Peter Page
National Law Journal
February 11, 2008

Attorneys representing thousands of Gulf Coast hurricane evacuees suing manufacturers of trailers alleged to have unhealthy levels of formaldehyde claim that crucial evidence is being lost every time the Federal Emergency Management Agency reclaims one of the trailers without allowing it to be tested for the presence of the toxic substance.

Tony Buzbee of the Buzbee Law Firm in Galveston, Texas, alleges that FEMA — which purchased up to 145,000 of the trailers — has stonewalled requests for documents, denied access to trailers for formaldehyde testing and destroyed evidence of formaldehyde contamination when it "deactivates'' trailers after occupants leave for permanent housing. In re FEMA Trailer Formaldehyde Products Liability Litigation, No. MDL-1873 ( E.D. La.).

Buzbee's firm is one of seven firms on the plaintiff steering committee for a mass action consolidating thousands of individual suits.

"I don't want to say they are purposely destroying evidence, but the practical matter is evidence is being lost and it is a function of [FEMA's] process,'' Buzbee said. "If you have clients who were in a trailer, they often don't know the [vehicle identification number], they don't know what trailer they were in. FEMA maintains that list but won't give us that list. The client's trailer may very well have been deactivated and the evidence is now gone.''

FEMA spokeswoman Mary Margaret Walker said the agency spent more than $2 billion purchasing trailers for 143,000 households left homeless after Hurricane Katrina. Approximately 40,000 trailers are still occupied by evacuees more than two years after the storm, according to FEMA.

When families move out of the trailers, the units are cleaned and repaired before being returned to storage, Walker said. She declined to comment on the allegation that the process destroys evidence sought by plaintiffs, citing the potential for litigation.

Criticized by Congress

FEMA's handling of the formaldehyde allegations has been criticized by two congressional committees. Trailer occupants, testifying before the House Committee on Oversight and Government Reform last July, said FEMA ignored their complaints of nose bleeds, watery eyes, respiratory problems and flu-like symptoms associated with breathing formaldehyde fumes.

The committee released more than 5,000 pages of FEMA documents, including an e-mail from the agency's Office of General Counsel denying field requests for testing because "should they indicate some problem, the clock is running on our duty to respond."

On Jan. 28, the House Committee on Science and Technology, in a letter to Michael Chertoff, secretary of the Department of Homeland Security, which includes FEMA, said the agency "ignored, hid and manipulated government research on the potential impact of long-term exposure to formaldehyde.''

FEMA denied the allegation in a press release the following day.

The trailer manufacturers named as defendants are Fleetwood Enterprises Inc., Fleetwood Canada Ltd., Gulf Stream Coach Inc., Jayco Enterprises Inc., Pilgrim International Inc., Starcraft RV Inc. and Thor Industries Inc. The liaison for the defense steering committee, Andrew Weinstock of Duplass, Zwain, Bourgeois, Morton, Pfister & Weinstock in Metairie, La., was unavailable for comment.

Buzbee and other plaintiffs' attorneys have tested for formaldehyde in the trailers occupied by their clients, but FEMA has blocked access to both a random sample of trailers and some that were never occupied, which plaintiffs' counsel need to establish the statistical model to prove their case, Buzbee said.

The plaintiffs have filed administrative claims with FEMA in recent weeks. The claimants can file suit in six months if the agency does not settle the claim.

"Anybody will tell you suing the U.S. government is a very difficult proposition,'' Buzbee said. "We don't understand why FEMA won't just admit a mistake, try to figure out why the manufacturers sold the government these trailers rife with formaldehyde and work with us to get remedy for these people. They are still fighting us tooth and nail.''

The attorneys on the plaintiff steering committee, in addition to Buzbee, are Raul Bencomo of Bencomo & Associates of New Orleans; Gerald Meunier and Justin Woods of Gainsburgh, Benjamin, David, Meunier & Warshauer of New Orleans; Frank D'Amico Jr. of D'Amico & Associates of New Orleans; Matthew Moreland of the Becnel Law Firm of Reserve, La.; Linda Nelson of Lambert and Nelson of New Orleans; and Ronnie Penton of the Law Offices of Ronnie G. Penton of Slidell, La.

By March 18, the seven firms will file in the district court a master complaint consolidating thousands of claims.