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Beyer v. Anchor Insulation Co.

United States District Court, D. Connecticut

February 17, 2017

Monica and Richard BEYER, Plaintiffs,
v.
Anchor Insulation Co., Defendant.

          RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Janet Bond Arterton, U.S.D.J.

         Defendant Anchor Insulation Co. ("Anchor" or "Defendant") moves [Doc. # 189] for summary judgment on all remaining counts in this product liability action involving Defendant's installation of spray polyurethane foam insulation ("SPF") in the home of the Plaintiffs Richard and Monica Beyer ("Plaintiffs" or the "Beyers"), arguing that Plaintiffs cannot establish product defect or causation absent expert testimony that must be precluded as argued in Defendant's three separate Daubert motions [Docs. ## 192 (Motion to preclude Testimony of Mr. Gary Cude), 194 (Motion to Preclude Testimony of Dr. Yuh-Chin Huang), and 195 (Motion to Preclude Testimony of Dr. David Nicewicz).[1] Oral argument was held on January 17, 2017. For the reasons set out below, the Court GRANTS Defendant's motion to preclude the testimony of Dr. Yuh-Chin Huang, GRANTS in part and DENIES in part Defendant's motion to preclude the testimony of Mr. Gary Cude (limiting his testimony to his areas of expertise) and GRANTS in part and DENIES in part Defendant's motion to preclude the testimony of Dr. David Nicewicz (limiting his testimony to his areas of expertise). Based on these Daubert rulings, the Court DENIES Defendant's motion for summary judgment.

         I. Background[2]

         A. SPF Foam Insulation

         The SPF at issue in this case is a foam insulation that forms when two liquids, an isocyanate component and a polyol resin component, referred to as "A Side" and "B Side, " come together at the tip of a spray gun in equal parts. (See Plaintiffs Memorandum in Opposition to Mot. Summ.}. ("Mem. Opp'n") [Doc. # 225] at 3; Ex. 28 ("John Mansville Corbond III Advertisement") to Opposition to Summ. J. ("Opp'n") [Doc. # 228-30] at 1.) The A Side and B Side are stored in separate drums, pumped through separate hoses and combined at nozzle-point to spray onto surfaces that are to be insulated. (Corbond III Advertisement at 3.) When the two sides combine, they form a foam that expands and goes through a period of curing before it is a fully finished product. (Id.)

         The spray foams at issue in this case are manufactured by Johns Manville ("JM"), which manufactures "Corbond III, " a 2 lb. "closed cell" spray foam insulation (Corbond III Advertisement at 3), and by Icynene, which manufactures a 2 lb. spray foam insulation called "LD-R-50." (Ex. 18 ("Icynene Technical Bulletin") to Mem. Opp'n [Doc. # 225-20] at 2.) These companies are no longer in this case.

         Both Johns Manville and Icynene train installers in the proper technique for installing spray foam, including installers from Anchor. (Plaintiffs' D. Conn. L. Civ. R. 56a(2) Statement ("56a(2)") [Doc. # 225-2] at ¶16). Both companies direct installers not to mix their product with that of other manufacturers. John Mansville notes that when SPF "is installed off ratio [i.e. when the A Side and B Side are not combined in equal parts], outside the manufacturer's installation guidelines, or in concert with other products [e.g. when a Johns Manville A Side is mixed with an Icynene B Side or vice versa] which may affect the chemistry of the SPF product. .. the resulting finished SPF product may shrink substantially and/or have sections of un-reacted or very brittle foam." (Ex. 4 to Opp'n to Mot. Summ. J. [Doc. # 225-6].)

         Anchor's email correspondence with Icynene reflects similar beliefs about the effects of mixing different products, though in more prosaic language. On December 21, 2011, Greg Fiske of Anchor wrote to Paul Duffy of Icynene regarding "Franken-foam:" "What I want to know is, if there was a contamination of Icynene into Corbond, is there a chance the result [ ] . . . would be any more harmful than the sum of the parts? ... 90 percent Corbond with a bit of Icynene, have we got some monster chemical that is deadly?" Paul Duffy forwarded the inquiry to Larry Genyn, the Vice President of Technology at Icynene, who responded, "there is no hybrid chemical that can be produced Even the bad foam that was there, may have had a distinct odor or feel, but nothing that would be classified as poisonous or toxic." (Ex. 22 to Plaintiffs Opp'n to Mot. Summ. J. [Doc. #225-24].)

         Johns Manville publishes Materials Safety Data Sheets ("MSDSs") for its A Side, B Side, and the compound SPF foam. (Ex. 12 ("JM MSDSs") to Opp'n. to Mot. Summ. J. [Doc. # 225-14].) The JM MSDS for A Side states that "breathing vapors from this product may cause irritation of the upper respiratory tract, fatigue, weakness, drowsiness, and headache. Allergic or asthma-type reactions may occur following sensitization to isocyanates." (Id.) The MSDS for B Side indicates that "[i]nhalation at levels above the occupational safety exposure limit could cause respiratory sensitization and risk of serious damage to the respiratory system. The onset of respiratory symptoms may be delayed for several hours after exposure." (Id.) By contrast, the finished spray foam is relatively inert, but nonetheless can be hazardous under certain conditions, primarily if ground into dust or chipped: "Primary routes of exposure: Respiratory tract if product is torn, chipped or ground into chips or dust. Mechanical irritant. Acute Effects: Inhalation: Repeated excessive exposure to dust or small chips may cause upper respiratory irritation." (Id.)

         Icynene's president and CEO distributed a memorandum to all of its licensed dealers and distributors world-wide delineating safety procedures for installing Icynene foam. In its introduction, the memorandum stated,

[d]uring the handling, processing and application of Icynene spray foam products, exposure to chemicals, particularly MDI [methylene diphenyl diisocyanate], may cause a range of adverse health effects including irritation or sensitization. Short or long-term exposure to MDI can affect the skin, eyes and respiratory system. Chronic skin exposure can lead to skin irritation and/or sensitization, and may cause respiratory sensitization.

(Icynene Technical Bulletin at 1.)

         B. Installation of the Foam

         Plaintiffs Richard and Monica Beyer live in a century-old home in Niantic, Connecticut. Since 2000, Mr. Beyer has worked for a granite countertop company in a building that has been shared since 2009 with Defendant Anchor Insulation. Anchor used the warehouse to store its chemicals and in 2010 those chemicals were moved closer to Mr. Beyer's work station. (See Ex. 17 ("Russomanno Report") to Opp'n to Mot. Summ. J. [Doc. # 225-19] at 2-4.)

         In Fall 2010, Plaintiffs contracted with Anchor for the installation of SPF throughout their home. (Opp'n. to Mot. Summ. J. at 3.) Plaintiffs remained in the home during the installation, which took place on several days spaced out over some weeks in September and October 2010. Mr. Beyer personally observed some portion of the installation, while Mrs. Beyer was simply in the home during the installation. (56a(2) Stmt. ¶ 2.)[3] Neither Mr. Beyer nor the men installing the foam wore protective clothing, and Mr. Beyer did not wear any respiratory protective device.[4] (Ex. 7 ("M. Beyer Tr.") to Opp'n to Mot. Summ. J. [Doc. # 225-9] at 41:8-21.)

         After the SPF was installed, Plaintiffs noticed a sweet odor throughout their house (Ex. 1 ("R. Beyer Tr. Vol. 1") to Opp'n to Mot. Summ. J. [Doc. # 225-2] 75:22-25; M. Beyer Tr. 41:l-4)[5] and when Mr. Beyer went into the attic, the odor became stronger, burning his eyes and irritating his throat. (R. Beyer Tr. at 75:17-25.)

         Plaintiffs maintain that Anchor installed the Beyer's insulation improperly. (See 56a(2) Stmt. ¶¶ 9 (samples contaminated), 17 (layers too thick; insufficient cure time), 19 (incorrect product).) This claim of faulty installation reflects Anchor's practices at the time: in a September 24, 2010 Johns Manville email, JM employee Mike Donnelly described a visit to Anchor's warehouse where

Anchor's men did spray some material in a constructed wall cavity in the warehouse from the same set of JM Corbond III material for Neal to inspect. Neal noticed immediately that there was much contamination evident in this material. Anchor's men admitted that they often are forced to switch from open cell product (Icynene) to Corbond III using the same spray equipment. Neal told them in no uncertain terms that this is the main cause of the product defect.

(Ex. 13 ("Sept. 24, 2010 Donnelly E-mail")to Opp'n to Mot. Summ. J. [Doc. # 225-15].) Anchor's installer Wayne LaPierre testified that he often sprayed the foam in thicker swaths than recommended and that he did not wait the recommended cure time before spraying further layers on top of layers he had already sprayed. (Ex. 9 ("LaPierre Tr.") to Opp'n to Mot. Summ. J. [Doc. # 225-11] at 198:16-201:20.)

         After the installation, visual inspection of the foam revealed that during the process of curing and hardening, it had shrunk and pulled away from the surfaces on which it had been sprayed. (Ex. 2 ("Photographs of Insulation") to Opp'n to Mot. Summ. J. [Doc. # 225-4]; Ex. 22 ("December 22, 2011 E-mail") to Opp'n. to Mot. Summ. J. [Doc. # 225-24] (Icynene representative stating in internal email that the foam "shrunk and cracked.. .."))

         After Mr. Beyer sent samples of the foam installed by Anchor to JM for inspection, JM responded:

Initial visual inspection of several of the samples showed foam that was very low in density with large course [sic] open cell structures. The low-density open cell foam is brownish and/or purple color. Ordinarily, a true, properly prepared JM Corbond III product is uniformly lavender in color. The visually observed color abnormalities . . . are an easy indicator that . . . there has been some form of contamination of the JM Corbond III product Because of the apparent presence of the other, materials/contaminants, JM cannot comment as to the exact product that was installed in your home ....

(Ex. 5 ("September 19, 2011 Johns Manville Letter") to Opp'n to Mot. Summ. J. [Doc. 225-7].)

         C. Plaintiffs' Symptoms

         Shortly after installation of the insulation, Plaintiffs began to experience certain physical symptoms. Mrs. Beyer testified that she experienced headaches lasting up to two days, fatigue, and, one year after the foam was removed from the home, one episode of heart palpitations and difficulty breathing. (M. Beyer Tr. at 59:14-17; 60:1-20; 61:23-25 ("That particular time was the only breathing issue that I had. Other than that, it was just fatigue .... Again, my main issues were the - being tired, and also headaches. Headaches that would last two days."))[6]

         Mr. Beyer complained of symptoms that included "tongue swelling, " severe headaches he describes as "brain-swelling, " ("not a headache type of explosion. It almost mimicked a commercial when I was younger where they take the eggs and put them into a cast iron pan and fry them" (R. Beyer Tr. at 206:11-16)), a metallic taste in his mouth (id. at 206:18-19), loss of memory (id.), and boils on his body (id. at 207:15-18)[7]

         D. Removal of the Foam

         After approximately eleven months, during which time Mr. Beyer complained to Anchor, the two agreed that Anchor would remove the insulation. (Beyer Tr. 105:12-106:22.) Mr. Beyer again was present during the removal; he testified that he observed the removal for at least an hour without wearing any protective gear at all. (R Beyer Tr. at 110:7-12.) When Anchor removed the foam, it ground the foam into small particles that caused the house to fill with dust. (M. Beyer Tr. at 120:10-24; R. Beyer Tr. at 113:20-114:23.)

         Mr. Beyer testified that most of his symptoms went away after the insulation was removed, but that some symptoms continued through 2012. Mr. Beyer explained that it was unsurprising that the symptoms continued because "[the removal] didn't matter. I'm still working in the same building where they store the chemistry." (R. Beyer Tr. at 207:8-9.)

         E. Physicians' Reports

         Because key aspects of Defendant's summary judgment motion turn on the sufficiency of Plaintiffs' proof of causation of physical symptoms, an overview of the evidence on medical causation follows. The record contains a report from Mr. Beyer's treating physician, Dr. Licata, who described a follow-up exam he performed on April 30, 2013: "Visit for: follow-up exam asthma: w/ environmental exposure to isocyanide [sic] from sprayfoam insulation" and "follow- up asthma - Asthma TX via Qvar // Sinus Dse on CT and Cyst Removal on Hold w/ ID risk // Prior Exposure w/ Foam Insulation." (Ex. 30 ("April 30, 2014 Letter from Dr. Licata") to Opp'n [Doc. # 225-32] at 1.) During this exam, Dr. Licata noted that Mr. Beyer complained of

headache during post sleep period. Postnasal drip and nasal passage blockage/congestion. . . . Chest pain or discomfort heaviness. No palpitations. Dyspnea during exertion. No cough .... Nonrestorative sleep. . . . HA in morning and last all day.... Patient says he has hx of environmental exposure to isocyanide [sic] from Sprayfoam insulation exposure in house Patient notes when the home heats up, patient thinks
Nasal polyps from CT scan. Allergic rhinitis. . . . Respiratory disorder environmental exoposure [sic] to Sprayfoam Assessment:
• Extrinsic asthma - with acute exacerbation Foa the off gases from seafoam[sic] are emitted (smells, odor), worse in the summer than the winter.... Patient's business is attached to the same building as the company he bought the spray foam from.
Diagnoses:m insulation exposure in house w/ no remediation
• Intrinsic asthma
• Primary snoring

Id. at 1-2.

         A December 9, 2015 letter from Dr. John Russomanno (the "Russomanno Report"), the Defendant's Rule 35 Examining Physician, indicates the following: Mr. Beyer is a 47 year-old former smoker who quit smoking during the summer and early fall of 2010, at about the same time the SPF was installed in the Beyer household. (Ex. 17 ("Russomanno Report") to Opp'n to Mot. Summ. J. [Doc. # 225-19] at 3-4.) He was diagnosed with asthma in his 30s on the basis of symptoms including coughing, wheezing, and shortness of breath, as well as occasional headaches. (Id.) Mr. Beyer told Dr. Russomanno that he observed the installation of the SPF for several hours and that he saw yellow dust in the air during the installation. (Id.) Although he did not recall developing symptoms during the installation, he "soon thereafter recalls developing a burning skin irritation . . . [and] later developed heart palpitations, headaches, slurred speech, memory problems, and a feeling of pressure in his head at night lasting 5-10 seconds." (Id.) Mr. Beyer told Dr. Russomanno that he had to increase use of his asthma inhaler during this period. (Id.) The insulation was removed in 2011 and Mr. Beyer reported that his symptoms improved after removal. (Id.)

Dr. Russomanno concluded:
Mr. Beyer had a reported period of likely exposure to diisocyanate foam insulation during its installation in his home in 2010. There is a documented increase in his albuterol use with at least one visit documenting the presence of symptoms of cough and white sputum production and wheezing after installation was installed into his home. These symptoms resolved after the installation was removed. He does have a history of pre-existing asthma with increased symptoms following exposure to nonspecific bronchial irritants. This may have been the mechanism of his worsening symptoms at that time. After removal of the material from his home his symptoms improved. In addition to the worsening followed by improvement in his airway symptoms there is a temporary decrease in his pulmonary function that subsequently improved after October 2011. This strongly suggests that his asthma did worsen during that period of time

Id.

         II. Discussion

         Defendant moves for summary judgment on all remaining counts[8] against it on the basis that its three Daubert motions should be granted and that without the Plaintiffs' expert testimony it seeks to preclude, Plaintiffs cannot establish causation to support any of their product liability theories. Further, Defendant asserts that absent the expert testimony of Mr. Cude and Dr. Nicewicz, Plaintiffs will not be able to establish product defect or damages related to the cost of remediation. Plaintiffs contend that even without expert testimony, the record is sufficient to show both general and specific causation for the personal injury claims, and that proof of their negligence and breach of warranty claims do not require medical causation testimony since the property damage to the house, which requires remediation, is also claimed. Because decisions on the Daubert motions affect which issues can advance to trial, the Daubert motions will be discussed first.

         A. Expert Testimony

         Defendant challenges each of Plaintiffs' three experts under Rule 702 of the Federal Rules of Evidence and the standards established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Rule 702 was amended in 2000 to address the Supreme Court's seminal opinion of Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993), and its progeny, including Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). See Fed. R. Evid. 702, Advisory Committee Notes.

Fed. R. Evid. 702 provides that
[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles ...

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