A federal judge in Atlanta is permitting dozens of product liability suits against Home Depot and the makers of a tile grout cleaner to proceed to trial on negligence claims, but he has stripped away other claims that sought damages for violating federal consumer product safety laws.
Ten of those suits, filed by an Atlanta attorney on behalf of Home Depot customers who were hospitalized after using Tile Perfect Stand ‘N Seal Spray-On Grout Cleaner, are among approximately 50 suits that have settled, according to a Home Depot attorney. The settlements are confidential, said Frank A. Ilardi of Houck, Ilardi & Regas, who shared lead counsel duties with Texas attorney William J. Maiberger Jr. until Ilardi negotiated the settlements.
Ilardi was the only Georgia attorney in the multidistrict litigation, which was consolidated in U.S. District Court in Atlanta after his client, Gwinnett County resident James Flynn, was among the first to file suit in 2007 against Home Depot and five companies tied to the manufacture and distribution of Stand ‘N Seal. The product was produced exclusively for Home Depot, according to court filings in the case.
The manufacturer of the grout sealer had been fielding complaints for more than a month about the potentially devastating health problems associated with its use when Flynn bought a spray can from his neighborhood Home Depot in July 2005.
Two people died and dozens were hospitalized after breathing vapors from the aerosol chemical spray, according to plaintiffs’ court pleadings in the case. As a result of those injuries, the U.S. Consumer Product Safety Commission issued a recall of 300,000 cans of the product.
Flynn was hospitalized and left with permanent lung damage after inhaling Stand N’ Seal’s fumes, which, according to the plaintiffs, contained Flexipel, a chemical that should not have been produced in aerosol form, according to a material data safety sheet included in the court files that was made available by its supplier.
The plaintiffs originally had accused Home Depot and one of its co-defendants — distributor Roanoke Cos. Group, doing business as Tile Perfect — of delaying notification to the product safety commission of the growing health complaints associated with Stand ‘N Seal’s use, in violation of federal product safety regulations, and then withholding critical information that delayed a mandatory recall.
Home Depot attorney John P. MacNaughton of Morris, Manning & Martin said that more than 100 suits remain active, although attorneys representing all parties remain engaged in settlement negotiations.
Nearly 50 suits have resulted in monetary settlements, MacNaughton said. But, he explained, those settlements have not always included all of the named defendants.
Shortly after Flynn sued in 2007, MacNaughton said that in late 2005, Tile Perfect notified Home Depot that it was voluntarily recalling “certain batches” of Stand ‘N Seal. Tile Perfect employees subsequently removed those problem batches from Home Depot stores, MacNaughton said, and replaced them with another Stand ‘N Seal product, assuring Home Depot it was safe.
As a result, Home Depot continued to sell Stand ‘N Seal until March 2007 when, according to MacNaughton, the company learned there were more batches of Stand ‘N Seal that were “problematical.” At that point, he said, Home Depot removed Stand ‘N Seal from all its stores.
In a June 9 summary judgment order, Thrash ruled that the Stand ‘N Seal plaintiffs may not seek damages for alleged violations of the federal Consumer Product Safety Act or commission rules governing product safety standards.
“[T]there is no express private right of action for violations of the Consumer Product Safety Act,” Thrash determined. The language of the law “does not provide for that right of action. And the express provision of civil and criminal penalties suggests that Congress intended to preclude other types of remedies.”
In his order, Thrash distinguished between the letter of the law and product safety commission rules that were formulated later.
Plaintiffs attorneys argued, and Thrash noted, that Congress allowed any person who sustained injury as a result of “any knowing (including willful) violation of a consumer product safety rule or any other rule or order issued by the commission” to sue for damages.
But despite that language in the authorizing legislation, Thrash still determined that the plaintiffs had no legal standing to sue over alleged violations of product safety rules.
Such rules are “interpretive; they merely interpret the reporting requirements of the Consumer Product Safety Act … and whether there is a private cause of action for violations of interpretive rules issued by the commission is a difficult question that courts have disagreed about,” Thrash wrote. “The majority of courts have held that there is no private cause of action for violations of these interpretive rules.”
Thrash rested his ruling largely on a 1986 opinion by the 8th Circuit in a product liability case in which the court concluded, “We believe that neither the structure of the Act, its relationship to well-settled principles of administrative law, its legislative history, nor its practical consequences, demonstrates that Congress intended a private cause of action to arise based on an injury resulting from noncompliance with the product hazard reporting rules issued by the Commission.”
Based primarily on that ruling, Thrash concluded that the Stand ‘N Seal defendants were entitled to summary judgment in their favor regarding all consumer product safety claims. The case will go forward on general negligence claims, Ilardi said.
The case is In re Stand ‘N Seal Products Liability Litigation, MDL No. 1:07-md-1804.
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