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Beyer v. Anchor Insulation Co., Inc.

United States District Court, D. Connecticut

February 28, 2017

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



         In this product liability case involving claims of injury to property stemming from Defendant's installation of spray polyurethane foam ("SPF") insulation, Plaintiffs Richard and Monica Beyer ("Plaintiffs" or the "Beyers") move [Doc. # 207] to preclude the testimony of three experts: George Thompson, Ph.D., Mason Knowles, and James Poole, Ph.D. Plaintiffs' motion to preclude testimony is granted in part and denied in part as set forth below.

          I. Background

         A fuller description of the facts of the case, taken in the light most favorable to the Plaintiffs, has been laid out in the Court's Ruling [Doc. # 268] on Defendant's Motion for Summary Judgment. The Beyers engaged Anchor to install SPF in their home in the late summer of 2010, and Anchor did so on several days in September and October, 2010. Mr. and Mrs. Beyer were present in the house during the installation and Mr. Beyer personally observed some of the installation process, but neither wore protective gear. After the installation, the Beyers began experiencing a variety of symptoms. Mr. Beyer complained of headache, tongue-swelling, a metallic taste in his mouth, loss of memory, and boils on his skin. Mrs. Beyer complained primarily of headache and fatigue, with some breathing issues and heart palpitations a year or two after installation of the foam.

         Worried about the health effects of the SPF and displeased with the foam, which made loud cracking and popping sounds at night and shrank after installation, causing holes to appear and damaging the surfaces onto which it had been sprayed, the Beyers negotiated with Anchor to have it removed. Approximately eleven months after it was installed, Anchor removed a large portion of the SPF. Some foam remains in the house today. The Beyers later filed the instant suit.

         II. Legal Standard

         Plaintiffs move to preclude the testimony of three defense 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 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 note to 2000 Amendment.

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 and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

         Thus, reliability is the touchstone of the Daubert inquiry proper, and the Supreme Court set out a list of non-exhaustive factors for trial courts to consider in determining whether an expert's reasoning and methodology are sufficiently reliable to be presented to the fact finder: (1) whether the theory or technique on which the expert relies has been or could be tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error of the technique or theory when applied; (4) the existence and maintenance of standards controlling the technique's operation; and (5) whether the theory or technique has been generally accepted in the scientific community. Daubert, 509 U.S. at 593-94; see also Nimely v. City of New York, 414 F.3d 381, 396 (2d Cir. 2005).

         The test of reliability is a "flexible" one depending on the "nature of the issue, the expert's particular expertise, and the subject of his testimony" and no one factor will necessarily be determinative of the reliability of an expert's testimony, because the trial court need only "consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony." Kumho Tire, 526 U.S. at 150, 152; accord Amorgianos, 303 F.3d at 265-66 (2d Cir. 2002). As the Second Circuit emphasized in Amorgianos, the determination of reliability requires the Court to consider "a rigorous examination of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand." Amorgianos, 303 F.3d at 267.

         Daubert makes clear that the district court is assigned the role of gatekeeper and the first step in exercising that function-prior to any inquiry into reliability-is to determine whether the proffered testimony is relevant to a fact at issue in the case. Amorgianos, 303 F.3d at 265. This inquiry is especially necessary here, because the parties' Daubert motions were submitted prior to the Court's ruling on Defendant's motion for summary judgment, which narrowed the issues in this case. The Ruling precluded the proffered testimony of Plaintiffs' medical causation expert was precluded, although Plaintiffs were permitted to proceed on their claims of property damage. (Ruling on Motion for Summary Judgment [Doc. # 268] at 41.) Thus, defense experts' testimony related to medical causation of Plaintiffs' symptoms will be excluded as not relevant.

         1. Dr. George Thompson

         Dr. Thompson is a toxicologist who has been president and CEO of Chemical Compliance Systems, Inc., a company that performs chemical, product, manufacturing process and waste stream hazard and risk assessments since 1985. He has published peer reviewed articles and over twenty books. Plaintiffs do not challenge his qualifications as an expert.[1]

         Dr. Thompson uses a "root cause analysis" methodology to determine the cause of Plaintiffs' injuries. (Ex. 2 ("Thompson Report") to Mot. to Exclude [Doc. # 207-3] at 3, 4.) He reaches the following conclusions, to which he is prepared to testify: (1) Mr. Beyer was never exposed to high concentrations of isocyanate, because he would have suffered an immediate reaction if he had been exposed; (2) Plaintiffs have not been exposed to off-gassing of SPF constituent chemicals based on the results of air sampling and the chemistry of the chemicals, which have a low vapor point and thus do not evaporate; (3) there is no causal relationship between Plaintiffs' symptoms and the SPF installation, (4) the chemical opinions expressed by Dr. Nicewicz were not scientifically ...

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