Several brands of popular home laminate flooring have been recalled in recent years for containing dangerous levels of formaldehyde, a toxic chemical that can lead to short term and chronic illnesses, including certain types of cancer with heavy exposure.
In recent years, the U.S. Consumer Product Safety Commission (CPSC) has addressed consumer complaints about several types of laminate flooring, including laminate flooring made in China between 2012 and 2014 and sold at Lumber Liquidators outlets in the United States.
The watchdog agency tested formaldehyde levels released from specific types of laminate flooring and concluded the products pose a palpable danger to homeowners.
According to the CPSC report, some of the tested laminate flooring samples had levels of formaldehyde more than ten times greater than the acceptable limit set by the U.S. Environmental Protection Agency.
The EPA has said exposure may increase serious health risks for homeowners with laminate flooring. Lawsuits have been filed against flooring manufacturers and large settlements have been reached in recent years.
Joe Lyon is a highly-rated toxic tort lawyer representing plaintiffs nationwide in a wide variety of consumer product liability cases.
The Centers for Disease Control and Prevention (CDC) and the Agency for Toxic Substances and Disease Registry (ATSDR) have worked to establish an acceptable formaldehyde level that may be present in typical homes with laminate flooring, though health agencies differ on how exposure causes illnesses and cancers.
The CDC recommends that if you or family members are experiencing any related symptoms to exposure to laminate flooring or other wood products in your home, you should consult a physician and your local health department.
The National Toxicology Program classifies formaldehyde as a known human carcinogen. Epidemiological studies of workers exposed to formaldehyde in the workplace have reported a link between formaldehyde inhalation and cancer.
Studies of workers who breathe in very high levels of formaldehyde over many years have shown a link to certain cancers including nasal, throat and lung cancer, and acute myeloid leukemia (AML).
Formaldehyde exposure from laminate flooring may not necessarily cause cancer in the short term, however chronic exposure to cancer-causing chemicals always increases personal cancer risk. Workers installing flooring are likely to be faced with the highest formaldehyde exposure levels, breathing in formaldehyde for long hours on a daily basis.
Wood products regularly contain formaldehyde-based resins because formaldehyde adhesives are a very effective wood bonding agents.
Formaldehyde derivatives may be present in cabinetry, countertops, moldings, furniture, shelving, stair systems, flooring, support beams, trusses and pressed-wood products, such as particleboard, plywood, and fiberboard. The following manufacturers sell laminate flooring products that allegedly contain formaldehyde:
• Lumber Liquidators Flooring
• Ark Floors
• CFL Wood Flooring Limited
• Surfaces Limited
• Eternity Floors
• Floor & Decor Outlets of America Inc.
• Lowe’s Co. Inc.
• Floor & Decor Outlets of America Inc.
• Home Depot
• Tecsun Flooring
• Flooring Liquidators
• Build Direct
• L.A. Hardwood
• Lawson Floors
• Tropical Flooring
The presence of formaldehyde and other toxic chemicals may be more prevalent in homes than previously realized. Formaldehyde is used to produce many wood products, including a wide variety of pressed wood products.
Pressed wood products are used in the construction of furniture, kitchens and flooring, and are commonly used in caravans and mobile homes. Various pressed wood products are used in construction sites with structural ramps, overhead protective barriers and runways.
Pressed wood products are sheet materials with wood in the form of strips, veneers, chips, or fibers. The wood particles are bound together by formaldehyde-based resins. Some common pressed wood products include:
• Laminate flooring
• Wood paneling
• Floor underlay
Many product liability cases have had a positive impact on public health and safety, and we have witnessed improved lives and future injuries prevented as companies are forced to remove products and change designs and warnings as a result of litigation.
Product liability lawsuits often contain causes of action for strict liability, negligence, and breach of warranty. Strict liability applies to different factors than negligence-based claims.
In negligence cases, the actions of the defendant are the focus. In strict liability claims, the focus is on the condition of a product at the time it left the manufacturer. If a product is determined to be defective, the company is liable for any foreseeable injuries that are in-part caused by the defective condition of the product.
A product is defective if it is unreasonably dangerous for its intended use. A legal cause of action can be based on several types of product defects. The following are Cincinnati product liability and strict liability claims available in Ohio and in most jurisdictions nationwide:
(1) Manufacturing/ Construction Defect:
These issues arise where the product is released from the factory in a manner that deviates from the intended design or specifications. The defect can be a result of using the wrong materials, including the wrong or completely foreign materials (e.g., Tylenol contamination, food poisoning, damaged car part from factory installation).
As a result of the deviation, the product enters the market in an unreasonably dangerous condition and the consumer is exposed to or purchases a product that is defective. Any personal injuries or economic loss that arise from the the defect are compensable under Ohio product liability law.
(2) Defective design and/or formulation:
Defective design product liability cases arise not because a mistake was made during the manufacturing process, but rather the original design of the product is unreasonably dangerous. A “risk benefit analysis” is used to determine whether safer/less expensive alternative designs were available to the manufacturer.
Federal regulations set minimum standards for the design of many consumer products, and preemption defenses may preclude liability in some situations if the manufacturer follows and obtains federal approval for a product. Automotive recalls and product liability cases are usually a result of a defective design. Common cases include the Toyota Brake Recall, Chrysler Gen III seat belt buckle, lap belt only cases, Metal on Metal hip implants, transvaginal mesh.)
(3) Failure to warn or inadequate warning or instruction associated with the product:
All consumer products come with necessary and appropriate warnings and instructions for use. If the lack of a warning makes the product and use of the product unsafe, the manufacturer is liable for the failure to place the warning. The most common area of litigation for failure to warn is in pharmaceutical litigation.
Pharmaceutical manufacturers are required to warn of the known or foreseeable side effects and update the warnings in a timely manner. Litigation arises where there is evidence the manufacturer failed to timely update a warning in light of new data or simply ignored the risk and failed to conduct sufficient research to identify and then disclose the risk.
The product fails to conform to a representation or warranty. Warranty claims are more common in commercial and economic loss cases than in personal injury cases. In many States, The Product Liability Act does not apply to cases with only economic loss, because the Commercial Code provides recourse for breach of warranty.
The warranty may be written or implied based upon the products intended purpose and merchantability. An example of a breach of warranty cases are cases involving automotive defects.
Risks: The following factors are considered under Ohio law when determining the risks associated with the design of a product: (1) the magnitude of the risk of injury; (2) ordinary consumer awareness of the risk for injury; (3) the likelihood of causing injury; (4) the violation of a private or public standard; and (5) the consumer’s expectation of the performance of the product and level of danger. Ohio Revised Code 2307.5 (B) Product Defective in Design or Formulation.
Benefits: The following factors are considered under Ohio law when determining the benefits associated with product design: (1) the utility of the product; (2) availability of an alternative design; (3) the magnitude of risks associated with an alternative design. Ohio Revised Code 2307.5 (c)
Defenses for Defective Design: (1) a pharmaceutical drug or medical device is not defective by design if it contains an adequate warning of an unavoidably unsafe aspect of the pharmaceutical or medical device; (2) the dangerous aspect is inherent to the product, recognizable, and cannot be eliminated without compromising the product’s usefulness; (3) a lack of a feasible alternative design. 2307.75 (d)(e)(f).
A manufacturing defect is based on a defect that occurred during the manufacturing process. Many auto companies have been involved in this kind of product liability lawsuits in recent years, due to defective airbags, software defects, tire failure, and other dangerous manufacturing errors.
Most manufacturing defect cases are based on a products deviation from the intended specification, formula, performance standards, or design model. In such cases, it may be easy to determine the product did not comply with the intended design.
The product may be recalled as a specific lot is identified as being non-compliant and defective. A product may be defective in manufacture or construction, materials and assembly, and a manufacturer or distributor may be subject to strict liability, even though it exercised all possible care. Ohio Revised Code 2307.74.
Manufacturing Defect Examples:
In determining whether a product is defective due to inadequate warning or instruction, evidence must be presented to prove:
Defenses to Failure to Warn Claims: (1) the risk was open and obvious or a matter of common knowledge; and (2) in cases of a pharmaceutical drug or medical device, the warning was provided to the prescribing physician (“Learned Intermediary Doctrine”).
Many pharmaceutical companies have been targeted in failure to warn lawsuits for either failing to place warnings on medication guides and packaging or failing to properly test their product before putting it to market.
Design and manufacturing defects result in thousands of product recalls each year in the United States, initiated by federal safety agencies. Following injury and illness, regardless of recall status, victims and plaintiffs may pursue legal action and contact a product liability lawyer to begin the litigation process. Rightful compensation can be sought and help plaintiffs recover medical costs and other related damages.
Product liability law overlaps with regulatory law, which are the systems of legislative rules and administrative agencies, and part of federal and state governments. These agencies regulate the safety of the products sold to the public. Examples include:
The listed government agencies, however, may initiate recalls of dangerous products but do not provide remedies or compensation for damages where an individual is injured due to the defective product.
Defective products on the market present safety and health hazards for adults and children. Cheap and defective products may pose fire and burn risks; electrocution, strangulation and choking risks; and severe health risks. The manufacturers of consumer products have a duty to foresee potential injury and properly design and test products before they are released.
Companies must also properly warn consumers of any risks associated with their products. Any failure to protect consumers that results in accidents and injury can lead to lawsuits filed by plaintiffs and their Cincinnati product liability lawyer