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University Hospitals Health System, Inc. v. Pohl Inc. of America

United States District Court, N.D. Ohio, Eastern Division

March 23, 2018



          Donald C. Nugent, United States District Judge

         This matter is before the Court on the Motion to Quash Deposition of David Mallory, P.E. (Docket #53) filed by Defendant, Pohl Inc. of America ("Pohl").

         I. Factual and Procedural Background.

         This case was originally filed by Plaintiff, University Hospitals Health System ("UHHS"), on October 27, 2015. On December 1, 2015, Pohl removed the case to this Court. On December 10, 2015, UHHS filed its First Amended Complaint. (Docket #5.) UHHS seeks to recover the costs to remove and replace exterior cladding - Faveton Bersal terra cotta rainscreen panels, manufactured for Pohl in June 2009 by Faveton/Ceramicas Casao ("Faveton") - purchased by Pohl for construction of the new Ahuja Medical Center in Beachwood, Ohio ("the Project"). Pohl was selected by the Project Construction Manager, Gilbane Building Company, to supply the Panels for the Project and, in its Proposal, made certain representations regarding the characteristics and quality of the Panels and provided certain warranties.

         As alleged by UHHS, Pohl delivered the Panels to the Project from July 19, 2009 to August 19, 2009. The Panels were installed by Cleveland Marble from July to December 2009. During original construction and following substantial completion of the project, some of the Panels showed signs of spauling and cracking and, although some were replaced, the problems continued. On March 2, 2010, Cleveland Marble's Project Manager, Daniel Ulmer, reported to Pohl's Chief Executive Officer, Udo Clages, that "a lot more cracked tile [was] being noticed." As set forth by UHHS, the timeline of Pohl's action and response to the cracking Panels is as follows:

On March 8, 2010, Luis Matos of Faveton advised Pohl that Faveton's quality manager allegedly analyzed the pictures of the cracked Terra Cotta Panels that Pohl had forwarded to Faveton and determined the cracks were not caused by Faveton's manufacturing process. (Exhibit A-2, ¶ 6.) On March 10, 2010, Pohl reported to Faveton that Cleveland Marble observed 26 additional cracked Terra Cotta Panels and is "expecting that [Pohl/Faveton] take measures to analyze and resolve the problem immediately, before the final punchlist will be done." (Id.) By April 23, 2010, Cleveland Marble reported to Pohl that they had replaced 52 tiles to date and will be replacing another 33 cracked Terra Cotta Panels on the southeast elevation of the building. (Exhibit A-3, ¶ 7.)
In response, on April 24, 2010, Udo Clages of Pohl instructed his Controller Kimberly Reepmeyer ("Ms. Reepmeyer") to "advise our insurance company Lockton of the current situation with the cracked tiles of Faveton. Ask them to provide a list of technical experts who can assist us in finding out the reasons for the cracking tiles." (Id.)
On April 26, 2010, Pohl's controller contacted Lindsey Harlan, Account Executive for Lockton Insurance Companies ("Ms. Harlan") and requested a technical expert to assist Pohl in identifying the reason for the cracks in the Terra Cotta Panels. (Exhibit A-4, ¶ 8.) Ms. Harlan, in turn, contacted Joerg Schroeder of Pohl's German parent company ("Mr. Schroeder") to inquire how Pohl's German Product Recall policy would respond to the cracks in the Terra Cotta Panels. (Id.) Ms. Harlan reported to Mr. Schroeder that Faveton allegedly tested the Terra Cotta Panels and determined that their product was allegedly not defective. (Id.) Ms. Harlan further advised Mr. Schroeder that Lockton Insurance Companies "put Pohl in touch with an engineer for a second opinion of the product, at their request, in hopes to determine if the tiles are defective or if the cracking is due to installation." (Id.)
Ms. Harlan recommended that Pohl contact David S. Mallory, Jr., P.E. of Engineering Design & Testing Corp. ("Mr. Mallory"). (Id.) On May 4, 2010, Pohl's Project Manager Dana Johnson contacted Mr. Mallory and requested information related to Mr. Mallory* s experience working on similar tile cracking projects. (Exhibit A-5, ¶ 9.) On May 7, 2010, Mr. Mallory proposed to Pohl's Project Manager Dana Johnson a $3, 500.00 budget to conduct a site inspection, perform materials testing, if required, and prepare a written report. (Id.) Specifically, Mr. Mallory planned to analyze the fracture surface of the cracked tiles with a microscope to identify whether there were voids in the material and determine whether the cracks were caused from a single occurrence or gradually over time. (Id.)
On May 10, 2010, Lockton Insurance Companies advised Ms. Reepmeyer that they would not attend the site inspection with Mr. Mallory but would like a copy of his report. (Exhibit A-6, ¶ 10.) On May 12, 2010, Ms. Harlan confirmed to Ms. Reepmeyer that if deemed a product defect Pohl's German Product Recall policy would cover the cost of replacing the defective tiles and installing non-defective replacements. (Exhibit A-4, ¶ 8.) Mr. Schroeder further advised that Pohl should "wait to hear from the engineer conducting the inspection to determine the cause of loss before taking any steps." (Id.)
On May 13, 2010, Mr. Mallory conducted a site inspection of the Terra Cotta Panels at the Project along with Pohl's Project Manager Dana Johnson and Cleveland Marble's Project Manager Daniel Ulmer. (Exhibit A-7, ¶ 11.) Dana Johnson reported in a follow-up email that Mr. Mallory would require 2 weeks to deliver his report, including tile testing. (Id.)
On June 8, 2010, Mr. Mallory forwarded to Pohl's Project Manager Dana Johnson a report dated June 7, 2010 summarizing his initial findings from the May 13, 2010 site inspection. (Exhibit A-8, ¶ 12.) Initially, Mr. Mallory reported that the "shared characteristic between the damaged tile inspected is a vertical deformation (sag) along the lower drip edge. (Id.) Ms. Reepmeyer forwarded Mr. Mallory's summary report to Pohl's insurer Lockton Insurance Companies. (Exhibit A-9, ¶ 13.)
On June 12, 2010, Pohl sent Mr. Mallory's June 7, 2010 report to Luis Matos at Faveton and Javier Casao at Ceramicas Casao. (Exhibit A-10, ¶ 14.) Pohl advised Mr. Matos and Mr. Casao '"there is a major risk for further continued damages to the tiles, resulting in the replacement of the damaged tiles." (Id.) Pohl requested that Faveton and Ceramicas Casao "review the report and let us have your comments and proposal of how to remedy the damages." (Id.) Pohl further requested that Faveton and Ceramicas Casao visit the Project with Pohl to discuss4tthe actions to be taken from here." (Id.)
On June 23, 2010, Mr. Mallory produced to Pohl his June 22, 2010 report summarizing his findings and conclusions on the root cause of the tile cracking. (Exhibit A-l 1, ¶ 15.) Mr. Mallory concluded that the root cause of the tile cracking is a manufacturing defect based on the damaged Terra Cotta Panels containing the following defects: (i) a vertical deformation (sag) in the lower edge of the Terra Cotta Panels that allows water to become trapped in the tile and freeze; and (ii) the excursion opening in the lowest edge of the Terra Cotta Panels is smaller in size and circular, rather than tear-drop shaped, to allow water to shed from inside the Terra Cotta Panels. (Id.) ...

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