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Beyer v. Anchor Insulation Co., Inc.

United States District Court, D. Connecticut

August 9, 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., Johns Manville, Inc. ["defendant Manville"], and Icynene Corporation, regarding the installation in October 2010 of spray polyurethane foam ["SPF"] at plaintiffs' home in Niantic, Connecticut; plaintiffs allege 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). Under the latest scheduling order, all discovery will be completed by August 15, 2016, and all dispositive motions will be filed on or before September 15, 2016. (Dkts. ##121-22 & 4/12/16 electronic entry).

         On August 5, 2016, defendant Manville filed an Emergency Motion for a Protective Order, with a brief in support, seeking a protective order preventing plaintiffs from deposing two fact witnesses, Frieda Wimmelman, and her husband, Alan Binnick, of Vermont. (Dkts. ##158-59).[1] That same day, plaintiffs filed a memorandum in opposition to defendant Manville’s emergency motion. (Dkt. #161).[2] Three days later, defendant Manville filed its reply brief. (Dkt. #162).

         For the reasons stated below, defendant Manville’s Emergency Motion for a Protective Order (Dkt. #158) is granted in part and denied in part.

         I. DISCUSSION

         As stated in defendant Manville’s brief, on August 1, 2016, plaintiffs served upon all defendants “Rule 26(e)(1) Supplemental Disclosures, ” identifying two purported fact witnesses, Binnick and Wimmelman, who plaintiffs claim have knowledge “as to Corbond SPF failure in [their] home similar to the events alleged in Plaintiff’s Amended Complaint.” (Dkt. 159 at 3 & Exh. A). The next day, plaintiffs issued a subpoena for Wimmelman for a deposition to take place on August 10, 2016 in Wilmington, Vermont. (Id. at 3 & Exh. B). Plaintiffs’ disclosures also attached a complaint related to these witnesses, filed in the United States District Court for the District of Vermont on February 27, 2009 [“Vermont Action”], regarding a manufacturer and installers’ obligation to pay sums related to the failure and damage caused by certain allegedly defective Corbond products. (Id. at 3-4 & Exh. A). According to defendant Manville, Wimmelman is named as the owner of a house in which the allegedly defective Corbond product was installed. (Id. at 4, Exh. A).

         Defendant Manville asserts three reasons for seeking a protective order to prevent depositions of these witnesses: first, that these witnesses have no relevant or discoverable evidence related to the claims or defenses in this matter; second, these witnesses were disclosed late in the proceedings; and third, there are already four expert depositions scheduled in the next two weeks, including that of Dr. George Thompson, scheduled for 9:00 a.m. the next morning in Newark, NJ. (Id. at 1-3, 7).

         In support of its first reason for seeking a protective order, defendant Manville argues that the product used in the home of these newly disclosed witnesses is not the same product that was installed in plaintiffs’ home. (Id. at 2). Defendant Manville argues that plaintiffs’ intent in these depositions is to “take this irrelevant discovery” in the hope that they can create an inference that “because there has been an alleged Corbond product failure in the past [], then there must have been a similar Corbond failure in the instant case.” (Id. at 2, 6).

         In support of its second reason for a protective order, defendant Manville argues that plaintiffs’ witness disclosures were due “long ago and . . . included more than 100 people, including sitting United States Senators and other high ranking government officials.” (Id. at 2). Defendant Manville argues that this recent disclosure is “consistent with [p]laintiffs’ pattern of listing witnesses without even a tangential connection to this case[.]” (Id.). As its third reason, defendant Manville further argues that it will be logistically difficult in holding back to back depositions in Vermont and New Jersey. (Id. at 7). Accordingly, defendant Manville argues that depositions of these witnesses would be “wholly improper and solely intended to harass Johns Manville in an attempt to create the appearance that Johns Manville is responsible for [p]laintiffs’ purported injuries . . . .” (Id.).

         In response, plaintiffs assert that they have recently become aware of numerous cases of Corbond failure with very similar results to those plaintiffs experienced. (Dkt. #161, at 2). Although defendant Manville argues that the product used in Wimmelman’s home was different from the one at issue in the instant case, plaintiffs' brief provides that plaintiffs “aver that the product at issue in the [Vermont Action] is the same, or substantially the same product at issue in this lawsuit.” (Id. at 3). Plaintiffs contend that Wimmelman’s testimony is relevant in that it will show that “[d]efendant [Manville] warranted to [p]laintiffs that their SPF product was safe for residential use and failed to disclose the risks associated with their SPF product, ” despite being aware of numerous failures of the product. (Id. at 2). Ultimately, plaintiffs assert that the anticipated deposition testimony will support plaintiffs’ claim that defendant Manville’s “SPF product was defective at the time of installation, that the defect existed at the time of sale, and that [d]efendant [Manville] had knowledge of such defect.” (Id. at 4, 6).

         Plaintiffs also take issue with defendant Manville’s complaint about the burden imposed by adding this deposition to the discovery schedule. (Id. at 6). Plaintiffs highlight that “the [four] depositions currently set to take place on this case are of [d]efendant’s experts.” (Id.). Plaintiffs further note that though the Vermont Action was filed in 2009, they only recently became aware of this complaint and contacted Wimmelman on July 29, 2016; plaintiffs received confirmation that she’d be willing to testify the following week, and provided plaintiffs with disclosure of Wimmelman and Binnick shortly after, on August 2, 2016. (Id.).

         In its reply brief, defendant Manville reasserts that the two Corbond products are different, with plaintiffs having had JM Corbond, III installed in their home, whereas Corbond ODP Zero, sold by defendant Manville’s predecessor and manufactured by a third party, was installed in the Wimmelman home. (Dkt. #162, at 1-2). Defendant Manville further contends that it never attempted to conceal anything because it has nothing to conceal. (Id. at 2-3). Defendant Manville also represents that plaintiff’s counsel has not been forthright in scheduling these last few depositions. (Id. at 3).

         A. ...

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