MICHAEL KUNZELMAN
Associated Press
October 3, 2008

NEW ORLEANS - The federal government is not immune from lawsuits claiming many Gulf Coast hurricane victims were exposed to potentially dangerous fumes while living in trailers it provided, a federal judge ruled Friday.

U.S. District Judge Kurt Engelhardt cited evidence that the Federal Emergency Management Agency delayed investigating complaints about formaldehyde levels in its trailers because it might be held legally responsible. The preservative can cause breathing problems and is classified as a carcinogen.

Engelhardt said FEMA learned of the formaldehyde concerns around March 2006, several months after Hurricane Katrina struck on Aug. 29, 2005, but responded by "sticking their heads in the sand" rather than ordering air-quality tests.

"Indeed, the evidence shows that FEMA initially ignored the potential formaldehyde problem and neglected to conduct testing in fear that such testing would 'imply FEMA's ownership of the issue,'" the judge wrote in his 48-page ruling.

During a hearing in July, a government attorney argued FEMA's decisions in responding to a disaster, including its use of travel trailers after Katrina, are legally protected from "judicial second-guessing."

Engelhardt, however, said ignoring potential health problems associated with FEMA trailers wouldn't be a "permissible exercise of policy judgment."

Lawyers for victims of hurricanes Katrina and Rita also accused FEMA of negligence for using trailers as long-term shelter after the storms, but Engelhardt said the government is shielded from liability for that decision.

"Taking into account the urgency of the situation following what has been called the most destructive natural disaster in our nation's history," the judge wrote, "this court declines to partake in 'judicial second-guessing' of FEMA's discretionary decision" to use the trailers.

Roughly 800 storm victims are named as plaintiffs in the cases before Engelhardt, but attorneys want the judge to certify a class action suit on behalf of thousands of people who lived in FEMA trailers after the 2005 hurricanes. Engelhardt hasn't ruled on that request yet. The plaintiffs are seeking unspecified damages.

Tony Buzbee, one of the lead plaintiffs lawyers in the case, said Friday's ruling is "more than I hoped for."

"FEMA is still in the mix," he said. "It's a window. We don't know how large the window is."

A FEMA spokeswoman said she couldn't immediately comment.

The lawsuits also accuse trailer makers of providing FEMA with shoddily built units in a rush to meet the agency's unprecedented demand for emergency housing.

Government scientists tested the air quality in hundreds of occupied FEMA trailers and mobile homes. The test results, announced earlier this year, showed formaldehyde levels that were, on average, about five times higher than what people are exposed to in most modern homes.