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$________ AWARD Products Liability – Defective Design – Plaintiff alleges reformulated topping compound lacks adequate cohesion – Damages include cost of repair, expert fees and increased operating expenses.

Los Angeles Superior Court

In this action for product liability, the plaintiff alleged that a design or possible manufacturing defect resulted in significant monetary loss. The defendant denied the allegations; arguing instead that misuse of the product proximately caused the plaintiff’s loss.

The plaintiff, a real estate developer, purchased a residence in ________ and completely remodeled the interior, adding new construction. New drywall was installed throughout the interior walls and ceilings and the defendant’s Sheetrock Brand Ready-Mixed Topping Compound (“topping compound”) was applied at all drywall joints, fasteners and around openings and cut-outs. The drywall work was completed in ________. Thereafter, the interior walls and ceilings were primed and painted. The project was completed, and the property was ready to be listed for re-sale in August ________. Unfortunately, continuing problems involving paint and primer delamination prevented the plaintiff from listing the property for sale. Ultimately, the plaintiff was required to make expensive interior repairs and correct the delamination of paint finishes.

The plaintiff then sued the defendant; arguing that its topping compound had a design defect which proximately caused the delamination problems at issue. Specifically, the plaintiff argued that the defendant re-formulated its topping compound in February ________, reducing the amount of polyvinyl acetate (PVA) contained therein. Because the PVA acts as the “binder” for the compound, providing product cohesiveness, the plaintiff contended that the reformulated topping compound lacked adequate cohesion to withstand foreseeable sheer stressed from drying primer. The plaintiff also provided evidence of other similar claims and customer complaints that were made during the relevant time frame.

The defendant denied the allegations of design or manufacture defect. Instead, the defendant claimed that product misuse was the cause of the paint delamination. In addition, the defendant challenged the quantification of the plaintiff’s damages, arguing that the residence would have taken approximately 18 months to sell due to market conditions alone and that the actual cost of repair was less than what had been alleged. Finally, the defendant also contended that the Right to Repair Act applied and precluded recovery of most of the plaintiff’s damages.At the conclusion of a bench trial, the court ruled in favor of the plaintiff. In so doing, the court opined that the plaintiff had met its burden under the design defect theory of strict product liability; shifting the burden to the defendant to prove the change in its compound design was not defective. The defendant failed to meet that burden. Therefore, the court found that Civil Code Sections ________ and ________ were the proper measures of damage, and that the Right to Repair Act was not applicable because it did not apply to real estate developers. Thus, the plaintiff was awarded the total sum of $________ against which a prior $________ good faith settlement with a third party was credited.

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