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Beyer v. Anchor Insulation Co., Inc.

United States District Court, D. Connecticut

September 8, 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; familiarity is presumed with the multiple prior discovery rulings. (Dkt. #110; see also Dkts. ##111, 120, 127, 128, 144, 154, 160, 165, 175, 178, 180). Under the latest scheduling orders, all discovery was to be completed by August 15, 2016, and all summary judgment and Daubert motions are to be filed on or before September 15, 2016. (4/12/16 Electronic Order; Dkt. #182).

         On June 23, 2016, defendants Manville, Anchor, and Icynene [collectively "defendants"] filed their Joint Motion to Strike the May 20 and 26, 2016[1] expert reports and testing of Gary Cude, with a brief in support. (Dkts. ##140-41).[2] On July 14, 2016, plaintiffs filed their brief in opposition (Dkt. #145), [3] to which defendants filed their reply brief fourteen days later. (Dkt. #152).[4] On August 4, 2016, this Magistrate Judge ordered plaintiff to provide Chambers with a copy of the relevant reports. (Dkt. #157). Such report was received on August 8, 2016 and has been filed under seal. (Dkt. #183).

         For the reasons stated below, defendants' Joint Motion to Strike (Dkt. #140) 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 [their] home and subsequently removed." (Dkt. #141, at 3). According to defendants, when plaintiffs' expert disclosures were due on June 22, 2015, plaintiffs disclosed Cude as an expert and produced his first report [“Original Report”], which offered opinions regarding the installation of the SPF in plaintiffs' home and referenced air-quality testing performed by his company, Matrix Analytical Laboratories [“Matrix”]. (Id. & Exh. A). The report, however, did not mention an intent to perform any future air sampling, or reference off-gassing tests to be performed, either by himself or by a third party. (Id. at 4 & Exh. A). Cude received a subpoena on October 20, 2015, which directed Matrix to produce all testing and/or sampling results and reports relating to plaintiffs' home by November 20, 2015. (Id. at 4 & Exh. B). Defendants allege that in mid-January, Matrix partially complied with the subpoena, but included no documents relating to off-gassing tests or air sampling tests performed after the expert disclosure deadline. (Id.). Defendants noticed Cude's deposition for February 19, 2016, and then subsequently rescheduled it for May 26 and 27, 2016. (Id. & Exh. C). According to defendants, on May 20, 2016, plaintiffs' counsel produced new raw data and uninterpreted testing results, including results of testing performed after the deadline for plaintiffs' expert disclosure. (Id. at 5). Defendants further allege that on May 26, 2016, plaintiffs produced new reports and expert opinions [collectively, with the May 20, 2016 production, “Additional Reports”] that described sampling and testing of SPF insulation and air samples, and the analytical methods performed on those samples, taken by Cude after the deadline for disclosure of plaintiffs' expert reports. (Id.).

         Defendants contend that the Additional Reports “are not designed to correct any errors in the original report issued by . . . Cude on June 22, 2015, . . . nor are they based on any newly discovered information which was unavailable to the [p]laintiffs when the Original Report was produced[, ]” and that they are “attempt[s] to cure deficiencies in the Original Report[.]” (Id. at 2). Accordingly, defendants move to strike the Additional Reports and request the Court award costs and fees to defendants for bringing this motion. (Id. at 15).

         In response, plaintiffs assert that the Additional Reports are “not an attempt to circumvent the disclosure deadlines but, rather, a proper supplement made [in] accordance with Fed.R.Civ.P. 26(e) in an attempt to show the current conditions in the home as of the time [d]efendants' experts tested [it].” (Dkt. #145, at 1). Plaintiffs claim that Cude took samples of defendants' products and of the indoor air quality in plaintiffs' home at the same time that defendants took such samples for inspection, and that any testing on such sampling by plaintiffs was done so the parties had samples taken under identical testing conditions. (Id. at 4). Plaintiffs describe this as “new evidence [that] has come to light since the date of [p]laintiffs' expert designation deadline[, ]” (id.) and that Cude's Original Report was an incomplete initial disclosure which required supplementation. (Id. at 5). Plaintiffs further argue that Cude's Additional Reports were harmless to defendants and go to the central issue of the case. (Id. at 7-11).

         In their reply brief, defendants argue that the Additional Reports are not a proper Rule 26(e) supplement because Cude's tests performed on existing spray foam insulation and air samples from plaintiffs' home do not constitute newly discovered evidence (Dkt. #152, at 3), that any incompleteness in the Original Report was caused by plaintiffs (id. at 3-4), and that the Additional Reports are neither substantially justified nor harmless. (Id. at 4-7).


         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, 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." ...

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