Spray Polyurethane Foam Remediation and Litigation: What are the “costs” of energy efficiency?

8/20/2013

Spray polyurethane foam, known as "SPF," is increasingly being used to insulate homes. SPF is energy efficient, providing increased insulation and decreased outside air infiltration rates, which results in reduced energy demand and carbon emission rates. The problem? Improper application of SPF can cause indoor air quality issues. SPF chemicals can be irritating to the skin, eyes, nose, and respiratory tract. Exposure to SPF chemicals has even been linked to neurological complications including memory and concentration problems. Exposure can occur by inhalation or dermal contact immediately after SPF is applied. However, exposure can occur even after its application, due a process called "off-gassing." The potential health hazards of SPF has attracted the attention of the U.S. Environmental Protection Agency, which has issued warnings to consumers. See http://www.epa.gov/dfe/pubs/projects/spf/spray_polyurethane_foam.html The result? Costly remediation projects and inevitably, personal injury litigation.

Recently, a Pennsylvania federal court addressed the merits of a class action suit filed against an SPF manufacturer and certified installer. See Slemmer, et al. v. McGlaughlin Spray Foam Insulation, et al., U.S.D.C. Eastern District of Pennsylvania, Civil Action No. 12-6542 (Dubois, J., July 3, 2013). The representative plaintiffs, Daniel and Paula Slemmer, were homeowners who alleged that SPF resulted in off-gassing and caused property damage and personal injuries including eye irritation, sore throat, coughing, nausea, fatigue, shortness of breath, and neurological harm. The defendants, an SPF manufacturer and installer, sought dismissal of the plaintiffs' claims.

The court refused to dismiss the plaintiffs' claims for negligence, breach of implied warranty, unjust enrichment, and violation of statutory consumer protection laws, finding that the plaintiffs' allegations sufficiently supported these causes of action. The court deferred its decision on the strict liability count. However, the court dismissed the negligent supervision count, which was brought against the SPF installer. The court reasoned that the plaintiffs had no legal support for their contention that the installer's training and certification created a legal duty to supervise its installers. Notably, the court dismissed this count without prejudice and specifically stated that the plaintiffs may be able to file an amended complaint pleading facts that support this cause of action.

The court also dismissed the plaintiffs' medical monitoring claims, which sought recovery for "the quantifiable costs of periodic medical exams necessary to detect the onset of physical harm." In dismissing this count, the court noted that the plaintiffs failed to identify a serious latent disease that required monitoring or even a suitable medical monitoring procedure. This count was similarly dismissed without prejudice, leaving open the possibility that the plaintiffs, with additional fact pleading, may be able to re-assert this claim. Finally, the court dismissed plaintiffs' claims for breach of express warranty and for injunctive relief.

Given the growing popularity of SPF, its manufacturers and installers can likely expect an increase in homeowners' claims for property damage and personal injury. This evolving civil litigation is one that we, as indoor air quality legal experts, have been following for quite some time. For more information about spray polyurethane foam, indoor air quality issues, or products liability actions in general, please contact David M. Governo (dgoverno@governo.com) or Monica R. Fanesi (mfanesi@governo.com).


<back