5th Circuit Panel Affirms Lack Of Jurisdiction In FEMA Trailer Formaldehyde Suits

5th Circuit Panel Affirms Lack Of Jurisdiction In FEMA Trailer Formaldehyde Suits

NEW ORLEANS - (Mealey's) A unanimous Fifth Circuit U.S. Court of Appeals panel on Jan. 23 affirmed summary judgment for the United States against Alabama and Mississippi claimants in the multidistrict Federal Emergency Management Agency trailer formaldehyde products liability litigation for lack of subject matter jurisdiction (In re:  FEMA Trailer Formaldehyde Products Liability Litigation, No. 10-30921 [consolidated], 5th Cir.).


The claims of approximately 10,000 claimants are consolidated in the U.S. District Court for the Eastern District of Louisiana multidistrict litigation (In re:  FEMA Trailer Formaldehyde Products Liability Litigation, No. 07-1873, MDL 1873, E.D. La.).  The claimants allege exposure to formaldehyde in emergency housing units (EHU) provided at no cost by FEMA after hurricanes struck the Gulf of Mexico coast in August 2005 and September 2005.  The multidistrict litigation was created in 2007. 

Consolidated Appeal 

The appellants in the instant, consolidated appeal are residents of Mississippi (No. 10-30921) and residents of Alabama (No. 10-30945).  

The United States in November 2009 moved to dismiss the appellants' Federal Tort Claims Act (FTCA) claims for lack of subject matter jurisdiction.  It argued that the emergency statutes of Mississippi and Alabama would bar similar claims against private persons under similar circumstances.  Final judgment was entered in August 2010. 

The Mississippi and Alabama claimants appealed. 

"The FTCA is recognized as providing a waiver of sovereign immunity and provides the sole basis for recovery for tort claims against the United States.  See 28 [U.S. Code Section] 1346 and § 2671, et seq.; In re Supreme Beef Processors, 468 F.3d at 252 n.4," Judge Carl E. Stewart wrote for the panel.  "Section 2674 provides that the United States shall be liable in the same manner and to the same extent as a private individual under like circumstances." 

"Because the Mississippi and Alabama emergency statutes abrogate the tort liability of a private person who, (1) voluntarily, (2) without compensation, (3) allows his property or premises to be used as shelter during or in recovery from a natural disaster, the Government's voluntary, cost-free provision of EHUs to disaster victims, in connection with Hurricanes Katrina and Rita, is also immunized conduct under the statute.  See Miss. Code § 33-15-21(b) and Ala. Code § 31-9-17," according to the panel. 

Certification Denied 

The panel also declined to certify questions to the Alabama and Mississippi supreme courts, as requested by the plaintiffs.  The plaintiffs sought certification to consider if the United States qualifies as a person under the emergency statutes, if the FTCA preempts state law regarding liability when the United States exercises nondiscretionary duties and if the Alabama and Mississippi legislatures intended to immunize the United States under the emergency statutes.  The Alabama plaintiffs also sought review of whether FEMA's failure to respond to complaints about formaldehyde exposure months after Hurricane Katrina made landfall occurred "during an actual disaster," according to the panel. 

"Having considered the foregoing and upon determining that the questions do not warrant certification, we deny Appellants' motions." 

Judges Patrick E. Higgenbotham and Catharina Haynes joined the opinion. 

Gerald Edward Meunier and Justin I Woods of Gainsburgh, Benjamin, David, Meunier & Warshauer in New Orleans and Charles Edward Gibson IV of Hawkins, Stracner & Gibson in Bay Saint Louis, Miss., represent the plaintiffs.  Adam Michael Dinnell, John Adam Bain and Henry Thomas Miller of the U.S. Department of Justice in Washington, D.C., represent the United States. 

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