Miami Herald: EPA Action on Chinese Drywall Good, But More Needed (05-25-09)

By C. DAVID DURKEE
Special to The Miami Herald

In reference to the May 20 article by Nirvi Shah, ”EPA: Chinese drywall has high levels of chemicals:” Although it is now officially confirmed that drywall imported from China as far back as 2001 contains high levels of strontium, sulfur and other elements not found in American drywall, Florida homeowners still await EPA’s determination of the correlation between these compounds and the adverse health effects and appliance failures they are experiencing in their homes. This will be a further and necessary step in their quest to find appropriate relief from a situation that has made the safe haven of their homes unsafe.

Fortunately, our elected officials have been doing their jobs, as when U.S. Sen. Bill Nelson filed legislation seeking to impose an immediate ban on all tainted building products from China, and when Rep. Robert Wexler called for Gov. Charlie Crist to declare a state of emergency. These, along with Sen. Nelson’s May 21 meeting with the Senate Commerce Committee, are commendable and important steps. We absolutely must address the crisis that is driving down the value of tens of thousands of Florida homes while sickening their inhabitants physically and psychologically. Homeowners need to know that our government is standing with them and will do everything in its power to prevent another construction debacle on this scale.

This is the power and beauty of government at its best — the ability of public officials to legislate in the interest of the regular folks who elected them, rather than the lobbyists and deregulators whose policies led to this disaster. Deregulation was one of the top priorities of the previous administration, and toxic drywall is but one result; we must now demand that government defend the right of ordinary Americans to expect honesty, quality and above all safety in the products they purchase.

Legislation, however, by definition addresses what comes next. Just as new regulations enacted in the wake of the Madoff scandal aim to forestall future fleecings, Sen. Nelson’s proposed legislation should lead to greater future protection for homeowners against defective building materials. What legislators can’t do is make current victims whole again. It’s not their job.

Redressing existing wrongs is the job of the judiciary, and fortunately, our current consumer protection laws enable us to prosecute these cases and seek recovery. Already throughout Florida, some affected homeowners have filed class-action lawsuits, teaming up against the manufacturer of the defective drywall, an importer and several developers. To this day, incredibly, many homeowners have done nothing at all, thinking perhaps that they missed the class-action boat. There is, however, another avenue of redress — direct-action litigation. One family, one legal team, one lawsuit. For many Floridians, this may be the smartest strategy, as satisfactory and possibly more substantial verdicts or settlements may be reached in considerably less time without having to contend with the demands of other plaintiffs. For these homeowners, direct-action litigation may well be the fastest, most effective way to get their homes, their families and their lives back.

C. David Durkee is a civil litigation attorney and partner at Roberts & Durkee in Coral Gables.

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