Abstract
The Chinese drywall refers to the drywall mad in China and imported into the U.S. in the commencement of the year 2001 all through to 2009. The housing spike in 2006 occasioned by hurricanes led to shortage of construction materials in the country necessitating the importation of the said materials in huge amounts. However, the drywall was not without adverse implications. This paper critically looks into the problems associated with the drywall. More so, it generally examines the traits that characterized the numerous law suits filed by the victims of the drywall problem against distributors and suppliers of the problematic drywall. It pays critical attention to the legal impediments that have led to the inability of the victims to secure deserved restitution. Furthermore, it assesses the manner in which then emerging jurisprudence has informed the legislation. Therefore, it explores the effectiveness of the statute in addressing the problem based on the emerging jurisprudence on the matter.
Chinese drywall entered into the U.S. market in 2001. Its importation went on till 2009. The disastrous Hurricanes Katrina, Rita and Wilma resulted in the housing boom of 2004 to 2006. Accordingly, there was shortage of building materials in the country. The construction industry resorted to importation of drywall manufactured in China. In the aforementioned period, it is estimated that Chinese dry wall sufficient to construct 100 000 average houses were imported into the US.
It was until late 2006 when homeowners began to raise complaints concerning the drywall. Such complaints revolved around emission of “rotten-egg like” smell and corrosion of copper alloys and silver adjacent to the walls. Moreover, they complained of health problems.
At the beginning of 2009 homeowners instituted laws suits both individual and class actions against several manufacturers, suppliers and home builders. Additionally, home builders joined the homeowners in filing the suits. They predicated their law suits on the premise that synthetic gypsum used in the manufacture of the Chinese dry wall when subjected to certain environmental conditions emitted hydrogen sulfide gas which was responsible for causing structural damages to their homes and their appliances. More so, they asserted that the gas had caused health problems such as respiratory diseases, nosebleeds, allergic reactions and throat infections.
The actions against the defendants were generally pegged on negligence, strict liability, violation of express and implied warranties as to fitness for purpose and safety, fraudulent misrepresentation and concealment, breach of unfair trade practices legislations, equity, contractual breaches, unjust enrichment and private nuisance. Accordingly, they sought damages, recovery of costs due to destruction of their homes and property and inconvenience thereof. Besides, they sought damages for the depreciation of the value of their properties due to the stigma attached to the property as a result of the problem. Those who complained about health problems sought equitable remedies in form of medical and environmental monitoring.
Besides other independent scientific studies, a 2009 study by the U.S. Environmental Protection Agency confirmed the presence of sulfur in the drywall manufactured in China. On the other hand, the study revealed no traces of the same compound in the drywalls manufactured in the U.S. The study is noteworthy as it extended credence to the plaintiff’s claims.
However, most of the actions by homeowners have been frustrated by inadequacy of legal framework that is sector specific to the problem in question. For instance, most cases have been plagued by the tendency of Chinese corporation’s refusal to submit to the jurisdiction of the U.S. courts. Worse enough some of these corporations are state-owned. As such victims of the Chinese drywall problem are forced to rely solely on third party actions, a course of action which this paper likens to flying to the sun with wings of wax.
The Chinese drywall has inspired enactment of legislation both at the state and federal levels. The federal efforts culminated in the enactment of the Drywall Safety Act of 2012. It seeks to cure aforementioned defects manifested in the Chinese drywall lawsuits. For instance, it mandates the secretary of commerce to “insist that the Government of the Republic of Chinafacilitate a meeting with the representatives of the United States Government on remedying the home owners that have problematic drywall in their homes.” With due respect to the legislative efforts of the Congress, this paper takes the view that the wording of the text does not have legal effect. It merely mandates the facilitation of the meeting which may or may not yield results favorable to the victims of the Chinese drywall problem.
Additionally, it seeks to extend the jurisdiction of the U.S. federal courts over Chinese corporations. Specifically, it requires the secretary of commerce to “insist” that the Chinese government mandates Chinese incorporated companies that manufacture and export the Chinese drywall to the U.S. to submit to the jurisdiction of the U.S. federal courts and comply with the orders thereof. Accordingly, it seeks to address bring the Chinese corporations within the jurisdiction of U.S. federal courts thereby enabling the victims of the Chinese drywall problem to sue them directly as opposed to relying only on third party actions which have proved to be ineffective. To this end, the Act introduces a labeling requirement on drywalls so that the defective drywall can be traced back to the manufacturer. This will go a long way in holding to account the manufacturers of problematic drywall for the adverse implications thereof.
Furthermore, the Act proposes the imposition of acceptable levels of sulfur in drywalls. However, the Act does not set the exact percentage. Instead, it mandates the Consumer Product Safety Commission to do so with two following the date of entry into force of the Act. Omission of the exact cap in the act has received scholarly criticism. However this paper is inclined to the view that the said criticism is uncalled for since research on the exact toxic levels of sulfur in the drywall is yet to be conclusive. Congress would have acted in conjecture had it stipulated the exact cap in the Act.
I conclusion, this paper regrets the plight of hundreds of thousands of families that have been affected by the Chinese drywall problem. It blames the inadequacies of the legal framework governing the industry for the inability of victims to obtain deserved restitution. However, it applauds the legislative efforts of the Congress in seeking to address the problem by enacting the Drywall Safety Act of 2012. Emerging jurisprudence on the application of the new law is not yet settled. The effectiveness of the act can only be judged with time.
References
Kessler, A. (2013, January 16). New Law on Imported Drywall Falls Short. Retrieved April 12, 2016, from 100Reporters: https://100r.org/2013/01/new-law-on-imported-drywall-falls-short/
McKay, T., Smith, M. J., & Muller, K. J. (2009). Chinese Drywall: Background, Scope and Insurance Coverage Implications. Retrieved April 12, 2016, from Cozen o'Connor: https://www.cozen.com/admin/files/publications/Chinese_Drywall_Background2.pdf
Perricone, M. (2013, February 5). Drywall Safety Act of 2012: Increases Regulations on U.S. Manufacturers, but May not Improve Safety. Retrieved April 12, 2016, from RJ Lee Group: http://www.rjlg.com/2013/02/05/drywall-safety-act-of-2012-increases-regulations-on-u-s-manufacturers-but-may-not-improve-safety/
Rigell, S. (2013, January 15). President Signs Rigell's Drywall Safety Act into Law. Retrieved April 12, 2016, from Scott Rigell: http://rigell.house.gov/news/documentsingle.aspx?DocumentID=316928
