Hecker, Kevin v. Demilic (USA) LLC et al

Filing 39

MDL ORDER denying motion, pursuant to 28 U.S.C. § 1407, for centralization of these actions. (voc)

Case MDL No. 2444 Document 119 Filed 06/06/13 Page 1 of 3

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: SPRAY POLYURETHANE FOAM INSULATION
PRODUCTS LIABILITY LITIGATION

MDL No. 2444

ORDER DENYING TRANSFER

Before the Panel: Pursuant to 28 U.S.C. § 1407, plaintiff in one action moves to centralize
this litigation, which consists of eight actions pending in seven districts as listed on Schedule A, in
the Southern District of Florida.1 Plaintiffs in all actions support centralization. All responding
defendants oppose centralization.2 The actions in this litigation involve injuries and damages allegedly
caused by various spray polyurethane foam (“SPF”) insulation products installed in plaintiffs’
properties.
Defendants oppose centralization under Section 1407, arguing primarily that (1) different
manufacturers, products, and installers are involved in this litigation; (2) the actions are local in nature
as indicated by the non-overlapping local contractor defendants; (3) highly individualized facts
concerning the circumstances of installation will predominate; and (4) voluntary coordination by the
parties will be sufficient to address any overlapping pretrial proceedings in light of the low number
of actions and the involvement of common counsel. In response, plaintiffs contend that centralization
is nonetheless warranted because common factual questions predominate on the core issue of whether
SPF insulation products off-gas volatile organic compounds (“VOCs”) after installation as a result
of a defect in the products’ design, manufacture, and/or installation instructions.
On the basis of the papers filed and the hearing session held, we will deny plaintiff’s motion.
Although these actions share factual questions arising out of allegations that SPF insulation products
emit VOCs as a result of one or more defects associated with the product, the Panel is not persuaded
that Section 1407 centralization is necessary either to assure the convenience of the parties and
witnesses or for the just and efficient conduct of this litigation. On the present record, it appears that
individualized facts concerning the chemical composition of the different products, the training and
practices of each installer, and the circumstances of installation at each residence will predominate
over the common factual issues alleged by plaintiffs. Additionally, placing direct competitor
1

2

The Panel has been notified of two additional related actions.

Demilec (USA) LLC; Lapolla Industries, Inc.; Bardhardt Manufacturing Company d/b/a
NCFI Polyurethanes; Masco Corporation; Masco Services Group; Builder Services Group d/b/a Gale
Construction; Abisso Abatement, Inc.; Hovnanian Enterprises, Inc.; U.S. Insulation Corporation;
Delfino Insulation Company; Wierzba Insulation, LLC; Advanced Insulation Technology, LLC;
Energy Improvement Group; and McLaughlin Spray Foam Insulation, Inc.

Case MDL No. 2444 Document 119 Filed 06/06/13 Page 2 of 3

-2manufacturer defendants into the same litigation would require protecting trade secret and
confidential information from disclosure to all parties and complicate case management.
Under the present circumstances, voluntary coordination among the parties (many of whom
are represented by the same counsel) and the involved judges is a preferable alternative to
centralization. We encourage the parties to employ various alternatives to transfer which may
minimize the potential for duplicative discovery and/or inconsistent pretrial rulings. See, e.g., In re:
Yellow Brass Plumbing Component Prods. Liability Litig., 844 F. Supp. 2d 1377, 1378 (J.P.M.L.
2012); see also Manual for Complex Litigation, Fourth, § 20.14 (2004).
IT IS THEREFORE ORDERED that the motion, pursuant to 28 U.S.C. § 1407, for
centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

John G. Heyburn II
Chairman
Kathryn H. Vratil
Paul J. Barbadoro
Charles R. Breyer

W. Royal Furgeson, Jr.
Marjorie O. Rendell
Lewis A. Kaplan

Case MDL No. 2444 Document 119 Filed 06/06/13 Page 3 of 3

IN RE: SPRAY POLYURETHANE FOAM INSULATION
PRODUCTS LIABILITY LITIGATION

MDL No. 2444

SCHEDULE A

District of Connecticut
Christopher Albanese, et al. v. Demilec (USA) LLC, et al., C.A. No. 3:12-01053
Southern District of Florida
Lucille Renzi v. Demilec (USA) LLC, et al., C.A. No. 9:12-80516
Bruce Haas, et al. v. Demilec (USA) LLC, et al., C.A. No. 9:12-81160
Western District of Michigan
Joel Stegink, et al. v. Demilec (USA) LLC, et al., C.A. No. 1:12-01243
District of New Jersey
David Schraeder, et al. v. Demilec (USA) LLC, et al., C.A. No. 2:12-06074
Eastern District of New York
Neil Markey, et al. v. Lapolla Industries, Inc., et al., C.A. No. 2:12-04622
Eastern District of Pennsylvania
Daniel Slemmer, et al. v. NCFI Polyurethanes, et al., C.A. No. 2:12-06542
Western District of Wisconsin
Kevin Hecker v. Demilec (USA) LLC, et al. C.A. No. 3:12-00682