Haley, Mary et al v. Kolbe and Kolbe Millwork Co., Inc. et al

Filing 544

OPINION and ORDER denying 525 Motion for Reconsideration of the March 25, 2016 Order. The remaining individual claims brought by plaintiffs are DISMISSED. The clerk of court is directed to close this case and enter judgment in favor of defendant K olbe & Kolbe Millwork Co., Inc. Intervenor United States Fire Insurance Company may have until June 17, 2016, to show cause why I should not deny its motion for summary judgment as moot. Defendant may have until June 24, 2016, to file a response. United States Fire may have until June 29, 2016, to file a reply. Signed by District Judge Barbara B. Crabb on 6/7/2016. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

MARY HALEY and MICHAEL HALEY,
LESLIE BANKS and JAMES HAL BANKS,
ANNIE BUINEWICZ and BRIAN BUINEWICZ,
TERRANCE McIVER and JEAN ANN McIVER,
SUSAN SENYK and CHRISTIAN SENYK,
MATTHEW DELLER and RENEE DELLER,
PATRICIA GROOME, GARY SAMUELS and
MARIE LOHR,
Plaintiffs,

OPINION AND ORDER
14-cv-99-bbc

v.
KOLBE & KOLBE MILLWORK CO., INC.,
Defendant,
and
FIREMAN’S FUND INSURANCE COMPANY
and UNITED STATES FIRE INSURANCE COMPANY,
Intervenor Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In an order entered on March 25, 2016, I granted defendant Kolbe & Kolbe Millwork
Co.’s motion to exclude plaintiffs’ expert opinions as unreliable and unhelpful, dkt. #317,
and denied plaintiffs’ renewed motion for class certification, dkt. #496, because the
exclusion of plaintiffs’ experts prevented certification of any of their proposed classes. Dkt.
#524. In addition, I ordered plaintiffs to show cause why the exclusion of their experts’

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opinions would not foreclose the individual claims of the named plaintiffs for the same
reasons that it prevented class certification.
Plaintiffs responded to the court’s order by submitting a lengthy motion for
reconsideration challenging the court’s exclusion of the expert opinions and several other
decisions related to their motion for class certification. Dkt. #525. Specifically, plaintiffs
assert that (1) the court misunderstood and overlooked key facts and evidence relating to
the expert opinions of Joel Wolf and Haskell Beckham; (2) the court should have ruled on
plaintiffs’ motion to exclude defendant’s expert opinion regarding customers’ improper
finishing of their own windows; (3) the court improperly struck the declaration of Wolf as
an untimely-filed rebuttal report in orders dated November 24, 2015 and February 2, 2016;
and (4) the court incorrectly found that plaintiffs waived their implied warranty claims
related to defendant’s affirmations about the certification testing of its windows. With
respect to the viability of their remaining individual claims, plaintiffs argue only briefly that
they have “alternative common evidence” of the sill-to-sash interface and K-Kron defects
allegedly present in the windows of the named plaintiffs.
For the reasons explained below, I conclude that plaintiffs have shown no reason for
reconsidering the earlier rulings with respect to plaintiffs’ experts. I also find that plaintiffs
have failed to show that their individual claims should not be dismissed for the same reasons
for which the class claims have been dismissed.
Also before the court is a renewed motion for summary judgment filed by intervenor
United States Fire Insurance Company, seeking a declaration that it does not have a duty

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to defend or indemnify defendant. Dkt. #531. I denied United States Fire’s previous
motion on the same issue because at that time there was still a possibility that defendant
could be required to pay damages that are covered by the insurers’ policies. Dkt. #376. In
its renewed motion, United States Fire asks for another ruling in light of developments in
the case and what it says are changes in the case law. Now that I am dismissing the case in
full, I am directing United States Fire to show cause why its motion should not be denied
as moot.

OPINION
I. MOTION FOR RECONSIDERATION
A. Exclusion of Plaintiffs’ Expert Opinions
1. Wolf
In his expert report, Joel Wolf offered the opinion that the following four design
defects cause deterioration in the lower sash rail of defendant’s aluminum-clad windows: (1)
an inadequate sill slope; (2) an inadequate gap between the sill frame and the bottom of the
sash; (3) a weatherstrip gasket on the bottom exterior face of the sash; and (4) an unfinished
underside of the lower sash. Dkt. #281 at 2 and 86. In the previous order, dkt. #254, I
found that Wolf’s opinion was unreliable because Wolf relied on the inaccurate assumption
that the underside of the bottom sash is unfinished in all of defendant’s windows. Plaintiffs
contend that the court made material mistakes of fact when it (1) found that Wolf stated
the opinion that all four defects must be present for the windows to deteriorate; and (2)

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stated that Wolf did not inspect or discuss windows with a finished bottom sash. Dkt. #526
at 3.
Plaintiffs rehash the same arguments that they raised previously in dkt. #382,
responding to defendant’s Daubert motion, dkt. #317. In addition, they contend that the
unfinished sash factor is irrelevant to Wolf’s defect theory. In particular, they emphasize
that Wolf does not discuss the effect of the unfinished sash in his report or deposition
testimony in any detail; instead, he focuses on the other three aspects of the sill-to-sash
defect. I addressed these arguments about Wolf’s discussion of the four defect factors at
length in the previous opinion and it is unnecessary to repeat this analysis. Wolf’s report
makes it clear that he assumed that defendant’s windows all have unfinished sashes and that
this lack of finish is an integral part of the sill-to-sash interface defect that leads to premature
rot in the window. However, the underside of the lower sash was finished on at least some
of the windows belonging to the potential class members. Wolf’s opinion is not helpful in
establishing common evidence of a defect because it relates only to unfinished sashes.
Although plaintiffs argue that “Wolf’s deposition testimony clearly reflects that his opinion
is premised upon the flat sill, narrow gap, and weatherstrip placement,” and not the
unfinished sash, he did not say this in his report, dkt. #526 at 5, or at his deposition, dkt.
#310, 41-43. It was not an error or a mistake to conclude that Wolf meant what he said in
his report.
Plaintiffs also argue that “the court overlooked ample evidence in the record” showing
that Wolf inspected windows that were finished by both Kolbe and contractors. Dkt. #526

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at 9. They contend that Wolf did not address this point in his report because both finished
and unfinished sashes rot as a result of the other three factors identified by Wolf. There are
several problems with plaintiffs’ argument.
First, plaintiffs cannot file an after-the-fact supplement to Wolf’s report by pointing
to evidence that they believe clarifies Wolf’s true opinion. For example, plaintiffs argue that
comments made by defendant’s inspectors about problems with the slope, gap and
weatherstrip in windows with finished sashes corroborate a theory that the sill-to-sash defect
does not depend on the lower sash’s being unfinished. Although it appears that Wolf listed
some of the inspectors’ general comments in an appendix in his report, he did not link those
comments to windows with finished sashes or make any statements about rot in windows
with finished sashes. As defendant points out, Wolf developed his opinions with the
inspectors’ service reports in hand but nevertheless defined his sill-to-sash theory as involving
an unfinished lower sash.
Second, even

if this additional “evidence” did not constitute

improper

supplementation of Wolf’s report, plaintiffs failed to bring it to the court’s attention in their
response to defendant’s Daubert motion, dkt. #317,despite having ample opportunity to do
so. Contrary to plaintiffs’ suggestion, it is not the court’s job to parse the evidence of record
or the attachments to Wolf’s report to find support for conclusions that are contrary to what
appear to be clear statements on the part of Wolf.
Third, even if Wolf’s report, dkt. #281, can be read to show that he inspected some
finished windows during his investigation, he includes only unfinished windows in the

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discussion of his opinion, does not make any statements about finished windows in his
report and does not state that defendant’s windows are defective regardless whether they are
finished or unfinished. As defendant notes, what matters is not what Wolf looked at but
what he described in his report as constituting a defect. Plaintiffs cannot rectify gaps in that
description by citing Wolf’s late-filed declaration or deposition testimony of their other
expert. Moreover, I will not allow them to alter Wolf’s opinion by granting their request to
strike Wolf’s two references to the unfinished sash factor from his report or to “clarify” his
report with a supplemental filing. These actions would amount to an impermissible third
round of expert reports barred by the preliminary pretrial conference order and the Federal
Rules of Civil Procedure.

2. Beckham
Plaintiffs contend that the court overlooked “key evidence” in excluding the expert
testimony of Haskell Beckham, who criticized the K-Kron coating that defendant applies to
its wood windows, saying that it is not an appropriate choice for long-term protection
because it cracks, allows moisture into the wood frame and sash and retards the drying
process.

Defendant argued that Beckham based his opinion on unreliable methods

(specifically, drying tests that he performed on samples of K-Kron-coated wood from
windows in nine homes he inspected), that did not provide relevant information that would
be helpful to the trier of fact. I found that plaintiffs failed to develop any meaningful
response to defendant’s challenge because they stated only generally that Beckham’s tests

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supported his opinion that K-Kron causes windows to retain excessive moisture and leads
to rot and decay.
Citing various data scattered throughout Beckham’s report, plaintiffs now argue that
the court overlooked a clear link between the drying tests and Beckham’s conclusions on
permeability. Dkt. #526 at 35-36. They state that “[b]ased on the drying test results, and
the industry literature to which he referred in the report and in his deposition testimony, .
. . Dr. Beckham was able to conclude that Kolbe should have used more permeable paint”
and that “[t]he relationship between Dr. Beckham’s drying tests, industry literature, and his
conclusion regarding permeability can be demonstrated through simple mathematics.” Id.
at 36. However, plaintiffs discussed none of this in their response to defendant’s Daubert
motion and it is too late for them to do so now. Wehrs v. Wells, 688 F.3d 886, 891 n.2
(7th Cir. 2012) (undeveloped and unsupported arguments are considered waived); Nichols
v. National Union Fire Insurance Co. of Pittsburgh, PA, 509 F. Supp. 2d 752, 760 (W.D.
Wis. 2007) (plaintiffs forfeited arguments by failing to respond in meaningful way).
Although plaintiffs maintain that the court overlooked important analysis and explanation
in Beckham’s deposition testimony, it is not the court’s role to scour the record for evidence
that supports Beckham’s opinion or to make assumptions about Beckham’s reasoning that
he failed to disclose in his report. Further, as discussed in conjunction with Wolf’s report,
plaintiffs’ reliance on Beckham’s deposition testimony and other extraneous evidence to
explain the drying tests and Beckham’s reasoning amounts to improper expert rebuttal.

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Finally, plaintiffs take issue with the fact that the court noted in dkt. #524 that
defendant had raised “valid concerns” with respect to Beckham’s failure to test how
susceptible K-Kron is to cracking and what happens with real windows installed in a home.
Plaintiffs set out various reasons why these criticisms are unfounded and support their
argument with evidence that was not included in Beckham’s report.

Again, plaintiffs

forfeited these arguments by not raising them in their response to defendant’s Daubert
motion. In any event, plaintiffs would not be allowed to cure the defects in Beckham’s
report with evidence that is not in the record.

B. Plaintiffs’ Daubert Motion
During the last round of briefing on class certification, plaintiffs asked the court to
consider their motions to exclude the opinions of defendant’s experts if it considered
defendant’s motion to exclude the opinions of Wolf and Beckham. Dkt. #512 at 101-02.
They did not explain how their motions related to defendant’s motion.

I found it

unnecessary to consider plaintiffs’ Daubert motions because defendant’s motion to exclude
the opinions of Wolf and Beckham was dispositive on the issue of class certification.
Plaintiffs now argue that the court should have ruled on their motion to exclude the expert
report of William Smith, dkt. #429, because defendant based its challenge to Wolf’s opinion
regarding the unfinished sashes on Smith’s report. Dkt. #526 at 15-16 (citing dkt. #430
at 7-18).

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According to plaintiffs, Wolf and Smith present competing expert opinions about the
unfinished sashes. Dkt. #526 at 19. In their Daubert motion, plaintiffs alleged that Smith
wrongly assumed that properly finished windows do not absorb moisture, speculated that
plaintiffs’ failure to properly finish the underside of their window sashes caused the windows
to rot and assumed incorrectly that defendant finishes the underside of the sash if customers
order them pre-finished.

Dkt. #430 at 8-17. They also argued that Smith’s opinion

concerning unfinished sashes was irrelevant because “[w]hether the undersides of the sashes
are finished or not has no bearing on whether the windows degrade.” Id. at 17-18. Plaintiffs
accuse the court of relying on Smith’s opinion as grounds for excluding Wolf’s opinion.
Contrary to plaintiffs’ assertions, the court has not determined the correctness of any
of Smith’s opinions. The concerns about Wolf’s opinion are derived solely from the content
of his report. As explained at length in the court’s previous order, Wolf’s report makes it
clear that he assumed that defendant’s windows all have an unfinished sash, which he stated
is an integral part of the sill-to-sash interface defect.

Even in their motion for

reconsideration, plaintiffs have not disputed that at least some of defendant’s windows come
with a finish. E.g., dkt. #526 at 21 (“[E]ven when Kolbe pre-finishes windows, the finish
deteriorates because of the very defects identified by Wolf.”). Plaintiffs contend that there
is a dispute of fact about whether defendant expects customers to finish the underside of
their window sashes or whether defendant sometimes fails to finish the underside of the sash
even when asked to do so. However, these disputes do not save Wolf’s report.

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Wolf does not discuss finished sashes in his report and does not explain in his report
whether the finish or lack of finish on the underside of the sash has any bearing on window
degradation. Therefore, Wolf’s report is unhelpful with respect to windows that have a
finish on the underside of the sash. Because it is undisputed that some windows have
finished sashes, his opinion does not qualify as common evidence with respect to the whole
class. Wolf tried to correct this deficiency in a later-filed declaration in which he stated that
even windows with finished sashes will decay as a result of the sill-to-sash defect, but that
declaration was excluded by the court. Dkt. #433, exh. 1. (Plaintiff’s motion to reconsider
the exclusion of the declaration is discussed below.)

C. Exlusion of Wolf Declaration
On February 2, 2016, the court granted defendant’s motion to strike the declaration
of Joel Wolf, dkt. #433, exh. 1, as an impermissible third round of expert reports barred by
the preliminary pretrial conference order. Dkt. #510. In their motion for reconsideration
of the Daubert order, plaintiffs have included a request that the court reconsider its decision
to exclude the Wolf declaration, arguing that the court did not understand the impact that
the ruling would have on their motion for class certification and that the court overlooked
statements made by Magistrate Judge Stephen Crocker and counsel during the preliminary
pretrial conference. Dkt. #526 at 26. Although the court is well aware that the declaration
addresses one of the concerns that the court has with Wolf’s expert report, plaintiffs have
not provided a reasonable basis for allowing Wolf to file a rebuttal report six months after

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plaintiffs’ deadline for filing expert reports and after the close of briefing on defendant’s
Daubert motion. Plaintiffs point to statements that the court and the parties made during
the preliminary pretrial conference that they say show an intent to allow plaintiffs to file
rebuttal expert reports. However, the preliminary pretrial conference order clearly states that
“there shall be no third round of expert reports.” Dkt. #29 at 2. If plaintiffs believed that
the preliminary pretrial conference order was incorrect, they should have brought it to the
attention of the court long ago.

D. Implied Warranty Claims Regarding Window Labels
In their renewed motion for class certification, plaintiffs asked the court to reconsider
its holding that plaintiffs had waived any implied warranty of merchantability claims related
to the “ringer testing” that defendant allegedly performed on its windows to meet
certification standards. Plaintiffs alleged that defendant labeled its windows with a sticker
stating that the windows met certain certification standards but that it tested only a small
subset of windows and could not confirm that all their windows actually met the standards.
Dkt. #501 at 108-09. According to plaintiffs, this practice violated the implied warranty
of merchantability because the defective windows did not “conform to promises or
affirmations of fact made on the container or label,” as required under UCC § 2-314(2)(f).
Defendant opposed class certification of the implied warranty labeling claims on the ground
that plaintiffs did not make any allegations of mislabeling in their complaint or their first
motion for class certification. In addition, it pointed out that in ruling on plaintiffs’ first

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motion for class certification, the court determined that plaintiffs could not bring
misrepresentation claims related to the use of “ringers” in certification testing and had
waived an express warranty claim based on the same conduct. Dkt. #492 at 10-11. In
granting defendant’s Daubert motion, I did not consider whether plaintiffs should be allowed
to proceed on these labeling claims because I excluded plaintiffs’ expert reports that
identified and described the defects that made the windows unmerchantable in the first
place.
In their motion for reconsideration, plaintiffs argue that the claims related to
improper labeling do not “turn on the excluded expert opinions” regarding the windows’
defects because the “focus and premise of these claims are Kolbe’s improper practice of only
tweaking the limited windows on which it performed certification testing, but allowing
certification labels to be affixed to all windows.” Dkt. #526 at 33. However, plaintiffs fail
to explain why they would not need to rely on the expert testimony to establish that the
windows are defective and therefore unmerchantable. For its part, defendant does not
respond to plaintiffs’ conclusory assertion about the insignificance of the expert opinions.
Instead, it focuses on plaintiffs’ failure to plead these claims or raise them in their first
motion for class certification. Dkt. #530 at 28-29.
I agree that even if these claims are not dependent on the expert testimony of Wolf
and Beckham, plaintiffs have not raised raise them appropriately. They have not alleged any
facts related to the labels on defendant’s windows or defendant’s alleged failure to conform
to promises it made on the labels in their amended complaint or in any of their numerous

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filings made since that time (including their response to defendant’s motion for summary
judgment, their motion for reconsideration of the summary judgment order and their initial
motion for class certification). Accordingly, I find that plaintiffs have failed to plead any
claims for the breach of the implied warranty of merchantability related to false labeling and
have waived their right to do so at this point in the proceedings.

II. INDIVIDUAL CLAMS OF NAMED PLAINTIFFS
After I excluded the expert opinions of Wolf and Beckham that defendant’s windows
contained defects that caused the windows to rot prematurely, I asked plaintiffs to show
cause why their individual claims should not be dismissed. Because plaintiffs had based their
defect theories on their experts’ opinions, it was unclear whether without those opinions,
they had any evidence to establish that the problems they observed in their own windows
resulted from defects attributable to defendant. In a one-page discussion in their brief in
response to the show cause order, plaintiffs contend that they are “prepared to proceed with
alternative common evidence,” including their observations of the failures in their own
windows and the testimony of three of defendant’s employees who observed the defects or
knew that defendant was aware of the defects. Dkt. #526 at 46-47. However, plaintiffs
have not explained how any of these witnesses would establish that the rot or water intrusion
problems that plaintiffs observed in their windows were caused by defects in the sill-to-sash
interface or the K-Kron coating and not by something else altogether.

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None of the named plaintiffs purport to have any knowledge of the underlying defects
or the exact cause of the rot and water intrusion, a point that defendant emphasizes and
supports with excerpts from the plaintiffs’ deposition testimony. Dkt. #530 at 31-32. With
respect to defendant’s employees whom plaintiffs say will be called as adverse witnesses,
plaintiffs state in their opening brief only that they communicate routinely with other
employees and inspectors about customer complaints and field inspections and will “present
evidence regarding the presence of the Sill-to-Sash Interface and K-Kron defects, Kolbe’s
knowledge thereof, and its handling of warranty claims.” Dkt. #526 at 46. In their reply
brief, plaintiffs explain that George Waldvogel, Vice President of Quality, Service, and
Service Pro; Jerome Budnik, Field Service Manager; and Larry Flynn, Director of Field
Service all sent or received emails describing the defects that caused the types of problems
plaintiffs observed in their windows. Dkt. #536 at 23. For example, in 2008, Marc Cesario,
an employee of the distributor who sold the Haley plaintiffs their windows, informed
Waldvogel that defendant’s 106 ultra casement windows delivered and installed between
January and April 2002 were “wicking water that is being trapped on the sill” and that he
believed that there was a “three fold reason for this issue.” Dkt. #498, exh. 9 at 3. Stating
an opinion remarkably similar to Wolf’s, Cesario specifically identified that (1) the slope of
the sill is minimal and the surface tension is enough to hold water; (2) the setting blocks that
hold the sash in place are wood and absorb water, reducing their ability to hold the sash off
the sill and wicking water directly into contact with the sash; and (3) none of the units have

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clipped weatherstripping allowing water out and air in. Id. This evidence is problematic for
several reasons.
First, it is hearsay. Plaintiffs say that they intend to call as witnesses only those Kolbe
employees who received emails from other people who described alleged defects in
defendant’s windows. Plaintiffs do not say that they intend to call Cesario as a witness to
testify about his defect theory. They could not do this even if they wanted to because he can
state such an opinion only if he is called as an expert and plaintiffs have not named him as
an expert witness in this case in compliance with Fed. R. Civ. P. 26. Fed. R. Evid. 701
(opinion of lay witness must be “rationally based on witness’s perception” and not “on
scientific, technical, or other specialized knowledge within the scope of Rule 702"); Brown
v. Phillips, 801 F.3d 849, 854 (7th Cir. 2015) (noting requirements of Rule 701); Plyler v.
Whirlpool Corp., 751 F.3d 509, 514 (7th Cir. 2014) (“As a lay witness, Plyler could testify
to his observations of the fire and its aftermath, but not draw inferences about its origin,
which requires specialized knowledge.”).
Second, even if defendant’s employees or some other witness could identify defects
present in defendant’s windows on the basis of their own perceptions and not on specialized
knowledge, plaintiffs have not explained whether these defects were observed in the types
and models of windows purchased by the named plaintiffs. Although some of defendant’s
inspectors made observations about some of defendant’s windows, plaintiffs have not
pointed to any evidence showing what it was that Kolbe employees observed with respect
to the windows in the homes of the named plaintiffs.

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Finally, plaintiffs face an insurmountable problem with respect to causation.
Although they contend that they can testify about and present photographs showing the
staining and rot present in their own windows, they have no evidence to link those problems
to the “defects” identified by defendant’s inspectors or distributors. Without citing any
authority, plaintiffs assert that the trier of fact can draw the reasonable conclusion that the
staining and rot are consistent with the defects, but that is an impermissible inference for
either the court or jury to make without the benefit of expert testimony or other evidence.
E.g., Adkins v. Meijer Stores Ltd. Partnership, 256 Fed. App. 845, 847-48 (7th Cir. 2007)
(“Even if we assume that [defendant’s] parking lot was in disrepair, posing a danger to
customers, causation may not be inferred merely from the existence of an allegedly negligent
condition. . . . [Plaintiff’s] testimony reflects no direct connection between an identified
defect (even an ill-defined defect) and her resulting injury.”). The Court of Appeals for the
Seventh Circuit has recognized that windows can rot for many reasons other than defective
design and that to recover, plaintiffs must show that the alleged defect or defects caused the
damage to a particular window, which involves an analysis of how much the design
contributed to the rot. Pella Corp. v. Saltzman, 606 F.3d 391, 394-95 (7th Cir. 2010). See
also Haley v. Kolbe & Kolbe Millwork Co., 2015 WL 9255571, at *13 (W.D. Wis. Dec. 18,
2015) (noting that parties “agree that there are several causes for rot, including installation
error, humidity, lack of maintenance and, potentially, the alleged defects.”). The witnesses
and email communications identified by plaintiffs in response to the show cause order do
not provide answers to these crucial questions. Because plaintiffs have failed to come

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forward with any evidence or legal authority supporting their position that the trier of fact
may infer causation with respect to their individual claims, I must dismiss those claims.
Cung Hnin v. TOA (USA), LLC, 751 F.3d 499, 508 (7th Cir. 2014) (noting that “inferences
that are supported by only speculation or conjecture will not defeat a summary judgment
motion”).

ORDER
IT IS ORDERED that
1. The motion for reconsideration of the March 25, 2016 order, dkt. #525, filed by
plaintiffs Mary Haley, Michael Haley, Leslie Banks, Hal Banks. Annie Buinewicz, Brian
Bruinewicz, Terrance McIver, Jean Ann McIver, Susan Senyk, Christian Senyk, Matthew
Deller, Renee Deller, Patricia Groome, Gary Samuels and Marie Lohr is DENIED and the
remaining individual claims brought by these named plaintiffs are DISMISSED.
2. The clerk of court is directed to close this case and enter judgment in favor of
defendant Kolbe & Kolbe Millwork Co., Inc.
3. Intervenor United States Fire Insurance Company may have until June 17, 2016,
to show cause why I should not deny its motion for summary judgment as moot. Defendant
may have until June 24, 2016, to file a response. United States Fire may have until June 29,

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2016, to file a reply.

Entered this 7th day of June, 2016.
BY THE COURT:
/s/
___________________
BARBARA B. CRABB
District Judge

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