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Page g Indoor Air Review October, 1992 Using Tested Products May Provide Protection from Lawsuits i . 0 -By Laurence S. Kirsch, Esq. & Gcnldine E. Edens, Fsq. T he growing number of "sick building syndrome" (SBS) law- srilts has caused individuals, buslnesses and others who may find themselves _~ ~~ cmbroiled in ~W AUYIC9 thesc cases to search for means of limiting their potential Iiability Fortunately, oppor- tunines do exist for minimizing the risk ofindnor airrelated liabiliry, Pmd- uct testing and the use oftested prod- ucts present two such important op- serve as important indicators that a portunivcs. Individuals allegedly injured by in- door air pollution frcquently proceed under two Iegal theories, negligence and strict Sabiliry. Negligence is a fail- ure to exercise due care. Due care is defined as the degree of care that would be exercised by a"reasonable person." Individuals may be found negligent in the performance of scr- vices or in the manufacture of produets, For example, in Call v. Prudential Insurance CoofAmttia (1990) the I plaintiffs alleged that the defendants were negligent be- cause, among other things, they failed to: • Properly evaluate, test and investigate for toxic fumes, chemicals and other substances that produced SBS; • Balance the air conditioning systcm to produce a sufficient outside air/re<ydcd air ration spread Adequately throughout the entire building; and • Use building materials that were incapable of off-gassing formaldehyde and other noxious substances. The case was sct- tlcd for an undis- closcd amount. Neverttteless, failing to te5t for indoor air pollutants, failing ro design an adequate HVAC system and failing to ux °sak" products in a building constituted the basis for the asserted liability, In a negligence action, the plaintiff must show the dc- I fcndant's conduct was unreasonable, that is, the defcn- dant failed to use due care. It is in this context that product testing informa- tion can provc im- portant Product testing can provide valuable inform, tion on a product's characteristics. The efforts to use tested products may party exercised due care. For example, where scientific or industry literature indicatcs or establishes that certain products do not contribute or do not have a signiFicant potential to com tsibutc to indoor air pollution, a court or jury may be morc likely to vicw the party using those products as having exerciscd reasonablc care. Conversely, if architects, designers or contractors spocify a product without knowing the risks associated with that product, they could be sued on the theory that, as profcssionals in the industry, they should have known that the products praented a risk. Strict Liability Another common basis of liability for indoor air pollution is strict )iability, Strict liability appGcs to liability for dc fcctivc products. This theory, unlike the negligcnce based theory, does not depend on "fault." Instead, the focus of legal inqttiry shifts from the conduct of a par- ty to the product itself. A product can be defective either because of its man- ufactwc or its design. For example, if urea formaldehyde foam insulation were to off-gas formaldehyde vapors because the constituent chemicals werc not mixed in the proper proportions, the product might be considered to have a manufacturing defect. On the other hand, a mobile home that com tains dangerous components or that doa not permit sufficient ventilation may be deemed defectivcly designed (Heritage v. Pioneer Brokerage & Sales 1979). If a product is found to be d<fcctivc and was the cause of the plaintifFs in. jrrties, then liability may extend m ev- ery entity involved in the chain ofdistribution of that product. In accor dance with this principle, the judge in thc Call case ruled prior to trial that the designers, general contractors and installers of the building's HUAC sys tem could be held liable under a strict liability theory if the jury determined that the ventilation system was ci tivc. Thus, the HVAC system was deemed a"producq" and every entity involvcd in the chain of designing, constructing and installing the system would be potentially liable for the plaintifPs injuries. Similarly, in some jurisdictions, a building indf may be deemed a product subject to strict products liability (McDonald v. Mia- neck [1979J). Liability Suits Attracrive The relative easc of recovery under a strict liability theory makes product li- ability suits attractive to plaintif&. For the same rcason, they arc dreaded by deRndanrs. The key limitation of strict liability in the indoor air environment is that it applies only to products. Hovrcver, to the extent courts are willing to dcem an HVAC system or an entire building a product, exposure to indoor air Iia- bility becomes significantly greater for product designers and manufacturers, buildcrs and inshllcrs. In view of the expansivc reach uf strict liability, the willingness of courts to consider HVAC systems and build- ings as "products," and the flexible standard of due care, the use of thnn oughly tested products is a scnsihlc means of avoiding liability. The Supreme Court of Connecticut has noted, °thc crcativc or authoritativc source of both design spccifications and pmduct testing information is ... of matcrial significance to the aazsigm mcnt of liability" in a product liabilinaction. Pickcrts v. International Plaw tax,Inc.1990). A Good Model A model of such product trsting is bc ing conducted by the fiber glass msula- tion industry in conjunction with EPA. Fiber glass fibers belong to a category ofsubstances called man-made vitr<nus flbers or man-made mineral fibers, which are used primarily for insulation purposei. Because of a concern that respirable fibers may become airborne, the fiber glass industry has taken the initiative to test fiber glass ductwork used in air-handling systems. One study, perfbrmed by independent scientists at a university in conjunction with the EPA, evaluated rigid fiber glass ductwork to determine whether it shed glass fibers (Butmcr and Stcv-cm bach 1992). The study found that new fiber glass duct board did not rdcase a measurable number of glxss fibcrs into the air, which supports earlier research by the industry and other thhird partics. To address a concern assodated with all HVAC systems, a second study is planned to determine whether rigid fiber glass or fiber glass-lines ductwnrk supports microbiological growth. This study will also determine if microbialogical agents are dispersed into room air serviced by either Fiber glass or sheet metal ducting, Consequently, the findinga of this second study will pro- vide a reliable measure of whether fun- gal growth in ductwork affccts indoor a'u quality. Negligence and strict liability ar tions are by their nature inherenrly un prcdictable. Different judges or jurfas hced with similar ficts and legal nc, - ries may reach opposite u>nclusinns Further, in some cases, defendants may be required nut only to compensate the plaintiffs for dic injuries suffered but also pay punitive damages, The potential financial impact on the busi. ness community is trcm<ndous. Ab though there is no absolute shield from SBS lawsuits, the use of products which have been tested and found not to contribute to indoor air pollution problems can provide a valuable dc- knse against liability. lnurence Kirsch Is a partner reirh (he laru frrm of Cadaalader, Wicker- sham & Taft, specfaliztng in tbejrrac- lice of enrnronmentai laru. Geraldmr E. Edens is an associnte tWth the firm.