Insurance Dispute Lawyer Blog

A Happy (and safe) Halloween for all of our readers and friends from the Berniard Law Firm

In what may be a smoking gun of the evidentiary sort, federal investigators have found a chemical difference in the composure of Chinese drywall when compared to those products made within the country. While the discovery has yet to be the clear-cut indictment of the manufacturers of the imported wallboard, it is significant because it shows a clear difference between that drywall causing problems and domestic drywall that remains to be safe and not a cause for concern.

The New York Times reports

Federal investigators reported Thursday that imported Chinese drywall that homeowners have linked to health problems and odors had higher levels of some chemicals than its domestic counterparts.

The investigators, however, were unable to link the chemicals, sulfur and strontium, to the health problems and smells in thousands of homes built during the recent housing boom, and said further testing was under way to determine any possible connection.

The preliminary findings are part of a larger study by federal agencies, including the Consumer Product Safety Commission and the Environmental Protection Agency, into complaints from nearly 2,000 homeowners that their recently built homes emit odors and cause nosebleeds and respiratory problems. The owners also say their electrical appliances have failed and their wiring has corroded. It has been estimated that more than 60,000 homes could have the imported drywall.

While the investigation continues and more work is needed, this is a very positive development because other than complaints of those with Chinese drywall, this is one of the first distinguishing features between positive and negative wallboard that can be pointed to as proof of a problem. More information, as it becomes available, will continue to be posted on this site's Chinese drywall section.

The Virginia-Pilot profiles a few families harmed by Chinese drywall and the struggle they face in this dire time period. Within this piece is an interesting statement by a local elected official appealing to banks to avoid foreclosure on uninhabitable properties that have Chinese drywall installed within them.

The federal Consumer Product Safety Commission is investigating air-quality issues related to the drywall and plans to release some of its findings today and additional reports in the coming weeks. Several local homeowners also have sued the companies that manufactured and imported the drywall.

In the meantime, dozens of families across Hampton Roads face a dilemma similar to the Dunaways’: Continue to live in a home that could be making them sick, or move out and stack a rent payment on top of the mortgage bill.

Local lawmakers are calling on banks and mortgage lenders to help homeowners while the federal investigation is completed. U.S. Sen. Mark Warner, D-Va., sent a letter last week to the Virginia Mortgage Lenders Association urging its members to temporarily suspend collection of mortgage payments or at least to delay foreclosure proceedings on homes constructed with the tainted drywall until the product safety commission finishes its investigation.

“To foreclose on homes that are uninhabitable, with an unknown range of defects, would only aggravate homeowners’ problems and place you in control of an unsellable property,” Warner wrote

The article goes on, mentioning that U.S. Rep. Glenn Nye (D-Va) had introduced a Congressional resolution in Congress to request that banks and lenders to offer homeowners a temporary reprieve from home payments to avoid such financial catastrophe. These methods of staying the fate of those who have been unfortunate enough to have the toxic wallboard installed in their homes is a good step forward to reaching a satisfactory resolution and assist people who could use some assistance at this time.

A quick news piece emerging out of Houston demonstrates that though it has been a quiet hurricane season, the damage caused by previous years in which the Gulf Coast was not so lucky have still not been overcome. In Houston, individuals still living in FEMA trailers in the wake of Hurricane Ike have been notified that they will need to vacate and move on to more permanent housing.

Per Houston's Daily News

Before Hurricane Ike, Sidney Lampman rented the first floor of her sister’s two-story house on West Hunter Drive in Old Bayou Vista. The hurricane flooded the house and, even though Lampman rented the property, rather than owned it, the Federal Emergency Management Agency gave her a mobile home while she looked for a new place to live.

This month, the agency sent Lampman a letter telling her she must move out of the mobile home because there are plenty of apartments and rental houses in the area.

The agency referred her to the federal Disaster Housing Assistance Program, which subsidizes rent for hurricane victims through March.

It is disappointing to see people are still having to rely on this governmental housing and shows the true destruction caused by these disasters. We can only hope this quiet hurricane season continues and the Gulf Coast is given a reprieve from disastrous weather.

The Associated Press recently ran a piece outlining the delays that will be faced in the $5 million assistance program established in Louisiana to assist in the removal of Chinese drywall in homes. While the project was set to help homeowners repair the wrongs created by the toxic wallboard, it appears that a myriad of bureaucracy and red tape may slow the track to recovery.

The program would be limited to homeowners with the drywall who received aid through the Road Home program after hurricanes Katrina and Rita. The help would only flow once federal officials devise a national standard for drywall testing and remediation, and state officials acknowledged it's not clear how long it might take to develop such standards.

Federal officials also would have to agree to spend the $5 million in federal hurricane recovery aid on the Chinese drywall program.

State lawmakers required the LRA to devise at least a $5 million aid program for people with drywall problems, and the recovery authority's board gave unanimous approval today to using federal hurricane recovery block grant money for the program. Next is a public comment period, followed by requests for legislative and federal approvals of the program plans.

The toughest hurdle could be developing national standards for dealing with the drywall. LRA Executive Director Paul Rainwater said a common standard must be devised to determine if home damage is because of defective drywall, if that wallboard was manufactured in China and how to make repairs before the state gives out remediation money.

Hopefully these difficulties can be fixed soon enough and the funding may be dispersed to those who need it at a rate that lets progress develop. For more information on Chinese drywall, click here or check this site daily for new entries.

Consumer Product Safety Commission chairman Inez Tenenbaum's visit to China is completed but the direct indictment of the foreign nation's faulty drywall was not achieved, despite progress in the way of opening dialogue and encouraging cooperation. While Tenenbaum's visit shows promise in that a visit by an American official puts pressure on China to cooperate with pending litigation claims, that the chairman failed to place blame on the manufacturers and demand results and response is going to disappoint some.

The Wall Street Journal reports

The new chairman of the U.S. Consumer Product Safety Commission wrapped up her first visit to China with a call for domestic suppliers to "do what is fair and just" in responding to allegations from U.S. homeowners over damage blamed on defective Chinese-made drywall.

CPSC chairman Inez Tenenbaum emphasized that a direct link between Chinese drywall and the problems has not yet been established.

"I appeal to companies in the Chinese drywall supply chain to examine carefully their responsibilities to U.S. consumers who are suffering from problems in their homes and to do what is fair and just in each case, if their products are involved," Ms. Tenenbaum said, "and I want to underscore if their products are involved."

Such a mixed message of pushing Chinese manufacturers to "examine... their responsibilities" while emphasizing that a direct link has not been made is, again, disappointing to many individuals who looked to the visit as an opportunity for a direct attack on the manufacturers instead of the run-around that has been going on up to this point. While diplomacy is essential, it will be interesting to see if the dialogue will become more heated as evidence is worked through and a more direct link is available.

A quick news piece emerging from the Associated Press today regarding a couple who had previously had their policy renewal refused because their home had Chinese drywall installed within it:

Citizens Property of Florida has reversed their decision and chosen to insure the couple after all.

The AP reports

Florida's public insurance company reversed course this week and said it will cover a couple's Gulf Coast retirement home, after previously telling the homeowners their policy wouldn't be renewed because of the home's tainted Chinese drywall.

Citizens Property Insurance Corp., a state-backed insurer of last resort, told The Associated Press for an Oct. 15 story that it generally couldn't continue to cover homes with such defective materials because of a "pollution" exclusion in policies.

"Without walking into a courtroom, this is one of my most proudest victories," said David Durkee, the couple's attorney.

Citizens previously said it considered the drywall a pre-existing condition, leading to pollution that could cause future damage, something not covered under most policies nationwide. That's why the insurer said it had earlier issued a notice of non-renewal to James and Maria Ivory.

This is very good news from insurance companies and a positive sign that those with the tainted wallboard won't be left out in the cold to fend for themselves.

Enjoy your weekend.

A great editorial published yesterday by the Fort Myers News-Press describes the technical and legal battle that the idea of a drywall recall faces. While recalls of products have a slant towards Chinese-made items (reportedly "60 percent of 475 products recalled per year are Chinese"), the problem with drywall, it seems, is that it is not a distributed item like a toy but, instead, a supply for a future product. While that may seem muddled or confusing, that is the exact point of the piece. Such confusion dominates the very nature of recalls and accountability for said recalls and Chinese drywall is anything but simple.

Mary Wozniak writes

If the toy is made in China and a U.S. company like Mattel is the distributor, the brand-name company will be cooperative, because it wants to maintain its reputation and stay in business, said Marshall Meyer, a professor at Wharton School and a global expert on Chinese business. ...

How do you recall a product that has been incorporated into your house? asked Scott Weinstein, Fort Myers attorney for Morgan & Morgan. If it's dog food, you can just take it back to the store, he said.

Overall the matter is a headache but also stands as something of a pioneer case that will show where American law might need to evolve in the future to protect the citizens and their interests, as well as possibly shape trade law. All in all it is a very interesting and complex matter that has a lot of wheels turning in both the legal and commercial sectors.

The lead-up to Wednesday's summit on Chinese drywall in China has been looked forward to by many as a great chance for headway to be made on rectifying the faulty wallboard installed in people's homes and getting these families into safe homes. While some may be optimistic, others remain doubtful any changes or productive resolutions will come out of the forum.

The Fort Myers News-Press reports

U.S. Sen. Bill Nelson, D-Orlando, who has led the congressional charge to tackle the problem, isn't expecting any answers from the summit.

His own August trip to visit the same Chinese government standards agency, called the General Administration of Quality, Supervision, Inspection, and Quarantine, resulted in nothing but "a bunch of bureaucratic gobbledygook," he said.

Nelson spoke to Wang Zhiyong, a deputy director general of the administration.

Nelson said he asked Zhiyong, "Don't you realize that you are the ones getting the black eye in this and making a defective product? And having all potential marketplace turn against you?"

He didn't get an answer.

"I finally got fed up," Nelson said in a phone interview. It was obvious the agency was not going to respond, he said.

Obviously many different eyes will be on this forum to see and read into what is done and said by members of both sides. Be sure to check out this section of the blog daily for developments as they become available.

Also emerging from Friday was Florida Senator Bill Nelson's call for the federal government to help provide funds necessary to remove Chinese drywall from those homes it was installed in this decade. Moving to continue the federal government's recent movement towards helping those with the toxic wallboard installed and build momentum against the Chinese companies who sold the product is a resounding success. Further, the move by Nelson demonstrates yet another section of the United States government working to make change.

In a letter sent late Friday to state House and Senate leaders, the Florida Democrat -[Bill Nelson] asks lawmakers to adopt a program like one in Louisiana that sets aside $5 million in Community Development Block Grants to help homeowners affected by toxic, corrosive drywall.

"Defective Chinese drywall is ruining the health and lives of countless Floridians,'' Nelson says in the letter, noting that several insurers have dropped policyholders whose homes contain the defective drywall.

Nelson says the U.S. Consumer Product Safety Commission is investigating the problem and that he has asked the Federal Emergency Management Agency to determine whether federal disaster funds could be used to help displaced homeowners.

The work being done by the CPSC and various federal groups is encouraging and show signs of development as 2009 comes near. One would hope in 2010 that enough will be done that this problematic wallboard will be removed from homes and homeowners will be able to return to these houses and resume their everyday lives after years of being restricted from doing so.

News coming out of yesterday's Wall Street Journal is extremely encouraging for those families suffering with Chinese drywall:

The new chairman of the Consumer Product Safety Commission said she would ask China to help pay for the billions of dollars in damage to U.S. homes blamed on Chinese-made drywall.

"I will find out if any discussions are going on in China about the costs, are they prepared to participate in providing funds, and what would it take for that to occur," CPSC Chairman Inez Tenenbaum said in an interview ahead of a trip to China next week for a biennial U.S.-China consumer product safety summit.

It wasn't clear what the Chinese response would be to a request for compensation. The Chinese Embassy didn't respond Thursday to phone messages seeking comment.

Ms. Tenenbaum said she also planned to start discussions with Chinese officials on whether the U.S. needs a regulatory standard for drywall composition. "I think we need one," she said.

This is very good news and there will likely be more information available on Monday or later this week on just what exactly the government will be doing to exert pressure.

A quick news bit that emerged yesterday regarding the current pre-trial matters being conducted in New Orleans regarding Chinese drywall and liability is worth a read. U.S. District Court Judge Eldon Fallon denied a motion to shift the discovery for litigation involving the faulty wallboard to the international supervision of the Hague.

Rebecca Mowbray of the Times-Picayune reports

U.S. District Court Judge Eldon Fallon denied a motion Thursday by the German company Knauf Gips to conduct discovery in the Chinese drywall litigation under the rules of international litigation in the Hague.

Plaintiffs and U.S. companies view the move as a sign that Fallon, the judge presiding over the national consolidated litigation over Chinese drywall in New Orleans, will fight to hold foreign manufacturers of Chinese drywall accountable...

The first trials in the Chinese drywall litigation are expected to begin in January.

A very interesting article that shows how the case appears to be an important move for Fallon to hold companies in the country for the litigation and not let it slip into international jurisdiction.

Enjoy your weekend.

With the market bottomed out on homes with Chinese drywall, some have chosen to invest in the faulty homes hoping to turn a profit. While most homeowners are running from these dwellings built with faulty wallboard, certain investors believe something salvageable remains and are taking the risk while buying homes at 40% (or below) their market value. Approximately 30 homes disclosed to have Chinese drywall have sold in Naples alone.

The Naples News reports

William Floyd, who owns a property management company in Fort Myers, bought one drywall home in Cape Coral after vetting it for building components he thought would make the home salvageable.

“It’s got to have wood studs and PVC plumbing,” Floyd said. Steel studs and copper plumbing may have started to corrode, he said.

But the verdict is still out on the solution for repairing these homes.

Knight, a Lee Building Industry Association board member, said sulfur gases may seep into foundations, studs and concrete block, dispersing slowly even after the faulty drywall is replaced.

While it's a risky business practice, such actions will always come out in times in which the market drops so drastically that desperation facilitates "deals" in the eyes of some. What remains to be seen is the long-term effects to the homes, and homeowners, that is caused by Chinese drywall. Only then will these investors know if their risks have paid off.

The New York Times last week published an interesting piece outlining the Chinese drywall problem and the angles in which it stands as important. What more, the NYT article focuses on the health ailments emerging from those who live in the homes. Profiling one homeowner that fits the profile of many homeowners facing the toxic wallboard plight, the piece, two pages, is a solid read for people who know little, or even know a lot, about the Chinese drywall matter.

“My house is not worth the land it’s built on,” said Mr. Morgan, who could not maintain the mortgage payments on his $383,000 home in a Williamsburg subdivision called Wellington Estates and the costs of a rental property where his family decamped.

Mr. Morgan, like many other American homebuyers who tell similar tales of woe, is blaming the drywall in his new home — specifically, drywall from China, imported during the housing boom to meet heavy demand — that he says is contaminated with various sulfur compounds.

The piece may be read in full here.

In an effort to shore up support for those who have Chinese drywall in their homes, senators from several states have called for FEMA assistance to be offered to those with the toxic wallboard installed. FEMA, an acronym for the Federal Emergency Management Agency, was a bit part of the recovery effort carried out in New Orleans and responds to disasters nationwide.

The involvement of FEMA in the matter would be a huge step towards opening up funding to remove and replace Chinese drywall in homes where the owners might not have enough funds to take action. What's more, it would be a compelling acknowledgment of the problems the wallboard causes by the government and could prove to be an important step towards changing the situation.

The Chinese drywall crisis has prompted a group of U.S. Senators to call on the Federal Emergency Management Agency (FEMA) to help homeowners. The group wants FEMA to provide rental assistance to people who have had to leave their homes because of tainted Chinese drywall.

According to the Consumer Products Safety Commission (CPSC), it has received about 1,501 reports from residents in 27 states, the District of Columbia, and Puerto Rico who believe their health symptoms or the corrosion of metal components in their homes are related to the presence of Chinese drywall. Many homes with Chinese drywall are unlivable, and some homeowners have been driven to the point of bankruptcy.

In a letter sent yesterday, U.S Senators Bill Nelson, D-Fl., Mary Landrieu, D-La., Mark Warner, D-Va., and Jim Webb, D-Va. asked FEMA Craig Fugate administrator for help on behalf of Chinese drywall victims. “Families in our states are … watching their dream homes turn into nightmares,” the Senators wrote. “We believe it is important to marshal all appropriate Federal resources that may assist these families.”

You can read more on the call by Senators for change here.

A Happy Columbus Day to all of our readers on the Berniard Law Firm's Blog. Original content will resume tomorrow. Until then, enjoy your day.

A couple weeks ago the Louisiana Recovery Authority set aside $5 million dollars for assistance to residents who are suffering through Chinese drywall in their homes. This is an important step in the right direction towards the removal and replacement of the toxic wallboard. The Times-Picayune reports

LRA Executive Director Paul Rainwater said the authority’s staff will now design a program and make it available for public comment. The details of the application process, eligibility requirements and how the program would work are all still being developed, he said. "You’re not even in the batter’s box, you’re still in the dugout talking about this thing," Rainwater said in describing the status of the program’s implementation. The plan would have to come back to the LRA and a legislative budget committee for approval. The plan also would have to be accepted by the U.S. Department of Housing and Urban Development, which oversees block grant spending. HUD may require that recipients certify that they used tainted drywall, and the protocols for determining that have not been worked out, Rainwater said.

While these terms and conditions have yet to be determined, it will be important that they are not so exclusive that deserving people cannot receive the funds needed to move their homes beyond this struggle. More information will be provided on this blog as it becomes available.

A couple weeks ago the Louisiana Recovery Authority set aside $5 million dollars for assistance to residents who are suffering through Chinese drywall in their homes. This is an important step in the right direction towards the removal and replacement of the toxic wallboard. The Times-Picayune reports

LRA Executive Director Paul Rainwater said the authority’s staff will now design a program and make it available for public comment. The details of the application process, eligibility requirements and how the program would work are all still being developed, he said. "You’re not even in the batter’s box, you’re still in the dugout talking about this thing," Rainwater said in describing the status of the program’s implementation. The plan would have to come back to the LRA and a legislative budget committee for approval. The plan also would have to be accepted by the U.S. Department of Housing and Urban Development, which oversees block grant spending. HUD may require that recipients certify that they used tainted drywall, and the protocols for determining that have not been worked out, Rainwater said.

While these terms and conditions have yet to be determined, it will be important that they are not so exclusive that deserving people cannot receive the funds needed to move their homes beyond this struggle. More information will be provided on this blog as it becomes available.

A nice quick read for those in New Orleans and abroad, the Toronto Star recently did a profile describing the recovery movement post-Katrina and what it means four years later. While common in its timeline of the days before and after Katrina, it does spotlight a lingering international interest in the disaster and shows, again, just how much help is still needed even after all that time.

John Goddard recounts

Some visitors seek out the city's cemetery tombs. Some ride to nearby plantations and delta swamps. For many, however, the first choice is to survey Katrina's devastation – not to gawk at other people's misfortune but to understand what the city endured and appreciate its protracted recovery.

Jones sets the ground rules: The bus sticks to main thoroughfares; nobody gets off to take pictures.

Initially, locals resented the idea of bus tours, he says. Now they view them as a net benefit to the city.

"Just by coming here you are helping," he says.

From all of us at the Berniard Law Firm, have a pleasant weekend.

The Bradenton Herald recently ran a piece that outlines just how complex the worries homeowners with Chinese drywall have when looking towards the future. While the health effects of the toxic wallboard are not fully understood, and the money to fix the problematic homes is often not yet available, still other troubles may loom. With the great risk of claims emerging from the faulty homes, insurance companies still might bail when policy holders need them the most.

The Herald reports

Aside from health concerns and displacing homeowners, toxic drywall can cause roadblocks in homeowners’ insurance policies. In most cases, insurance companies are likely to reject claims over Chinese drywall and, in some circumstances, insurers will not renew policies.

“That’s scary because those of us affected by it are already stuck in a bad spot between our mortgage and not being able to live in a home that was paid for,” said Lakewood Ranch resident Kristin Culliton, who has a class action lawsuit pending against Taylor Morrison over Chinese drywall confirmed in her home in March 2008.

Culliton said her insurance policy through Nationwide was renewed in September, but she realizes she could be at risk of cancellation.

“It’s one more thing to worry about,” Culliton said.

While there is little to do but wait and see, tension is high on the matter and there is little that can put homeowners at ease on the matter until resolutions begin to come through.

In a very well written and important Times-Picayune article, writer Rebecca Mowbray reports that the recent problems being caused by Chinese drywall in courtrooms goes beyond simple construction or building code and law and into the depths of federal laws regarding international products. Because of this faulty imported wallboard, Mowbray points out, huge problems in the law and remedy for faulty products have been exposed. While many have followed this matter for its importance to builders and homeowners, business and legal experts now see it as a crucial, highly important matter that demonstrates work needs to be done on the United States' federal legal system.

The article explains

International trade agreements treat health and safety standards as barriers to commerce, and make it possible for manufacturers to hawk products that fall short of the importing country’s standards. Meanwhile, foreign companies that sell products in U.S. markets aren’t required to participate in litigation in American courts, and even if they did, there’s no means of enforcing U.S. legal judgments against them.

As a result, many of the foreign companies named in the consolidated Chinese drywall litigation in New Orleans are expected to blow off the proceedings, as illustrated Sept. 24 when U.S. District Judge Eldon Fallon held manufacturer Taishan Gypsum Co. Ltd. in contempt of court for failing to respond. Others, such as the German company Knauf Gips, have argued that the proper venue is the International Court of Justice in The Hague.

While a bit lengthy, the article is a very good read for those wishing to understand why it may be quite some time before any legal resolution results from the proceedings in this matter. Anyone with more questions about Chinese drywall litigation can read the various blog posts we have posted on the matter here. To find out more from an attorney, feel free to contact our offices to speak to a legal expert on the matter.

The AP reports that Chinese manufacturers may flat out ignore the lawsuits filed against them by American homeowners. While it would not be the first time, Plaintiff parties are already aware of this possible outcome and are planning accordingly. Options can include those financial institutions who back the importing of the toxic wallboard, or even seizing the ships that brought the drywall into the country.

Lawyers representing homeowners and homebuilders who used drywall suspected of causing corrosion and possible health risks say they expect Chinese companies that made the wallboard to ignore hundreds of lawsuits filed against them in U.S. courts.

So, who's going to be on the hook for any damages courts might award?

That's the pivotal question for lawyers as they pursue about 300 lawsuits in U.S. District Court in New Orleans that allege a flood of defective Chinese drywall was sent into the United States after a string of hurricanes in 2004 and 2005. The material is known to decay, creating corrosive chemicals and fumes.

Among tactics lawyers are considering are suits against U.S. investment bankers who financed the Chinese companies, and seizing ships that brought the drywall to the United States.

The article in full may be read here. Very interesting to see how this whole ordeal may play out.

The South Florida Business Journal reports that Judge Fallon, in charge of handling the pre-trial MDL issues in New Orleans, Louisiana, has held one of the Chinese manufacturers in default judgment for not responding to the class action lawsuit filed against them. The order comes as Plaintiffs look to find out what legal options they have for overseas defendants who refuse to respond to the class actions filed against them. The article notes

A Louisiana federal judge has declared Chinese company Taishan Gypsum Co. – one of the largest manufacturers of contaminated Chinese drywall imports – in default in a class action lawsuit.

U.S. District Court Judge Eldon Fallon’s order holds the company in default for failing to respond to the lawsuit.

The default ruling has the potential to heighten the international tension in the unfolding drywall case, said Miami attorney Ervin Gonzalez, of Colson Hicks Eidson.

“The bottom line is: If you want to do business in the U.S., you have to hold companies accountable,” said Gonzalez, co-chairman of the trial committee for multidistrict court panel that is coordinating the federal drywall litigation. “If they’re not willing to appear in a court of the U.S., you shouldn’t be able to do business here.”

At least one national legal group said the ruling is an example of why new federal legislation is needed to hold foreign manufacturers accountable.

Such stern responses to those defendants refusing to honor courts in the nations they do business is an appropriate and positive response for those who have filed suit looking for compensation for the faulty wallboard those same defendants imported. Fallon has done a great job in controlling the tempo of pre-trial proceedings and this is a step forward in handling the matter so that Plaintiffs and Defendants alike can have their day in court.

When handling frozen embryos, as previously discussed, there is a specific duty of care owed by the hospital to the parents to maintain the embryos properly and sufficiently so as to preserve them from harm and maintain them for usage by the donor couple. In Louisiana, lawyers have been filing lawsuits regarding a mixup at Ochsner Hospital Elmwood in which a mislabeling matter led to what may end up being a complete disposal of a number of embryos because of a lack of screening that also occurred.

ABC recently profiled a series of mishaps, including that in Louisiana, occurring in the world of in vitro fertilization. With loose regulations, there is a huge possibility of error, as is the case here.

Louisiana law clearly stipulate facets involved in the adoption or change of possession regarding frozen embryos. It does this to try to protect families from the improper transfer of an embryo to another individual, among other reasons. The law states

La. Rev. Stat. Ann. § 9:130 An in vitro fertilized human ovum is a juridical person which cannot be owned by the in vitro fertilization patients who owe it a high duty of care and prudent administration. If the in vitro fertilization patients renounce, by notarial act, their parental rights for in utero implantation, then the in vitro fertilized human ovum shall be available for adoptive implantation in accordance with written procedures of the facility where it is housed or stored. The in vitro fertilization patients may renounce their parental rights in favor of another married couple, but only if the other couple is willing and able to receive the in vitro fertilized ovum. No compensation shall be paid or received by either couple to renounce parental rights. Constructive fulfillment of the statutory provisions for adoption in this state shall occur when a married couple executes a notarial act of adoption of the in vitro fertilized ovum and birth occurs.

In this way, the law hopes to prevent the malicious transfer of frozen embryos to a woman other than the donor. However, recent events have proven the transfer can occur outside of intent and that an escalation of regulation may be required to prevent such tragedies from occurring down the road.

The news has widely covered the story of how one woman, Carolyn Savage, of Toledo, Ohio, found out during her pregnancy that the embryo she had been impregnated with was, in fact, from another couple. Mrs. Savage gave birth to that child and, in an act of extreme charity and kindness, turned it over to its biological parents, Shannon and Paul Morell. The story, found here, has received so much attention because of the extreme amount of compassion it would take for a couple like the Savages, who are themselves looking to have their own child, to give birth to a child that is not theirs, let alone readily hand that child over upon birth. It also shows the possibility for mistakes that recently occurred in New Orleans most recently.

In the case of the Morells and Savages, a name-error may have caused the mislabeling, or incorrect usage, of the embryo that was used to impregnate Mrs. Savage. The American Chronicle reports

In an interview with The Blade yesterday afternoon, Carolyn's husband, Sean Savage, said it's possible the error occurred because the mothers share a name, and when it was mentioned that it seems to be a very odd coincidence, he commented "which makes it probably not a coincidence."

The Savages aren't related to the woman who will take the baby boy home, but most assuredly, there will always be a connection.

Although the baby won't be living under their roof, he will always be there, "a part of us," Mr. Savage said.

The Elmwood branch of Ochsner Hospital closed down their in vitro fertilization program last week after reports that an unknown number of frozen embryos were mislabeled and/or not properly screened for disease before storage. The mixup is itself a tragedy for the couples involved who had turned to the hospital as a means in which they could finally have a child.

A blatant example of Medical Malpractice, anyone who has had embryos stored at Ochsner Hospital or that already knows the mislabeling occurred with their frozen supply should contact an attorney immediately. The Berniard Law Firm does have extensive experience in medical malpractice issues and is willing to discuss with anyone their legal rights in matters involving this case or others.

A recent twist to Ochsner Elmwood's recent embryonic disaster regarding the mislabeling and invalidation of an unknown number of frozen embryos complicates the matter even further. It is now alleged that the individual responsible for the mixup may not have even been an employee of the hospital and, further, even certified to be working in the professional capacity he was working in.

While contracting out medical specialists is not new for hospitals, this new kink adds fuel to the fire of the argument some have regarding the lack of concrete regulation in regards to fertilization and embryonic storage.

The Times-Picayune reports

A embryologist who is accused of mislabeling human embryos at Ochsner's in vitro fertilization center in Elmwood was not employed by the clinic and may not have had proper professional certification, according to a report by New Orleans CityBusiness.

Vincent Williams is being sued by a couple who names him as the lab worker they believe was responsible for the problems at the clinic. But the report contends Williams did not work for Ochsner, but rather had a contractual relationship with the clinic.

CityBusiness quotes the administrator of the American Association of Bioanalysts, the health system contracted with Vincent Williams' company to run the clinic, as saying that nobody by the name of Vincent Williams is certified with its board.

This new facet to the case shows an even bigger element of responsibility that Ochsner, or the company through which they contracted, will have to overcome to avoid responsibility for this matter. Any couples or women who froze their embryos at the Elmwood location of Ochsner are encouraged to contact an attorney immediately to find out their legal rights in this chaotic matter.