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Formaldehyde Plaintiffs Want to Stage Mock Trials

October 14, 2009 by · Leave a Comment 

 A New Orleans, La., jury already has ruled against the plaintiffs in the first trial over hurricane victims’ exposure to formaldehyde fumes while living in government-issued trailers after hurricanes Katrina and Rita in 2005.

Now, lawyers for other Gulf Coast storm victims want to hold what would essentially be a pair of mock trials in two other cases, possibly a prelude to settlement of hundreds of other claims, according to the Associated Press.

Plaintiffs’ attorneys asked a federal judge to order the nonbinding “summary jury trials” for two of the hundreds of cases against companies that supplied tens of thousands of trailers to the Federal Emergency Management Agency (FEMA).

U.S. District Judge Kurt Engelhardt hasn’t yet acted on the request, which came less than a week after a federal jury on Sept. 24 rejected a New Orleans family’s claims that elevated levels of the chemical formaldehyde in their FEMA-supplied trailer harmed them.

The verdict capped the first of several ”bellwether” trials that accuse trailer makers of using shoddy materials and methods in a rush to fill FEMA’s demand for emergency housing after the hurricane, and exposing people who lived in them to potentially dangerous chemicals. The bellwether trials for a handful of claims chosen from among hundreds to be heard in court are designed to help the New Orleans court test the merits and possibly settle other claims over formaldehyde exposure in FEMA trailers.

Summary jury trials are an alternative to mediation, offering another way to resolve a case without a full-fledged trial. They typically last less than a day and cost much less than real trials. Engelhardt would preside over them, but they are governed by less-stringent procedural rules. Jurors aren’t told the parties aren’t bound by their verdict. Unlike regular trials, the proceedings and the verdict can be kept confidential.

Gerald Meunier, a lead lawyer for plaintiffs in the formaldehyde litigation, said summary jury trials can be an efficient way of promoting a mass settlement and avoiding the “seven-figure” cost of trying formaldehyde lawsuits individually.

“It’s a perfect fit,” said Meunier. “The cost of conducting bellwether trials is substantial for both sides.”

But the plaintiffs’ proposal received a cool reception from defendants’ lawyers.

Keystone RV Co., one of the companies that supplied FEMA with trailers, objected to using summary jury trial for the case against the company that is scheduled to be tried in January. Lawyers for Goshen, Ind.-based Keystone said the case isn’t ripe for a settlement and rejected the notion a summary jury trial will save time and money.

“In fact, the procedure may exacerbate them, forcing the parties to prepare once for the summary trial, and then again for a full trial on the merits if the matter does not settle,” Keystone attorneys wrote.

Now-bankrupt Fleetwood Enterprises Inc., a defendant in a trial scheduled to start Dec. 7, said it is willing to entertain the idea but “the devil is in the details,” since the plaintiffs’ motion doesn’t specify the exact format. Fleetwood, based Riverside, Calif., filed for Chapter 11 bankruptcy protection in March 2008.

The federal government also is a defendant in the December and January trials but may be dismissed from the cases before the trials start. Government lawyers said summary jury trials would have no bearing on claims against FEMA because its part of the cases will be decided by a judge, not a jury.

“While other parties could potentially benefit from learning how a jury — the ultimate fact finder in their eventual trial on the merits — views their respective positions, the United States would be forced to go through the time and expense of an SJT proceeding only to receive nothing useful in return,” government lawyers wrote.

Thomas Lambros, a retired federal judge from Ohio who created summary jury trials in 1980, said they “ought to be used as a last resort” in resolving cases and shouldn’t be viewed as a foolproof way of predicting the outcome of a jury trial

“Nothing is a perfect predictor of an outcome,” he said.

Plaintiffs’ lawyers said in court papers that summary jury trials would help both sides avoid “spending multiple times more on a merits trial than the amount of recoverable damages.” Keystone attorneys rejected that argument. “If the plaintiffs and their counsel are concerned about the small value of their claims, this begs the obvious question — why did they bring the claims in the first place?” they asked.

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