Gass v. Marriott Hotel Services, Inc.

• Decision Date: 08 May 2007
• Docket Number: No. 1:05-CV-856.,1:05-CV-856.
• Citation: 501 F.Supp.2d 1011
• Parties: Elizabeth A. GASS and Deborah Dejonge, Plaintiffs, v. MARRIOTT HOTEL SERVICES, INC. and Ecolab, Inc., Defendants.
• Court: U.S. District Court — Western District of Michigan

501 F.Supp.2d 1011

Elizabeth A. GASS and Deborah Dejonge, Plaintiffs, v. MARRIOTT HOTEL SERVICES, INC. and Ecolab, Inc., Defendants.

No. 1:05-CV-856.

United States District Court, W.D. Michigan, Southern Division.

May 8, 2007.

Opinion Denying Reconsideration May 24, 2007.

COPYRIGHT MATERIAL OMITTED

Peter D. Bosch,, Strain Murphy & Vander Wal PC, Grand Rapids, MI, for Plaintiffs.

Ronald C. Wernette, Bowman and Brooke LLP, Troy, MI, for Defendants.

OPINION

ROBERT HOLMES BELL, Chief Judge.

This is a negligence action in which Plaintiffs allege that they suffered chemical poisoning as a result of Defendants' spraying of pesticides in their hotel room. Defendants have filed motions for summary judgment, to strike expert witnesses, and to strike affidavit and other evidence. For the reasons that follow, judgment will be entered in Defendants' favor.

I.

Plaintiffs Elizabeth A. Gass and Deborah DeJonge were guests at Defendant Marriott Hotel Services, Inc.'s Wailea Marriott Hotel ("Hotel") in Maui, Hawaii from August 31, 2004 to September 7, 2004. The Hotel received pest control services from Defendant Ecolab, Inc. ("Ecolab"). Ecolab treated guest rooms at the resort on a quarterly basis. (Medeiros Dep. at 36). In addition, Ecolab would address additional pest elimination issues that were noted by the housekeeping department on a "service request log."

On September 6, 2004, Plaintiff DeJonge .reported to housekeeping that there was a dead cockroach by the sliding door of Plaintiffs' room, Room 1400. (Pl.Ex. A). The cockroach was removed and the incident was reported on the Ecolab service request log. (Pl.Ex. B).

On September 7, 2004, three representatives of Ecolab came to the Hotel to perform routine quarterly servicing of certain guest rooms. After completing the quarterly servicing they checked the service request log and noted a reference to the cockroach in Plaintiffs' room. (Medeiros Dep. at 54).

Defendants have presented evidence that two Ecolab employees, Michael Medeiros and Eduard Rivera, knocked on the door to Room 1400. (Medeiros Dep. at 54). They received no response so they entered with the master key provided by the Hotel. In less than a minute, and before they had started spraying, Plaintiff DeJonge entered the room. They advised her that they were there to spray because of the cockroach report and asked if they could spray. Plaintiff DeJonge did not respond to their question. Rivera sprayed two quick squirts of the insecticide SSI-50 (similar to Raid) from a 13 ounce aerosol can: one squirt to the underside of the countertop and one squirt on the side of the refrigerator. Plaintiff DeJonge became very upset, so Medeiros told Rivera to stop spraying and they left the room. (Medeiros Dep. at 54-59, 62-63).

Plaintiffs' evidence regarding Defendants' activities in their room varies greatly from Defendants' evidence. Plaintiff DeJonge testified that on September 7 she and Plaintiff Gass had been lounging outside. When she returned to the room through the sliding door there were three men standing in her room, two of whom were wearing masks, had tanks on their backs, and were spraying pesticides from the tanks with a spray wand attachment. The room was cloudy and had a thick, rancid, acrid odor. (DeJonge Dep. at 85-86;101-05). Plaintiff DeJonge stayed by the sliding door and yelled at the men to stop spraying. They stopped for a moment, but then resumed spraying. When she threatened to call the hotel manager they stopped spraying and left the room. (DeJonge Dep. at 85-86, 101-05).

Plaintiff DeJonge used the telephone in the room to call the front desk and asked the manager to come immediately. She waited for the manager outside. (DeJonge Dep. at 114). When the manager arrived she spoke to him outside. She told him that when she asked to have the roach removed she did not want the room treated. (Ex. D). She complained that the spraying might have ruined her belongings, that the smell was making her sick and that she needed a new room. (De-Jonge Dep. at 115). After he agreed to move Plaintiffs to another room Plaintiff DeJonge went to explain the situation to Plaintiff Gass. (DeJonge. Dep. at 127-28). Plaintiff Gass did not get excited and the more Plaintiff Gass discounted the magnitude of the situation, the more excited Plaintiff DeJonge became because she was starting to feel ill. (DeJonge Dep. at 128). Plaintiffs returned to their room, quickly packed their luggage, and waited in the hallway for the Hotel Manager to return. (DeJonge Dep. 132-33).

After moving their luggage to another room both Plaintiffs began to feel sick. Plaintiffs called the front desk complaining of numbness to their tongues, stomach aches, and seeing stars. (Pl.Ex. C, D). The Hotel arranged for them to be transported to a doctor. The doctor gave the Plaintiffs prednisone and advised them to drink a lot of water. (Pl.Ex. D, S, Z). Plaintiffs flew home to Michigan later that day.

Since their return to Michigan Plaintiffs have received medical and psychological treatment for their continuing complaints of facial swelling, nausea, diarrhea, headaches, discolored tongues, memory loss, mental confusion, blurred vision, fatigue, joint pain, mood swings, hormonal issues, chemical sensitivity, rashes; skin lesions, body aches, and dizziness. (Pl.Ex. S, T, U, V, AA, HH).

Plaintiffs filed this three-count complaint alleging that Defendants negligently allowed dangerous chemicals to be sprayed inside their hotel room while it was still occupied by Plaintiffs and their belongings, and that this negligence caused Plaintiffs to suffer chemical poisoning and other damages associated with that poisoning.

Defendants have filed a motion for summary judgment, a motion to strike experts, and a motion to strike affidavits.

II.

Defendants move to strike Plaintiffs' experts for failure to make a timely or adequate Rule 26 disclosure.

The March 7, 2006, Case Management Order required Plaintiffs to identify their experts by May 15, 2006, and to provide their Rule 26(a)(2) written expert reports by July 1, 2006. (Docket # 11). Discovery was scheduled to close on December 15, 2006. On May 15, 2006, Plaintiffs filed their Rule 26 disclosures and disclosure of expert witnesses, and identified Tom D'Muhala and Timothy J. Gibb,. Ph.D. as their liability experts. (Docket # 26 & 27). Plaintiffs advised that Dr. Gibb would testify regarding the procedure the Defendants used with respect to the chemical applications, the dangers associated with those chemicals, ventilation issues, safety procedures which should have been followed and Defendants' negligence with respect to the chemical application, the lack of safety for hotel guests and the actions of Defendants thereafter which resulted in the Plaintiffs' damages. Plaintiffs attached the curriculum vitae of Dr. Gibb.

Plaintiffs did not file any written expert reports by the July 1, 2006 deadline. Defendants advised Plaintiffs by letter dated August 8, 2006, that based upon Plaintiffs' failure to produce expert reports Defendants had concluded that Plaintiffs did not intend to use any testifying experts.

It was not until November 14, 2006 that Plaintiffs sent Defendants a copy of a report prepared by Dr. Gibb. In that report Dr. Gibb noted generally that without information concerning the rate and application of the chemical, he could not state that the label was violated. He listed some unanswered questions, and then noted:

General standard of care when using insecticides dictates that persons/guests should not be present when an insecticide aerosol application is made. This is not a legal standard but rather an ethical standard that is accepted throughout the industry. It is clear that this standard was breached in the case of your clients.

(Pl. Resp. to Mot. to Strike, Ex. 2). In response to Defendants' motion for summary judgment Plaintiffs have submitted an additional letter from Dr. Gibb. (Pl. Resp. Mot. to Strike Ex. 7). Dr. Gibb notes in this handwritten letter dated February 13, 2007, that it remains unclear as to what exact pesticides may or may not have been applied in the room, and that "individual differences in reactions and symptoms expressed are directly related to dose, time of exposure and specific chemicals to which a person is exposed." (Pl. Resp. Mot. to Strike Ex. 7). With respect to the standard of care, Dr. Gibb listed some general rules on the manner in which pesticides should be applied to public sensitive areas, including hotel rooms. (Pl. Resp. Mot. to Strike Ex. 7).

Plaintiffs have not provided, any written report from Mr. D'Muhala. Plaintiffs now advise that if they call Mr. D'Muhala, it will only be in rebuttal to the testimony of Defendants' experts, (Pl. Resp. to Mot. to Strike at 6).

Rule 26(a) of the Federal Rules of Civil Procedure requires an expert witness to provide a written report containing, inter alia "a complete statement of all opinions to be expressed and the basis and reasons therefor." FED. R. Civ. P. 26(a)(2)(B). The disclosures are intended to eliminate surprise, to avoid unnecessary depositions, to reduce costs, and to enhance the court's gatekeeping role. Salgado v. General Motors Corp., 150 F.3d 735, 741 n. 6 (7th Cir.1998); FED. R. Civ. P. 26 Advisory Committee Notes, 1993 Amendments, Paragraph (2). The conclusory Gibbs reports, in addition to being untimely, are utterly lacking in the detail required by Rule 26(a)(2). They do not disclose "a complete statement of all opinions to be expressed," nor do they disclose "the basis and reasons" for his opinions, the "data or other information" he considered in forming his opinions, the compensation he is to be paid, or a listing of other cases in which he has testified as an expert. FED. R. CIV. P. 26(a)(2)(B).

Plaintiffs admit that their expert report was untimely, but contend that the untimely disclosure was due to late discovery responses from Defendants. They also note that Defendants...