Lawsuit

At the 2013 International Builders Show in Las Vegas, Lubrizol Corp. launched a mobile app that has a compatible product finder for its chlorinated PVC (CPVC), which is the subject of a lawsuit that could have costly ramifications for it and a host of companies that used the resin to make fire sprinkler pipes supplied to condo development around the United States.

It's an era of instant information, be it the name of celebrity Kim Kardashian's baby boy or the incompatibility of CPVC pipes manufactured with Lubrizol resin and ABF II steel pipes produced by Allied Tube & Conduit Corp. with an interior coating to prevent microbial-induced corrosion (MIC),

Builders can learn with the touch of a device screen about baby Saint West — comedienne Ellen DeGeneres predicts he will be the patron saint of Instagram — and industry information like the bold-faced statement on a “clarification” link of Lubrizol's online Incompatible Products List.

The “antimicrobial statement” says, “Lubrizol recommends that Allied Steel pipe coated with ABF II not be used in BlazeMaster CPVC systems” and then back to light-face type it adds, “This has been Lubrizol's position for years.”

Just how many years and how quickly the Wickliffe, Ohio-based company made that clear to the building industry will surely lead to a long line of questioning by the attorneys who will likely argue this construction defect case before a jury in U.S. District Court in Miami. That's where the plaintiffs — two condo associations in Miami — say they represent a national class of hundreds of condo owners seeking monetary damages expected to exceed $1 billion.

BlazeMaster is the trade name Lubrizol licenses to companies that use its resin to make CPVC pipes. The company says on its website that it has never recommended the use of ABF II coated pipe with BlazeMaster CPVC pipe and fittings.

Still, hybrid fire suppression systems of the two companies' CPVC and steel pipe were installed all over, the lawsuit says, from 2003-2010 and have failed at numerous condo associations, including four in Florida, two in Pennsylvania, two in Massachusetts, one in Wisconsin and a couple others not identified as well as the Creighton University Medical Center in Omaha, Neb.

So just what happened after a Lubrizol chemist allegedly concluded in May 2007 that CPVC pipes made of Lubrizol's resin will crack or leak from a bad reaction with the antimicrobial coating used in Allied's pipes? Did Lubrizol and other defendants conspire to hide that information?

The recently filed lawsuit says they did until January 2009, when Lubrizol recommended only non-coated steel pipe be used with BlazeMaster. To back up the conspiracy claim, which Lubrizol denies, the 246-page suit points to a series of reports about failed pipes going back to late 2006 as well as a flurry of emails exchanged on May 3, 2007, and the following 24 hours. On that May 3, some Allied and Lubrizol officials were at a trade association meeting of the National Fire Safety Association (NFSA) and they went back ad forth about how to handle the lab results that were so pertinent to the building professionals attending it with them.

The lawsuit offers a pretty detailed and somewhat dramatic account of the alleged conspiracy timeline. Bear in mind it's just the plaintiffs' side of the story. Lubrizol and the others haven't filed their legal responses yet, and when they do the story could change significantly. But for now, in condensed form the conspiracy theory goes like this:

• Late 2006 — An in-house chemist at Lubrizol receives sections of failed CPVC pipe from a sprinkler system used in a Pennsylvania condo project. She concludes the presence of a fatty acid amide oil of unknown origin caused the leak and severe “crazing damage” to the interior of the pipe and fitting.

• January 2007 — The same chemist receives failed pipe from a different Pennsylvania condo project and on Feb. 1, 2007, reports cracking and crazing caused by a surfactant of unknown origin.

• April 19, 2007 — The chemist emails an Allied sales manager that she has reviewed the chemical ingredients in the ABF steel pipe and it “appears to be very incompatible with CPVC.”

• Shortly after — The chemist receives a liquid sample of ABF II to conduct more tests.

• May 3, 2007 — The chemist issues a report that says, “The ABF coating manufactured by (Allied) is not compatible with CPVC. BlazeMaster (CPVC piping) should not be connected to steel piping containing this coating as it may flush into the CPVC and cause environmental stress cracking.”

An email dialogue between employees of Lubrizol, Allied and an entity of Tyco International Ltd., which owned Allied at the time, then allegedly shows Lubrizol was prepared to disclose the incompatibility findings on May 3:

• 1:30 p.m. — A Lubrizol manager emails the lab test results to representatives from Allied and Tyco and tells them he will pass along a proposed update for the incompatibility section of Lubrizol's website for them to review before it is posted.

• 1:33 p.m. — The Lubrizol manager directs a colleague to work with the chemist on the wording and post it to the website, adding “We need to asap.”

• 1:42 p.m. — Another Lubrizol employee asks the manager and chemist, “Should we consider some kind of special alert? I think this coating is applied wet and dry. It is suppose(d) to be good for 75 flushes.”

• 1:43 p.m. — The Tyco employee emails the Allied sales manager, saying, “The report concludes that Allied (ABF II) coating is INCOMPATIBLE with (CPVC) BlazeMaster. This is not good news. …Also, I am aware that there are other manufacturers who are applying some type of MIC coating or treatment to their products. …This may affect far more than just Allied Tube.”

• 2:13 p.m. — The Lubrizol manager emails the Allied official, asking, “Can you provide a list of the manufacturers? We will target the list immediately. Additionally notification will need to be sent out to the appropriate people asap. I will be conducting two sessions tomorrow at NFSA on system compatibility. Certainly- this information needs to be given out at the session.”

• 3:38 p.m. — A Lubrizol employee emails the chemist to ask if the ABF II coating comes off over time and she responds, “Not compatible. It's just not compatible. Even little droplets of this oil flushing into the CPVC will be bad. Much worse than your average cutting oil.”

• 5:45 p.m. — The Allied manager emails a Lubrizol employee asking, “Can you hold your guy back from making the incompatibility statement at the training sessions until our tech guys can review?”

• 7:22 p.m. — The chemist proposes a new category of products be added to the Lubrizol website, saying, “Some types of corrosion inhibitors applied as coating to the interior of steel sprinkler pipe to prevent MIC may be incompatible with CPVC. If BlazeMaster (CPVC) pipe and fittings are to be installed with a connection to steel piping, it is important to confirm the compatibility of any coating on the interior of the steel, as oils from the coatings may flush into the CPVC portion of the system and compromise its integrity.”

Within the next 24 hours, Lubrizol, Allied and Tyco conspired to suppress the incompatibility, the lawsuit continues.

• The evening of May 3 or 4 — The Allied official meets with the Lubrizol manager and urges him not to publicly disclose the chemist's test results. The manager agrees.

• May 5 — The Lubrizol manager writes to the chemist and a colleague: “We need not alert folks of this problem yet as we need to conduct further R&D review to prove the package of the ABF creates incompatibility.”

• Minutes later — He emails others at Lubrizol and says, “We are conducting an R&D review with Allied on this matter. No announcement will be placed on the website or sent out unless concrete evidence show that there is a problem. Currently there is none.”

• Aug. 10, 2007 — The Lubrizol chemist issues another report about tested samples of ABF II coating being mobile in water and “aggressive environmental stress cracking agents for CPVC.”

• Later in 2007 — Contractors began to ask Lubrizol and Allied if the ABF steel pipe could damage the CPVC piping and the pipe manufacturers informally organized a CPVC summit that met several times to discuss the issue.

• Dec. 13, 2007 — The CPVC Summit meets at the Lubrizol headquarters with representatives from seven CPVC manufacturers and nine Lubrizol employees attending but the lawsuit says the lab test results weren't disclosed.

• March 2008 — Lubrizol allegedly conducts a new test with a different methodology at the request of Allied and Tyco.

• March 25, 2008 — A different Lubrizol chemist allegedly concludes “no detrimental effects were observed” and Allied discloses those results to the construction industry in press releases and on its website.

Lubrizol denies the conspiracy allegation in a two-paragraph statement emailed to Plastics News and reported in our Dec. 15 story about the case. The email says, “Lubrizol has been made aware of a lawsuit wrongly alleging an industry-wide cover-up of defects in the piping systems in two condominium buildings in Florida. Lubrizol is one of many companies from the fire sprinkler industry that are named in the suit. It is the company's policy to not comment on pending litigation. As the litigation process unfolds, Lubrizol will respond to the complaint.

“Lubrizol has not concealed information and denies the allegations in the lawsuit,” the email continues. “There is no reason to believe the lawsuit contains any allegations about CPVC that have not been alleged elsewhere, tested, and addressed. The industry has always taken proper steps to ensure safe installation and use of fire sprinkler systems around the world. As a market leader, Lubrizol has always stood behind its products and will put the same attention to this matter.”

Also, Lubrizol's website says that beginning in 2008 it stated Allied's ABF II microbial coating “would not be classified as compatible with CPVC if it were applied directly to the CPVC.”

And, in 2008, Lubrizol's website says that it began conducting tests to try to duplicate a real-world level of migration of ABF II coating to CPVC but the testing didn't show a consistent pattern that would indicate a pervasive problem.

It looks like others will be the judge and jury of that.

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