Sandra L. Duggan

At nine in the morning on October 23, 2019, Judge Eldon E. Fallon opened the monthly status conference in the Chinese drywall litigation in federal court in New Orleans, and Sandra L. Duggan spoke for the plaintiffs. “Good morning, Your Honor. Sandra Duggan on behalf of the plaintiffs,” she said. “I would like to report that the initial payment under the settlement has been fully made by Taishan.” She added: “Those monies are now safely held in the court registry.”

Taishan Gypsum Co., a Chinese manufacturer, had made drywall that went into thousands of American homes built roughly between 2005 and 2008, most of them in Florida, Louisiana, Alabama, Mississippi, and Virginia. Homeowners blamed it for foul-smelling gas, blackened wiring, and failed appliances in their houses. Their federal cases had been gathered before Judge Fallon since June 2009 as In re: Chinese-Manufactured Drywall Products Liability Litigation, MDL 2047. Taishan defaulted, fought the court’s jurisdiction to the Fifth Circuit and lost, and in July 2014 was held in contempt for failing to appear. In 2019, after more than a decade of litigation, it agreed to pay $248 million to resolve the property owners’ claims against it, and Duggan was one of the five lawyers Judge Fallon named Settlement Class Counsel.

That morning she reported on the work of telling 3,948 known class members what the settlement meant for each of them. The long-form notice had been mailed to every known class member, and the claims administrator, BrownGreer, had sent every plaintiff on the master spreadsheet a letter estimating that plaintiff’s share. Class members had had until October 3 to dispute what the spreadsheet said about them. The settlement website, ChineseDrywallSettlement.com, had drawn over 99,000 views, 72,000 of them from new users in all 50 states; over 200 people had called, and inquiries had come from class members in 21 states. “Class counsel have been returning the phone calls,” she said. “So we feel that the notice is working, people are asking questions, and we are answering all of those questions to the best of our abilities”. Taishan’s lawyer, Christina Eikhoff, answered “Just to reiterate the report of Ms. Duggan,” and agreed that the notice had been fair and adequate.

Before the conference ended, Richard J. Serpe, another of the five class counsel, told the judge that a Virginia class member had asked to speak. Sarah Olson said that in 2010 she and her husband, both Navy veterans and graduates of the Naval Academy, had received a letter from their builder telling them their house had Chinese drywall; he was on deployment at the time. They moved out as soon as they could “because we were all very ill,” she said. “Financially, we lost almost everything we had trying to compensate for this.” She told the court, “We’re very fortunate that the lawyers we had worked to put us in the class where we are,” and asked Judge Fallon to remember “that there are real people behind this.” He thanked her for coming.

Seven Houses in Virginia

The proof of what the drywall did to a house had been made nearly ten years earlier, without Taishan in the room. Taishan did not answer the Virginia homeowners’ complaint in Germano v. Taishan Gypsum Co., and on November 20, 2009, Judge Fallon entered a preliminary default against it. On February 19 and 22, 2010, he held an evidentiary hearing on the damages of seven Virginia families who had intervened in the case, among them Deborah and William Morgan, Jerry and Inez Baldwin, and Fred and Vanessa Michaux. Two other defendants withdrew on the eve of the hearing, and only the families put on evidence.

They called experts in corrosion science, sulfur-gas testing, electrical engineering, and indoor air quality. Judge Fallon found that the Chinese board carried a significantly higher concentration of strontium and more detectable elemental sulfur than ordinary drywall, and that it gave off hydrogen sulfide, carbonyl sulfide, and carbon disulfide. “The sulfur gases released by Chinese drywall are corrosive to metals, particularly copper and silver,” he wrote. The gases pitted the copper wiring, corroded the coils of the air-conditioning systems, and caused odors that made homes “hard if not impossible to live in.” He found: “This condition is clearly irritating and harmful to residents and destructive to property.”

The Baldwin house showed why the court would not let a count of boards limit the repair. The stacking records put 77 Chinese sheets on the first floor only. Yet the air-conditioning zone serving the second floor had suffered copper sulfide corrosion, and the second-floor light switches silver sulfide corrosion. Judge Fallon ordered complete remediation: every sheet of drywall out, even in houses where Chinese and domestic board were mixed; all the electrical wiring, including the low-voltage wiring for life-safety systems; the copper plumbing; the air handlers, line sets, and ductwork; the carpet, cabinets, countertops, trim, and bathroom fixtures; then cleaning, airing out, and a safety certification from an independent engineering firm. He found that “a home can be stripped of all drywall in a matter of hours.” On May 10, 2010, the court entered a default judgment for the seven families of $2,609,129.99.

Held in Contempt

Taishan appealed the default judgment and challenged the court’s personal jurisdiction over it. Judge Fallon rejected those challenges in September 2012, and the Fifth Circuit affirmed in 2014. Taishan still did not pay. It “failed to appear for the July 17, 2014 Judgment Debtor Examination,” and Judge Fallon held it in contempt. He ordered it to pay $15,000 in the plaintiffs’ attorney’s fees and a $40,000 penalty, enjoined it from doing business in the United States until it took part in the case, set a penalty of a quarter of its profits for any year in which it violated that order, and sent the order to the Commerce and Justice departments for “any appropriate action they may see fit.” “We’re trying to get their attention,” said Lenny Davis, a lawyer for the plaintiffs.

In February 2015 Taishan appeared. In March it paid the Germano judgment with costs and interest, about $3 million, along with the fees and the penalty. Thousands of property owners were still waiting. One of them, Eric Bailey, had sold his $240,000 house for $80,000 after learning that fumes from the drywall were behind the trouble he had been having. “The first two years I lived there, I thought it was haunted because so many electrical things broke,” he told the Associated Press.

At a status conference on April 17, 2015, Judge Fallon told Taishan’s lawyers that he was “going to have a hard time allowing them to participate in the damage case” unless the company took part in the litigation voluntarily. “You can’t pick and choose,” he said. “You either have to participate in litigation or not participate in litigation.” Duggan and Arnold Levin, the lead counsel of the Plaintiffs’ Steering Committee, both appeared that morning for the Philadelphia firm then called Levin, Fishbein, Sedran & Berman.

The damages hearing followed on June 9, 2015. By then the case had a class. On September 26, 2014, Judge Fallon had certified a class of property owners named as plaintiffs in the Amorin, Germano, Gross, and Wiltz actions who sought remediation damages from Taishan. On April 21, 2017, he adopted the plaintiffs’ method for measuring those damages: the under-air square footage of each affected property times a remediation cost of $105.9110 a square foot, adjusted by the RS Means location factor for where the property stood. The same month he found that Taishan had acted as the agent of BNBM and that CNBM, BNBM Group, and BNBM formed a single enterprise with Taishan under Louisiana law, so that Taishan’s Louisiana contacts could be imputed to them.

1,732 Cases to Florida

In 2018 Judge Fallon began sending the Florida and Virginia Amorin cases back to the federal courts where the houses stood. At the status conference on January 30, 2019, he turned to Duggan. “Sandy, do you want to bring us up to speed as to what’s happening in the states?” he asked. “Your Honor remanded 1,732 Amorin cases to Florida,” she answered, and she took him through the rest. Judge Cooke of the Southern District of Florida had adopted his rulings on remediation damages, defaults, and liability, and twenty priority plaintiffs had been selected; fact discovery was finished, expert discovery was under way, and the priority cases were set for trial in July. A special master, Tiffani Lee, was working through remediation damages for some 1,700 plaintiffs. In Virginia, 175 cases had gone to Judge Davis in the Eastern District of Virginia. About 732 Amorin cases remained in Louisiana, where the plaintiffs and the defendants had each picked twenty for discovery and depositions were running three or four a week.

Much of her report concerned saving time across thousands of cases. The parties had agreed to depose one corporate witness for Taishan, Che Gang, about the DUN and Crescent City brands of board, “so that the transcript can be used in other jurisdictions.” In Florida they had negotiated a stipulation covering the plaintiffs’ records and out-of-pocket expenses. Its purpose, Duggan said, “was to eliminate any hearsay objections and problems with authenticity” and to spare the parties the time of bringing in records custodians, and the plaintiffs had proposed to the defendants in Louisiana “the exact same stipulation.” For the Louisiana cases, she said, “our goal is to try to present some kind of joint proposal to the Court.” Judge Fallon told the lawyers, “Let’s keep an ear to the ground on how that works.”

On March 26, 2019, the plaintiffs’ liaison counsel called on “Sandy Duggan of Arnold’s firm.” “The plaintiffs have submitted their plan for resolution of the Louisiana Amorin cases,” she told the court. They had also moved to extend the 2017 remediation formula, which covered only current owners, to people who no longer owned their houses. She asked that both be heard at the April 23 conference; the former-owner motion was argued that day. In Virginia, she reported, “the parties have fully briefed their plans, competing plans for resolution of 175 Virginia Amorin cases”.

The former-owner motion reached back to the Germano families. In 2010 the court had awarded Deborah and William Morgan remediation damages even though they had declared bankruptcy, and their home had since been foreclosed on. The plaintiffs’ committee argued that the Morgans were in effect former owners, and that many plaintiffs had been forced to sell during the long litigation “because of Defendants’ dilatory litigation tactics.” Taishan and the CNBM and BNBM companies opposed. On May 3, 2019, Judge Fallon held that a former owner who had remediated before giving up the house could recover remediation damages under the formula. For a former owner who had not, he held, the formula, once in evidence, “creates a rebuttable presumption of their diminution damage calculation.” Measuring what the houses had lost so many years after the fact, he wrote, was “a Herculean task made so as a consequence of Defendants’ actions.”

Less than three weeks later the parties were in mediation. They met on May 22 and 23, 2019, signed a term sheet on the second day, and spent the next three months turning it into a written settlement.

$248 Million Before Judge Fallon

On August 20, 2019, the plaintiffs asked Judge Fallon to approve the agreement: Taishan would pay $248 million to resolve the claims of the Amorin class, of the plaintiffs in the later Brooke complaints, and of absent property owners with Taishan drywall. Arnold Levin said that “thousands of homeowners affected by Taishan drywall will finally get much needed payments”. On August 29, Judge Fallon granted preliminary approval and named the five Settlement Class Counsel: Levin, Stephen J. Herman, Richard J. Serpe, Patrick S. Montoya, and Sandra L. Duggan. The class representatives were Michelle Germano, Judd Mendelson, Debra Williams, Lillian Eyrich, David Griffin, and Virginia Tiernan.

The court-appointed allocation neutral, J. Cal Mayo Jr., built the model for dividing the money: a single allocation for each property, set by its under-air square footage, by how its drywall had been identified, by whether its owner was an Amorin plaintiff, a Brooke plaintiff, or an absent class member, and by what the owner had already received from earlier settlements. BrownGreer would run the claims. The notice told class members that the money paid for remediation and other property losses and did not pay for personal injury, and it listed the class counsel to whom an owner could write, among them “Arnold Levin and Sandra L. Duggan” at Levin Sedran & Berman, 510 Walnut Street, Philadelphia. Requests to opt out and objections were due by November 27, 2019, and the fairness hearing was set for December 11.

Duggan gave the court its first report on the notice on September 20, 2019. “Good afternoon, Your Honor,” she began. The agreement had been posted on the court’s website, and the court had written to other federal and state courts about the settlement and its stay; when the court in an Alabama case had not received the notice, she reported, “we’ve spoken with the clerk and we’re going to reissue that notice.” “The class settlement website is up and running, chinesedrywallsettlement.com,” she said. “We have a call center that’s also up and running.” BrownGreer had sent “the long-form notices” to every known class member, along with estimates of each one’s gross recovery, and class counsel were answering class members’ questions every day and keeping a log of the calls. Judge Fallon noted that “this case has been before me now for nearly ten years.”

On October 23, the morning she reported Taishan’s first payment, Judge Fallon explained from the bench why a class member might choose to leave the class. A class action let people “pool their costs so that it’s not one person paying all of the costs,” he said, but “Sometimes the disadvantages outweigh the advantages.” When “the turkey comes on the table, and 12 want a drumstick,” anyone who wanted out could “leave the table. You go on your own and get your own turkey.” He found the notice sound: “It seems to me that it’s a fair notice. It’s an adequate notice.”

When the period closed on November 27, there were 92 requests to opt out and 27 objections, 22 of them from class members. Many objectors thought the amount too small or compared it with the earlier Knauf settlements; others objected that the Brooke plaintiffs would receive less than the Amorin class. Judge Fallon held the fairness hearing on December 11, 2019, and granted final approval on January 10, 2020. A class member unhappy with an individual award, he held, could opt out, and that was no reason to reject the settlement for everyone else. A fair settlement did not require identical payments, and the Brooke claims carried more risk because they were at an earlier stage and faced statute-of-limitations defenses, though, he wrote, “the hardship of living with Chinese drywall has been shared equally by all Affected Property owners.” His opinion also said: “The Taishan Settlement Agreement is a historic achievement.”

The final judgment was entered on January 31, 2020, and no one appealed. By February, Taishan’s first two payments had put $99,200,000 in principal into the court’s registry, to be distributed by BrownGreer once the time for appeal had run.

Dividing the Common Fund

Deciding how a common recovery gets divided, among claimants and among the lawyers who built the case, runs through much of Duggan’s docket. Judge Fallon had appointed her Class Counsel for the plaintiffs in the Taishan settlement, and on January 16, 2020, six days after final approval, he appointed a Fee Allocation Committee to recommend how the lawyers who had spent a decade building the case would divide the common benefit fees. Duggan chaired it. Anyone seeking a share had to apply, and nineteen applications came in. The committee reviewed the requests and the papers behind them, and in the end, Judge Fallon wrote, it “reached a consensus agreeable to all attorneys with an interest in this matter.”

In an order signed March 26, 2020, he posted the committee’s recommendation on the court’s public drywall website and gave anyone until April 6 to object. No one did. He checked the applicants’ submissions against the records kept by the court-appointed accountant and against the committee’s own analysis, found the work “commensurate with the recommended allocation,” and on April 21, 2020, with no party objecting to the committee’s recommendation, adopted it, allocating approximately $28,272,000 in common benefit fees from the Taishan fund.

She had done that kind of accounting before. In 2015, Judge Carl J. Barbier appointed her Special Counsel to the Plaintiffs’ Fee and Cost Committee in the multidistrict litigation over the Deepwater Horizon oil spill. She has also served on the Plaintiffs’ Executive Committee in Prince George Center, Inc. v. U.S. Gypsum, a national asbestos property-damage class action in the Philadelphia Court of Common Pleas, and worked on the Asbestos Claimants Committees in the Celotex and National Gypsum Chapter 11 bankruptcies.

The 13.01-Percent Gap at Brown

Duggan’s class work reaches back nearly three decades before the drywall settlement, to a Title IX class action against Brown University. In May 1991, Brown demoted four of its varsity teams from university-funded to donor-funded status: women’s gymnastics, women’s volleyball, men’s water polo, and men’s golf. A class of Brown’s present, future, and potential women students who participated, sought to participate, or were deterred from participating in intercollegiate athletics Brown funded sued, alleging that Brown’s allocation of athletic opportunities violated Title IX. In the 1993–94 academic year, 61.87 percent of Brown’s 897 varsity athletes were men and 38.13 percent were women, against an undergraduate enrollment that was 48.86 percent men and 51.14 percent women—a 13.01-percent gap between women’s share of Brown’s athletes and their share of its students.

The first-named plaintiff was Amy Cohen, and the women who brought the case in April 1992 were, in the First Circuit’s words, “disappointed members of the women’s volleyball and gymnastics teams.” In December 1992 the district court ordered Brown to restore both teams to full varsity status until trial. Brown appealed, and on April 16, 1993, the First Circuit affirmed. “We do not presume to say that the district court’s interim solution is perfect, but it is fair and it is lawful,” Judge Selya wrote. Duggan was on the plaintiffs’ brief with Lynette Labinger of Providence, Arthur H. Bryant of Trial Lawyers for Public Justice, and others. After a three-month trial, Senior Judge Raymond Pettine found in March 1995 that Brown had violated Title IX.

The First Circuit affirmed the finding of liability on November 21, 1996, rejecting Brown’s argument that the district court’s reading of Title IX imposed a gender-based quota. “Title IX,” the panel wrote, “is not an affirmative action statute; it is an anti-discrimination statute,” and a university that had not met the interests of its underrepresented students could not point to those students’ lower participation rates as proof that there was no interest to accommodate, because “Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience.” Sandra L. Duggan, then practicing under her own name as Sandra L. Duggan, Esq., P.C., was on the brief for the plaintiffs, with Lynette Labinger, who argued the appeal, and Arthur H. Bryant of Trial Lawyers for Public Justice.

On April 21, 1997, the Supreme Court declined to review the case, leaving the finding against Brown final. Trial Lawyers for Public Justice counted “Sandra Duggan of Philadelphia” on its litigation team, and Bryant said that day, “The message from the courts is clear: no more excuses. Discrimination against women in athletics has got to stop.” Public Justice gave her its Achievement Award in July 1999 for her work on the case.

Kronfeld, Newberg & Duggan

Duggan, a St. Louis native, graduated Phi Beta Kappa from Washington University in 1982 and earned her law degree from Columbia in 1985. She was admitted to the bar in 1986 and moved to Philadelphia in 1989, where her practice has centered on class actions and multidistrict litigation since. She is Mexican American and fluent in Spanish. She was a contributing author and editor of the third edition of Newberg on Class Actions, published in 1992. When the Brown case first reached the First Circuit in 1993, she practiced at Kronfeld, Newberg & Duggan in Philadelphia; by the second appeal she practiced as Sandra L. Duggan, Esq., P.C.; and by 2015 she was appearing in Judge Fallon’s courtroom for Levin, Fishbein, Sedran & Berman, now Levin Sedran & Berman.

Monitoring Before a Diagnosis

On February 15, 2022, Judge Joy Flowers Conti of the United States District Court for the Western District of Pennsylvania appointed Duggan one of four plaintiffs’ co-lead counsel in In re: Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Products Litigation, MDL 3014, alongside Kelly K. Iverson, Christopher A. Seeger, and Steven A. Schwartz. Philips had recalled the machines on June 14, 2021, after finding that the polyurethane sound-insulating foam inside them could degrade and release particles and off-gassed chemicals into the device’s air pathway.

On December 5, 2024, Judge Conti signed a final order closing out a nationwide medical monitoring claim on behalf of everyone in the country who had used one of the CPAP, BiPAP, or ventilator machines Philips Respironics had recalled in 2021. Philips agreed to pay $25 million. No class member received a check.

The settlement Judge Conti approved sends the $25 million instead into a fifteen-year Medical Advancement Program: independent medical research into the detection, diagnosis, and treatment of the injuries alleged to have been caused by the recalled machines, with each research grant approved by the court; a research registry to which class members can submit HIPAA authorizations releasing their medical information for that research; a website carrying current medical guidance on the long-term health effects, if any, of using the machines, along with the research results as they come in; and periodic updates written for people without a medical or scientific background, sent to class members who register for them. The settlement releases only the classwide medical monitoring claim. It leaves every class member free to sue Philips individually later for a personal injury or for the cost of monitoring their own health, and it bars the company from opposing those claims on the ground that the class settlement already resolved them.

The settlement covered machines sold in the United States between 2008 and 2021, and the class it covered was everyone in the country who had used one, whether or not anything was yet wrong with them. Duggan was one of five lawyers the court named Settlement Class Counsel for the deal, with Christopher A. Seeger, Steven A. Schwartz, Kelly K. Iverson, and Roberta D. Liebenberg, and the same core group had served as Settlement Class Counsel on the economic loss settlement Judge Conti approved seven months earlier, on April 25, 2024.

Medical monitoring is a hard settlement to build because it has to work for people who cannot yet say what, if anything, is wrong with them. Judge Conti’s order considered the Girsh factors for approving a class settlement and counted, among the reasons the $25 million program was fair, “the significant risks of establishing liability and class certification” had the case gone on. She found that the settlement had been negotiated “at arm’s-length before” the court-appointed mediator, Hon. Diane M. Welsh (Ret.), after “sufficient formal and informal discovery,” at a point where “the Parties and counsel were knowledgeable about the facts relevant to the Medical Monitoring Claims and the substantial risks, burdens, expense and delay of continued litigation” of those claims.

Objectors came forward. Judge Conti counted “the low percentage of objections” as one sign the class approved of the deal, and found, after reviewing the objections filed, that “none of those objections is meritorious.” Settlement Class Counsel had told the class they would ask for up to 20 percent of the fund in fees, costs, and service awards, a request the court took up separately from the approval itself; in an order signed the same day, she awarded $4,369,754.57 in fees and $451,245.43 in costs, along with service awards of $2,500 to each of the 34 class plaintiffs and $5,000 to each of the two class representatives. In January 2026, she approved the co-lead counsel’s proposed allocation and distribution of those fees, with the amounts set aside for future work held back pending a further motion.

Fifteen Years to Look

The Philips settlement is built to run past any one lawyer’s tenure on the case. Over its fifteen years, the Medical Advancement Program is to fund research into the injuries alleged to have been caused by the recalled machines, post what it finds on the settlement website, and send registered class members updates on the science as it develops. Class members have no verdict and no check. They have a fund with a fifteen-year mandate to keep looking, and a settlement that leaves each of them free to sue Philips on their own if a diagnosis ever comes.