Beyer et al v. Anchor Insulation Co., Inc. et al

Filing 128

RULING granting in part to the extent set forth in the attached Ruling 112 Motion for Sanctions and 115 Motion for Sanctions; and denying 117 Motion for Hearing. Signed by Judge Joan G. Margolis on 4/26/16. (Malone, A.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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RICHARD BEYER ET AL.
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v.
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ANCHOR INSULATION CO., INC. ET AL.
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:
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3:13 CV 1576 (JBA)

DATE: APRIL 26, 2016

RULING ON DEFENDANTS' MOTIONS FOR SANCTIONS FOR SPOLIATION OF EVIDENCE
In late September 2013, plaintiffs commenced this product liability lawsuit in the
Connecticut Superior Court, which 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. (Dkt. #110). Five days later, this Magistrate Judge filed her lengthy
Endorsement Order (Dkt. #111)["February 2016 Discovery Ruling"], which denied as moot
and without prejudice to renew plaintiffs' Motion for Protective Order (Dkt. #101); plaintiffs'
motion concerned "limited surveillance" of less than twelve hours taken by an agent of
defendant Manville prior to the inspection of plaintiffs' home on October 22, 2015. Under
the latest scheduling order, all discovery will be completed by August 15, 2016 and all

dispositive motions will be filed on or before September 15, 2016. (Dkts. ##121-22 &
4/12/16 electronic entry).
On February 19, 2016, defendants Manville and Icynene filed their Joint Motion for
Sanctions for Spoliation of Evidence, with brief and affidavit in support (Dkts. ##112-14);1
ten days later, defendant Anchor filed its own Motion for Sanctions for Spoliation of Evidence
(Dkt. #115), joining the prior motion. On March 11, 2016, plaintiffs filed their brief in
opposition (Dkt. #116),2 as to which defendants Manville and Icynene filed their reply brief
fourteen days later. (Dkt. #118).3 On April 7, 2016, Judge Arterton referred these motions
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The following six exhibits were attached: copy of Plaintiff Richard Beyer's Responses to
Defendant Johns Manville['s] First Set of Request[s] for Admissions, dated December 28, 2015
(Exh. A); copy of Plaintiff Monica Beyer's Responses to Defendant Johns Manville['s] First Set of
Request[s] for Admissions, also dated December 28, 2015 (Exh. B); excerpts from the deposition of
plaintiff Richard Beyer, taken on August 18 and July 6, 2015 (Exh. C); copy of Home Air Check for
plaintiffs' home, dated May 14, 2014 (Exh. D); excerpts from the deposition of plaintiff Monica
Beyer, taken on October 6, 2015 (Exh. E); and excerpts from Chemical Emissions of Residential
Materials and Products: Review of Available Information (Exh. F).
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The following eighteen exhibits were attached: List of Attendees on October 22, 2015 at
the inspection of plaintiffs' home (Exh. 1); copy of correspondence between counsel regarding the
inspection, dated October 16, 2015 (Exh. 2); excerpts from the deposition of plaintiff Richard
Beyer, taken on July 6, August 17, and August 18, 2015 (Exh. 3); copies of emails between the
parties, dated November 18 and 19, 2010 (Exh. 4); excerpts from the deposition of Raymond
Lapierre, Jr., taken on October 9, 2015 (Exh. 5); excerpts from the deposition of Tyler J. Fiske,
taken on July 15, 2015 (Exh. 6); promotional materials of defendant Icynene (Exhs. 7-8); copies of
correspondence between plaintiffs and defendant Anchor, dated August 9, 2011 (Exh. 9); copy of
emails, dated March 2 and May 31, 2012 (Exh. 10); copies of emails between plaintiffs and
defendant Icynene, dated January 5, 8, 14 and 22, 2013 (Exh. 11); copies of emails between
plaintiffs and defendant Manville, dated August 11, 18 and 19, 2011 (Exh. 12); copies of emails
between plaintiffs and defendant Manville, dated August 10, 2011 (Exh. 13); affidavit of plaintiff
Richard Beyer, dated March 2016 (Exh. 14)["Beyer Aff't"]; copies of letters from Mystic Air Quality
Consultants, Inc., dated October 3 and 7, and November 16, 2011 (Exh. 15); photographs of the
insulation (Exh. 16); copy of letter from defendant Manville to plaintiffs, dated September 19, 2011,
and copy of email from defendant Manville to plaintiffs, dated October 28, 2011 (Exh. 17); and
copies of emails between counsel, dated February 17, 2016 (Exh. 18).
One week later, plaintiffs also filed a Motion for Hearing. (Dkt. #117).
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The following ten exhibits were attached: excerpts from Monica Beyer's deposition (Exh.
A); another copy of the Home Air Check, dated May 14, 2014 (Exh. B); copy of Home Air Check,
dated June 18, 2014 (Exh. C); copy of excerpts from www.greenspirationhome.com, dated July 13,
2013, with plaintiff Richard Beyer's comment, dated August 4, 2013 (Exh. D); copy of excerpts

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to this Magistrate Judge. (Dkt. #120).
For the reasons stated below, defendants' Motions for Sanctions for Spoliation of
Evidence (Dkts. ##112 & 115) are granted in part.
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; plaintiffs have taken air sampling tests which they claim show elevated levels
of VOCs and have disclosed experts who opine that the allegedly elevated levels of VOCs are
from defendants' SPF insulation; in contrast, defendants deny that there are high levels of
VOCs in plaintiffs' home and further contend that any VOCs are not caused by defendants'
products but rather by other items in plaintiffs' residence. (Dkt. #113, Brief at 2, 4).
According to defendants, in anticipation of the home inspection on October 22, 2015,
defendant Manville hired a licensed professional private investigator to observe plaintiffs'
home on October 21, 2015 to see if plaintiffs attempted to remove any contents of the
house. (Id. at 4-5; see also Dkts. ##98, 100-04, 109-11).

Defendants point out that

plaintiffs admit to the removal of some household items prior to the inspection, namely
candles, carpeting, rugs and furniture, all of which emit VOCs, as well as to turning off the
home's air filtration system and radon remediation system. (Dkt. #113, Brief at 2, 5-7; Exhs.
A-B, ¶¶ 1, 19-25, 28-29, 47-61, 65-66; Exh. C, 8/18/15 Depo. at 649-50; Exh. D, at 4-5; Exh.
E, at 102, 190-92, 300-01; Exh. F). As a result, defendants argue that plaintiffs deliberately

from www.energyvanguard.com, dated January 2, 2014, with plaintiff Richard Beyer's comment,
dated January 3, 2014 (Exh. E);o,py of Plaintiffs' Amended Damages Analysis, dated January 30,
2014 (Exh. F); excerpts from the deposition of Richard Beyer, taken on August 17, 2015 (Exh. G);
affidavit of Deborah Curtis, sworn to on March 24, 2016 (Exh. H); compact disc (Exh. I); and copy
of Defendant Icynene Corporation's First Set of Requests for Production Directed to Plaintiffs, dated
April 10, 2015 (Exh. J).

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"scrubbed their home of items which are well known to off-gas VOCs in advance of the home
inspection[,]" and "purposeful[ly destroyed] critical evidence," thereby "unfairly prejudicing
defendants in defending this matter." (Dkt #113, Brief at 2-3, 8). Thus, defendants seek
the following seven sanctions: (1) precluding plaintiffs' reliance on air sampling, testing,
monitoring, and related reports purporting to show elevated levels of VOCs in their home;
(2) precluding plaintiffs from offering testimony regarding what they claim to be elevated
levels of VOCs in their home; (3) precluding plaintiffs' experts from testifying or opining as
to any allegedly elevated levels of VOCs in plaintiffs' home; (4) instructing the jury to
presume that the items that were removed from the home would be favorable to defendants'
defense and unfavorable to plaintiffs' claims; (5) instructing the jury to presume that the air
quality inside plaintiffs' home does not pose a threat to human health or property; (6)
awarding defendants their reasonable fees and expenses in uncovering plaintiffs' spoliation
and their fees and expenses in litigating plaintiffs' spoliation; and (7) awarding defendants
their reasonable fees and expenses in preparing for and conducting the home inspection and
air sampling test. (Id. at 3, 8-28).
In response, plaintiffs assert that representatives from defendants Manville and
Icynene personally inspected plaintiffs' home during the summer of 2011 when the SPF
insulation was being removed and collected foam samples, but failed to retain their samples;
defendant Anchor also retained Mystic Air Quality to perform air testing in October 2011.
(Dkt. #116, at 5-6; Exh. 3, at 106-09, 149-52, 159-60, 196-201, 550-53, 555; Exhs. 13, 15,
17-18).

Plaintiffs further contend that when they were advised of the scope of the

inspection, scheduled for October 22, 2015, they had "no reasonable basis to believe" that
the limited number of items removed from the home were considered to be "evidence" in this

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case. (Dkt. #116, at 1-2, 6-8; Exh. 2; Beyer Aff't, ¶¶ 5-7). As to the specific items removed,
plaintiffs represent that they removed items "of great sentimental value that belonged to
their deceased daughter[,]" namely less than a dozen handmade beeswax candles made by
her, and about twelve bins containing her artwork, school work, clothing and books; they
"tidied up" the home by discarding three feather pillows, a broken cabinet door, and an old
rug, they previously had rolled up a silk rug in December 2014 at the advice of health care
professionals after plaintiff Monica Beyer had broken her femur; they put away two Yankee
Candles in a cabinet near the kitchen; they had spent the night in a hotel the night before
the home inspection and had taken with them personal hygiene items such as toothpaste,
bar soap, shampoo, deodorant, and cosmetics; they took their laundry detergent with them
to the hotel because they needed to clean their sons' football clothing after they had football
practice; and they had turned off the air ventilation system because they had received
instructions to do so when Mystic Air Quality did its air testing. (Dkt. #116, at 7-8, 10-15,
21; Beyer Aff't, ¶¶ 7-16). Thus, plaintiffs argue that they did not engage in spoliation of
evidence, and none of the sanctions sought by defendants should be imposed. (Dkt. #116,
at 8-25).
In their reply brief, defendants argue that plaintiffs were aware of their duty to
preserve evidence, based upon the notice they had received regarding the inspection and the
Home Air Check Indoor Air Quality Reports they had received in the past. (Dkt. #118, at 15; Exh. A, at 181-82, 190; Exhs. B-C). Defendants also clarified that the artwork, school
work, clothing and books of plaintiffs' deceased daughter are not at issue, but rather the
scented candles, carpeting, rugs, furniture, soaps, detergents, shampoo, conditioner,
deodorant, toothpaste, and shaving cream. (Dkt. #118, at 9-10).

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In his affidavit, plaintiff Richard Beyer mentions only two floor coverings, the first of
which was "an old carpet that had been rolled up and placed in the attic[,]" which "came
from the proposed master bath area that remains unfinished." (Beyer Aff't, ¶ 12). According
to plaintiffs, this carpet was removed so that it would not be "a tripping hazard[]" during the
inspection. (Id.). According to plaintiffs, the second floor covering was a silk rug, two feet
by three feet, which was "rolled up in December 2014[,]" at the advice of medical
professionals, prior to plaintiff Monica Beyer's release from Yale-New Haven Hospital for a
broken femur. (Id., ¶ 13). However, the surveillance video taken on October 21, 2015, from
4:06 p.m. to 4:07 p.m., shows plaintiff Richard Beyer tossing into the back of a pickup truck
at least ten separate rolled bundles of floor covering, some of which are relatively small, but
others of which are quite large and bulky. (Dkt. #118, Exh. I; see also id., Exh. H). Taken
together, these bundles far exceed what would be expected from removal of carpeting from
a bathroom, even one described as a "proposed master bath area." Thus, even assuming
arguendo that plaintiffs' specific recollection of the items they removed that day was
accurate, the affidavit grossly understates the quantity of floor covering that was removed
from the home and placed into a pickup truck in less than one minute. As a result, the Court
shares the concern of defendants with respect to plaintiffs' veracity in this matter, and
therefore finds that with respect to the large-scale removal of floor covering on October 21,
2015, plaintiffs did engage in the spoliation of relevant evidence.
The critical issue then becomes what is the appropriate sanction here. As the Second
Circuit explained in considerable detail seventeen years ago in West v. Goodyear Tire &
Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999):
Spoliation is the destruction or significant alteration of evidence, or the
failure to preserve property for another's use as evidence in pending or

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reasonably foreseeable litigation. It has long been the rule that spoliators
should not benefit from their wrongdoing. . . .
...
Although a district court has broad discretion in crafting a proper
sanction for spoliation, we have explained that the applicable sanction should
be molded to serve the prophylactic, punitive and remedial rationales
underlying the spoliation doctrine. The sanction should be designed to: (1)
deter parties from engaging in spoliation; (2) place the risk of an erroneous
judgment on the party who wrongfully created the risk; and (3) restore the
prejudiced party to the same position he would have been in absent the
wrongful destruction of evidence by the opposing party.
(internal quotations & multiple citations omitted). U.S. District Judge Janet Bond Arterton
held, nearly seven years ago, in Innis Arden Gold Club v. Pitney Bowes, Inc., 257 F.R.D. 334,
341 (D. Conn. 2009):
Factors to be considered [regarding spoliation] include the degree of fault of
the party who altered or destroyed the evidence, the degree of prejudice
suffered by the opposing party, and whether the appropriate sanction
minimizes the prejudice to the opposing party and serves to deter such
conduct by others in the future.
In the Second Circuit, a party may be sanctioned for the destruction
of evidence even in the absence of bad faith or intentional misconduct. Trial
judges should have the leeway to tailor sanctions to insure that spoliators do
not benefit from their wrongdoing–a remedial purpose that is best adjusted
according to the facts and evidentiary posture of each case.
(internal quotations & multiple citations omitted).
As previously indicated, defendants seek seven forms of sanctions against plaintiff,
some of which are duplicative. At a minimum, defendants are entitled to attorney's fees and
costs for having to file this pending motion, brief in support, and reply brief, and the costs
of the surveillance; however, defendants are not entitled to their reasonable fees and
expenses in preparing for and conducting the home inspection and air sampling test, which
they would have performed even without plaintiffs' actions.

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Regarding defendants' request for adverse inferences, "[i]t is a well-established and
long-standing principle of law that a party's intentional destruction of evidence relevant to
the proof of an issue at trial can support an inference that the evidence would have been
unfavorable to the party responsible for its destruction." Calpine Corp. v. AP&M Field Servs.,
Inc., No. 07 Civ. 9911 (GEL), 2008 WL 5159775, at *3 (S.D.N.Y. Dec. 9, 2008), quoting
Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998). Thus, defendants are entitled
to an adverse inference that the floor covering that was removed from the home would be
favorable to defendants' defense and unfavorable to plaintiffs' claims. However, like Prezio
Health, Inc. v. Schenk, 13 CV 1463 (WWE), 2016 WL 111406, at * 3 (D. Conn. January 11,
2016), given that discovery remains open until mid-August:
[a]t this juncture, it is not possible to predict all the precise circumstances at
which an adverse inference may be appropriate–such as specific issues arising
in summary judgment motions or at trial. The exact parameters of an
adverse inference are left to the sound discretion of Judge [Arterton] as such
issues arise in the future.
Defendants are not, however, entitled to an adverse inference that instructs the jury to
presume that the air quality inside plaintiffs' home does not pose a threat to human health
or property.
As to defendants' remaining three requests – precluding plaintiffs' reliance on air
sampling, testing, monitoring, and related reports purporting to show elevated levels of VOCs
in their home; precluding plaintiffs from offering testimony regarding what they claim to be
elevated levels of VOCs in their home; and precluding plaintiffs' experts from testifying or
opining as to any allegedly elevated levels of VOCs in plaintiffs' home – this Magistrate Judge
similarly leaves those remedies to the sound discretion of Judge Arterton for reconsideration

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prior to determination of summary judgment motions or at trial, as in Prezio Health.4
II. CONCLUSION
Accordingly, defendants' Motions for Sanctions for Spoliation of Evidence (Dkts.
##112 & 115) are granted in part to the extent set forth above, and without prejudice to
renew in the future, and plaintiffs' Motion for Hearing (Dkt. #117) is denied.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the
standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a) & 72; and
Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order of
the Court unless reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED. R. CIV. P. 6(a) & 72; Rule 72.2 of
the Local Rules for United States Magistrate Judges, United States District Court for the
District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure
to file timely objection to Magistrate Judge’s recommended ruling may preclude
further appeal to Second Circuit).
Dated at New Haven, Connecticut, this 26th day of April, 2016.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
U.S. Magistrate Judge

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As this Magistrate Judge noted in the February 2016 Discovery Ruling, "[t]his file is
notable for the acrimony between counsel," and "[i]nsofar as discovery will continue for another
four months, . . . , it is this Magistrate Judge's hope and expectation that counsel will conduct
themselves in a more cooperative and professional fashion in the future." (At 1, n.1 & 2, n.6). If
the behavior of counsel does not improve soon, this Magistrate Judge will not hesitate to appoint a
Special Master to supervise discovery, the costs of whom will be borne by the parties.

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