United States District Court, D. Connecticut
RICHARD BEYER ET AL.
ANCHOR INSULATION CO., INC. ET AL.
RULING ON DEFENDANT MANVILLE’S EMERGENCY MOTION
FOR A PROTECTIVE ORDER
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., 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.
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).
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). That same day, plaintiffs filed a
memorandum in opposition to defendant Manville’s
emergency motion. (Dkt. #161). Three days later, defendant
Manville filed its reply brief. (Dkt. #162).
reasons stated below, defendant Manville’s Emergency
Motion for a Protective Order (Dkt. #158) is granted in
part and denied in part.
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).
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).
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).
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.).
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).
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.).
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).