct the plaintiffs who have sued them to file a motion for default judgment. And I will have to act on that.”
If you or a family member has been personally injured because of the fault of someone else: by the use of dangerous drugs, bad products, or toxic injury etc then please contact the Fort Worth Texas Product Liability Attorney Dr. Shezad Malik. For a no obligation, free case analysis, please call 817-255-4001 or Contact Me Online.