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Fitz, Inc. v. Ralph Wilson Plastics Co.

March 12, 1999

FITZ, INC. D/B/A HANDMADE FURNITURE CO., AND UP AGAINST THE WALL,
PLAINTIFFS,
V.
RALPH WILSON PLASTICS COMPANY, AND PREMARK INTERNATIONAL INC.,
DEFENDANTS.



The opinion of the court was delivered by: Joel B. Rosen United States Magistrate Judge

FOR PUBLICATION

CAMDEN VICINAGE

HONORABLE JOSEPH H. RODRIGUEZ

OPINION

ROSEN, Magistrate Judge

I. INTRODUCTION

Presently before this court is the motion of Duane, Morris & Heckscher, LLP, counsel for the defendants, Ralph Wilson Plastics Company and Premark International Inc., to compel additional deposition testimony by Julio Fernandez, one of plaintiff's experts or, in the alternative, to preclude him from testifying as plaintiffs' expert, pursuant to Fed. R. Civ. P. 26. After careful consideration of the parties' submissions; and having heard argument on November 16, 1998 and February 19, 1999; and for the reasons noted below, the defendants' motion to compel additional deposition testimony by Julio Fernandez, one of plaintiff's experts or, in the alternative, to preclude him from testifying as plaintiffs' expert, pursuant to Fed. R. Civ. P. 26. shall be DENIED.

II. FACTUAL BACKGROUND

Plaintiff Fitz, Inc., a furniture and cabinet maker, used an adhesive product manufactured and marketed by Defendant Ralph Wilson Plastics Company (hereinafter "Ralph Wilson") and its parent company, Premark International, Inc. (hereinafter "Premark"). The adhesive product, Lokweld # 1055 and # 1056, was used to bond a laminate on to such items as kitchen cabinets and counters in residential and commercial buildings. (Complaint ¶ 26.) The plaintiff allegedly used this product between 1987 and 1992. (Complaint ¶ 27.) In 1993, the defendants removed the adhesive from the market. The plaintiff asserts that some time after installation, the laminates begin to peel from applied surfaces, causing damage to the furniture. The plaintiff contends that this delamination occurred because of inherent defects in the adhesive. (Complaint ¶¶ 37 to 41.) The plaintiff further asserts that by 1988 the defendants knew or should have known of the adhesive's defects, and thus should have taken preventive measures or altered its marketing to eliminate the problems caused by the adhesive. (Complaint ¶¶ 52 to 56.)

In March 1993, the defendants established a formal resolution program for delamination problems associated with Lokweld 1055 and 1056. (Complaint ¶ 60.) The plaintiff, however, asserts that through the resolution program the defendants' representatives unfairly delayed the administration of the claims and attempted to obtain settlements by asserting that the delamination was caused by misapplication and not by a defect in the adhesive. (Complaint ¶¶ 61 to 68.)

On November 9, 1994, Plaintiff Fitz, Inc. filed a putative class action in New Jersey Superior Court alleging that the defendants manufactured and marketed faulty laminate adhesive. The plaintiff asserts that the class -- "all persons or entities who purchased the Lokweld adhesives at issue from distributors of Ralph Wilson products for use in installing interior laminates in residential and commercial locations" -- comprises thousands of persons and entities throughout New Jersey and the United States. (Complaint ¶¶ 8-9.) The plaintiff seeks damages for the defendants' alleged breached of express warranties (Count I), implied warranties of merchantability and fitness for a particular purpose (Count II), violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq., (Count III) and other similar acts in other states on behalf of the class (Count IV), as well as fraudulent concealment (Count V).

The defendants removed the action to this court based upon diversity jurisdiction, 28 U.S.C. § 1332. The defendants thereafter filed a motion to dismiss the complaint, which the Honorable Joseph H. Rodriguez denied by Order filed December 20, 1995. In the December 20, 1996 Order, Judge Rodriguez also considered the plaintiff's application for class certification, which was denied without prejudice. See James Fitz-Randolph, et al. v. Ralph Wilson Plastics Company, et al., Civ. No. 94-6017, Order Filed December 20, 1996, at 12 to 17.

Currently at issue is plaintiffs' use of Julio Fernandez as an adhesives expert. During Mr. Fernandez's three- day deposition, *fn1 the defendants asked him questions relating to the basis for his opinions, mainly his knowledge and experience in formulating, developing, and testing contact adhesives, acquired while employed at LePage, a division of National Starch, which was purchased by, and became a division of Henkel Canada Ltd. (hereinafter "Henkel"). (Defendants' Brief in Support of their Motion to Compel Deposition Testimony by Julio Fernandez, One of Plaintiffs' Experts or in the Alternative, To Preclude Him From Acting as Plaintiffs' Expert (hereinafter "Defs.` Br.") at 1.) While Mr. Fernandez admitted that his opinions were based in part upon his experience at Henkel (March 18, 1998 dep. tr. at 54; May 21, 1998 dep. tr. at 55-56), the defendants claim that Mr. Fernandez did not give specific enough details about that experience to provide a basis for the opinions which he intends to offer at trial.

Mr. Fernandez explained to the defendants that a confidentiality agreement with his former employer, Henkel, precluded him from answering their questions with specific details regarding confidential information such as adhesive formulations or developmental methodologies. (See Decl. of Julio Fernandez ¶¶ 7-8; Pls.' Opp'n at Exhibit "D".) Defendants now seek to compel Mr. Fernandez to answer these questions, or to alternatively preclude him from acting as plaintiffs' expert pursuant to Fed. R. Civ. P. 26.

Specifically, the defendants seek the basis for Mr. Fernandez's opinion on the cause of Lokweld 1055's failures, and the basis for his criticism of Wilsonart's testing protocols and formulation of Lokweld 1055, including information pertaining to adhesives formulas that he formulated, tested or developed, and testing procedures used at Henkel. (Defs.' Br. at 2-6.) Although Mr. Fernandez explained during his deposition that the confidentiality agreement with Henkel did not allow him to reveal confidential proprietary information of Henkel to any third party, defendants claim that his refusal to specifically explain what he did at Henkel "is fatal to his ability to testify as an expert pursuant to Rule 26." (Defs.' Br. at 6.)

To the contrary, plaintiffs' argue that Mr. Fernandez fully testified regarding his qualifications, prior work experience, opinions, and the bases thereof. Plaintiffs claim that there were only two types of information which Mr. Fernandez did not divulge during his deposition: (1) the exact formulas of adhesives that he developed while at Henkel, and (2) the test protocols that he used when he worked at Henkel. This information, according to plaintiffs, is irrelevant and does not form the basis of Mr. Fernandez's opinions in his expert reports, as he did not compare the formulas or testing methods of Ralph Wilson with those of Henkel, but rather relied on Ralph Wilson's own scientific data and literature. (Plaintiffs' Opposition to Defendants' Motion to Compel Deposition Testimony By Julio Fernandez, One of Plaintiffs' Experts, Or, in the Alternative, To Preclude Him From Acting as Plaintiffs' Expert (hereinafter "Pls.' Opp'n") at 2-3.)

Furthermore, the plaintiffs argue that to preclude Mr. Fernandez as an expert would be severely prejudicial in light of the cost that plaintiffs have incurred in retaining him for two years to conduct in-depth analysis. In support of their position, plaintiffs state the following:

[Mr. Fernandez] has conducted substantial research and analysis regarding Lokweld, he has written two fifty-page reports, he has offered three days of deposition testimony, and he will be an invaluable witness for plaintiffs at trial. Also, given his credentials, Mr. Fernandez is one of the premiere adhesives experts in North America. At this advanced stage of the litigation, after expert discovery had been completed, Mr. Fernandez could not be replaced as an expert. (Pls.` Opp'n at 20.)

Therefore, when asked by the court at the second oral argument, whether plaintiffs would consider hiring another expert, counsel for the plaintiffs ...


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