Drywall dilemma deep for parents GO OR STAY?

For homeowners dealing with Chinese-made drywall, the concerns grow more urgent with the arrival of a new child

By Aaron Kessler

Having a baby -- especially when it is a first child -- is enough of a challenge for most new parents. Now, a growing number are contending with an unexpected worry: Chinese drywall.

In Florida and other states, more homes are found each day that were built with Chinese-made drywall -- a material that is emitting corrosive and potentially hazardous gases. As state and federal inquiries drag on, leaving fundamental health questions unanswered, a new generation of babies are being born into a situation that leaves their parents in a dilemma.

"I just want a house I can live in," said Neil DeHenes, whose wife just gave birth to their first child, Sophie, in May. "My main concern is my daughter. Her respiratory system is just developing now. Her brain is developing. If it's causing me to get headaches and very painful sinus infections when I breathe it in, what is it doing to her?"

DeHenes and his wife left their Chinese drywall home in Riverview at their own expense just days before Sophie was born. Their builder, Tampa-based Suarez Housing Corp., has taken little action since the drywall was found in April. Now the DeHeneses have been forced to return temporarily after losing a short-term rental and are scrambling to find another furnished place to live.

"We just can't risk staying here any longer than absolutely necessary," Neil DeHenes said. "Even when we find something, I don't know how much longer we can continue to pay rent and the mortgage at the same time. We're already dipping into what's left of our savings."

No one from Suarez Homes would agree to discuss the company's use of Chinese drywall or the DeHeneses' case with the Herald-Tribune. Lisa Hower, an employee at Suarez's South Fork sales office -- visible from the DeHeneses' home -- directed questions to the corporate headquarters in Tampa. Multiple phone messages there were not returned.

In early April, Neil DeHenes was daydreaming about the adventures his first child would bring. That is when his home's air-conditioner failed. A technician determined that the copper coils were damaged. "The guy said, 'It looks like the effects of Chinese drywall,'" DeHenes said.

He contacted Suarez, but said the builder disagreed, claiming it used only American-made brands. "They said the copper in the A/C unit was from Mexico, that it was bad," DeHenes said.

Skeptical, DeHenes climbed into the attic to see if there were any markings on the exposed drywall. The stamps read, "Made in China."

Suarez then sent out an executive and other workers. They cut out drywall samples, but DeHenes later learned that Suarez had not tested the samples and would not pay to move him out.

DeHenes hired an attorney, who began sending letters to Suarez demanding action. In the meantime, the couple moved out on their own to a furnished town house in nearby Brandon.

DeHenes has had painful sinus infections for more than a year, but a series of expensive medical tests were inconclusive. His doctors previously wondered if his frequent airplane travel could be to blame. They now believe it is likely the drywall.

"If it was doing that to me, I can't take a chance on what it's doing to my daughter," he said.

Suarez has since indicated a willingness to make repairs, but executives have yet to say what exactly the company will do. The builder also wants DeHenes to sign a comprehensive waiver agreement absolving the builder of any legal liability.

Meanwhile, about 30 miles to the south, in the Lighthouse Cove neighborhood of Lennar Corp.'s Heritage Harbour development in Manatee County, another group of babies have begun moving back into homes originally built with Chinese drywall.

The wallboard has been removed from several dozen homes by the Miami-based company, one of a few builders to do so.

Lennar says the houses are now free of harmful gases, but some owners remain nervous.

Adding to that anxiety is Lennar's change of course regarding air quality tests. Multiple owners interviewed by the Herald-Tribune said Lennar promised to conduct tests before they moved back in, and then more several months later. Those tests have since been canceled.

"One of the big things was we wanted something saying everything was good and safe. We were hoping to get the air quality tests back, but when the time came we didn't get that," said Pio Rizzo, who along with his wife and their new baby recently moved back into their home on Montauk Point Crossing. "I hope it'll be OK, but there's still some worry about bringing my family back in and having a newborn here."

Rizzo considered refusing to move back in unless the tests were done, but ultimately concluded that it would only inflame the situation. He has not experienced the headaches or nosebleeds prevalent before.

Others who recently returned or who will do so soon were divided on the subject of the canceled tests. Several said they were disappointed, but did not want to rock the boat.

Others said they are happy.

"It's not an issue for me at all. I'm glad to be back in what is essentially a new house," said Carlos Cabrera, who recently moved back with his wife and 1-year-old.

Lennar said the tests were canceled after subsequent studies by its environmental consultant, Environ Corp.

Darin McMurray, Lennar's Southwest division president, said through a spokesman that Environ reached a conclusion that "no additional air quality testing is necessary once the defective drywall has been completely removed." The new policy applies to all Lennar homes statewide. McMurray said a one-year warranty Lennar has offered should provide enough assurance to owners.

The company said it has stopped telling affected owners they would receive the post-construction tests, but no exceptions have been made for those previously told otherwise.

Air quality testing can be difficult and yield inconsistent results. Environ's own tests have been criticized by state and federal health officials. Its report made public earlier this year, which concluded there was no health risk associated with drywall gases, resulted in data that Florida's state toxicologist, Dr. David Krause, called "inadequate," prompting the state to push for more expansive testing.

Meanwhile, owners like Neil DeHenes, with the Suarez home in Riverview, would be glad to see his builder deal with the problem.

"I really don't know what to do anymore," he said. "This wasn't how I pictured we'd be having our first baby."

 Some of these potential clients have chosen to retain other law firms, some of whom surprisingly represent contractors in the normal course of their practice, on the prospect that the issues be addressed through a class action. I personally do not see these issues appropriate for a class action because, among other reasons, several different builders and manufacturers are involved and each case is factually distinct (whether it is an isolated case or an entire block of owners involved, where the bad drywall is in each home, health impact, etc.). This does not mean that there would not be benefit to the affected owners working together, I just don't see this as appropriate for class action treatment.

One other more practical issue if indeed a builder like Lennar is the target of a class action on this issue is whether such a pursuit will be the straw that broke the camel's back as far as Lennar surviving the current economic downturn. If you have a builder prepared to step up and make things right, forcing them to spend millions of dollars in defense costs may lead to bankruptcy and nobody being satisfied.

Of course, Lennar, like any builder, should not be given free reign on its approach to the remedial work. As a Board-Certified Construction Lawyer who has represented consumers for 30 years, these are issues that should be addressed with every builder involved: 

• 1. that all affected residents and tenants are cleared health wise; 
• 2. that all the bad drywall is in fact removed from each house.  Remember that many houses have this stuff mixed with other brands;
• 3. that the drywall is properly disposed of;
• 4. that all exposed copper in the air-conditioning systems and electrical outlets is inspected and replaced where deteriorated;
• 5. that the reinstallation of electrical and air-conditioning components is completed by licensed trades under proper permit and inspection;
• 6. that new drywall is hung by qualified people under proper permit and inspection;
• 7. that all finishes are properly reapplied by qualified people;
• 8. that home warranties are extended
• 9. that homeowners are compensated for alternative housing and lost
  rental (in the case of tenants).

The commission has the authority to issue a "stop sale," which would effectively ban a product from being sold or imported. It also can issue a formal recall, which would require that Chinese drywall be removed from all affected homes.

Word of the federal investigation came as the owners of one of six homes being repaired by Miami-based Lennar Corp. in Manatee County's Heritage Harbour development ordered that all work be halted on their house.

Dan and Janet Tibbetts of Montauk Point Crossing worry that wood studs and framing in the house still emit an odor even after the Chinese drywall was removed. They also want an independent inspector to evaluate the home -- including examining all metal components for signs of damage -- before Lennar rebuilds the walls.

The last-minute order was sent as Lennar contractors were on the verge of installing new drywall Monday.

Through a spokesman, Lennar division president Darin McMurray said, "Although Chinese drywall has been found in homes constructed by many South Florida builders, Lennar has been by far the most proactive in working with our homeowners to fix the problem. We will continue to work closely with our homeowners to address all of their concerns during the repair process."

The Tibbettses have hired Sarasota attorney Alan Tannenbaum, who specializes in construction law and who faxed McMurray the formal cease-and-desist order Monday afternoon.

"We think there's a step that has been missed," Tannenbaum said. "All the drywall was pulled out, and that was a good start. But there needs to be an evaluation of what damage this material has wrought on the home -- an examination of the metals and the framing to see whether they are OK before things are closed up. We also need to figure out what's causing the continued stench."

Several experts believe the drywall gases may have permeated the wood framing, causing cross-contamination that can result in the wood continuing to produce a foul odor.

Tannenbaum said the wiring is of particular concern because of the risk of fire if it were to fail. Lennar intended to leave behind much of the wiring in the Tibbettses' home, saying that insulated wiring was not affected, only the exposed wires.

"Knowing how damaging these gases have been, how do you know that underneath the covering it hasn't deteriorated?" Tannenbaum said. "It may turn out to be OK, that would be great, but we think someone needs to at least look at it first to be sure."

Martyak, with the Consumer Product Safety Commission, said the risk of fire also would be at the heart of his agency's investigation into affected homes.

"The goal is to determine if there is a safety hazard, and when you have wiring potentially corroding, that will be a very important concern," he said.

Commission investigators will be in Florida for the next several weeks gathering information, Martyak said, declining to specify where they were, or to what counties or regions they would be traveling.

One of the largest concentrations to date of Chinese drywall has been found in Southwest Florida, but America's Watchdog, a national consumer advocacy group based in Washington, D.C., says its investigations have found defective Chinese drywall in Florida, Arizona, Colorado, Georgia, Louisiana, Maryland, Nevada, New Jersey, New Mexico, North and South Carolina, Virginia and Texas.

The Herald-Tribune reported on Feb. 1 that shipping records show at least 550 million pounds of Chinese drywall has been offloaded at U.S. ports since 2006 -- enough to build 60,000 average-size homes.

Other builders who used Chinese drywall, according to the builders themselves, customers and attorneys, include Taylor Morrison, WCI Communities, Meritage Homes, Ryland Homes, Standard Pacific Homes and Aubuchon Homes.

On Feb. 13, U.S. Sen. Bill Nelson, D-Fla., sent a letter to the Consumer Product Safety Commission and the EPA asking both agencies to jointly investigate whether the Chinese drywall is toxic, and to determine the extent of the damage potentially being caused to people's homes.

"The commission needs to work with the EPA and other agencies to quickly determine the extent of problems with this drywall, order necessary remediation and create new safety standards to keep this from happening again," Nelson said Monday in a statement.

Nelson's legislative counsel, Christopher Day, said commission investigators are putting together a growing list of homes they will inspect during their first Florida visit.

Day said that given the scope of the potential problem, getting federal agencies involved opens the door to resources not available to state or local authorities.

"They have testing facilities that go beyond what is available at the state level," Day said.

One of the biggest challenges in testing the Chinese drywall to date has been the expense and the fact that only a few labs are capable of analyzing the tiny components causing the problem, which are measured in parts-per-billion or even parts-per-trillion.

The only testing released so far has been from labs hired by either a builder or a manufacturer. Day said that it seemed appropriate for an independent agency to become involved.

"Bringing in a completely neutral party we think would be useful," he said.