Something is Rotten in the Condo Complex

Q: How did you get involved in construction law?

A: Well, I was one of the first attorneys to handle cases involving defective synthetic stucco.

I’ve been practicing for about 26 years now. I started off doing defense work. I represented a lot of insurance companies, bonding companies, general contractors and subcontractors. About 16 years ago, the firm I was working with [Maupin Taylor & Ellis] got a call from Wilmington, North Carolina. Someone was installing plantation shutters on their house, and the hammer went through the wall. They thought they had stucco. But they saw something like Styrofoam underneath.

They called us down there to look at it. They had a product on their house called synthetic stucco. It’s fake stucco called EIFS, Exterior Insulation Finish System. … What happened was that water would get in behind it, it couldn’t drain out, and it would cause wood to rot.

I ended up handling that case on a plaintiff’s basis, and that led literally to hundreds of those types of cases all through Wilmington and throughout the Southeast.

People’s homes are their castles. Often, that’s their biggest asset. If it costs $50 to $100 or $200,000 to fix the problem, that can be a devastating financial impact for people.

Q: After the stucco cases, your practice expanded, and you started to travel quite a bit.

A: Yes. I started getting calls from other attorneys in Mississippi, Alabama, Florida, Washington, DC, New York and Virginia. I started traveling, working and partnering up with other attorneys on cases involving defective construction, and we would handle it on a contingency-fee basis.

Q: But you’ve always been based in Raleigh. How did you end up here? 

A: I went to undergrad at UNC Chapel Hill. I graduated in 1983 and then went to get an MBA from UNC at Greensboro. I became interested in law. I ended up getting a law degree from Wake Forest in 1988. I met my wife; she’s from Raleigh and I’m from Greensboro. She wanted to come back to this area. I got a good job offer, and I guess that’s how I ended up here.

Q: Tell me something about your family growing up.

A: My mother was a schoolteacher and my dad works for the government. They were always very happy and I had a great childhood. … Then, just being involved in your church and being involved in service and giving back to the community—this was very important to them. It has been very, very important to me to give back.

Q: In 2001 you launched your own firm in Raleigh, Whitfield, Bryson & Mason. I know you have worked some big cases in western North Carolina?

A: Up in western North Carolina, you have a lot of developers who will literally buy a mountain. They’ll go and they’ll put in roads, in kind of a shoddy way, but they look like really nice roads. And they’ll mark off all these lots and they’ll sell them to people, often from Florida or from out of state. “Come get a piece of North Carolina paradise.”

In this one case [Alarka Creek Properties Homeowners Association Inc. v. Cane Creek Development Corp.] with the defective roads, the developers sold the roads as “state-approved roads.” State approved: What does that mean to you? It sounds like they’ve been approved by the state of North Carolina, yet they were not approved. After the homeowners, many of whom retired or went to retire there, the roads started crumbling and falling apart because the roads were not of sufficient width or the asphalt was not thick enough. … They’re trying to get to their houses or to their lots and the road is falling apart.

Q: You also represented Bianca Jagger, Mick Jagger’s ex-wife.

A: Shoddy construction doesn’t really differentiate by economic class. … Probably eight or nine years ago, I picked up the phone and it was Bianca Jagger. She was having water intrusion problems and mold-related problems in her apartment on Park Avenue in downtown Manhattan. [She came home from travelling] and mold had ruined all her property. The place was in bad shape. She had heard about me through Melinda [Ballard] in Texas who had a big mold construction case. The first time Bianca Jagger called and said, “This is Bianca Jagger,” I almost responded, “Yeah, and this is Elton John.”

Q: She must have had quite a collection of destroyed property.

A: One time, she had a lot of carpeting that had mold on it and it was damaged. I said, “Who can I talk to and get an inventory of all your damaged property? Shoes, dresses, furniture and things that [were affected by] the water intrusion and mold problem.” She handed me a list. She said, “Here, call these people and they can tell you how much all these items are worth.” I looked at the list and it was Calvin Klein, Manolo Blahnik, Giorgio Armani. I can’t call Calvin Klein.

Q: Yes, that would be a strange phone call, calling Calvin Klein about Bianca Jagger’s mold problem.

A: I made her call them. … The case took a number of years.

Q: Have you ever had a client or clients come to you who are claiming things that aren’t true or who might be imagining their house is falling apart and it’s not?

A: Sometimes people will think they have a problem, but it’s not something that’s worth pursuing legally. We don’t do that. These are hard cases. Sometimes there are people who have beautiful homes. They’re 15 to 20,000 square feet. They go in Architectural Digest. They’re like pieces of art. [The owners] paid for perfection or as close to perfection as you can get. They’ll come to me and say, “This contractor didn’t build this in the manner in which I wanted.” They’re paying $500 or $700 a square foot. Sure enough, it’s not exactly what the contract said it was supposed to be, but to rip it out and redo it is very expensive.

If these kinds of cases get in front of a jury, a lot of times it’s jurors who don’t want to be there, who perhaps don’t live in a nice condominium development, nice vacation development. Trying to get them to award the amount of money that you want them to award can be difficult.

Q: You’re currently co-chair of the AAJ Chinese Drywall Litigation Group. What’s the story behind that?

A: About five years ago, I was called to become involved in a case involving Chinese drywall. What was happening was that, throughout the Southeast, people were going into their new homes and were hacking and coughing, and there was a terrible rotten-egg smell. They were noticing that many items that were silver in their house were corroding, and then electronics were going out. Their TV was failing, their washer or dryer was failing, and—this was a very big one—their air conditioning was going out. The coils were burning out.

Hurricane Katrina had happened in 2005, and then all these drywall problems were happening in ‘07, ‘08 and then ‘09. 2010 is when we really started working on this.

We started investigating it and we realized that after Hurricane Katrina, there was a real shortage of drywall because there were so many homes destroyed down there in the South.

All the domestic companies, they couldn’t keep up with the demand. Builders started looking elsewhere to buy drywall, so they bought a lot of drywall from China. The Chinese started shipping a bunch of drywall into the country. To make a very long story short, they got it from a mine that had bad gypsum. It had improper content.

There was sulfur in the gypsum that they made the drywall from.

If you have sulfur in the wrong amounts in the gypsum mix what happens when you make drywall, it can off-gas the process. It was sulfur gasses that were coming directly out of the drywall in low levels, causing this rotten-egg smell, causing people to hack and cough.

You wouldn’t believe it if you walked in people’s houses. … It would smell bad, and throughout their house, there would be corrosion. The wiring would be corroded. There were thousands of houses that had these problems.

Q: Were they blue-collar people? Was it a class issue?

A: It knew no economic boundaries. It went from a very inexpensive house to condominiums and houses that cost millions of dollars because it was wherever this drywall was used. It was used a lot in the Gulf area to fix hurricane-damaged houses and it was used for new construction in North Carolina, Virginia, New Jersey and all through Florida.

The primary defendant is a German multinational company called Knauf. … They had factories in China that made this bad drywall. There were some other defendants, but Knauf was one of the biggest.

Q: The U.S. had no testing in place for this sort of thing?

A: No. Knauf would say no. We say that there were some tests that could be performed and that this could have been prevented with proper quality control. The basic answer is no. Drywall has been made for probably about 100 years in the United States with really no problems, and so no one was really testing for excess sulfur that would cause sulfur gasses to be emitted from the drywall.

Because of my involvement with this type of litigation, I was put on a special committee. The cases were all centralized in federal court down in New Orleans before a judge down there who is very knowledgeable about handling multistate litigation. For about five years, I worked with a group of just some of the finest attorneys I’ve ever met handling what’s known as the Chinese Drywall Litigation.

I’m pleased to say that about a year ago, the plaintiffs’ steering committee had a settlement with the primary defendant that’s valued at up to $1 billion. I was on the trial team. I was not lead counsel in the case, but had a significant role in handling that litigation.

A funny story: When we were trying one of the cases, it was right in the middle of Mardi Gras. A lot of people don’t realize that Mardi Gras is not just one day. It goes on for like 10 days down in New Orleans. We’re in federal court trying the case. You work day and night, you would walk out of your hotel room, and if there was a parade going by, you couldn’t get across the street.

This article has been condensed.