Chicago, Illinois – The New York couple who voluntarily dismissed a lawsuit claiming Lapolla Industries Inc sold them toxic foam insulation are fighting the company’s bid to recover litigation costs.
Plaintiffs Neil and Kristine Markey abandoned their class action claim against Lapolla and the company responded by requesting the court order them to pay $700,000 (EUR527,000) costs.
The pair told the federal judge that the company had not shown the suit was filed in bad faith. Lapolla said the Markeys lied about their alleged injuries and cost the company significant time and money defending the suit for two years.
On 13 August, the Markeys filed a brief denying their claims were frivolous adding that Lapolla cannot use sanctions to get around fee-shifting rules in a case that is being dismissed voluntarily with prejudice.
“Based on testing results and information from multiple experts, as well as Mrs Markey’s physical symptoms, it was reasonable for plaintiffs to conclude that they had suffered property damage and personal injury as a direct result of the installation of Lapolla’s product,” the brief said.
The case, which began in September 2012, alleged the couple suffered injuries from the company’s spray polyurethane foam after it was installed in their home.
The claim centred on an allegation that the spray foam compound fails to become inert and non-toxic when applied to homes due to a fundamental design flaw or the near impossibility of proper installation.
Lapolla says the suit was crafted to force a cost-of-defence settlement or face an expensive court fight.
The case no is 2:2012cv04622.
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