State Court Judge Allows

Individual Chinese Drywall

Cancer Suit Despite Federal MDL
| Daily Business Review
A judge in Palm Beach County allowed an individual plaintiff to proceed with
a claim linking cancer to Chinese-sourced drywall, despite defense arguments
that ongoing multidistrict litigation, or MDL, barred the suit.

Circuit Judge Meenu Sasser granted partial summary judgment to Paul

Wilkis, a cancer patient who claimed his work supervising drywall removal at
The Whitney, a plush residential building in downtown West Palm Beach,
caused the disease. She rejected defense arguments that Wilkis was a member
of the plaintiff class in the MDL, which precluded him from filing a separate
suit in state court.

Now it will be up to Palm Beach County jurors to decide whether companies

involved in handling drywall from The Whitney put Wilkis in harm’s way.

Defense attorneys said the plaintiffs had no case and asked Sasser to avoid
trial.

“There was no duty and no causation,” said Richard Chaves, of Ciklin Lubitz
& O’Connell in West Palm Beach, who represents The Whitney Condominium
Association Inc. and its president Paul Elliot. “We are not aware of any
credible scientific information that shows that anything the association did
was wrong in anyway. … At no time during that process was it suggested,
proven or even alleged by anyone that Chinese drywall causes lung cancer.”

Wilkis, with his wife, Judith, sued Elliott, the condo association, USO Norge
Whitney LLC, property builder Lendlease (US) Construction Inc.,
environmental testing firms Ramboll Environ US Corp. and A2L
Technologies Inc., and A2L’s successor in interest Apex Companies LLC. He’d
worked as the community association manager at The Whitney from 2008 to
2013, during which time property owners across the country brought multiple
suits against drywall manufacturers and suppliers. Wilkis was not part of
those suits, but The Whitney was, amid claims of contaminated building
material at the property.

The courts consolidated that ongoing litigation in federal court in Louisiana.

MDL plaintiffs alleged health risks linked to particulates, gases and volatile
compounds in contaminated drywall imported from China. To determine
potential damages and exposure, The Whitney conducted environmental
testing, which Wilkis supervised.

“They didn’t have Paul or any of the workers wearing protective gear,” said
plaintiffs attorney Richard Burton, of The Burton Firm in Miami. “Paul
Wilkis was there every day, and came home stinking of the sulfur smells of
Chinese drywall.”

The Whitney’s testers concluded the property was safe, according to court
filings.

But Wilkis’ attorneys say his lung cancer diagnosis in 2012 suggested
otherwise. They brought a nine-count complaint on behalf of Wilkis and his
spouse, alleging fraudulent concealment, premises liability, negligence and
conspiracy to conceal unsafe conditions, among other claims.

The Whitney Condominium Association and its president, Elliott, filed for
summary judgment on two grounds: a statute of limitations provision and the
MDL preclusion. First, they argued that by the time Wilkis filed suit in
October, he was already months outside the four-year window that started
with his diagnosis in February 2012. Second, they argued he was part of the
class involved in the federal suit over health issues linked to Chinese drywall.
But Sasser rejected those arguments.

“Wilkis does not fit within the MDL class member definition and is not
precluded from filing this claim,” she wrote in an Aug. 24. Order. “The ‘class
member’ definitions in the MDL bar order and global settlement agreement
are extremely broad, and the court notes that neither of these documents
have the authority to make an individual a class member.”

As for Wilkis’ timing in bringing suit, the judge found no evidence that at he
could have made an immediate connection between the disease and exposure
to the building material.

“Additionally, defendants have not taken the position that Chinese Drywall
causes cancer,” Sasser ruled. “This is an issue of fact that should be
determined by a jury.”