Brincku et al v. National Gypsum Company et al, No. 2:2011cv00338 - Document 233 (M.D. Fla. 2012)
Court Description: OPINION AND ORDER granting 171 Motion for summary judgment in favor of National Gypsum Company; granting in part 188 Motion to strike references and exhibits relating to scientific studies of Chinese drywall; granting 172 MOTION to exclude expe rt reports and testimony of Plaintiffs' Experts. 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 211 Motion in limine; terminating 212 Motion in limine; terminating 213 Motion in limine) and deadlines and close the case. 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 GEORGE BRINCKU and BRENDA BRINCKU, Plaintiff, vs. Case No. 2:11-cv-338-FtM-29DNF NATIONAL GYPSUM COMPANY, a Delaware corporation Defendant. ___________________________________ OPINION AND ORDER This matter comes before the Court on Defendant New NGC, Inc. s Motion for Summary Judgment (Doc. #171) filed on March 16, 2012. Plaintiffs Response In Opposition (Doc. #193) was filed on April 16, 2012, while defendant s Reply (Doc. #208) 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. #188) was filed on April 16, 2012. Defendant s Response in Opposition (Doc. #210) was filed on May 3, 2012. The Court will grant the motion in part. Only references and exhibits relating to Americanmade drywall, including National Gypsum drywall manufactured at the Apollo Beach, Florida plant, will be references and exhibits will be stricken. considered; the other Defendant filed a Motion to Exclude Expert Reports and Testimony of Plaintiffs Expert Witnesses David C. Straus and John Sam Sutton (Doc. #172) on March 16, 2012, to which plaintiffs filed a Response in Opposition (Doc. #189) on April 16, 2012. Additionally, a Reply (Doc. #207), a Supplemental Brief (Doc. #229), and a Reply to Plaintiffs Supplemental Brief (Doc. #232) were also filed. a new theory plaintiffs. of This motion seeks to strike evidence relating to liability proffered by various experts for In an Opinion and Order (Doc. #222) filed on June 15, 2012, the Court precluded evidence of this new theory from Dr. Straus. The same rationale requires granting the motion to exclude to the extent the evidence relates to the new, untimely theory relating to ST/Sulfuric Acid. As the Joint Final Pretrial Statement (Doc. #214) establishes, plaintiffs now rely exclusively on the new theory of liability which the Court has precluded in its prior Opinion and Order. 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 -2- 1. Defendant New NGC, Inc. s Motion for Summary Judgment (Doc. #171) 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. #188) 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 s Motion to Exclude Expert Reports and Testimony of Plaintiffs Expert Witnesses David C. Straus and John Sam Sutton (Doc. #172) is GRANTED. 4. 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 close the case. DONE AND ORDERED at Fort Myers, Florida, this July, 2012. Copies: Counsel of record -3- 24th day of
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