Beyer v. Anchor Insulation Co.

• Decision Date: 17 February 2017
• Docket Number: Civil No. 3:13–cv–1576 (JBA)
• Citation: 238 F.Supp.3d 270
• Court: U.S. District Court — District of Connecticut
• Parties: Monica and Richard BEYER, Plaintiffs, v. ANCHOR INSULATION CO., Defendant.

238 F.Supp.3d 270

Monica and Richard BEYER, Plaintiffs,

v.ANCHOR INSULATION CO., Defendant.

Civil No. 3:13–cv–1576 (JBA)

United States District Court, D. Connecticut.

Signed February 17, 2017

Dawn Marie Smith, Clinesmith Wooten Smith LLP, Dallas, TX, Michael J. McCabe, Attorney at Law, Milford, CT, for Plaintiffs.

Beck S. Fineman, Robert O. Hickey, Gina M. Von Oehsen, Thomas S. Lambert, Ryan Ryan DeLuca, LLP, Stamford, CT, for Defendant.

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Janet Bond Arterton, U.S.D.J.

Defendant Anchor Insulation Co. ("Anchor" or "Defendant") moves [Doc. # 189] for summary judgment on all remaining counts in this product liability action involving Defendant's installation of spray polyurethane foam insulation ("SPF") in the home of the Plaintiffs Richard and Monica Beyer ("Plaintiffs" or the "Beyers"), arguing that Plaintiffs cannot establish product defect or causation absent expert testimony that must be precluded as argued in Defendant's three separate Daubert motions [Docs. ## 192 (Motion to preclude Testimony of Mr. Gary Cude), 194 (Motion to Preclude Testimony of Dr. Yuh–Chin Huang), and 195 (Motion to Preclude Testimony of Dr. David Nicewicz).¹

Oral argument was held on January 17, 2017. For the reasons set out below, the Court GRANTS Defendant's motion to preclude the testimony of Dr. Yuh–Chin Huang, GRANTS in part and DENIES in part Defendant's motion to preclude the testimony of Mr. Gary Cude (limiting his testimony to his areas of expertise) and GRANTS in part and DENIES in part Defendant's motion to preclude the testimony of Dr. David Nicewicz (limiting his testimony to his areas of expertise). Based on these Daubert rulings, the Court DENIES Defendant's motion for summary judgment.

I. Background²

A. SPF Foam Insulation

The SPF at issue in this case is a foam insulation that forms when two liquids, an isocyanate component and a polyol resin component, referred to as "A Side" and "B Side," come together at the tip of a spray gun in equal parts. (See Plaintiff's Memorandum in Opposition to Mot. Summ. J. ("Mem. Opp'n") [Doc. # 225] at 3; Ex. 28 ("John Mansville Corbond III Advertisement") to Opposition to Summ. J. ("Opp'n") [Doc. # 228–30] at 1.) The A Side and B Side are stored in separate drums, pumped through separate hoses and combined at nozzle-point to spray onto surfaces that are to be insulated. (Corbond III Advertisement at 3.) When the two sides combine, they form a foam that expands and goes through a period of curing before it is a fully finished product. (Id. )

The spray foams at issue in this case are manufactured by Johns Manville ("JM"), which manufactures "Corbond III," a 2 lb. "closed cell" spray foam insulation (Corbond III Advertisement at 3), and by Icynene, which manufactures a 2 lb. spray foam insulation called "LD–R–50." (Ex. 18 ("Icynene Technical Bulletin") to Mem. Opp'n [Doc. # 225–20] at 2.) These companies are no longer in this case.

Both Johns Manville and Icynene train installers in the proper technique for installing spray foam, including installers from Anchor. (Plaintiffs' D. Conn. L. Civ. R. 56a(2) Statement ("56a(2)") [Doc. # 225–2] at ¶ 16). Both companies direct installers not to mix their product with that of other manufacturers. John Mansville notes that when SPF "is installed off ratio [i.e. when the A Side and B Side are not combined in equal parts], outside the manufacturer's installation guidelines, or in concert with other products [e.g. when a Johns Manville A Side is mixed with an Icynene B Side or vice versa ] which may affect the chemistry of the SPF product ... the resulting finished SPF product may shrink substantially and/or have sections of un-reacted or very brittle foam." (Ex. 4 to Opp'n to Mot. Summ. J. [Doc. # 225–6].)

Anchor's email correspondence with Icynene reflects similar beliefs about the effects of mixing different products, though in more prosaic language. On December 21, 2011, Greg Fiske of Anchor wrote to Paul Duffy of Icynene regarding "Franken-foam:" "What I want to know is, if there was a contamination of Icynene into Corbond, is there a chance the result [ ] ... would be any more harmful than the sum of the parts? ... 90+ percent Corbond with a bit of Icynene, have we got some monster chemical that is deadly?" Paul Duffy forwarded the inquiry to Larry Genyn, the Vice President of Technology at Icynene, who responded, "there is no hybrid chemical that can be produced .... Even the bad foam that was there, may have had a distinct odor or feel, but nothing that would be classified as poisonous or toxic." (Ex. 22 to Plaintiff's Opp'n to Mot. Summ. J. [Doc. # 225–24].)

Johns Manville publishes Materials Safety Data Sheets ("MSDSs") for its A Side, B Side, and the compound SPF foam. (Ex. 12 ("JM MSDSs") to Opp'n. to Mot. Summ. J. [Doc. # 225–14].) The JM MSDS for A Side states that "breathing vapors from this product may cause irritation of the upper respiratory tract, fatigue, weakness, drowsiness, and headache. Allergic or asthma-type reactions may occur following sensitization to isocyanates." (Id. ) The MSDS for B Side indicates that "[i]nhalation at levels above the occupational safety exposure limit could cause respiratory sensitization and risk of serious damage to the respiratory system. The onset of respiratory symptoms may be delayed for several hours after exposure." (Id. ) By contrast, the finished spray foam is relatively inert, but nonetheless can be hazardous under certain conditions, primarily if ground into dust or chipped: "Primary routes of exposure: Respiratory tract if product is torn, chipped or ground into chips or dust. Mechanical irritant. Acute Effects: Inhalation: Repeated excessive exposure to dust or small chips may cause upper respiratory irritation." (Id. )

Icynene's president and CEO distributed a memorandum to all of its licensed dealers and distributors world-wide delineating safety procedures for installing Icynene foam. In its introduction, the memorandum stated,

[d]uring the handling, processing and application of Icynene spray foam products, exposure to chemicals, particularly MDI [methylene diphenyl diisocyanate], may cause a range of adverse health effects including irritation or sensitization. Short or long-term exposure to MDI can affect the skin, eyes and respiratory system. Chronic skin exposure can lead to skin irritation and/or sensitization, and may cause respiratory sensitization.

(Icynene Technical Bulletin at 1.)

B. Installation of the Foam

Plaintiffs Richard and Monica Beyer live in a century-old home in Niantic, Connecticut. Since 2000, Mr. Beyer has worked for a granite countertop company in a building that has been shared since 2009 with Defendant Anchor Insulation. Anchor used the warehouse to store its chemicals and in 2010 those chemicals were moved closer to Mr. Beyer's work station. (See Ex. 17 ("Russomanno Report") to Opp'n to Mot. Summ. J. [Doc. # 225–19] at 2–4.)

In Fall 2010, Plaintiffs contracted with Anchor for the installation of SPF throughout their home. (Opp'n. to Mot. Summ. J. at 3.) Plaintiffs remained in the home during the installation, which took place on several days spaced out over some weeks in September and October 2010. Mr. Beyer personally observed some portion of the installation, while Mrs. Beyer was simply in the home during the installation. (56a(2) Stmt. ¶ 2.)³ Neither Mr. Beyer nor the men installing the foam wore protective clothing, and Mr. Beyer did not wear any respiratory protective device.⁴ (Ex. 7 ("M. Beyer Tr.") to Opp'n to Mot. Summ. J. [Doc. # 225–9] at 41:8–21.)

After the SPF was installed, Plaintiffs noticed a sweet odor throughout their house (Ex. 1 ("R. Beyer Tr. Vol. 1") to Opp'n to Mot. Summ. J. [Doc. # 225–2] 75:22–25; M. Beyer Tr. 41:1–4)⁵ and when Mr. Beyer went into the attic, the odor became stronger, burning his eyes and irritating his throat. (R. Beyer Tr. at 75:17–25.)

Plaintiffs maintain that Anchor installed the Beyer's insulation improperly. (See 56a(2) Stmt. ¶¶ 9 (samples contaminated), 17 (layers too thick; insufficient cure time), 19 (incorrect product).) This claim of faulty installation reflects Anchor's practices at the time: in a September 24, 2010 Johns Manville email, JM employee Mike Donnelly described a visit to Anchor's warehouse where

Anchor's men did spray some material in a constructed wall cavity in the warehouse from the same set of JM Corbond III material for Neal to inspect. Neal noticed immediately that there was much contamination evident in this material. Anchor's men admitted that they often are forced to switch from open cell product (Icynene) to Corbond III using the same spray equipment. Neal told them in no uncertain terms that this is the main cause of the product defect.

(Ex. 13 ("Sept. 24, 2010 Donnelly E–mail") to Opp'n to Mot. Summ. J. [Doc. # 225–15].) Anchor's installer Wayne LaPierre testified that he often sprayed the foam in thicker swaths than recommended and that he did not wait the recommended cure time before spraying further layers on top of layers he had already sprayed. (Ex. 9 ("LaPierre Tr.") to Opp'n to Mot. Summ. J. [Doc. # 225–11] at 198:16–201:20.)

After the installation, visual inspection of the foam revealed that during the process of curing and hardening, it had shrunk and pulled away from the surfaces on which it had been sprayed. (Ex. 2 ("Photographs of Insulation") to Opp'n to Mot. Summ. J. [Doc. # 225–4]; Ex. 22 ("December 22, 2011 E–mail") to Opp'n. to Mot. Summ. J. [Doc. # 225–24] (Icynene representative stating in internal email that the foam "shrunk and cracked...."))

After Mr. Beyer sent samples of the foam installed by Anchor to JM for inspection, JM responded:

Initial visual inspection of several of the samples showed foam that was very low in density with large course [sic] open cell structures. The low-density open cell foam is brownish and/or purple color. Ordinarily, a true, properly prepared JM Corbond III product is uniformly lavender in color. The

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