United States District Court, D. Connecticut
RICHARD BEYER ET AL.
ANCHOR INSULATION CO., INC. ET AL.
RULING ON DEFENDANTS' JOINT MOTION TO
Glazer Margolis U.S. Magistrate Judge
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.
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
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). On May 5, 2016, plaintiffs filed their
brief in opposition (Dkt. #129),  as to which defendants filed
their reply brief fourteen days later. (Dkt.
reasons stated below, defendants' Joint Motion to Strike
(Dkt. #123) is granted.
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). 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).
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). 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).
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).
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,
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
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,