By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
Ted Marules' new bathroom is neither subtle nor cheap. "We had visions of grandeur," he says of the $20,000 renovation to his Houston-area home. "We planned to have some wonderful moments in there." Marules and his wife sprung for all the frills: special-order Spanish tile, marble floors, gold faucets and the Texas-sized whirlpool bathtub. "We got some really nice, fancy stuff, and we spent the damned money for it," says the 53-year-old accident reconstruction expert. "Looks like a Roman whorehouse, but it's beautiful."
The centerpiece of Marules' marble palace is the hourglass tub, a 10-jet Jacuzzi mounted like an acrylic altar at one end of the room. It set him back $1,897.70. In its promotional materials, Jacuzzi says the tub Marules bought, the Real model, "surrounds the bather in sumptuous curves for an exceptional bathing experience." Through the Magic Touch controls and PowerPro jet system, it promises "optimal hydrotherapy" in the form of 45 gallons per minute propelled at the body, neck and feet.
The waterproof pillow was optional. What the heck--Marules bought that, too.
The contractor finished Marules' bathroom late last year, just in time for his New Year's resolution to lose weight. "I have a bad back," he explains. "The doctor said if I lost some of my belly, my back would start feeling better. I started exercising, walking, and I started using the Jacuzzi more. It felt great. I'd sit in the tub maybe 30, 45 minutes with those big jets hitting my back."
Around the time Marules started taking his long soaks, he began noticing the tub was producing "a yellow, golden, brownish scum, a kind of scummy foam. After I'd drain it, it left a kind of brownish residue, like ring around the collar."
Marules says he first thought the substance was something in the new plumbing. He would clean the tub and run low-sudsing detergent through its piping as the Jacuzzi instruction manual specified. But every time he ran the tub, it just blew out more gunk. "I can't tell you what's in there, but something's dramatically wrong," he says.
Consumer e-mail sent to Jacuzzi's California headquarters last year shows Marules isn't alone. Jacuzzi owners across the country have complained about unsavory substances blowing from the nozzles in their tubs.
"We just purchased a new house. When we turned on the Jacuzzi tub, there was a lot of black fungus-type mold that comes out of the jets," wrote one of the 165 people who e-mailed the company over a 10-month period to make the same basic complaint. Wrote another, "I have a Jacuzzi whirlpool that is a little over a year old. Recently, the jets started spraying out black gunk." And another, "Began to get discharge of really cruddy black particles during circulation...How disgusting!"
The Jacuzzi whirlpool owners described emissions of "brown scum," "yellowish film," "crud," "shmutz," "soot," "black particulate debris," "black filmy debris," "black grunge," "a dark leafy growth," "reddish film," "greenish-black chunks," "black gunk," "black sludge," "black film on the bubbles," something "that looks like an onion skin, only black," "horrible black sludge" and "black debris the consistency of wet leaves or the film off of pudding." There were words such as "nasty" and "gross" scattered through a handful of them.
Tub owner Jon Zitman told the company, "I am a builder, and a lot of my buyers are encountering the same problem." Charles McDowell lamented, "My wife doesn't want to use it. She feels dirty after getting a bath." Robert Hicks asked why the problem wasn't addressed in the owner's manual or company Web site. "Surely I'm not the only one. If I am the only one, is my health endangered?"
Several Texas plaintiffs' attorneys are asking just that question in an obscure, yet potentially far-reaching class-action lawsuit against Jacuzzi Inc., the nation's largest maker of whirlpool tubs. The lawyers contend that scientific research from universities in Texas and Montana shows the tubs build up potentially harmful, infectious bacteria in their internal pipe systems and that the company's recommended cleaning methods don't adequately fight it. Furthermore, they claim the bacteria becomes airborne because of the bubbling, frothing action of the tub, exposing bathers and anyone nearby.
"Our case is simply that the sole, entire function of this whirlpool is to create a pleasant, relaxing bathing experience," says John Malesovas, who brought the case in a state court in Waco. "The reality of the situation is these tubs build up this debris, this biofilm, and it gets re-emitted into the water. Many times it's visible, many times it is not. You don't know it's there, but all this bacteria is flowing around you."
Malesovas, who also has sued tub makers Kohler Co. and Lasco Bathware on behalf of consumers in cases pending in Canton, Texas, says there is no evidence that people have actually become sick because of the tubs, although company files contain complaints from people who say they believe their whirlpools made them ill.
Instead, they contend that people aren't getting what they're promised when they buy a whirlpool tub. Because of their design, the tubs retain small amounts of water in their pipes--as well as soap film, hair, dead skin, body oils, dirt, anything washed off in the bath, including feces--and become a friendly breeding ground for bacteria, the lawsuits claim. The companies mislead consumers when they fail to mention possible bacteria buildup in the 20 feet or more of plastic piping strapped to the outside walls of the tub and recommend cleaning procedures that do not work to kill the bugs.
The lawsuits are the first major legal assault on an appliance invented 33 years ago by Roy Jacuzzi, a California water-pump maker. Today, his invention is common even in midpriced new homes, where it's marketed as a token of the good life, a calming retreat from worry and stress.
"This lawsuit is a big concern to us; this is our business," says Phillip Weeks, president of Jacuzzi's whirlpool bath division. "We have had several experts in this field look at this. The experts we've employed have come back and told us there's no basis for it [the lawsuit]."
Bacterial buildup has "never occurred, and we can't see it would occur," he says.
"Jacuzzi Whirlpool Bath has continued to grow at a very strong rate over the years, the industry has continued to grow, builders have put more of these into their homes, and retailers have continued to sell more of them," Weeks says. "That wouldn't normally happen if people weren't happy about the products."
That said, Weeks couldn't say what all that black gunk is in people's tubs, except that it is not harmful bacteria. He said the company has never run its own tests on the stuff or attempted to test in a controlled, scientific way whether its cleaning instructions actually work. Although the company's files contain letters from people who claim they got sick from Jacuzzi tubs, the company did not check whether those complaints might be valid.
"They [Jacuzzi whirlpools] exhibit some kind of debris," Weeks says. "That is one of the reasons we tell people this is an appliance that needs to be periodically purged and cleaned."
If they continue to advance in the courts, the defective-product claims could end up involving millions of tub owners. Jacuzzi has sold more than 2 million whirlpools, 600,000 in just the past four years.
Malesovas and his team, which includes prominent Dallas plaintiffs' attorney Ted Lyon, are asking the companies to pay consumers the difference between the cost of plain acrylic bathtubs and what they spent for their whirlpools, roughly $1,000 in the typical case. They are also asking the companies to develop cleaning methods that kill bacteria in the pipes.
"We've found most people only use the whirlpool now and then, but everybody in the home-building business says you have to have one in your master bath for resale. So they sell a lot of them," Malesovas says. "They sell a lot of them to hotels, too. You come in and take a whirlpool bath, and some of what's blowing through came off the last person or the last dozen people. It's like hopping into a bed with used sheets. Very repulsive."
It all began with about 50 gallons of funky water in Waco. James Vandiver Jr., a friend of Malesovas', built a new house there in 1998 and installed a Jacuzzi tub. Although he claims he followed the company's cleaning recommendations once he started using it, black specks of debris started belching out of the jets. "He said, 'I think something's amiss. Have you heard anything about it?'" Malesovas recalls.
The lawyer set out to determine what was in the water and eventually commissioned a study at Montana State University in Bozeman at something called the Center for Biofilm Engineering. The center, which has conducted studies for the Environmental Protection Agency on the cleaning of hot tubs, set up an experiment to determine how much bacteria or biofilm is produced in the pipes of a drain-and-fill whirlpool in normal use. Biofilm is defined as a combination of bacteria and substances such as algae, fungi, corrosion and just about any debris found in wet places.
A new 6-foot Jacuzzi was installed in a garage, and three subjects--man, woman and child--took baths five times a week with the jets running. Samples of the bathwater, which was run into the tub from the municipal water supply, were collected on the first day of the experiment and the 44th day. That would have been well before Jacuzzi's recommended cleaning cycle of once every three or four months.
Additionally, samples of the aerosol the tub emitted while it was bubbling were collected during the experiment's last week, and a portion of the tub's interior piping was cut away and examined.
William Costerton, a microbiology professor who runs the center, reviewed the results and concluded that the tub grew biofilm in its internal piping during the 44 days. He reported that substantial amounts of Pseudomonas, a microbe linked to skin, eye and respiratory infections, were embedded in the slime.
In Costerton's opinion, water adheres to the walls of the tubs' interior pipes regardless of how well the system drains. (Under industry standards set by the American Society of Mechanical Engineers and a working group dominated by the major bathroom-fixture manufacturers, a whirlpool tub can retain as much as 10 to 12 ounces of used bathwater--about a glass--in its pipes once the tub is drained.) The biofilm can be detected by its slimy feel but is not always visible, Costerton says.
Beyond that, Costerton found that the biofilm is prone to break off in clumps, which are then either circulated into the water or ejected into the air through bursting bubbles on the water's surface, increasing the chance of infection through the eyes, nose and mouth. Bathers "are surrounded by microscopic disease-causing organisms, and, unbeknownst to them, they should be taking precaution," he says. Costerton also discovered that the company's cleaning procedures were almost totally ineffective at reducing biofilm. Adequate cleaning would require far heavier concentrations of detergent and bleach and more prolonged cleaning than any manufacturer recommends, he says.
Another scientist hired by the plaintiffs, Rita Moyes, director of Texas A&M's Microbiology Laboratory, says she found "fairly high" levels of bacteria--including Staph, Pseudomonas and Legionella--in a majority of whirlpool bathwater samples collected from homes and hotels around the country.
Given the surface area of all the tubes and fittings in a recirculating whirlpool tub, it presents the largest "microbial population...to which people are directly exposed in any normal household," Costerton says.
Whether anyone will actually become ill, however, is less clear. Costerton says that a connection cannot be made because infection is a random event, subject to many variables.
It is this unproven link, and the fact that bacteria can be found at certain levels everywhere in the home, that Jacuzzi and the other defendants have seized on to build their defense. The bacteria count in Vandiver's tub in Waco, for instance, was narrowly above the requirements for drinking water under the Safe Water Drinking Act, says Thomas Huber, a microbiologist with the U.S. Veterans Administration who is working with Jacuzzi. Malesovas contends that the defense is specious, because many of the microbes at issue aren't covered by the act, and in nearly every tub tested, counts were higher than the federal allowances.
Jim Kieckhefer, Kohler's corporate counsel, says the plaintiffs' tests amount to a question of "Where's the beef? The people in the test came out just fine, no injury, no problems." He says consumers who follow the company's cleaning guidelines, which require the tub's internal tubes to be flushed with bleach and detergent twice a month, should have no problem keeping bacteria from reaching any significant levels in the pipes. "This isn't something consumers should be alarmed about," Kieckhefer says.
In legal papers filed in late 1999, Jacuzzi claimed that "even though literally millions of whirlpool bath units have been sold by Jacuzzi over the years, there has never been a single documented case of illness, injury, infection or death being caused by harmful organisms multiplying in the piping."
The company went so far as to claim there has never before been a complaint of anyone getting ill because of infectious bacteria in his whirlpool.
But after some lengthy court battles over release of the company's internal documents, it has retracted that claim and turned over letters in which customers have complained of illnesses. It has also released the e-mailed complaints about the black gunk. There likely would have been many more "shmutz" letters, but in early 2000, about six months after Malesovas sued, Jacuzzi threw away a computer containing 16 years' worth of consumer gripes. Oops.
Weeks says the move was part of a routine update of its equipment, but Malesovas finds that--and company officials' testimony about the dirty-water complaints--impossible to believe. "They told us under oath, in depositions and affidavits, that nobody ever made a complaint like we are making," Malesovas says. "After months and months of us not believing them, they finally coughed up these complaints. Their excuse was these weren't complaints, they were simply customer inquiries on how to clean the tub. It was just total garbage.
"Then we noticed the majority of the complaints we were finally given were in e-mails, and we had none prior to February ," he says. "Within months of us asking for this kind of information, they took the computer where it was maintained for the past 16 years and threw it out. Just tossed it."
In Malesovas' view, Jacuzzi's actions since the lawsuit was filed confirm there has been more trouble with the tubs than the company cares to admit.
In 1998, for instance, an Illinois tub owner wrote the company a letter saying he contracted an E. coli bacterial infection that "was caused by the contaminated piping and motor pump." "After using the Jacuzzi tub for the first time, there was an oily film on the walls and bottom of the tub," wrote the man, whose name was redacted from the letter by order of the court.
He said he began feeling a burning sensation in his urinary tract a day after he used the tub for the first time. His doctor diagnosed him as having urinary tract and colon infections and treated him in a hospital emergency room when his temperature reached 103. "I suffered for three weeks with this, and it cost me $788," the man wrote, asking for help with the bill. "I'm telling you this because I don't want another person using your product to go through what I did."
The company wrote back saying that "unfortunately," its equipment did not cause the problem. Company witnesses testified later they did not check whether the man's tub was contaminated or whether there was a chance that what he was claiming might be true.
That same year, another customer complained he bought a new tub and, in short order, "all this black foreign material" began flowing out of the jets. He said he was stricken with "some form of disease which my doctors haven't been able to diagnose to date. One morning I woke up and my legs, arms and other parts of my body weren't functioning properly." He suspects the source was the tub.
Two years later, in April 2000, a customer e-mailed Jacuzzi saying "the family bathtaker is being treated for a skin infection, which the doctor is attributing to use of the new whirlpool tub." A secretary at Jacuzzi responded, "This is not a common occurrence with whirlpool baths." After giving the tub owner the company's standard cleaning instructions, the secretary suggested the customer "check with a dermatologist" if the rash persisted.
Five months later, another woman e-mailed the company saying that she developed a skin infection the morning after using a Jacuzzi tub at a hotel.
"There are a lot of people who are quote-unquote pissed off about these tubs," says Ted Lyon, who is working on the litigation with Malesovas' firm. "Once they know about the problems, they don't use their tub anymore."
Lyon, who won a $376 million wrongful death verdict against Koch Industries two years ago in a pipeline explosion case, has done much of the heavy lifting in the case against Wisconsin-based Kohler, the second-largest company in the business. Since the late 1970s, the privately owned company has sold more than 700,000 jetted tubs.
Through an ad in the local paper in Canton, 50 miles east of Dallas, Lyon and Malesovas found a 75-year-old widow who has owned a Kohler tub for 15 years. They initiated a class-action suit against the company on her behalf, as a representative of Kohler owners nationwide. While the company's lawyers have complained bitterly about those tactics, which, in effect, finagled a sympathetic venue for the plaintiffs, the suit has withstood several years of defense challenges. And Lyon is now gleeful about the prospect of trying the case before a jury in rural East Texas. "The people of Van Zandt County are pretty sophisticated in terms of putting a whupping on big corporations," he says.
The big problems with the tubs, the plaintiffs contend in plain, East Texas language, is how to keep the guts, the hidden piping, from turning into something akin to the drain pipe in your shower.
Jacuzzi, for instance, says on its Web site that the tub must be purged every three to four months to remove "bath residue." The company recommends filling the tub with hot water, adding four tablespoons of low-foaming detergent and running the jets for five to 10 minutes. The tub then should be drained, refilled with cold water and run for another 10 minutes. The procedures use 60 to 100 gallons of water, depending on the size of the tub, and take at least 45 minutes to perform.
Kohler and Lasco give basically the same instructions but tell owners to add four ounces of household bleach and clean the tub much more frequently. The two companies say this "periodic maintenance" should be performed at least twice a month.
"I don't know how many people know that they have to spend an hour every other week cleaning their tub or the warranty's no good," Malesovas says.
Lasco instructions also say failure to perform the procedures "may cause safety and/or health problems." The health warning was added in 1999, court files show, right around the time Malesovas' firm filed suit, he says.
Representatives of all the companies testified in depositions that they have never subjected their recommended cleaning procedures to scientific analysis, and nowhere in their operations manual do they specify exactly what problem the cleaning is supposed to remedy.
Malesovas says he believes the companies are aware of bacteria buildup because they all warn consumers against using vegetable-based shampoos, bath oils or cleaning agents while running the tubs' jets. In early versions of its user's manual, Kohler cautioned consumers, "Do not use cleaning agents that have a vegetable base: They can cause bacterial growth." In recent years, though, the "bacterial growth" warning was dropped.
Scott Knapp, Kohler's top whirlpool engineer, testified in a deposition that "some people" at the company "maybe objected to that [warning] as overly harsh." Asked if the company was concerned about scaring people away from buying its whirlpools, Knapp replied, "It's possible."
An internal Kohler study unearthed in the suit concluded that cleaning products and bath soaps containing vegetable oils support the growth of bacteria and should not be run through the pipes of a whirlpool tub.
Malesovas and Lyon are also zeroing in on what the companies have told consumers who write in with complaints of black crud. In many cases, Jacuzzi representatives told consumers their problem appeared to be algae, but Weeks said in an interview that the answers his company gave to consumers were only guesses. "After I saw some of these things, I became unhappy with them," he says of the company's responses to the complaints. "We didn't know whether it was algae. Our customer-service people don't receive training in biochemistry."
At the same time, Weeks declined to specify what the black stuff is, saying it could vary from case to case. He says the company's cleaning methods--including advice to use an algicide when the black gunk appears--have been developed over 20 years. And while they haven't been scientifically tested, "they seem to solve most people's problems."
How do they know?
The customers stop complaining, he says.
Malesovas says the companies have been nonchalant about the black gunk and cleaning procedures because "it isn't something that'll help them sell a bunch more tubs. They've been more focused on putting stereos and TVs in them, and pillow attachments."
Indeed, the dream tub in Jacuzzi's current line is the Italian-designed Vision. It comes loaded with a flat-screen TV, DVD/CD player, and "to pamper you even more...a state-of-the-art floating remote control," the company's Web site says. For the $20,000 asking price, the tub will be "certified, numbered and carry the distinction of Roy Jacuzzi's personal signature."
While unnerving to the big tub makers, talk of dirty tubing and health risks in traditional jetted tubs are sweet poetry to a start-up company in Coppell.
For the last year, Sanijet Corp. has been making and selling a line of pipeless whirlpools, designed around a patented jet fitting that can be pulled out and thoroughly cleaned. The company is aiming its marketing strategy at what it calls the "serious health threats" posed by nearly every other tub on the market.
For instance, one of its in-your-face sales posters features three monkeys, each with hands over its ears, eyes or mouth, and the words: "The whirlpool bath industry's approach to health and safety." Another monkey, chest-deep in a Sanijet tub, relaxes with its hands behind his head, over the words: "The only pipeless, airless whirlpool bath that delivers superior hydrotherapy, quieter operation and, for the first time, enables users to easily and thoroughly clean the system."
"We've taken on the entire industry over health and cleanliness," says Sanijet President John Booth, who formed the company in 1993, raised $10 million in capital and began setting up production of his tubs in 1998.
Russell Walker, a vice president and son of Southern Methodist University football legend Doak Walker, took a reporter on a tour through the company's 100,000-square-foot factory, offices and showroom recently. Like the rest of the industrial park in which they're located, everything is brand-new. After showing videos, photos and samples of filthy water taken from traditional tubs, Walker led his visitor to a bathroom display and an installed Sanijet 600 Series Tub. The top-of-the-line, six-jet model retails for about $5,000.
Powered by six separate motors, the tub's jet fittings simultaneously draw in and shoot out quiet, powerful streams of water. He runs the programmable controls through a number of settings, allowing the jets to hit various parts of a bather's body.
Then Walker pops out one of the jet fittings, puts it in a sink and rinses it off. "Every part that gets wet can be thoroughly washed," he says, adding that with his product, one can use any type of bath salt, bath oil or aroma one likes.
All this looks impressive enough as one wanders past the company's executive and design offices and back to the factory floor. In one corner, a few tub designs are being tested for a bid to supply a Las Vegas hotel.
"We could drop about 85 to 100 tubs a shift, 80,000 tubs a year," Walker says, strolling past the assembly line, where sheets of heat-molded acrylic and high-tech, brushless motors go together to make a Sanijet tub.
Instead, the floor is nearly deserted. Since they started in earnest in May 2000, they've produced perhaps 1,000 tubs, Walker says.
"We've taken up health issues, but up to now it's been an out-of-sight, out-of-mind problem," Booth explains. "No part of the industry, including the sales showrooms, have accepted there's a problem. So it's been difficult selling through traditional channels."
Last year, Sanijet erected displays and began selling its whirlpools in 200 bath-products showrooms around the country. But its sales pitch asked the showroom sales forces to essentially knock--in the most unpleasant way--the Jacuzzis and Kohlers they have been selling for years. "If you tell them [the customers] about all our features, they have to question why are you selling all of these," Walker says. "They had a dilemma."
And it wasn't resolved in Sanijet's favor.
Earlier this year, Ferguson Enterprises Inc., a major wholesaler of plumbing supply and heat equipment, kicked Sanijet out of its showrooms because of its claims of being the only whirlpool you can thoroughly and easily clean. In an e-mail Bill Hargette, a Ferguson vice president, sent to the company's outlets nationwide, he said Sanijet's claims that its tubs eliminate bacteria and unsanitary residue imply "that other whirlpool systems like the Jacuzzi and Kohler whirlpools we sell have a problem with these features. We do not think that it is appropriate that we support this type of selling in our showrooms, and we ask that you do not display or sell Sanijet whirlpool products."
Hargette, reached at the company's Virginia headquarters, declined to be interviewed and would not verify whether a copy of the e-mail was authentic.
Faced with those problems in the traditional sales chain, Walker and Booth say they are now marketing directly to architects, builders, hotels, hospitals and consumers. Their tubs, which start at $3,000 retail, are more expensive than many conventional whirlpools but in line with some of the more expensive name brands. "Ours are a lot more expensive to build," Booth says.
Booth, who in the late 1980s owned a small whirlpool manufacturing company in West Texas, says Sanijet tubs were an invention that grew out of problems he encountered with whirlpools over the years. First, he developed a cleaning solution for whirlpool pipes, then he began marketing a cleaning machine, then he set out to design and make a better tub.
"People trust the manufacturers and what they are saying is correct," says Booth. "We say they shouldn't. It's a real David and Goliath fight."
Last month, the company threw a stone in federal court, filing suits against Jacuzzi and Kohler accusing them of falsely claiming that their tubs fully drain and are free of contamination and bacteria. The companies deny those claims.
The big unknown in all of this is how many people really are unhappy with their traditional whirlpool tubs, a product introduced during the Vietnam War era that is now pitched as a desirable, life-improving gadget, a move forward in the modern American house.
How typical is Bill Thomas, an insurance agent, who three years ago bought an 11-year-old custom home in Coppell?
Thomas, who says he used a whirlpool tub once before at a hotel, says he never used the whirlpool in the master bathroom at home. He's a shower guy. But his girlfriend likes taking baths, so he decided to check out the tub.
"I turned it on, and there was this junk, just black junk coming out of the jets," he says.
He tried cleaning it, flushing out the system, and a lot of gunk came out. But rather than fix the problem, it merely reduced it. "It's still not completely clean. It looks cleaner, but when you turn off the jets, you can still see all this filth floating around in the bubbles," he says.
Thomas, who doesn't know which manufacturer made the tub and has no idea where the manual has gone, says he's not contacted any companies. He hasn't filed any complaints or talked to any lawyers.
He simply lets the tub sit unused. "The crud coming out, it's bad, I'm telling you," he says. "That whirlpool is worthless. No way I'm getting in."