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Beyer v. Anchor Insulation Co., Inc.

United States District Court, D. Connecticut

July 6, 2016



          Joan Glazer Margolis U.S. Magistrate Judge

         In late September 2013, plaintiffs commenced this product liability lawsuit in the Connecticut Superior Court; it was removed to this court on October 28, 2013. (Dkt. #1). Plaintiffs' Second Amended Complaint, filed March 14, 2014, alleges numerous counts against defendants Anchor Insulation Co., Inc. ["defendant Anchor"], Johns Manville, Inc. ["defendant Manville"], and Icynene Corporation ["defendant Icynene"], regarding the installation in October 2010 of spray polyurethane foam ["SPF"] at plaintiffs' home in Niantic, Connecticut; plaintiffs allege that the SPF emitted noxious and harmful fumes, gases and odors, resulting in serious harm to them. (Dkt. #44; see also Dkt. #28). On October 28, 2014, U.S. District Judge Janet Bond Arterton filed her Ruling on Motions to Dismiss (Dkt. #67), which dismissed counts alleging CUTPA violations against all three defendants.

         On February 3, 2016, Judge Arterton referred this file to this Magistrate Judge for all discovery matters. (Dkt. #110; see also Dkts. ##120, 127). Familiarity is presumed with the previous discovery rulings and orders issued by this Magistrate Judge. (See Dkts. ##111, 128). Under the latest scheduling order, all expert discovery is to be completed by August 15, 2016, and all dispositive motions are to be filed on or before September 15, 2016, and there will be no further extensions. (Dkts. ##121-22 & 4/12/16 electronic entry).

         On April 14, 2016, defendants Manville, Anchor, and Icynene [collectively "defendants"] filed their Joint Motion to Strike and brief in support, with respect to the expert report of Dr. Yuh-Chin Tony Huang, dated March 18, 2016. (Dkts. ##123-24, 143; see also Dkts. ##125-127, 142).[1] On May 5, 2016, plaintiffs filed their brief in opposition (Dkt. #129), [2] as to which defendants filed their reply brief fourteen days later. (Dkt. #137).[3]

         For the reasons stated below, defendants' Joint Motion to Strike (Dkt. #123) is granted.

         I. DISCUSSION

         As stated in defendants' brief, plaintiffs have alleged that they have been injured by volatile organic compounds ["VOCs"] that have been emitted, or "off-gassed, " by defendants' SPF insulation; in contrast, defendants contend that plaintiffs "are not and never have been injured in any way by the SPF insulation installed in the home and subsequently removed." (Dkt. #124, at 2). According to defendants, on June 22, 2015, plaintiffs disclosed Dr. Yuh- Chin Tony Huang as an expert and disclosed Dr. Huang's first report ["Original Report"]. (Id. at 3 & Exh. A).[4] However, Dr. Huang had not physically examined plaintiffs prior to preparing his Original Report. (Id. at 2-3). Defendants assert that after receiving this report, they requested that plaintiff Richard Beyer undergo an Independent Medical Examination ["IME"]; this IME was conducted on December 9, 2015, by Dr. John Russomanno, and a report summarizing his findings was prepared on January 28, 2016. (Id. at 3 & Exh. B). On January 11, 2016, plaintiffs were physically examined by Dr. Huang and on March 18, 2016, Dr. Huang issued two reports ["Additional Reports"]. (Id. & Exhs. C-D). Defendants contend that the Additional Reports "add new opinions and grounds therefor, none of which were present in the Original Report[, ]" (id. at 4) and that they are not proper supplements pursuant to Rule 26(e)(1). (Id. at 7-14). Accordingly, defendants move to strike the Additional Reports. (Id. at 14).

         In response, plaintiffs contend that the Additional Reports "are not an attempt to circumvent the disclosure deadlines, but rather, a presentation of newly discovered evidence . . . which [p]laintiffs were obligated to produce under Fed.R.Civ.P. 26(e)." (Dkt. #129, at 1). Plaintiffs claim that Dr. Huang was not able to conduct a physical examination prior to January 11, 2016, because Dr. Huang practices medicine in North Carolina and plaintiffs could not travel out of state with their entire family until that month. (Id. at 3, 6).[5] Plaintiffs also claim that the Additional Reports "cannot be a surprise to [d]efendants because [p]laintiffs had previously disclosed their injuries in deposition[s] and through interrogatories[, ]" (id. at 3)(emphasis omitted), and that defendants will not be prejudiced by the Additional Reports. (Id. at 6-9).

         In their reply brief, defendants argue that the Additional Reports are not a proper Rule 26(e) supplement because plaintiffs' further medical examination does not constitute newly discovered evidence (Dkt. #137, at 2-5), that the Additional Reports are neither substantially justified nor harmless, and that they constitute an unfair surprise to defendants. (Id. at 6-7).


         Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure requires that a written expert report contain "a complete statement of all opinions the witness will express and the basis and reasons for them[.]" "It should be assumed that at the time an expert issues his report, that report reflects his full knowledge and complete opinions on the issues for which his opinion has been sought." Innis Arden Golf Club v. Pitney Bowes, Inc., No. 3:06 CV 1352 (JBA), 2009 WL 5873112, at *3 (D. Conn. Feb. 23, 2009), quoting Sandata Techs., Inc. v. Infocrossing, Inc., Nos. 05 Civ. 09546(LMM)(THK), 06 Civ. 01896(LMM)(THK), 2007 WL 4157163, at *4 (S.D.N.Y. Nov. 16, 2007)(citation omitted).

         However, an expert witness has a duty to supplement his or her report "in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. . . ." Id. at *2, quoting Fed.R.Civ.P. 26(e)(1)(A), (2). Proper supplementation, however, does not simply bolster a party's earlier submission; "rather, [it] arises 'only if the expert subsequently learns of information that was previously unknown or unavailable, that renders information previously provided in an initial report inaccurate or misleading because it was incomplete. . . .'" Id. at *3 (emphasis in original), quoting Sandata Techs., 2007 WL 4157163, at *4 (additional citations omitted).

         Upon finding that the production of certain evidence did not comply with "Rule 26(a) or (e), the [non-compliant] party is not allowed to use that information . . . to supply evidence . . . at trial, unless the failure was substantially justified or is harmless . . . ." Id. at *2, quoting Fed.R.Civ.P. 37(c)(1). "Rule 37(c)(1)'s preclusionary sanction is automatic absent a determination of either substantial justification or harmlessness." Id., quoting Lore v. City of Syracuse, No. 5:00-CV-1833, 2005 WL 3095506, at *3 (N.D.N.Y. Nov. 17, 2005).

         B. ...

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