After a two-week trial in, the first manufacturer sued over formaldehyde in FEMA trailers was absolved of responsibility by a U.S. District Court jury on Thursday. An eight-member jury found Gulf Stream Coach, an Indiana company that made 50,000 trailers for FEMA's emergency housing program after Hurricane Katrina, did not construct an unreasonably dangerous product, and Fluor, the FEMA contractor responsible for hauling and installing the unit, was not negligent in setting up the trailer that housed New Orleanians Alana Alexander and her two children.
After the verdict was read, Alexander and her son Christopher Cooper declined to comment on the proceedings and quietly left the courtroom alone.
Alexander and Cooper claimed the temporary housing unit FEMA provided them in 2006 was contaminated with formaldehyde that worsened Cooper's asthma. The trailer, one of the ubiquitous Cavalier units built by Gulf Stream, was installed by Fluor in May 2006, and the family lived in the unit until December 2007. During that time, the suit alleged, the family suffered health consequences from the toxic exposure, particularly Cooper, who was 9 years old when they moved into the trailer. Christopher had been diagnosed with asthma at age 3; the suit alleges his condition got worse as a result of living in the trailer for 19 months.
Over the course of the trial, attorney Tony Buzbee argued the formaldehyde-laden trailers were set up incorrectly, damaging them. The damage led to broken seals, loose ductwork and pressure differentials inside and outside the units, which affected ambient formaldehyde through heat and humidity, then circulated contaminated air inside the living space.
The defense team, headed by attorney Andy Weinstock, argued the trailers met all FEMA specifications when Gulf Stream sold them to the U.S. government. Alexander's trailer tested 0.050 parts per million (ppm), or 50 parts per billion (ppb), a month after the family vacated the unit.
During the first week of testimony, the jury watched hours of videotaped testimony from Gulf Stream representatives, including James and Dan Shea, co-presidents of the company. Their testimony, along with that of Gulf Stream Vice President of Operations Scott Pullen and others, revealed that, although the manufacturer claimed to have a policy of using low-formaldehyde-emitting (LFE) processed wood in its products, up to 15 percent of the wood product purchased around the time Alexander's trailer was constructed was regular, or "reg," wood, which emits more formaldehyde than LFE. At the time, no limits or standards existed on the amount of formaldehyde permissible in travel trailers such as the one Alexander's family inhabited, but the company claims it had an LFE policy its vendors should have followed. The lawsuit alleged Gulf Stream used "reg" wood for FEMA-spec units, and claimed that was the root of Cooper's health problems.
In the videotaped testimony, Dan Shea admitted under questioning that even more of its wood could have had elevated levels of formaldehyde than the amount his brother and co-president James Shea had claimed. Dan Shea said only a third of the wood supplied by Weyerhauser and Samling was compliant with HUD codes for formaldehyde emissions, and he conceded that "probably two-thirds or more" of Gulf Stream's wood from those two manufacturers violated HUD certification standards.
Other videotaped testimony included Dr. Christopher DeRosa, a researcher for the Agency of Toxic Substances and Disease Registry (ATSDR), who testified regarding occupants' potential exposure to formaldehyde. DeRosa was demoted when he challenged a study by the ATSDR, a sister agency of the Centers for Disease Control (CDC). In his testimony, during which he became emotional at times, DeRosa recalled that "kids were presenting with clinical signs of formaldehyde toxicity," with symptoms including asthma attacks, in Katrina-affected regions, but were "being returned to the environment which caused [the symptoms]," namely the trailers he suspected of being the source of the toxin.
Dr. Karen Pacheco, who examined Cooper in 2009, found the young man may have suffered from "suboptimal" treatment of his asthma prior to Hurricane Katrina. Because all of Cooper's records from before Aug. 29, 2005 were destroyed by flooding, however, her opinion could not be verified. Cooper reported other symptoms related to asthma and allergic responses at the time, and in videotaped testimony Pacheco said, "in my opinion, his symptoms were due to formaldehyde."
The defense did not challenge whether Cooper had asthma, or that his condition worsened while in the trailer. But defense attorney Andy Weinstock, who represented Gulf Stream, argued the boy's asthma had been "sub-optimally treated" before and after Katrina and as a result, any problems with his health were due to an improper medicine regime, not exposure to formaldehyde.
Defense witnesses challenged opinions expressed by Alexander's witnesses, who had attested to improper installation of the unit and had testified that the levels of formaldehyde in the family's trailer were high enough to cause concern. But Weinstock countered that the 0.050 ppm formaldehyde in the trailer was well below levels believed to cause harm. HUD's standard of 0.4 ppm for manufactured housing is eight times as high as the level measured in Alexander's trailer; other recommended limits of exposure range from as low as 0.008 ppm to as high as 3.0 ppm.
"Some of [the jurors] live in mobile homes," Weinstock said after the trial, "and they understood the argument that the level in the Alexander trailer was not unreasonably high."
One of the strongest defense points, Weinstock said, was that the unit in question was built not for the 2005 Katrina housing mission, but for the 2004 disaster housing program in Florida. Testimony revealed the trailer was built in December, 2004 and sent to provide emergency housing in Pensacola, Fla., after Hurricane Ivan. From there, it went to a staging area in Louisiana, then to New Orleans.
"There's absolutely nothing wrong with 2004 units," Weinstock said. During the trial, he pointed out that Gulf Stream produced 7,000 trailers for the 2004 housing mission, and that no complaints about formaldehyde surfaced as a result.
"The best outcome of this case," Weinstock claimed in closing arguments, "is that Christopher is now in better shape, his asthma is under control," and his mother understands the proper use of steroid-medication in treating asthma.
Before Hurricane Katrina, Cooper's asthma had been improving, according to the live testimony of Dr. Janet Barnes, the boy's pediatrician, whose office in eastern New Orleans was inundated with 6 feet of water when the levees failed after the hurricane. Her records were destroyed, but she remembered much about the young man because he had been Barnes' patient since 2000. She examined Cooper in April 2008, four months after the family moved out of the trailer, and diagnosed him with allergic conjunctivitis. His asthma, however, was improving: "His lung fields were clear," Barnes testified, "but his eyes were involved. ... He had dark circles under his eyes." She noted that symptom often correlates with chronic exposure to irritants.
Both Cooper and Alexander testified during the trial. Cooper's testimony was brief; the McDonough 15 seventh-grader acknowledged that he felt living in the trailer made his asthma worsen. Despite this, the young man has taken up the baritone saxophone since returning from evacuation and plays in a school band.
During her hour-long appearance on the witness stand, however, his mother expressed fear and uncertainty about allowing her children — Cooper and his 15-year-old sister Erika — to remain in the trailer, living in a toxic environment. "I feel guilty," the 43-year-old mother told the court, "because as a mother I'm not supposed to put my children in harm's way ... and, had I known everything about it, I would''t have." A school disciplinarian for a Knowledge is Power Program (KIPP) charter school in New Orleans, Alexander paused several times before concluding, "If this in some way affects [my son's] music, or Erika's ability to have children, you could say it's my fault, even though I didn't know."
Absent from the defense table was FEMA, the federal agency responsible for the disaster housing program. Last year, Judge Engelhardt denied class-action status to Alexander and thousand of other families who claim to have suffered in toxic housing units. At the same time, the court ruled that, within certain limits, FEMA itself can be sued. During a recent conversation, attorney Bob Hilliard said the plaintiffs missed a deadline to include FEMA in the Alexander litigation. Future trials will likely involve the agency.
Matt Robinson is a freelance journalist in New Orleans.