From file "070_R1_PS_HWs" entitled "PSpliabl.qxd" page 01
From file "070_R1_PS_HWs" entitled "PSpliabl.qxd" page 01

Only in America.

About a year ago, Chicago-based Lee Lumber sold a portable table saw to a customer who, according to Lee president Rick Baumgarten, removed the saw's safety guard, because it was in the way of what he was working on, and promptly sliced off two fingers. In his subsequent legal action, which was still pending in June, the customer sued not only the manufacturer but also Lee Lumber, claiming that the dealer should have informed him in advance that there is a brake mechanism for this saw.

Baumgarten is confident that this case eventually will be dismissed, as Illinois has laws on its books that limit sellers' liability. But Lee Lumber still must defend itself in court, which costs money. The company was a beta-test site for the brake mechanism on larger saws, so Baumgarten knows they aren't available for portable models, making the customer's claims spurious. And, he notes in frustration, the saw “left our store in the box. It was a legal product that we did no modification to. But this is a regular occurrence, where lawyers will sue everyone in the chain of custody. You get five of these suits a year—which is becoming the norm—at $5,000 to $10,000 a shot, and it gets real expensive.”

Pro dealers around the country say they are being dragged into product liability lawsuits, along with manufacturers and installers, even though they didn't make or design the product. While some states have laws that limit a seller's liability, many dealers still feel vulnerable, especially when they look at how asbestos-related litigation has played out, with plaintiffs working their way down the supply chain to dealers after insulation and drywall suppliers file for bankruptcy protection.

Mick Wiggins /

For example, Kyle Kincaid, co-owner of Bremerton, Wash.–based Parker Lumber, is convinced that his company was singled-out earlier this year in a lawsuit—which revolved around a woman's death from mesothelioma and her exposure to asbestos dust that was on the clothes of her husband who in the 1960s worked at the Puget Sound Naval Shipyard that allegedly purchased drywall containing asbestos from the lumberyard—because the yard, founded in 1922, “is one of the oldest continuously run businesses in the area.” Kincaid's suspicions are fueled by the fact that not one government agency had been named as a defendant in this case.

Werner Ladder's filing for Chapter 11 bankruptcy protection on June 12 also must have given some dealers pause about what their future liability might be for a product category that the Consumer Product Safety Commission says leads to 164,000 injuries treated in emergency rooms each year, now that a “deeper-pocketed” target might be less accessible, financially, to would-be accusers. Some dealers are backing away from certain potentially hazardous products to mitigate their companies' liability risk. “The law is the best protection, first and foremost, but right now, the law doesn't protect us,” says Dennis Grubbs, CFO for Fort Lauderdale, Fla.–based Causeway Lumber.

Taking Action In an effort to stem the tide of “frivolous and unjust” lawsuits against dealers, the National Lumber and Building Material Dealers Association (NLBMDA) drafted a bill, known as the Innocent Sellers Fairness Act (ISFA). ISFA (H.R. 5500) was introduced to the House of Representatives by Representatives Ric Keller (R-Fla.) and Dan Boren (D-Okla.) on May 25. The bill calls on Congress to assert that no seller of any product should be held liable for personal injury, monetary loss, or damage to property “arising out of an accident or transaction involving such product” unless a plaintiff can prove that the seller was also the manufacturer or designer, participated in its installation, or altered the product in a manner not authorized by the manufacturer. “It is unfair for a seller to be held responsible under the doctrine of product liability for damages the seller did not cause,” the bill states, adding that relieving sellers of this liability would “promote the free flow of goods and services, lessen burdens on interstate commerce, and decrease litigiousness.”

Right now, “retailers and sellers are equally liable with anyone else along the supply chain,” says Colleen Rocha Levine, NLBMDA's director of legislative affairs. During the association's Legislative Conference this past spring, members met with more than 200 lawmakers on Capitol Hill, and bringing this bill to their attention “was our main purpose for being there,” Levine says.

The catalyst for this bill was the evolution of asbestos litigation, where nearly all of the manufacturers had either gone out of business or had sought protection under bankruptcy laws, and litigants began focusing their suits on lumberyards that had been around since the 1940s and 1950s. “There was a threat out there, and you can be sued for just selling something,” says Barry Johnson, executive director and chief lobbyist for the Illinois Lumber & Material Dealers Association (ILMDA), who was instrumental in getting this bill off the ground.

Mark Sololove, a spokesman for the Washington-based Association of Trial Lawyers of America, said in an e-mail to PROSALES that passage of H.R. 5500 “would eliminate strict liability against product sellers, a longstanding hallmark of product liability law, and ultimately restrict the rights of victims to hold wrongdoers accountable.” But dealers interviewed for this article insist that this bill wouldn't infringe on anyone's right to due process or shield from liability companies that make defective products that cause injuries. The bill's purpose, they say, is to assign that responsibility properly and to give dealers an avenue to extricate themselves from suits where their only “crime” was selling or distributing legal merchandise.