What Does a Lawsuit Smell Like?
How to Handle Odor Complaints in a Litigious World
by: Alex Tirado-Luciano, Esq.

Section: Features-Spring 2023

Do you smell that fishy odor? Search the internet for "spray polyurethane foam" ("SPF") and "smell" and you will find countless articles and customer accounts of an unmistakable odor akin to that of rotten fish or ammonia. What is seldom found in the articles or posts, however, is that these complaints almost always result in a lawsuit. Odor complaints are found in every SPF lawsuit filed over the last decade. This is why odor complaints from homeowners must be afforded the utmost consideration and investigated with care. If not handled properly, the "minor" odor complaint that the SPF professional was convinced was emanating from a musty attic or old fiberglass insulation will end up the subject of a costly and time-consuming lawsuit that could quickly spiral out of control and end with devasting results to the SPF business. Odor complaints, however, do not have to end in litigation. Throughout my more than 10 years of experience defending manufacturers and installers in the SPF industry, I have determined that adhering to the following principles is the most effective way in handling odor complaints in a manner that will either: (i) minimize the risk of litigation; or (ii) increase the chances of a positive outcome in the event a lawsuit is filed.

Set Appropriate Expectations

The most important way to handle an odor complaint is to ensure accurate information is provided to a homeowner before the SPF is even installed. In a world where consumers are increasingly exposed to an endless amount of information over the internet (ranging from credible sources to overly dramatized opinion pieces), SPF professionals must set appropriate, realistic and honest expectations. Do not tell a homeowner that there are no odors associated with SPF. Easily accessible technical data sheets contain information defining the odor of SPF as "slight," "neutral," "musty," "amine," and "mild chemical," among others. Advise the homeowner that SPF does have an odor that most people liken to a "new car smell." Be honest about your own experiences if you perceive the odor differently. Inquire as to any chemical sensitivities and advise the homeowner that there have been reports of odor concerns in the industry. This way, if a homeowner picks up an odor that they are not accustomed to, their first reaction will not be that of concern, anger or suspicion. Communicating clearly will go a long way if an offending odor is encountered. Setting appropriate expectations could mean the difference between a lawsuit, or a complaint that can be handled outside of the court system.

Investigate with Care and Consideration

When faced with an odor complaint, take great care to listen to the complaint and, as will be discussed below, document all that transpires between you and the homeowner. Specifically, note all interactions, including the date, time, substance, and those involved in any communication. If the SPF job was properly documented (including barrel conditions, batch identification, and temperature and equipment readings) be sure to review such information and be prepared to share it with the homeowner. If asked to visit the home, do so with the understanding that how you comport yourself could be made part of the lawsuit. Take a witness to the inspection. Avoid making hasty judgment calls and/or promises. Do not diminish or downplay a homeowner’s concerns. When asked if you smell something, do not patronize the homeowner with a disingenuous response. If you do not smell something, as is often the case, communicate clearly that while you do not smell anything, it does not mean you do not believe the complaint. Share with the homeowner that some people smell the chemical and others do not. Feel free to share technical and safety data sheets. Be cognizant of the fact that some people smell and perceive things differently than you. If the homeowner feels as if their complaint is not taken seriously, they are more likely to initiate legal action. Lastly, contact the manufacturer of the SPF, your insurance company, and any other entity/individual involved in the project, such as the general contractor. There may be additional resources these individuals/entities may be able to provide during your investigation. If an odor investigation is handled with honesty and empathy, there is a stronger likelihood an odor complaint will not escalate to a lawsuit.

Document the Project and Complaint

The most important element of any successful defense of an SPF lawsuit related to an odor complaint is a properly documented file. Most SPF manufacturers require or recommend the documentation of field conditions and processing techniques. Doing so assists in the defense of an odor complaint and eventual lawsuit because sometimes, odor complaints are not lodged immediately after the installation. Depending on the time of the year the SPF was installed, an odor complaint may not arise until a change in season occurs. When a considerable amount of time has elapsed, it may be difficult to recall crucial facts that may assist in the investigation of an odor complaint. Facts such as whether the homeowner was present during installation, the weather conditions when the SPF was installed, whether certain documentation was provided to the homeowner, and/or a specific statement made by a homeowner during an odor complaint inspection, could make or break the chances of a pre-suit settlement. Imagine a well-documented file where a document exists wherein a homeowner acknowledged that SPF could emit odors signed by the homeowner prior to the installation. Such a document could have a great impact on a lawsuit filed alleging the homeowner had no knowledge of odors associated with SPF. As referenced above, document facts in a detailed and specific fashion. Avoid opinions and/or personal commentary. Be mindful that any documentation can and will be used in a court of law. While properly documenting what transpires between the SPF professional and a homeowner will not avoid a lawsuit, it will ensure a more adequate defense.

"Advise the homeowner that SPF does have an odor that most people liken to a "new car smell."

There is no one-size-fits-all approach to the handling of an odor complaint and implementing the foregoing procedures will not guarantee the avoidance of a lawsuit. However, following these recommended procedures will ensure that any odor complaint investigation will be handled in a way that takes the complaint seriously and affords the SPF professional the opportunity to properly defend against an odor complaint that starts to smell like a lawsuit.