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

Filing 144

RULING granting 123 Defendants' Joint Motion to Strike. (See Attached). Signed by Judge Joan G. Margolis on July 6, 2016. (Saffir, Jaclyn)

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: JULY 6, 2016

RULING ON DEFENDANTS' JOINT MOTION TO STRIKE
In late 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.
On February 3, 2016, Judge Arterton referred this file to this Magistrate Judge for all
discovery matters. (Dkt. #110; see also Dkts. ##120, 127). Familiarity is presumed with
the previous discovery rulings and orders issued by this Magistrate Judge. (See Dkts.
##111, 128). Under the latest scheduling order, all expert discovery is to be completed by
August 15, 2016, and all dispositive motions are to be filed on or before September 15,
2016, and there will be no further extensions. (Dkts. ##121-22 & 4/12/16 electronic entry).
On April 14, 2016, defendants Manville, Anchor, and Icynene [collectively

"defendants"] filed their Joint Motion to Strike and brief in support, with respect to the expert
report of Dr. Yuh-Chin Tony Huang, dated March 18, 2016. (Dkts. ##123-24, 143; see also
Dkts. ##125-127, 142).1 On May 5, 2016, plaintiffs filed their brief in opposition (Dkt.
#129),2 as to which defendants filed their reply brief fourteen days later. (Dkt. #137).3
For the reasons stated below, defendants' Joint Motion to Strike (Dkt. #123) is
granted.
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; in contrast, defendants contend that plaintiffs "are not and never have been
injured in any way by the SPF insulation installed in the home and subsequently removed."
(Dkt. #124, at 2). According to defendants, on June 22, 2015, plaintiffs disclosed Dr. Yuh1

The following five exhibits were attached, under seal: copy of Dr. Huang's report,
dated June 22, 2015 ["Original Report"](Exh. A); copy of a report following an
independent medical examination conducted by Dr. John Russomanno, dated December
9, 2015 (Exh. B); copies of reports by Dr. Huang after he examined plaintiffs on January
11, 2016 ["Additional Reports"](Exhs. C-D); and copies of case law (Exh. E).
Defendants filed a Motion to Seal their brief and exhibits in order to protect
plaintiffs' personal and confidential medical information. (Dkt. #125; see also Dkt. #126).
Such motion was granted on July 5, 2016. (Dkt. #142).
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The following four exhibits were attached: excerpts from the deposition of
plaintiff Richard Beyer, taken on July 6, 2015 (Exh. 1); excerpts from the deposition of
plaintiff Monica Beyer, taken on October 6, 2015 (Exh. 2); excerpts from Plaintiffs'
Objections and Responses to Defendant Johns Manville['s] First Set of Interrogatories
(Exh. 3); and copies of case law (Exh. 4).
On May 19, 2016, plaintiffs also filed a supplemental affidavit of counsel in further
support of their brief in opposition (Dkt. #136); attached is a copy of a letter between
counsel, dated May 19, 2016. (Exh. 1).
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Attached to defendants’ reply brief are copies of case law (Exh. A), and the
affidavit of defense counsel, sworn to May 19, 2016 (Exh. B).

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Chin Tony Huang as an expert and disclosed Dr. Huang’s first report [“Original Report”]. (Id.
at 3 & Exh. A).4 However, Dr. Huang had not physically examined plaintiffs prior to
preparing his Original Report. (Id. at 2-3). Defendants assert that after receiving this report,
they requested that plaintiff Richard Beyer undergo an Independent Medical Examination
[“IME”]; this IME was conducted on December 9, 2015, by Dr. John Russomanno, and a
report summarizing his findings was prepared on January 28, 2016. (Id. at 3 & Exh. B). On
January 11, 2016, plaintiffs were physically examined by Dr. Huang and on March 18, 2016,
Dr. Huang issued two reports [“Additional Reports”]. (Id. & Exhs. C-D). Defendants contend
that the Additional Reports "add new opinions and grounds therefor, none of which were
present in the Original Report[,]" (id. at 4) and that they are not proper supplements
pursuant to Rule 26(e)(1). (Id. at 7-14). Accordingly, defendants move to strike the
Additional Reports. (Id. at 14).
In response, plaintiffs contend that the Additional Reports "are not an attempt to
circumvent the disclosure deadlines, but rather, a presentation of newly discovered evidence
. . . which [p]laintiffs were obligated to produce under Fed. R. Civ. P. 26(e).” (Dkt. #129, at
1). Plaintiffs claim that Dr. Huang was not able to conduct a physical examination prior to
January 11, 2016, because Dr. Huang practices medicine in North Carolina and plaintiffs
could not travel out of state with their entire family until that month. (Id. at 3, 6).5 Plaintiffs

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Plaintiffs’ expert disclosures were due on May 22, 2015, but on June 22, 2015,
plaintiffs sought, and obtained, an extension until July 22, 2015. (See Dkts. ##71, 77,
80).
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Plaintiffs also claim that the delay of more than two months between the time of
the examinations by Dr. Huang, on January 11, 2016, and the date of plaintiffs'
production of the Additional Reports, on March 23, 2016, was due to a change of staff in
Dr. Huang's office. (Id. at 3).

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also claim that the Additional Reports "cannot be a surprise to [d]efendants because
[p]laintiffs had previously disclosed their injuries in deposition[s] and through
interrogatories[,]" (id. at 3)(emphasis omitted), and that defendants will not be prejudiced
by the Additional Reports. (Id. at 6-9).
In their reply brief, defendants argue that the Additional Reports are not a proper
Rule 26(e) supplement because plaintiffs’ further medical examination does not constitute
newly discovered evidence (Dkt. #137, at 2-5), that the Additional Reports are neither
substantially justified nor harmless, and that they constitute an unfair surprise to defendants.
(Id. at 6-7).
A. LEGAL STANDARD
Rule 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, 2007)(citation omitted).
However, 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

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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 (emphasis in original), quoting Sandata Techs., 2007 WL 4157163, at *4
(additional citations omitted).
Upon 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 F ED. R. CIV. P. 37(c)(1). "Rule 37(c)(1)'s preclusionary sanction is automatic
absent a determination of either substantial justification or harmlessness." Id., quoting Lore
v. City of Syracuse, No. 5:00-CV-1833, 2005 WL 3095506, at *3 (N.D.N.Y. Nov. 17, 2005).
B. DISCUSSION
Plaintiffs claim that Dr. Huang’s Additional Reports "were a necessary supplement to
his [O]riginal [R]eport due to the fact that he was unable to examine [p]laintiffs prior to his
[O]riginal [R]eport." (Dkt. #129, at 3). Plaintiffs explain that Dr. Huang was unable to
examine them earlier because plaintiffs "reside . . . over 600 miles from Dr. Huang's office[,]"
and "have two school age sons which further inhibited their ability to travel to Dr. Huang's
offices." (Id. at 6).
After a careful review of the reports, the Court finds that the Additional Reports are
not a proper supplementation. The Additional Reports appear to be an attempt to bolster an
earlier submission rather than an attempt to correct inaccurate or misleading information in
the Original Report. The Court is not swayed by plaintiffs' argument that the Additional
Reports contain information that was previously unknown or unavailable. (See Dkt. #129,

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at 5-6). As defendants point out, plaintiffs chose to use an out of state expert and had
ample time after beginning the lawsuit on September 26, 2013, to arrange an examination
prior to the expert disclosure deadline in mid-2015. (See Dkt. #137, at 4-5); see also Diaz
v. Con-Way Truckload, Inc., 279 F.R.D. 412, 421 (S.D. Tex. 2012)(defendant’s lack of
diligence in seeking a Rule 35 examination does not "make the information obtained from
such an examination 'unavailable' at the time [defendant] disclosed its expert reports.").
Because plaintiffs chose not to arrange an examination in the nearly two years between filing
the lawsuit and the issuance of the Original Report, the Court finds that this information was
not unknown or unavailable, and thus the Additional Reports were not a proper
supplementation under Rule 26. Accordingly, because plaintiffs failed to produce Dr. Huang’s
reports in accordance with Rule 26(a), plaintiffs are “not allowed to use . . . [the Additional
Reports] unless [plaintiffs'] failure [to comply with Rule 26(a)] was substantially justified or
is harmless.” FED. R. CIV. P. 37(c)(1).
When determining whether the discovery at issue is “substantially justified or is
harmless,” courts in the Second Circuit consider: "(1) the party's explanation for the failure
to comply with the discovery order; (2) the importance of the . . . precluded [discovery]; (3)
the prejudice suffered by the opposing party as a result of having to prepare to meet the
new [discovery]; and (4) the possibility of a continuance." Softel, Inc. v. Dragon Med. & Sci.
Commc'ns, Inc., 118 F.3d 955, 961 (2d Cir. 1997)(internal citations omitted), cert. denied,
523 U.S. 1020 (1998). These criteria, however, demonstrate that plaintiffs’ belated
production of their expert’s reports was neither substantially justified nor harmless.
Plaintiffs lack adequate justification for failing to comply with their expert discovery
deadline. As previously indicated, plaintiffs claim that they were unable to be examined by

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their expert any earlier, and thus were unable to produce notes from his examination in a
more timely fashion, because they reside “over 600 miles from Dr. Huang’s office[,] . . . [and
they] have two school aged sons,” making it difficult for them to "accommodate the entire
family’s schedule to take a trip to North Carolina and be evaluated by Dr. Huang” until their
children’s holiday break. (Dkt. #129, at 6). Though the Court recognizes that it may have
been inconvenient for plaintiffs to travel to see their chosen expert, inconvenience does not
justify their failure to comply with the discovery schedule. As discussed above, plaintiffs had
nearly two years between when they filed this lawsuit and when Dr. Huang issued his
Original Report. If plaintiffs intended but were unable to arrange the requisite medical
examination, it was incumbent upon them to seek the Court’s leave for more time. “Yet
rather than acknowledging [their] self-created predicament, [and] asking for additional time
to complete the report,” Sandata Techs., 2007 WL 4157163, at *6, plaintiffs continued to
conduct expert discovery after their deadline without notice to the defendants or leave from
the court.
Regarding the importance of the Additional Reports, plaintiffs rightly assert that
because they discussed plaintiffs’ symptoms and the possible causes thereof, Dr. Huang’s
reports “go[] directly to the central issue in this case.” (Dkt. #129, at 7). However, granting
defendants’ Motion to Strike will not result in the preclusion of all of Dr. Huang’s testimony;
he will simply be limited to the conclusions and reasons he expressed in his Original Report.
The Court also must consider whether plaintiffs’ late submission of the Additional
Reports was harmless to defendants. Plaintiffs argue that there will be no injury to
defendants because “[n]othing new has been disclosed” in the Additional Reports, and
because many of the plaintiffs’ symptoms discussed in the Additional Reports had already

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been asserted in depositions and interrogatories. (Dkt. #129, at 7). However, as defendants
correctly argue, even if defendants had already been informed of all of the symptoms that
plaintiffs allege, the fact that plaintiffs claim to experience each symptom is clearly not the
same as expert testimony as to the presence and significance of those symptoms. (Dkt.
#129, at 3-4).
Because Rule 26(a)(2) requires that a written expert report contains “a complete
statement of all opinions the witness will express and the basis and reasons for them[,]” FED.
R. CIV. P.26(a)(2)(B)(i)(emphasis added), discovery proceeded under the assumption that
Dr. Huang’s expert testimony would reflect the content of the Original Report. Although
defendants have not yet deposed Dr. Huang, defendants appropriately relied on the Original
Report when selecting an expert to perform an IME of Richard Beyer and when determining
the scope of the IME. Defendants were entitled to conduct an IME that tested all the
relevant opinions of Dr. Huang, not just some, and the late production of the Additional
Reports prevented defendants from doing so. (Dkt. #137, at 7). “The purpose of Rule
26(a)(2) is to prevent unfair surprise at trial and to permit the opposing party to prepare
rebuttal reports, to depose the expert in advance of trial, and to prepare for depositions and
cross-examination at trial.” Minebea Co., Ltd. v. Papst, 231 F.R.D. 3, 5 (D.D.C. 2005). To
permit plaintiffs to treat the expert discovery deadlines as suggestion impairs the defendants
ability to conduct their own discovery, which results in additional expense, and further delay.
Id. at *6.
The final criteria to be considered when deciding whether to preclude the Additional
Reports is the possibility of a continuance. In the instant case, there have already been
numerous extensions to the discovery schedule, and the “expeditious management of

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discovery schedules is especially important in cases of this nature because they require
extensive expert involvement over lengthy periods of time.”

Softel, 118 F.3d at 962.

Accordingly, repeated delay is more burdensome in some cases than in others. “When trial
courts permit deadline slippage of this sort, trials cannot be scheduled when they ought to
be, resulting in the backup of other cases and eventual scheduling chaos as a series of
bottlenecks builds." Id. at 962-63. In the instant case especially, when the Court has given
numerous extensions of time for discovery, Judge Arterton has indicated that “[n]o further
extensions will be granted[,]” (Dkt. #122), and plaintiffs already proceeded with discovery
beyond the court-ordered deadlines, a continuance is not only burdensome but unwarranted.
As the parties well know, the purpose of the discovery Rules is to achieve disclosure
of all the evidence relevant to the merits of a controversy. “It is intended that this disclosure
of evidence proceed at the initiative of the parties, free from the time-consuming and costly
process of court intervention. When a party seeks to frustrate this design by disobeying
discovery orders, . . . severe sanctions are appropriate.” Daval Steel Prds. v. M/V Fakredine,
951 F.2d 1357, 1365 (2d Cir. 1991)(citations omitted). While preclusion is a “drastic remedy,”
(Dkt. #129, at 5) plaintiffs’ untimely additional production is neither substantially justified nor
harmless. Given that the Original Report was all that plaintiffs submitted before their
discovery deadline, plaintiffs are limited to reliance upon their expert’s testimony as provided
in the Original Report. Thus, plaintiffs are precluded from relying on the Additional Reports,
and Dr. Huang's opinions are limited to those provided in the Original Report.
II. CONCLUSION
Accordingly, defendants' Motion to Strike (Dkt. #123) is granted.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the

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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 6th day of July, 2016.

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

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