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Haley v. Kolbe & Kolbe Millwork Co., Inc.

United States District Court, W.D. Wisconsin

June 7, 2016

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,
v.
KOLBE & KOLBE MILLWORK CO., INC., Defendant, and FIREMAN’S FUND INSURANCE COMPANY and UNITED STATES FIRE INSURANCE COMPANY, Intervenor Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE

         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’ 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 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) 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 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 ...


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