Laremore v. Knauf Gips KG et al

Filing 83

ORDER granting in part and denying in part Defendants' Omnibus Motion in Limine to Exclude Certain Evidence (Doc. 78) and granting Defendants' Motion to Exclude or Limit Expert Testimony (Doc. 79). Signed by Judge Sheri Polster Chappell on 5/8/2024. (CMC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
EDWARD LAREMORE,
Plaintiff,
v.

Case No.: 2:21-cv-890-SPC-DAB

KNAUF GIPS KG, KNAUF
PLASTERBOARD TIANJIN CO.
LTD. and KNAUF NEW BUILDING
SYSTEM (TIANJIN) CO. LTD.,
Defendants.

/
OPINION AND ORDER

Before the Court are two motions filed by Defendants Knauf Gips KG
and Knauf New Building System (Tianjin) Co. Ltd.: (1) Motion in Limine to
Exclude Certain Evidence (Doc. 78); and (2) Motion to Exclude or Limit Expert
Testimony (Doc. 79).
motions.

Plaintiff Edward Laremore has responded to both

(Docs. 80, 81).

Since then, Defendants have filed a Notice of

Supplemental Authority. (Doc. 82).
Plaintiff has sued Defendants because of defective drywall installed in a
home he owns and rents. 1 Plaintiff wants economic damages like the “costs of
inspection; costs and expenses necessary to fully remediate or abate [the]

The Court writes for the parties who are already familiar with the facts. So, this Opinion
and Order includes only the facts needed to understand the decision.
1

home; cost of alternative living arrangements . . . lost value or devaluation of
[the] home[]; stigma damages; and [] loss of use and enjoyment of [the] home
and property.” (Doc. 1 at ¶ 21). Discovery ended years ago, and summary
judgment motions were decided months ago. In preparing for trial next month,
Defendants have moved to exclude/limit certain evidence and testimony, which
the Court will address separately in turn.
A. Motion in Limine to Exclude Certain Evidence
Defendants move to exclude nine categories of evidence:
1. Any evidence of damages barred by the economic loss
rule;
2. Any evidence related to future remediation costs;
3. Any evidence Plaintiff did not produce in discovery;
4. Any untimely evidence, argument, or reference related
to Plaintiff’s alleged stigma damages or claims for
diminution in value or personal property damage;
5. Any untimely evidence, argument, or reference related
to an express or implied warranty from the Defendants
to Plaintiff;
6. Any evidence, argument, or reference related to the
Defendants’ postsale conduct;
7. Any evidence, argument, or reference related to prior
liability verdicts
8. Any evidence, argument, or reference regarding the
scope of remediation in other lawsuits arising out of
Chinese-manufactured drywall; and
9. Any evidence, argument, or reference related to other
Knauf entities and affiliates that are not a party in this
2

matter, including any references to the Knauf corporate
structure.

(Doc. 78 at 1-2). But this isn’t the first time the parties have litigated these
matters.
This case mostly mirrors other suits before Senior United States District
Judge John E. Steele (and dozens of others across Florida). In four related
cases, Judge Steele addressed all but two of the evidentiary issues raised here.
See CDO Investments, LLC v. Knauf Gips KG, No. 2:21-cv-888-JES-DAB (JESDocs. 88-89); Judge v. Knauf Gips KG, No. 2:21-cv-889-JES-DAB (M.D. Fla.
May 23, 2023) (JES-Docs. 90); MCF Enters., Inc. v. Knauf Gips KG, No. 2:21cv-891-JES-DAB (JES-Docs. 81-82); Vest v. Knauf Gips KG, No. 2:21-cv-896JES-DAB (JES-Docs. 75-76). So, Defendants’ requests 1, 2, 3, 5, 6, 7, and 8 are
the same as their requests in the related cases. And request 4 is the same to
the extent that Defendants move to exclude “stigma damages or diminution in
value.” As to the overlapping matters, the Court has reviewed Judge Steele’s
Orders and agrees with his well-reasoned and well-supported decisions. The
Court thus grants Defendants’ motion as to requests 1, 2, 3, 4 (as to stigma
damages or diminution in value), 5, 6, 7, and 8 for the same reasons explained
by Judge Steele.
But the Court cannot stop there.

Defendants also make two new

requests they never raised before Judge Steele. First, they move to exclude

3

any untimely evidence, argument, or reference related to Plaintiff’s claims for
personal property damage. (Doc. 78 at 1). Back in the MDL court, the parties
submitted a Plaintiff Fact Sheet with information required by Federal Rule of
Civil Procedure 26(a).

In doing so, Plaintiff itemized personal property

damages totaling $1,884.00 that included a property management fee, drywall
inspection cost, thermostat replacements, refrigerator repair, and dishwasher
replacement and repair. (Doc. 78-1 at 13, 17-18).
Defendants don’t want Plaintiff introducing evidence of personal
property damages when he produced no documents to support them. According
to Defendants, Plaintiff never submitted any photographs or other evidence
about damage to the “other property,” or any expert opinion analyzing his
personal property damage the defective drywall caused.
Plaintiff does not squarely address Defendants’ arguments in his oneparagraph response. Instead, he says that he will offer evidence and testimony
about personal property damages including damages that continued past the
close of discovery. (Doc. 81 at 4). Plaintiff believes he can do so under Federal
Rule of Civil Procedure 26(e).
Rule 26(e) addresses supplementing automatic disclosures and
responses. It requires a party to supplement its initial, expert, and pretrial
disclosures under Rule 26(a) “in a timely manner” if the party learns that the
information disclosed was or has become incomplete or incorrect, and if the
4

additional information has not otherwise been made known to the other parties
during discovery. Fed. R. Civ. P. 26(e)(1)(A). To follow the “timely manner”
requirement, supplementation “should be made at appropriate intervals
during the discovery period.” Fed. R. Civ. P. 26 advisory committee’s note to
1993 amendment.
The problem is the Court cannot decide whether Plaintiff is truly trying
to supplement his initial disclosures or merely trying to interject new damages
less than a month before trial. So, at this stage, the Court excludes evidence
about personal property damages that Plaintiff disclosed post-discovery. Yet
Plaintiff may offer evidence and testimony about personal property damages
that he disclosed in the Fact Sheet and before discovery ended.
Second, Defendants’ ninth request moves to exclude “[a]ny evidence,
argument, or reference related to other Knauf entities and affiliates that are
not a party here, including any references to the Knauf corporate structure.”
(Doc. 78 at 2). Plaintiff offers no response on the matter. So the Court treats
the ninth request as unopposed.

See Local Rule 1.10(c) (“If a party fails to

timely respond, the motion is subject to treatment as unopposed.”). Because
all Knauf entities except for Knauf Gips KG and Knauf New Building System
(Tianjin) Co. Ltd. have fallen out, their actions are irrelevant to the remaining
issues and parties. The Court thus grants Defendants’ ninth request.

5

B. Motion to Exclude or Limit the Expert Testimony
The Court turns to Defendants’ attack on Plaintiff’s experts. (Doc. 79).
Defendant moves to exclude Howard Ehrsam’ testimony and limit (if not
exclude) Shawn Macomber’s testimony. Defendants filed the same motions in
Judge Steele’s related cases. The Court has reviewed Judge Steele’s Orders
and agrees with his well-reasoned and well-supported decisions on the experts’
testimonies. So the Court excludes Ehrasm’s testimony and limits Macomber’s
testimony for the same reasons explained by Judge Steele.
Accordingly, it is ORDERED:
1. Defendants’ Omnibus Motion in Limine to Exclude Certain Evidence
(Doc. 78) is GRANTED in part and DENIED in part.
2. Defendants’ Motion to Exclude or Limit the Expert Testimony of
Howard Ehrsam and Shawn Macomber is GRANTED as to Howard
Ehrsam and GRANTED as to Shawn Macomber to the extent that he
may not express opinions on any component of damages other than
“other property” (if there is any).
DONE and ORDERED in Fort Myers, Florida on May 8, 2024.

Copies: All Parties of Record

6