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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., 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. # 224] to strike the testimony of Mason Knowles, Dr. James Poole, Ph.D., Dr. Philip Edelman, M.D., Dr. Robert DeMott, Ph.D., and Dr, Kenneth Rosenman, M.D. because they were untimely designated by Defendant Anchor Insulation Co. ("Defendant" or "Anchor") as its testifying witnesses after they had been timely designated by Anchor's co-defendants and deposed during the discovery period. For the reasons set forth below, Plaintiffs' motion to strike is denied.

         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, but to resolve the instant motion, a description of the timing of expert disclosure within the context of discovery and settlement negotiations is necessary. Briefly, the Beyers engaged Anchor to install SPF in their home. The SPF was manufactured by Johns Manville, Inc. and Icynene Co., both of whom were one-time Defendants who have since settled with Plaintiffs. The installation occurred in September and October, 2010, and shortly thereafter, the Beyers began complaining of a variety of symptoms. Worried about the health effects of the SPF and displeased with the foam product, 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 this lawsuit.

         Before the expert disclosure deadline, Anchor disclosed one testifying expert, Dr. George Thompson, who is not a subject of the instant motion. Also before the disclosure deadline, Defendants Johns Manville and Icynene jointly disclosed Dr. Poole (a board certified industrial hygienist) and Mr. Knowles (an SPF expert). Icynene alone disclosed Drs. Edelman (an expert in medical toxicology) and DeMott (a board-certified toxicologist), and Johns Manville alone disclosed Dr. Kenneth Rosenman (a medical doctor and professor of medicine). Their expert reports were timely served. (See Opp'n to Mot. to Preclude Testimony [Doc. # 236] at 2.)

         Plaintiffs subsequently deposed all of these experts: Dr. Edelman on Aug. 5, 2016, Drs. Poole and DeMott on Aug. 12, 2016, Mr. Knowles on August 16, 2016 and Dr. Rosenman on August 22, 2016. Plaintiffs asked Dr. Edelman if he had done any work "on behalf of Anchor Insulation in this case" or "formed any opinions regarding the conduct of Anchor Insulation in this case, " to which Dr. Edelman replied that he had not. Drs. Poole and DeMott confirmed in deposition that they had been retained solely by Icynene. With respect to Mr. Knowles, after reporting that there was no Anchor-installed SPF on the upper floors to inspect and that he was not permitted to take a sample of the Anchor-installed SPF in the basement, he opined in his report: "Because the Johns Manville foam had previously been removed I cannot provide an opinion on the quality of the application. And because I was not allowed to obtain samples of the SPF in the basement I am not able to provide an opinion on the quality of the Icynene foam either." (Ex. 3 ("Knowles Report") to Mot. to Preclude Testimony [Doc. # 207-4] at 16.)

         In mid-September, 2016, Defendants Johns Manville and Icynene engaged in settlement discussions with Plaintiffs and on October 5, 2016 Defendants Icynene and Johns Manville filed a "Notice re: Motions to Enforce Settlement Agreements" that declared both that Plaintiffs had reached settlement in principle with Johns Manville and Icynene on September 15 and that Plaintiffs had withdrawn their consent to settle on October 4, 2015. Johns Manville and Icynene notified the Court that they both intended to file motions to enforce the settlement agreements.

         That same day, well after the deadline to disclose expert testimony, Anchor gave notice to Plaintiffs "that it may call the following expert witnesses, previously disclosed by Johns Manville, Incand Icynene Corporation, at the trial of this case." (Ex. F ("Expert Witness Disclosure") to Opp'n to Preclude Testimony [Doc. # 236-6].) On November 29, 2016 Icynene and Johns Manville were dismissed from the case upon report of settlement after renewing their motion to enforce a settlement agreement. [Docs. ## 230, 247].

          II. Legal Standard

         Fed. R. Civ. P. 26(a)(2)(D) requires that a party "make [expert] disclosures at the times and in the sequences that the court orders." Fed.R.Civ.P. 37(c)(1) mandates that "if a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial unless the failure was substantially justified or is harmless." Although the Advisory Committee Notes characterize this provision as "self-executing, " they also note that "limiting the automatic sanctions to violations 'without substantial justification, ' coupled with the exception for violations that are 'harmless, ' is needed to avoid unduly harsh penalties in a variety of situations: e.g. ... the failure to list as a trial witness a party so listed by another party." Fed.R.Civ.P. 37 advisory committee note to 1993 amendment.

         In the broader context of determining whether to preclude an expert's testimony or report, the Court considers the following factors: (1) the party's explanation for the failure to comply with the discovery order; (2) the importance of the testimony of the precluded witness; (3) the prejudice suffered by the opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility of a continuance. See Sofiel, Inc. v. Dragon Med. & Sci. Commc'ns. Inc., 118 F.3d 955, 961 (2d Cir. 1997). III. Discussion Plaintiffs assert that permitting the experts to testify would be "severely prejudicial to Plaintiffs' case" but they do not articulate any specific manner in which Plaintiffs would be prejudiced. (Mot. to Strike [Doc. # 224] at 3.) Plaintiffs claim that although they were timely served with the expert disclosures and had an opportunity to depose each of the experts, they did not have a chance "to establish bias in the context of Anchor" during deposition. (Mem. Supp. Mot. to Preclude Testimony [Doc. # 224-1] at 3.) Consequently, Plaintiffs claim they would need to reopen discovery if the experts were permitted to testify on Anchor's behalf. (Id. at 5.)

         In their briefing, the parties focus on this Court's decision in Anderson v. Metro-North Commuter R.R. Co., No. 14-CV-452 (JBA), 2016 WL 2755910 (D. Conn. May 11, 2016) and the cases cited therein, in which the Court permitted a plaintiff to designate and later call at trial Defendant's independent medical examination expert, even though Defendant had withdrawn its designation of that witness prior to trial.

         Defendant draws on Anderson to urge a broad rule under which once an expert witness has been timely disclosed pursuant to Fed.R.Civ.P. 26(a)(2), "any party is then allowed to call that expert at trial, even if the original designation is subsequently withdrawn." Defendant fails to note that these comments occur in dicta in a section of the Ruling in which the Court rejected adoption of such a broad rule. Instead, after examining competing legal standards used in different circuits, the Court concluded that the appropriate standard, adopted by several courts in the Second Circuit, is the Fed.R.Evid. 403 balancing test, which requires the court on a case-by-case basis to determine if otherwise relevant evidence should be excluded because it would, inter alia, create unfair prejudice or be unduly cumulative.

         Anderson and the cases cited by Defendant can be distinguished from the instant case because they involve designation of the opposing party's disclosed expert as a witness at trial. Because the opposing party engaged the expert, concerns about prejudice are minimized (though perhaps not entirely absent). As one court notes, "[defendant's d]elay in alerting [the plaintiff] that Dunbar might testify was as harmless as they come, given Dunbar's status as [the plaintiffs] expert." S.E.C. v. Koenig,557 F.3d 736, 744 (7th Cir. ...

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