Is that formaldehyde you smell in your newly floored sunroom?  Hopefully, it is not.  Formaldehyde is a colorless, flammable, strong-smelling chemical used in construction and household products, such as cabinets, furniture, wall materials, paper product coatings, certain insulation and flooring.  Formaldehyde exposure can cause sore throats, coughs, nosebleeds, scratchy eyes or even cold/flu-like symptoms.  As with many substances, the more prolonged or significant one’s exposure to formaldehyde, the more common or exacerbated symptoms may be.  Elderly and very young people may experience heightened sensitivity to formaldehyde exposure.  Moreover, the US Department of Health and Human Services has characterized formaldehyde as a human carcinogen.  Notably, smoking, outside environmental conditions (including fluctuating temperature and humidity in areas of naturally occurring formaldehyde), and ventilation / humidity levels in rooms with formaldehyde-emitting products are also factors that impact the level and severity of any formaldehyde exposure, and must be taken into consideration in defense of a formaldehyde off-gassing claim.

How has formaldehyde exposure been addressed in the legal community?  First, there has been some, but not a lot, of litigation related to human exposure to formaldehyde.  Second, there has been governmental adoption of standards for formaldehyde off-gassing.  While litigation addresses impacts of formaldehyde after the fact, the regulations attempt to prevent excessive off-gassing before they occur.  Both of these legal developments are important to lawyers who represent individuals and companies impacted by formaldehyde-containing construction products.

Formaldehyde-related Litigation

There have been very few reported cases involving formaldehyde off-gassing[1] and cases involving alleged personal injuries[2] related to formaldehyde-containing products.  One key legal issue that some of this litigation raises is the issue of federal preemption of state law claims.

For example, the District of South Carolina addressed preemption in  McKinley v. CMH Homes, Inc., No. 2:11-02982-CWH, 2014 WL 10894947, *1 (D. S.C. September 25, 2014).  In McKinley, the plaintiffs lived in a new manufactured home that contained building materials that allegedly emitted formaldehyde.  The plaintiffs brought a negligence action, alleging that they were harmed by formaldehyde off-gassing and were not warned.  The court granted summary judgment for defendant seller because of the statute of limitations and pre-emption.  Id.  As to the preemption argument, the court ruled that the minor’s claim was barred under the doctrine of preemption because the Federal Safety Standards Act and its regulations govern the manufactured housing industry and set the exclusive standard for formaldehyde levels in manufactured homes at .4 ppm.  Id. at *5; see 42 U.S.C. § 3280.308.  Plaintiffs proferred no evidence of the level of formaldehyde in the home; therefore, the court held that plaintiffs could not maintain a state tort action seeking to impose a more rigorous standard than the federal standard.  Id.  Although the statute allows claims under common law, the court held that the statute preempts all claims that seek to impose a formaldehyde standard that is more stringent than the federal standard.  Id.  The court cited In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 620 F. Supp. 2d 755 (E.D. La. 2009) (holding that “federal law preempts Plaintiffs’ state law products liability claims.”) and Hill v. John Foster Homes, Inc., No. 3:10-cv-209, 2010 U.S. Dist. LEXIS 67511, *22-26 (E.D. Va. July 7, 2010) (holding that federal law preempted the plaintiff’s negligence claim regarding formaldehyde in the air in a mobile home).

Notably, In re FEMA Trailer was multi-district litigation for manufactured home owners in Alabama and Mississippi.  Only three courts have considered whether to adopt In re FEMA Trailer in the personal injury formaldehyde context.[3]  Two have adopted the decision,[4] and one has distinguished it.[5]  Four decisions predate In re FEMA Trailer but reach the same result, that is, that federal regulations preempt personal injury cases based on formaldehyde exposure in mobile homes.[6]  The Supreme Court of West Virginia declined to follow In re FEMA Trailer.  Harrison v. Skyline Corporation, 224 W. Va. 505 (2009).  Six Circuits—1st, 2nd, 3rd, 9th, 10th and 11th--neither considered the preemption issue in In re FEMA Trailer, nor has a district or state court within the Circuit considered the issue.

In cases where preemption is not an issue, there are other evidentiary issues to consider.  Formaldehyde cases are difficult for plaintiffs to prove.  First, many plaintiffs’ cases fail because of evidentiary hurdles.  Often, courts hold that experts are not qualified in the narrow field of formaldehyde or polymer chemistry.  See, e.g., In re FEMA Trailer 2010 WL 1956617 at *1.  On a motion in limine to exclude opinions, defendants sought to exclude testimony by the plaintiff’s expert in building and construction.  Id.  The court held that the expert could testify as to general construction issues, but his opinions were subject to cross-examination that the opinions were based on inspections that occurred years after the plaintiff lived in the mobile home.  Id.  Further, the court held that formaldehyde off-gassing was outside the area of the expert’s expertise.  Id. at *2 (stating that “[w]hile Mallet can testify regarding the quality of the construction and design of Plaintiff’s [emergency housing unit], he cannot opine that the increased temperature or humidity levels led to or caused off-gassing of formaldehyde.”); see also Schepise v. Saturn Corp., No. CIV.A. 94-385, 1997 WL 897676 (D.N.J. July 30, 1997) (medical doctor with bachelor’s degree in chemistry was qualified to testify on the plaintiff’s medical illness, but not on formaldehyde issues because she was an expert in the field of occupational and environmental medicine rather than polymer chemistry).

Second, causation in formaldehyde cases is a high bar to overcome.  See e.g. Bednar v. Bassett Furniture Mfg. Co., Inc., 147 F.3d 737 (8th Cir. 1998).  In Bednar, the plaintiffs brought an action against a furniture manufacturer when a dresser emitted formaldehyde and injured their baby.  An industrial hygienist tested the dresser for formaldehyde emission and testified regarding the levels of formaldehyde exposure that cause health problems.  Id. at *739.  The evidence also included federal regulations on formaldehyde levels, formaldehyde emission in other products manufactured by the defendant, medical doctors’ testimony that the baby suffered from the effects of formaldehyde exposure, and lay witnesses’ testimony about the chemical smell.  Id.  The lower court grated summary judgment for the defendant because the plaintiffs did not establish proximate cause, relying on Wright v. Williamette Induss., Inc., 91 F.3d 1105-1106 (8th Cir.1996) (holding that plaintiffs in formaldehyde cases must prove (1) the levels of exposure that are hazardous to humans generally and (2) the actual level of exposure to the defendant’s formaldehyde).  Without overruling Wright, the Bednar court reversed summary judgment and held that the plaintiffs had shown causation.

The Bednar defendants did not defeat the claim at the summary judgment stage, but this case illustrates the hurdles that plaintiffs face in formaldehyde litigation.  To meet the Wright causation standard, the plaintiffs retained an expert with knowledge in the narrow area of formaldehyde as well as medical doctors.  They also used OSHA standards as evidence of dangerous levels of formaldehyde.  In light of the new regulations and In re FEMA Trailer, it is unlikely that a court would allow a plaintiff to urge a standard that is different than the federal standard.

Formaldehyde-related Regulation

To address potential adverse effects posed by formaldehyde off-gassing, the Environmental Protection Agency (“EPA”) recently promulgated Formaldehyde Emission Standards for Composite Wood Products (“Formaldehyde Standard”) pursuant to Title VI of the Toxic Substances Control Act (“TSCA”).   The EPA’s Formaldehyde Standard, codified at 40 CFR Part 770, establishes the following limits for “goods” imported, manufactured or sold in the United States (as opposed to materials that are constructed on site):

    0.05 parts per million (“ppm”) for hardwood plywood made with either veneer or composite core
    0.09 ppm for particleboard
    0.11 ppm for medium-density fiberboard (“MDF”)
    0.13 ppm for Thin MDF

Importers will have two years to certify goods as compliant with the Formaldehyde Standard.  Compliance dates for manufacturers depend on the type of good, as follows:

    December 12, 2017: particleboard, hardwood plywood made with either a composition core or a veneer core, and MDF
    December 12, 2023: laminated products (although there are earlier labeling, recordkeeping and other requirements that begin before this date)

To ensure compliance with the Formaldehyde Standard, the EPA established a third-party certification process.  Entities performing the certification must be accredited by the EPA.  Thereafter, the third-party certifiers inspect the products and certify emission tests.  Moreover, the goods subject to the Formaldehyde Standard must be labeled as to formaldehyde content, although goods with “de minimus” amounts of composite wood (i.e. less than 144 square inches of product) are exempt from the labeling requirement.

Exempt from the Formaldehyde Standard are hardwood plywood laminated products made by attaching either a woody grass or weed veneer to a compliant core through the use of resin with no added formaldehyde or with phenol-formaldehyde resin.  However, as published, manufacturers seeking to sell products that are exempt from the Formaldehyde Standard must have record evidence to support eligibility for the exemption.  Time will tell if the Formaldehyde Standard remains in effect as is, or undergoes changes with the new Presidential administration.

Conclusions

If you are handling matters in which formaldehye-containing products are in the forefront, you need to evaluate whether there are preemption, evidentiary or causation issues that may preclude plaintiffs’ personal injury claims.  Moreover, the regulatory environment must also be considered.  How (and whether) the Formaldehyde Standard is enforced against manufacturers and importers as originally published remains uncertain, and litigation is possible in relation to the certification process, exemptions, and applicability of the Formaldehyde Standard to certain “goods” that may be partly constructed on site.  Originally effective in December 2016, the Formaldehyde Standard effective date is delayed to a new effective date of March 21, 2017.

For more information, please contact us.

[1] In re FEMA Trailer Formaldehyde Products Liability Litigation, 2010 WL 1956617 (E.D. La.); Steffy v. The Home Depot, Inc., 2009 WL 904966 (M.D. Pa.); Schepise v. Saturn Corp., 1997 WL 897676 (D.N.J.); Moffatt Enterprises, Inc. v. Borden Inc., 807 F.2d 1169 (3rd Cir. 1986); Moore v. Polish Power, Inc., 720 S.W.2d 183 (Tex. App. 1986); Kuhn v. Skyline Corp., 1984 WL 62775 (M.D. Penn.); Borden, Inc. v. Comm’r Pub. Health, 448 N.E.2d 367 (Mass. 1983).

[2] Umphrey v. Cedarcroft Home, Inc., 2016 WL 4430700 (M.D. Tenn. 2016); McKinley v. CMH Homes, Inc., No. 2:11-02982-CWH, 2014 WL 10894947 (D.S.C. September 25, 2014); Wade v. Westinghouse Lighting Corp., No. 1:11-CV-483, 2013 WL 12136608 (E.D. Tex. June 4, 2013).

[3] See also Smith v. Cappaert Manufactured Hous., Inc., 89 So. 3d 1234 (La. Ct. App. 2012) (adopting In re FEMA Trailer in a redhibitory action concerning a vinyl wall).

[4] Hill v. John Foster Homes, Inc., No. 3:10-CV0-209, 2010 WL 2696655 (E.D. Va. July 7, 2010); McKinley v. CMH Homes, Inc., No. 2:11-02982, 2014 WL 10894947 (D. S.C. Sept. 25, 2014).

[5] Harrison v. Skyline Corporation, 224 W. Va. 505 (2009); see also Part C., infra.

[6] Hall v. Fairmont Homes, Inc., 664 N.E.2d 546 (Ohio Ct. App. 1995); Liberty Homes, Inc. v. Dep’t of Indus., Labor & Human Relations, 374 N.W.2d 142 (Wis. Ct. App. 1985); Macmillan v. Redman Homes, Inc., 818 S.W.2d 87 (Tex App. 1991); Richard v. Fleetwood Enter., Inc., 4 F. Supp.2d 650 (E.D. Tex 1998).