United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. Nugent, United States District Judge
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").
Factual and Procedural Background.
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
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."
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."
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
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."
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.) ...