Brucker v. Lowe's Home Centers, Inc., No. 2:2010cv00405 - Document 169 (M.D. Fla. 2012)

Court Description: OPINION AND ORDER granting 95 Motion to strike plaintiffs' January 17, 2012 expert report of J.S. Sutton; granting 105 Motion to strike plaintiffs' January 24, 2012 expert report of David C. Straus; granting 112 Motion for summary jud gment in favor of National Gypsum Company; granting in part 130 Motion to strike references and exhibits relating to scientific studies of Chinese drywall; granting 113 Motion to exclude expert reports and testimony of plaintiffs' expert wit nesses. The Clerk shall enter judgment in favor of National Gypsum Company and against plaintiffs, who shall take nothing. The Clerk shall further terminate any pending motions (terminating 164 Motion in limine; terminating 165 Motion in limine ; terminating 167 Motion to sever; terminating 168 Motion in limine) and deadlines and administratively close the case as to co-defendant Lowe's Home Centers, Inc. pending a national settlement. Signed by Judge John E. Steele on 7/24/2012. (RKR)

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION CHRIS BRUCKER, TREVER S. NUTTING, XIOMARA RAVELO, WILFREDO E. RETANA and BEATRIX CELSA RETANA individually, and on behalf of all others similarly situated, Plaintiff, vs. Case No. 2:10-cv-405-FtM-29SPC LOWE'S HOME CENTERS, INC., a North Carolina corporation and NATIONAL GYPSUM COMPANY, a Delaware corporation, Defendants. ___________________________________ OPINION AND ORDER This matter comes before the Court on Defendant New NGC, Inc. s Motion for Summary Judgment (Doc. #112) filed on March 16, 2012. Plaintiff s Response In Opposition (Doc. #131) was filed on April 16, 2012, while defendant New NGC, Inc. s Reply (Doc. #148) was filed on April 26, 2012. There are also several pending motions related to the request for summary judgment which must first be resolved. Plaintiffs Motion to Strike References and Exhibits Relating to Scientific Studies of Chinese Drywall on Summary Judgment Motion (Doc. #130) was filed on April 16, 2012. Defendant New NGC, Inc. s Response in Opposition (Doc. #150) was filed on May 3, 2012. The Court will grant the motion in part. Only references and exhibits relating to American-made drywall, including National Gypsum drywall manufactured at the Apollo Beach, Florida plant, will be considered; the other references and exhibits will be stricken. Defendant National Gypsum filed a Motion to Strike Plaintiffs January 17, 2012 Expert Report of J.S. Sutton (Doc. #95) on January 26, 2012. Plaintiffs filed a Memorandum in Opposition (Doc. #106) on February 23, 2012. Defendant National Gypsum filed a Motion to Strike Plaintiffs January 24, 2012 Expert Report of David C. Straus (Doc. #105), to which plaintiffs filed a Memorandum in Opposition (Doc. #107). Defendant National Gypsum also filed a Motion to Exclude Expert Reports and Testimony of Plaintiffs Expert Witnesses David C. Straus and John Sam Sutton (Doc. #113) on March 16, 2012, to which plaintiffs filed a Response in Opposition (Doc. #132) on April 16, 2012. Additionally, a Reply (Doc. #147), a Supplemental Brief (Doc. #162), and a Reply to Plaintiffs Supplemental Brief (Doc. #163) were also filed. These motions seek to strike evidence relating to a new theory of liability proffered by various experts for plaintiffs. In an Opinion and Order (Doc. #160) filed on June 15, 2012, the Court precluded evidence of this new theory from Dr. Straus. The same rationale requires granting the motions to strike to the extent the evidence relates to the new, untimely theory relating to ST/Sulfuric Acid . As the Joint Final Pretrial Statement (Doc. #166) establishes, plaintiffs now rely exclusively on the new theory of liability which the Court has precluded in its prior Opinion and Order. -2- Plaintiffs experts have abandoned the prior theory of liability, and there is no summary judgment evidence which would allow a reasonable jury to find liability on the basis of the prior theory. Accordingly, defendant National Gypsum Company is entitled to summary judgment in its favor. Accordingly, it is now ORDERED: 1. Defendant New NGC, Inc. s Motion for Summary Judgment (Doc. #112) is GRANTED and judgment shall be entered in favor of National Gypsum Company and plaintiffs shall take nothing. 2. Plaintiffs Motion to Strike References and Exhibits Relating to Scientific Studies of Chinese Drywall on Summary Judgment Motion (Doc. #130) is GRANTED IN PART. Only references and exhibits relating to American-made drywall, including National Gypsum drywall manufactured at the Apollo Beach, Florida plant, will be considered; the other references and exhibits will be stricken. 3. Defendant National Gypsum s Motion to Strike Plaintiffs January 17, 2012 Expert Report of J.S. Sutton (Doc. #95) is GRANTED. 4. Defendant National Gypsum s Motion to Strike Plaintiffs January 24, 2012 Expert Report of David C. Straus (Doc. #105) is GRANTED. -3- 5. Defendant National Gypsum s Motion to Exclude Expert Reports and Testimony of Plaintiffs Expert Witnesses David C. Straus and John Sam Sutton (Doc. #113) is GRANTED. 6. The Clerk of the Court shall enter judgment in favor of National Gypsum Company and against plaintiffs, who shall take nothing. The Clerk shall further terminate any pending motions and deadlines and administratively close the case as to co-defendant Lowe s Home Centers, Inc. pending the national settlement. DONE AND ORDERED at Fort Myers, Florida, this July, 2012. Copies: Counsel of record -4- 24th day of

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