United States District Court, D. Connecticut
RICHARD BEYER ET AL.
ANCHOR INSULATION CO., INC. ET AL.
RULING ON DEFENDANTS' MOTION TO STRIKE
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; 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;
23, 2016, defendants Manville, Anchor, and Icynene
[collectively "defendants"] filed their Joint
Motion to Strike the May 20 and 26, 2016 expert reports
and testing of Gary Cude, with a brief in support. (Dkts.
##140-41). On July 14, 2016, plaintiffs filed their
brief in opposition (Dkt. #145),  to which defendants filed
their reply brief fourteen days later. (Dkt.
#152). 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).
reasons stated below, defendants' Joint Motion to Strike
(Dkt. #140) 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 [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.
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).
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).
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).
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, quoting Sandata
Techs., 2007 WL 4157163, at *4 (additional citations
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."