NEW ORLEANS (CN) – Hurricane Katrina victims who lived in formaldehyde-tainted FEMA trailers said they will appeal last week’s verdict that cleared trailer-makers of responsibility for the plaintiffs’ alleged injuries. The plaintiff’s attorney said he will challenge the defense’s removal of five black people from the jury pool. In an interview, one of the jurors said he felt the judge’s instructions to the jury were too specific.
Plaintiffs’ attorney Tony Buzbee said U.S. District Judge Kurt Engelhardt told jurors that if they found that Gulf Stream complied with government specifications when building the trailers and that the federal agency had accepted the finished units, then the manufacturer could not be held liable.
But Buzbee said the government did not know about the risk of formaldehyde from pressed wood inside the trailers, and so would not have been able to demand the use of low-formaldehyde-emitting wood in its specifications. There were no federal specifications given for trailer manufacturers to follow.
The defense removed five African-Americans from the jury pool, and the judge removed anyone who had lived in a FEMA trailer.
“We don’t believe the remedy by the judge was effective,” Buzbee said this week. He cited the 1986 Batson ruling in which the U.S. Supreme Court said that jurors may not be excluded from a trial solely because of race.
The jury in this first FEMA trailer trial consisted of five men and three women. One juror was black; seven were white.
In an interview this week, juror Roy Pierce said that he “could not go with the plaintiff, because there was no documentation that said how the trailers had to be built.”
The lack of documentation, he said, was the “key” to the trial, for him.
Pierce added that he felt that someone kept the plaintiffs from fully getting their point across. He cited the defense’s refusal to allow the plaintiffs to conduct more formaldehyde tests on the trailers.
“I’m drawing some conclusions here that aren’t entirely stupid. You know what I’m saying?” Pierce said.
“Like I told other reporters, my heart was in this; you did see what Gulf Stream did.” But, Pierce said, Gulf Stream was merely the manufacturer of shoddy trailers, while the federal government was responsible as the purchaser.
“Let’s say your boyfriend buys you a car; the title’s in his name. When you have a problem with the car and want to complain to the manufacturer, you can’t. Technically, it’s not your car. Same problem here. FEMA made the purchase.
“I would have thought FEMA would have been held liable,” said Pierce.
Pierce is a limo driver who also has worked as a law enforcement officer and in purchasing. He said his work experience helped in the trial, because there was a lot of testimony from Gulf Stream on purchase orders. Pierce said he read all the exhibits and public records available to the jury.
“You want to get as much information as you can get, just like law enforcement,” he said.
The jury rejected all four of the plaintiffs’ claims. It found that the trailer where Alana Alexander and her son Chris Cooper lived was not “unreasonably dangerous” in construction or composition; it was not dangerous by design; Gulf Stream Coach did not fail to warn of the dangers of formaldehyde; and Fluor Enterprises was not negligent in distributing, installing and maintaining the trailer.
Alexander said her son’s asthma was aggravated by formaldehyde in the Gulf Stream trailer where they lived 19 months.
Fluor Enterprises received a federal no-bid contract to install and maintain trailers after the 2005 hurricanes.
The federal government was named as a defendant in the lawsuit, but was not a defendant in the trial. But the United States, through the Federal Emergency Management Agency, will be a defendant in some trials to come.
Buzbee said this was his fifth defeat in 12 years as an attorney.
“The Southeast Texas Record” reported in 2008 that the Houston-based attorney is popular with judges and juries and that singer-songwriter Jimmy Buffett hired him in a trademark infringement case.
Plaintiff attorney Frank D’Amico said in an interview this week that he “feels very optimistic” about the trials to come.
“I think each case turns on its own,” D’Amico said.
He will be involved in three of the four upcoming FEMA trailer trials.
The second trial is scheduled to start Dec. 7. The defendant trailer manufacturer will be Fleetwood Enterprises of Riverside, Calif.
Lead plaintiff attorney will be Raul Bencomo of New Orleans.
As defense co-counsel, Richard Hines from Atlanta will join New Orleans attorney Jerry Saporito.
The trial is slated to last two weeks. U.S. District Judge Kurt Engelhardt again will preside.