in the united states district court for the · pdf fileplaintiffs diane and rodney...

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

IN RE: ATLAS ROOFING CORPORATION CHALET SHINGLE PRODUCTS LIABILITY LITIGATION

MDL Docket No.: 2495 1:13-md-2495-TWT

This document relates to:

DIANE and RODNEY DISHMAN and ANTHONY COSTANZO, individually and on behalf of all other similarly situated,

Plaintiffs, v.

ATLAS ROOFING CORPORATION,

Defendant.

No.: 1:13-cv-02195-TWT

PLAINTIFFS DIANE AND RODNEY DISHMAN’S

AND ANTHONY COSTANZO’S REPLY BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Case 1:13-md-02495-TWT Document 340 Filed 04/11/16 of 56

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TABLE OF CONTENTS

I. INTRODUCTION ......................................................................................... 1 II. TRIAL PLAN ............................................................................................... 3 III. THE PROPOSED CLASS SATISFIES ALL REQUIREMENTS OF

RULE 23(B)(3) ............................................................................................... 4 A. The Warranty Claims Satisfy the Predominance Requirement Because Plaintiffs Can Prove Defect and Prior Knowledge on a Classwide Basis .................... 4 1. The Elements of the Warranty Claims and Atlas’s Defenses ............................................................................ 4 2. Classification of Common and Individual Issues ............. 6 3. Common Issues Predominate Over Individual Issues .... 11 (a) Causation .............................................................. 13 (b) Statue of Limitations and Damages ..................... 14 B. The Fraudulent Concealment Claim Satisfies the Predominance Requirement Because Plaintiffs Can Prove Defect and Prior Knowledge on a Classwide Basis ....... 17 1. The Elements of the Fraudulent Concealment Claim and Atlas’s Defenses ............................................ 17 2. Classification of Common and Individual Issues ........... 17 3. Common Issues Predominate over Individual Issues ..... 18 IV. THE PROPOSED CLASS IS ASCERTAINABLE AND SATISFIES ALL REQUIREMENTS OF RULE 23(A) .......................... 20 A. The Proposed Class is Ascertainable ........................................ 20 B. The Commonality Requirement Has Been Satisfied ................ 21 C. The Typicality Requirement Has Been Satisfied ...................... 23 D. The Adequacy Requirement Has Been Satisfied ...................... 24 V. ALTERNATIVELY, THE COMMON ISSUES MAY BE CERTIFIED PURSUANT TO RULE 23(C)(4) ........................................ 25


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VI. PLAINTIFFS’ EXPERT’S OPINIONS SATISFY FED. R. EVID. 702 ..................................................................................... 26 A. Dean Rutila and Anthony Mattina are Competent Experts ...... 28 B. The Methodology Used by Rutila and Mattina to Reach Their Conclusions is Sufficiently Reliable .................... 30 1. Technical Industry Literature Reviewed by SGH .......... 32 2. Microscopy Analysis Supports Rutila’s Opinions ......... 34 C. The Testimony of Rutila and Mattina is Relevant and Will

Assist the Jury to Understand the Evidence or Determine a Fact at Issue .......................................................... 34 D. Defendant’s Criticisms of Rutila and Mattina Should be

Addressed Through Cross-Examination ................................... 35 1. Defendant’s Attempt to Define “Failure” as the Litmus Test for Rutila’s Opinions is Wrong .................. 36 2. Defendant Misinterprets Relevant Industry Literature Regarding Shingle Duration .......................... 38 3. Statistical Analysis of the Shingles is not Possible or Relevant ....................................................... 40 4. Rutila Considered and Ruled Out Other Potential Causes for the Problems .................................. 43 5. Atlas’s Attacks Belie its Own Documentation ............... 44 VII. CONCLUSION ............................................................................................ 45


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TABLE OF AUTHORITIES

Aarons v. BMW of N. Am., L.L.C., 2014 U.S. Dist. LEXIS 118442 (C.D. Cal. Apr. 29, 2014) ................................. 3

Allapattah Servs. v. Exxon Corp., 333 F.3d 1248 (11th Cir. 2003) .......................................................................... 16

Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184 (2013) ..................................................................................... 11

Aronson v. Greenmountain.com 2002 Pa. Super 316 (2002) ............................................................................... 19

Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) ........................................................................... 15

Brooks v. GAF Materials Corp., 2013 U.S. Dist. LEXIS 15842 (D.S.C. Feb. 6, 2013) ................................ 15, 24

Brooks v. GAF Materials Corp., 2012 U.S. Dist. LEXIS 150717 (D.S.C. Oct. 19, 2012) ........................ 14, 22, 23

Brown v. Electrolux Home Products, Inc., 2016 U.S. App. LEXIS 5112 (11th Cir. Mar. 21, 2016) .............. 2, 4, 6, 9, 12, 15

Buford v. H & R Block, 168 F.R.D. 340 (S.D. Ga. 1996) ....................................................................... 12

Busby v. JRHBW Realty, Inc., 513 F.3d 1314 (11th Cir. 2008) ........................................................................ 24

Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013) .............................................................................. 2

Carnegie v. Household Int’l, 376 F.3d 656 (7th Cir. 2004) ............................................................................... 4

Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996) ............................................................................... 25


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Chamberlan v. Ford Motor Co., 369 F. Supp. 2d 1138 (N.D. Cal. 2005) .............................................................. 3

Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786 (1993) ..................................................... 27, 35,42

Delarosa v. Boiron, Inc., 275 F.R.D. 582 (C.D. Cal. 2011) ....................................................................... 22

Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974) .................................... 13

GE v. Joiner, 522 U.S. 136 (1997) .......................................................................................... 42

Guild v. General Motors Corp, 53 F. Supp. 2d 363 (W.D.N.Y. 1999) .............................................................. 35

Gunnells v. Healthplan Servs., 348 F.3d 417 (4th Cir. 2003) ............................................................................ 13

Heller v. Shaw Indus., 167 F.3d 146 (3d Cir. 1999) ............................................................................. 43

Hewlett-Packard Co. v. Superior Court, 167 Cal. App. 4th 87 (2008) ............................................................................... 3

Holloman v. D.R. Horton, 241 Ga. App. 141 (1999) .................................................................................. 18

Home Depot U.S.A., Inc. v. Wabash Nat’l Corp., 314 Ga. App. 360 (2012) .................................................................................. 18

In re Conagra Peanut Butter Prods. Liab. Litig., 2011 U.S. Dist. LEXIS 158372 (N.D. Ga. July 28, 2011) .................................. 5

In re IKO Roofing Shingle Prods. Liab. Litig., 757 F.3d 599 (7th Cir. 2014) ............................................................................. 23

In re US FoodServ. Pricing Litig., 729 F.3d 108 (2d Cir. 2013) ............................................................................. 12


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In re Rodriguez v. Countrywide Home Loans, Inc., 695 F.3d 360 (5th Cir. 2012) ............................................................................. 26

In re Scotts EZ Seed Litig., 304 F.R.D. 397 (S.D.N.Y. 2015) ...................................................................... 22

In re Stand’N Seal Products Liability Litigation, 623 F. Supp. 2d 1355 (N.D. Ga. 2009) ............................................................ 43

In re Tri-State Crematory Litig., 215 F.R.D. 660 (N.D. Ga. 2003) ...................................................................... 26

Jones v. ConAgra Foods, Inc., 2014 U.S. Dist. LEXIS 81292 (N.D. Cal. June 13, 2014) ............................... 19

Jones v. Cranman's Sporting Goods, 142 Ga. App. 838, 237 S.E.2d 402 (1977) ....................................................... 11

KW Plastics v. U.S. Can Co., 131 F. Supp. 2d 1289 (M.D. Ala. 2001) ........................................................... 27

Klay v. Humana, Inc., 382 F.3d 1241 (11th Cir. 2004) .................................................................. 18, 19

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) ......................................................................................... 27

Lee v. Mylan Inc., 806 F. Supp. 2d 1320 (M.D. Ga. 2011) ............................................................. 11

Martin v. Ford Motor Co., 765 F. Supp. 2d 673 (E.D. Pa. 2011) .................................................................. 8

McCabe v. Daimler AG, 948 F. Supp. 2d 1347 (N.D. Ga. 2013) ............................................................ 18

McDonough v. Toys “R” Us, Inc., 638 F. Supp. 2d 461 (E.D. Pa. 2009) ............................................................... 24

McGee v. Evenflo Co., 2003 WL 23350439 (M.D. Ga. Dec. 11, 2003) ......................................... 28, 31


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Metromont Corp. v. Sirko Assocs., 2013 U.S. Dist. LEXIS 72853 (N.D. Ga. May 23, 2013) ..................... 26, 37, 41

Milanowicz v. Raymond, Corp., 148 F. Supp. 2d 525, 532 (D.N.J. 2001) ........................................................... 28

Morensi v. Evans, 257 Ga. App. 670 (2002) .................................................................................... 14

Muehlbauer v. GMC, 431 F. Supp. 2d 847 (N.D. Ill. 2006) ................................................................. 7

Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 2006 WL 1663357 (N.D. Ga. June 14, 2006) .............................................. 38, 39

Remax N. Atlanta v. Clark, 244 Ga. App. 890 (2000) .................................................................................. 17

RHL Properties L.L.C. v. Neese, 293 Ga. App. 838 (Oct. 6, 2008) ........................................................................ 8

Rivers v. H.S. Beauty Queen, Inc., 306 Ga. App. 866 (2010) .................................................................................... 5

Samuel-Bassett v. Kia Motors Am., Inc., 613 Pa. 371, 414 (2011) ...................................................................................... 8

Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529 (S.D. Fla. 2015) ................................................................ 14, 23

Shipman v. Horizon Corp., 254 Ga. 808 (1980) ............................................................................................ 19

Siharath v. Sandoz Pharmaceuticals Corporation, 131 F. Supp. 2d 1347 (N.D. Ga. 2001) ............................................................. 36

Terrill v. Electrolux Home Prods., 753 F. Supp. 2d 1272 (S.D. Ga. 2010) ................................................................ 9

Terrill v. Electrolux Home Prods., 295 F.R.D. 671 (S.D. Ga. 2013) ........................................................................ 20


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Thomas v. La.-Pac. Corp., 246 F.R.D. 505 (D.S.C. 2007) .......................................................................... 20

Wal-Mart, Inc. v. Wheeler, 262 Ga. App. 607 (2003), ..................................................................................... 9

Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011) ....................................................................................... 2

Walsh v. Ford Motor Co., 130 F.R.D. 260 (D.D.C. 1990) ......................................................................... 23

Whitehead v. John Bleakley RV Ctr., Inc., 2010 U.S. Dist. LEXIS 21128 (N.D. Ga. Mar. 8, 2010) .................................... 5

Statutes O.C.G.A. § 11-2-725(2) ........................................................................................... 16

Rules Fed. R. Civ. P. 23 ..................................................................................................... 26 Fed. R. Civ. P. 23(a)....................................................................................... 4, 20, 21 Fed. R. Civ. P. 23(b)(2) .......................................................................................... 20 Fed. R. Civ. P. 23(b)(3) .................................................................... 4, 11, 12, 20, 21 Fed. R. Civ. P. 23(c)(4) ................................................................................ 4, 25, 26 Fed. R. Evid. 702 .................................................................................. 26, 27, 31, 36 UCC § 2-607 (3)(a) .................................................................................................... 9 Other Newberg on Class Actions § 4.25 (5th ed. 2011) ..................................................... 12 Newberg on Class Actions § 4.45 (5th ed. 2011) ..................................................... 25


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I. INTRODUCTION

Atlas’s response reveals two fundamentally opposing views of this case.

Atlas argues Plaintiffs have no case unless its shingles are actually leaking,

whereas Plaintiffs’ ample evidence establishes the shingles have failed due to

advanced deterioration from a common manufacturing defect. Plaintiffs’ experts

have observed or tested hundreds of roofs with these shingles and every single roof

has blistering, cracking and extensive granule loss. Conversely, Atlas’s experts fail

to identify a single Chalet/Stratford roof without these precise issues; internal

documents discuss the same problems identified by Plaintiffs’ experts for at least

ten years before the shingles were removed from the market in 2010; and Atlas has

been settling with individual class members whose roofs are not leaking (over

1,000 in 2015) in exchange for a confidential release of their claims in this case.

This case is well-suited for class certification because thousands of owners

are plagued by roofs with the exact same defect. The trial of this case will

necessarily be focused on the question of whether the roofs have failed due to

Atlas’s manufacturing process or other non-manufacturing causes. If Plaintiffs

prevail, they will have proven the core element of liability for breach of warranty

for every class member. The common evidence will also prove that Atlas knew

that it was manufacturing defective shingles, all but establishing its liability for


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fraudulent concealment. Conversely, if Plaintiffs are unable to prove that the

shingles are defective and Atlas knew it, this litigation will end “in one stroke”

with judgment in favor of Atlas. Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2551

(2011); accord Butler v. Sears, Roebuck & Co., 727 F.3d 796, 799 (7th Cir. 2013)

(the contention that a product is not defective “is an argument not for refusing to

certify the class but for certifying it…as all class member who do not opt out of the

class action would be bound by the judgment”).

Individual issues related to Atlas’s defenses may remain after the trial of

common issues; but these individual issues do not defeat certification when the

matter is so clearly centered on common, overriding issues of liability. If need be,

individual issues like statute of limitations and damages can be adjudicated in a

separate phase by a special master, Brown v. Electrolux Home Products, Inc., 2016

U.S. App. LEXIS 5112, at *25 (11th Cir. Mar. 21, 2016), which may well never

occur because, as Judge Posner has noted, the liability determinations likely will

trigger settlement. Butler, 727 F.3d, at 798.

Because Plaintiffs have satisfied the requirements for class certification, the

proposed Georgia class should be certified.


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II. TRIAL PLAN

At trial, Plaintiffs will prove liability, in part, by establishing that Atlas’s

shingles are defective. Plaintiffs’ expert will opine that these shingles have already

deteriorated to the point where a water leak during their useful life (25-30 years) is

inevitable.1 The premature deterioration makes the shingles unsightly and

unreliable. The shingles are, therefore, defective2 and the common evidence will

show that Atlas knew so prior to selling them. Further, the evidence offered in the

first phase of the trial will show that the Named Plaintiffs’ shingles are defective

and Atlas breached its warranties by failing to replace their roofs. The jury will be

asked to enter judgment in favor of the Named Plaintiffs and to award damages in

an amount to be determined at trial. If judgment is entered in favor of the Named

Plaintiffs, the litigation will proceed to a second phase wherein participating class

members will prove damages and Atlas may raise its individualized affirmative 1 See Simpson Gumpertz & Heger, Dean A. Rutila Report (hereinafter “SGH Report”) (ECF #296-23) at 50. 2 See, e.g., Chamberlan, 369 F. Supp. 2d at 1147 (N.D. Ca. 2005) (defect can be found where “overall product … has a limited but long life and a component has a defect that is substantially certain to manifest before the end of that useful life”); Aarons v. BMW of N. Am., L.L.C., No. CV 11-7667, PSG (CWx), 2014 U.S. Dist. LEXIS 118442 at *16 (C.D. Cal. Apr. 29, 2014) (finding common questions include “whether the CVTs used in the Class Vehicles were prone to premature failure”); Hewlett-Packard Co. v. Superior Court, 167 Cal. App. 4th 87, 95 (2008) (defining defect as “substantial certainty of premature failure, not an actual malfunction during the warranty period”).


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defenses. See, e.g., Carnegie v. Household Int’l, 376 F.3d 656, 661 (7th Cir. 2004)

(suggesting ways of managing individual issues, including appointing a magistrate

judge or special master to preside over individual damages proceedings).

III. THE PROPOSED CLASS SATISFIES ALL REQUIREMENTS OF RULE 23(B)(3)

Because Atlas primarily disputes class certification by alleging that

individual issues predominate over common issues, Plaintiffs begin by establishing

predominance and then discuss the requirements of Rule 23(a) and certification

pursuant to Rule 23(c)(4).The Eleventh Circuit recently offered a three-step

approach to determine whether predominance is satisfied. See Brown, 2016 U.S.

App. LEXIS 5112, at *14. First, the district court must “identify the parties’ claims

and defenses and their elements.” Id. Second, the district court should “classify

these issues as common questions or individual questions by predicting how the

parties will prove them at trial.” Id. Third, the district court should determine

whether common issues predominate over the individual issues. Id. Application of

this three-part approach to Plaintiffs’ claims for breach of warranty and fraudulent

concealment further establishes that common questions predominate.

A. The Warranty Claims Satisfy the Predominance Requirement Because Plaintiffs Can Prove Defect and Prior Knowledge on a Classwide Basis. 1. The Elements of the Warranty Claims and Atlas’s Defenses


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Plaintiffs argue that Atlas breached its express and implied warranties when it

provided defective shingles to class members. To prevail on a breach of express

warranty claim, “a plaintiff must show that the defendant made an affirmation of fact

or promise which relates to the goods and became part of the basis of the bargain.” In

re Conagra Peanut Butter Prods. Liab. Litig., 2011 U.S. Dist. LEXIS 158372, at *48

(N.D. Ga. July 28, 2011). Further, plaintiffs must demonstrate the existence of a

defect and notice to the warrantor. Whitehead v. John Bleakley RV Ctr., Inc., 2010

U.S. Dist. LEXIS 21128, at *5-6 (N.D. Ga. Mar. 8, 2010). The warrantor’s failure to

remedy the defect within a reasonable time breaches the express warranty. Id. To

show breach of the implied warranty of merchantability, plaintiffs must prove the

product was not fit for the ordinary at the time it was sold. Rivers v. H.S. Beauty

Queen, Inc., 306 Ga. App. 866, 867 (2010).

Atlas has identified a number of defenses to Plaintiffs’ breach of warranty

claims: (1) class members did not provide Atlas with notice of the defect; (2)

variations in the warranties preclude the warranty from applying to certain class

members; (3) a manufacturing defect has not caused Plaintiffs’ shingles to fail; (4)

certain class members are not in privity with Atlas, so they cannot assert a breach

of implied warranty claim; (5) the statute of limitations bars certain class members’

claims; and (6) class members have individualized damages. As discussed below,


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all of these defenses implicate evidence common to the class or present

individualized issues that do not predominate over the core common issues – the

existence of a manufacturing defect and Atlas’s knowledge of the defect.

2. Classification of Common and Individual Issues

“Common questions are ones where the same evidence will suffice for each

member, and individual questions are ones where the evidence will vary from

member to member.” Brown, 2016 U.S. App. LEXIS 5112, at *14. Here,

Plaintiffs’ can prove the prima facie case of their warranty claims can be proved

with common evidence. As detailed in Plaintiffs’ Opening Brief in Support of

Class Certification (ECF #296-1) (“Dishman Opening Brf.”), at 12-14, Plaintiffs’

expert, Dean Rutila, will testify that the shingles suffer from a common

manufacturing defect manifested by a combination of blistering, cracking and

granule loss that was visible on all 351 roofs he inspected and confirmed in the

laboratory, and, as a result of the common defect, roofs with Atlas overlay shingles

have effectively failed and need to be replaced because they cannot reliably

withstand reasonably foreseeable weather events that will inevitably cause the roof

to blow off or leak.3 Anthony Mattina, who has replaced Chalet shingles on more

3 Plaintiffs also contend that the shingles are defective and violate applicable warranties because they are unsightly. While denying liability, Atlas agrees that blistering affects aesthetics and a shingle fails if it is not serving its aesthetic


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than 1,000 roofs in the Atlanta area due to this premature failure, will confirm

Rutila’s opinion and testify that the shingles are not fit for their intended purpose.

Moreover, the common evidence will show that Atlas warranted that its shingles

were free from defect and excessive granule loss, id., at 5-8, and that Atlas

uniformly denied warranty claims for cracks, blisters and granule loss in the

absence of a leak. 4

With respect to notice, the class will rely on common evidence of consumer

complaints to establish that the notice requirement of Atlas’s warranties has been

satisfied for all class members. At least 2,752 warranty claims have been filed in

Georgia. Id., at 16. Courts have found that a defendant has constructive notice of a

defect sufficient to meet the notice requirements of a warranty for all class

members when such a large number of consumers bring the defect to its attention.

See, e.g., Muehlbauer v. GMC, 431 F. Supp. 2d 847, 859 (N.D. Ill. 2006)

(consumer complaints provide constructive notice to manufacturers, which satisfies function. See Dep. of Meldrin Collins (ECF #296-10) at 58 (228:23-229:6) & Tab 1 at 91:6-8. 4 While Atlas paid some warranty claims for customer relations purposes, Atlas maintains that the problems at issue are not caused by manufacturing problems or covered by its warranties. See Dep. of Glynese R. Thomas (ECF #296-16) at 32 (125:1-17) (cracked shingle without leak is not a manufacturing defect); at 33 (126:16-19) (blistering without a leak is not a defect); at 33 (126:23-127:4) (granule loss without a leak is not a defect); and at 55 (215:14) (Atlas’s position is that blistering is not a manufacturing defect).


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the notice requirement because requiring every single member of a class to provide

notice “is not a reasonable proposition”); Martin v. Ford Motor Co., 765 F. Supp.

2d 673, 683 (E.D. Pa. 2011) (widespread complaints are sufficient to satisfy notice

requirement); Samuel-Bassett v. Kia Motors Am., Inc., 613 Pa. 371, 414 (2011)

(finding that the class could prove notice through common evidence where

consumers notified the manufacturer of the defect and the manufacturer failed to

repair the defect). Because Plaintiff will rely on common evidence to satisfy the

notice requirement, notice should be classified as a common issue.

Regardless of whether the notice requirement can be satisfied in this way,

Plaintiffs will prove, through common evidence, that Atlas has waived the

requirement. In handling thousands of warranty claims involving the shingles,

Atlas did not ask claimants to prove they filed the claim within 30 days of

discovering a problem and, in fact, never denied a claim based on the notice

requirement. Declaration of Amanda K. Mkamanga (Apr. 11, 2016) (“Mkamanga

Dec.”) ¶ 3 (Tab 2). Indeed, Atlas did not even enforce the requirement when it

knew the claimant knew of the problem more than 30 days before filing the claim.

Id. Such evidence is sufficient to establish waiver. See, e.g., RHL Properties,

L.L.C. v. Neese, 293 Ga. App. 838, 840-41 (Oct. 6, 2008) (“wherever a contract

provides for the forfeiture of rights on account of the failure of one of the parties to


9

comply with certain express conditions as to notice ... courts will readily seize

upon any fact or circumstance … tending to show a waiver of strict compliance,

and will seek to avoid the forfeiture and to leave the actual merits of the case open

to investigation.”) Routinely failing to insist on compliance with the notice

requirement in its ordinary business dealings with class members, Atlas should not

be permitted to use the requirement to avoid certification.5 Regardless, whether

Atlas has waived the requirement is a common issue, not an individualized one.

Even if the Court declines to find that Atlas waived its right to notice,

denying Plaintiffs a remedy for Atlas’s wrongful breach of warranty because

Plaintiffs allegedly did not provide notice runs counter to the UCC. Commentary to

the UCC specifically provides that pre-suit notice “is designed to defeat

commercial bad faith, not to deprive a good-faith consumer of his remedy.” UCC §

2-607 (3)(a) cmt. 4. Courts have applied this comment liberally and concluded that

a defendant must establish prejudice from any alleged failure of notice in order to

bar a plaintiff’s claim. Wal-Mart, Inc. v. Wheeler, 262 Ga. App. 607, 609-11

(2003); Terrill v. Electrolux Home Prods., 753 F. Supp. 2d 1272, 1287 (S.D. Ga.

2010), (citing Wheeler and holding defendant’s notice argument failed where no

5 Regardless, notice is not a barrier to the 2,752 Georgians who filed warranty claims. The claims themselves, which Atlas considered without complaint regarding timing, satisfy the notice requirement.


10

evidence of prejudice). Atlas has failed to demonstrate prejudice resulting from

any alleged absence of notice. The issue of pre-suit notice thus does not defeat

Plaintiffs’ warranty claims.

Common evidence will also be used to prove that Atlas had prior knowledge

of the defect, strengthening an element of Plaintiffs’ claim that certain limitations

of the warranty are unconscionable. Dishman Opening Brf., at 29-31. Atlas argues

that the warranties changed over time (for example - those issued after 2002 only

cover leaks), and require individualized determinations of whether class members

can avail themselves of the warranty. However, Plaintiffs contend that the

warranties all cover inherent manufacturing defects, without regard to whether a

roof has leaked, granule loss after six months. Id., at 6-7. The meaning of the

warranties is a common issue that must be resolved the same way for each class

member. If the warranty is construed in Plaintiffs’ favor, no individualized

determinations will be needed. Even if the warranties are construed to only apply

to leaks, if the jury finds that Atlas concealed the defect, leading the Court to find

the alleged limitation unconscionable, the warranties still will uniformly cover all

class members.

Atlas also argues that Plaintiffs must establish privity on an individual basis

to recover for breach of implied warranty. Under Georgia law, however, “privity of


11

contract between the manufacturer and ultimate consumer is established when the

manufacturer extends an express warranty to the ultimate consumer.” Lee v. Mylan

Inc., 806 F. Supp. 2d 1320, 1326 (M.D. Ga. 2011). Here, Atlas’s express

warranties are intended to benefit the ultimate consumer, including both the

original and subsequent homeowners. See, e.g., Tab 3. (extending coverage to

homeowners and subsequent owners). Where warranties extend coverage to remote

purchasers, Georgia courts have recognized that privity exists for purposes of a

warranty claims. See, e.g., Jones v. Cranman's Sporting Goods, 142 Ga. App. 838,

842 (1977). In any event, privity does not require individualized fact

determinations. Once the Court decides the scope of privity that is required, the

class can be limited to those who had the necessary relationship with Atlas.

3. Common Issues Predominate Over Individual Issues.

Atlas’s remaining arguments concerning causation, statute of limitations,

and damages do not defeat predominance. Rule 23(b)(3) “does not require a

plaintiff. . . to prove that each elemen[t] of [her] claim [is] susceptible to classwide

proof.” Amgen, Inc. v. Conn. Ret. Plans & Tr. Funds, 133 S. Ct. 1184, 1196 (2013)

(citation omitted). Instead, “[t]he predominance requirement is satisfied ‘if

resolution of some of the legal or factual questions that qualify each class

member’s case as a genuine controversy can be achieved through generalized


12

proof, and if these particular issues are more substantial than the issues subject

only to individualized proof.’” In re U.S. Foodserv. Inc. Pricing Litig., 729 F.3d

108, 118 (2d Cir. 2013) (internal citation omitted) (emphasis added). Stated

differently, “[a] single common issue may be the overriding one in litigation,

despite the fact that the suit also entails numerous remaining individual questions.”

Buford v. H & R Block, 168 F.R.D. 340, 356 (S.D. Ga. 1996) (citing 1 Newberg on

Class Actions § 4.25). The common issues of product defect and Atlas’s

knowledge of the defect are obviously more substantial and complicated than any

individual ones.

That conclusion is particularly true here because the individual issues as a

result of Atlas enthusiastically point to arise only its affirmative defenses. The

Eleventh Circuit has recently reaffirmed the well-established rule that individual

affirmative defenses do not defeat predominance. Brown, 2016 U.S. App. LEXIS

5112, at *28-29 (“The general rule . . . is that ‘[c]ourts traditionally have been

reluctant to deny class action status under Rule 23(b)(3) simply because

affirmative defenses may be available against individual members.”) Atlas itself

recognizes that the issues of causation and statute of limitations are affirmative

defenses. Any affirmative defenses remaining after resolution of the common


13

issues relating to Plaintiffs’ liability case, as discussed above, can be resolved in

the second phase of the litigation.6

a) Causation

Atlas contends that individual issues of causation will predominate, namely -

what may have caused the roofs to blister, crack and loose granules other than a

manufacturing defect.7 But Atlas simply restates its defense on the merits, which is

not relevant to class certification.8

A jury could find, based on the testimony of Plaintiffs’ experts and Atlas’s

own documents that excessive moisture in the manufacturing process caused a

6 See Atlas Roofing Corp.’s Answer to Plaintiffs Amended Class Action Complaint (“Answer”) (Dec. 30, 2013) (Doc. No. 22) at 4 & 6-8 (Affirmative Defense No. 8 – Limitations & Affirmative Defenses Nos. 14, 16, 19, 20, 21, 22 – Causation). 7 Atlas suggests that some or all of these problems could also be the result of installation errors, design errors or storm damage. Nonetheless, Atlas admits that moisture in the manufacturing problem contributed to blistering. Tab 4, at 32:20-24. (agreeing that moisture in the manufacturing process contributed to the blistering of the Chalet overlay shingles) and it was unable to solve the blistering problem. Tab 5, at 92:9-12; 215:22-216:1. 8 See Gunnells v. Healthplan Servs., 348 F.3d 417, 428 (4th Cir. 2003) (“The sufficiency of the evidence as to proximate cause presented by Plaintiffs goes to the merits of Plaintiffs’ case - an issue the Supreme Court has held courts may not consider in ruling on a motion for class certification”) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974)).


14

defect in every shingle that existed at the time it was sold9 and negate Atlas’s

arguments about alternative causes. See, e.g., Sanchez-Knutsen v. Ford Motor Co.,

310 F.R.D. 529, 538 (S.D. Fla. 2015). Plaintiffs, therefore, can establish a prima-

facie case of causation based upon common evidence. Atlas can argue that an

intervening cause such as a storm, was legally responsible for the damage suffered

by a particular class member, but Atlas bears the burden of proof on this defense,

see, e.g., Morensi v. Evans, 257 Ga. App. 670, 677 (2002), and its proof can be

assessed in the second phase without creating predominance problems. See, e.g.,

Brooks v. GAF Materials Corp., 2012 U.S. Dist. LEXIS 150717, at *18 (D.S.C.

Oct. 19, 2012) (certifying class of owners of allegedly defective decking despite

GAF’s argument that “other things could have caused the shingles to fail such as

improper installation or handling.”)

b) Statute of Limitations and Damages

Individualized issues of limitations and damages, as a matter of law, rarely

predominate and, thus, typically do not defeat class certification. See, e.g., Brooks,

2012 U.S. Dist. LEXIS 150717 at *24-25, clarified on denial of reconsideration,

9 See Rutila Dep., (ECF #296-22) at 51 (198:14-17); 62 (242:15-21) (moisture in manufacturing process likely cause of blistering); 51(198:2-7) (moisture in manufacturing process contributes to cracking) & (198:8-11) (likely connection between moisture in manufacturing process and loss of granule).


15

8:11-CV-00983-JMC, 2013 U.S. Dist. LEXIS 15842 (D.S.C. Feb. 6, 2013)

(inquiries into the statute of limitations “do not prevent class certification and the

statute of limitations is not a complete bar to class certification in the Fourth

Circuit”); Brown, 2016 U.S. Dist. LEXIS 5112, at *26 (noting the need for

individualized proof of damages alone will not defeat class certification); Blackie

v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975) (same). That is particularly true in a

case such as this one, where the common issues of defect and Atlas’ knowledge

drive the litigation and any individual issues can be readily resolved in a second

phase of the proceedings.

Atlas’s argument that proving damages will require complicated

individualized determinations is based on a damages theory that Plaintiffs have not

asserted. Rutila found that, at each property he inspected, “at least ten percent of

the shingles have blisters, granule loss and/or cracking” (SGH Report, at 50) and

concluded that each roof needed to be replaced. According to Atlas, Rutila’s

conclusions require Plaintiffs to inspect each class member’s roof to show that at

least ten percent of the shingles on a roof are damaged to recover replacement

costs. However, that is not Rutila’s opinion. His opinion – shared by Mattina – is

that all the shingles must be replaced because none can withstand foreseeable

weather events. Id., at 53. Rutila has calculated replacement costs on a per square


16

foot basis (subject to regional adjustments and complexity), id., allowing class

members to easily prove damages by showing the size of his or her roof. Even if

that were not the case, class members can prove actual damages using estimates

they obtain from roofers. See, e.g., Allapattah Servs. v. Exxon Corp., 333 F.3d

1248, 1256-58, 1261 (11th Cir. 2003).

Similarly, statute of limitations issues regarding the warranty claims can be

handled in a second phase without creating predominance problems. Under its own

analysis, Atlas has no statute of limitations defense with regard to a larch

percentage of the proposed class who purchased their shingles within four years of

the filing of this action. For other class members, there is a common legal issue as

to when the limitations period begins to run.10 Depending on how that legal issue is

resolved, Atlas’ statute of limitations defense potentially can be adjudicated using

common evidence. If not, Atlas will have an opportunity in the second phase to

discover the facts and obtain an individualized determination for each class

member who participates. Because Plaintiffs can establish their affirmative case

concerning liability using class-wide evidence, and Atlas’s affirmative defenses

10 While Atlas evidently contends that the period begins to run on the date of sale, Georgia law recognizes that, where a warranty extends into the future, a discovery rule applies. See, e.g. O.C.G.A. § 11-2-725(2).


17

can be resolved effectively in the second phase of the proceedings, the

predominance requirement has been met and the class thus should be certified.

B. The Fraudulent Concealment Claim Satisfies the Predominance Requirement Because Plaintiffs Can Prove Defect and Prior Knowledge on a Classwide Basis. 1. The Elements of The Fraudulent Concealment Claim and

Atlas’s Defenses.

To prevail on their fraudulent concealment claim, Plaintiffs must prove five

elements: (1) a false representation or omission of a material fact; (2) scienter; (3)

intention to induce action; (4) justifiable reliance; and (5) damages. Remax N. Atlanta

v. Clark, 244 Ga. App. 890, 893 (2000). Atlas argues that Plaintiffs cannot establish

predominance because: (1) the economic loss rule forecloses many class members

from recovery; (2) reliance must be proven individually; and (3) its statute of

limitations defense requires individual determinations. This argument is without

merit. See Dishman Opening Brf., at 32-34.

2. Classification of Common and Individual Issues.

Atlas engaged in a conscious common course of conduct to conceal the defect

from its customers. Atlas does not assert that it disclosed the defect to some class

members, but not others. As a result, whether Atlas concealed the defect is a question

that will be answered the same for each class member. Similarly, Atlas concealment

of facts will be a common issue determined by the answer to a common question –


18

whether the defect could have discovered through the exercise of ordinary care. The

second and third elements – scienter and intent – can be satisfied by showing that

Atlas had actual knowledge of the defect and concealed the truth to induce the sale.

McCabe v. Daimler AG, 948 F. Supp. 2d 1347, 1368 (N.D. Ga. 2013).

Atlas’s defense based on the economic loss rule does not apply to Plaintiffs’

fraudulent concealment claim. See Holloman v. D.R. Horton, 241 Ga. App. 141,

148 (1999) (“The economic loss rule is inapplicable in the presence of passive

concealment or fraud”); accord Home Depot U.S.A., Inc. v. Wabash Nat'l Corp.,

314 Ga. App. 360, 366 (2012). Thus, by definition, the defense does not raise any

individual issues. Each class member must prove damages and reliance. Atlas’s

limitations defense is both a common and potentially individual issue.

3. Common Issues Predominate Over Individual Issues.

The need to prove damages rarely causes predominance problems and does not

do so here, as discussed above. Further, Plaintiffs demonstrated, on pages 33 and 34

of their opening brief, how reliance can be proved for each class member based on

common circumstantial evidence, an approach approved by the Eleventh Circuit in

Klay v. Humana, Inc., 382 F.3d 1241, 1258 (11th Cir. 2004). Simply put, each class

member purchased the shingles; there is no evidence that any customer knew or could

have known the shingles were defective before buying them; and no customer would


19

have knowingly paid for shingles that prematurely fail and have to be replaced within

ten years. Atlas ignores how Plaintiffs propose to prove reliance and simply points out

that reliance cannot be presumed, a point of law with which Plaintiffs do not disagree.

Atlas’s silence is telling. 11

Finally, as with Plaintiffs’ warranty claims, Atlas’s limitations defense does not

create predominance problems relating to the fraud claim. For those class members

who bought the shingles within four years of the filing of this action, Atlas has no

limitations defense. For other class members, the limitations period did not begin to

run until the date the fraud was or should have been discovered. See, e.g., Shipman v.

Horizon Corp., 254 Ga. 808 (1980). Because there is no reasonable means by which

class members could have discovered the fraud except from Atlas, Plaintiffs can likely

establish that date through common evidence. If not, Atlas will have an opportunity to

prove its defense individually in phase two, an approach which courts have routinely

held does not defeat predominance.

11 Proving reliance circumstantially is easier here because, unlike in the typical case where reliance creates predominance problems, Plaintiffs have not been exposed to different representations. Compare Jones v. ConAgra Foods, Inc., 2014 U.S. Dist. LEXIS 81292 at *23 (N.D. Cal. June 13, 2014) (reliance on labels that changed over time) and Aronson v. Greenmountain.com, 2002 Pa. Super 316, ¶ 7 (2002) (reliance on different TV advertisements) with Klay, 382 F.3d at 1258 (reliance on uniform misrepresentations in bills could be proved circumstantially).


20

IV. THE PROPOSED CLASS IS ASCERTAINABLE AND SATISFIES ALL REQUIREMENTS OF RULE 23(A)

Plaintiffs have shown that the class is ascertainable, the requirements of

Rule 23(a) have been met, and certification under Rule 23(b)(3) is appropriate, as

many courts have found in similar class actions involving defective construction

materials and other products.12 See, e.g., Thomas v. La.-Pac. Corp., 246 F.R.D.

505 (D.S.C. 2007). Nonetheless, Atlas asserts that the class is not ascertainable and

– without any real analysis, using less than a page of its brief – challenges the

existence of commonality, typicality and adequacy. Atlas is wrong.

A. The Proposed Class is Ascertainable.

As set forth in Plaintiffs’ opening brief, ascertainability is not a hurdle. The

proposed class is based on objective criteria. Either a person owns (or owned) a

structure on which the shingles were installed or they do (or did) not. There are

reliable records from which ownership can be determined, including markings on

the shingles and thousands of warranty claims. (ECF #296-44). See, e.g., Terrill,

295 F.R.D. 671 684 (S.D. Ga. 2013) (class was ascertainable based on product

serial numbers and build dates),vacated and remanded on other grounds, Brown v.

Electrolux Home Prods., 2016 U.S. App. LEXIS 5112, at *4 (11th Cir. Mar. 21,

12 Because all members of the proposed Rule 23(b)(3) class are seeking damages, Plaintiffs no longer request certification under Rule 23(b)(2).


21

2016).

Including former owners does not render the class unascertainable. Former

owners are readily identifiable, based upon objective criteria, see Dishman Opening

Brf., at 18-19, and will be able to recover only if they prove they previously owned a

roof with the shingles and incurred repair or replacement costs as shown by,

among other things, purchase receipts, invoices, and credit card records. Contrary

to Atlas’s claim, former members who replaced or repaired their roofs were all

injured because, according to Plaintiffs’ experts, the shingles on the roofs were

defective at the time they were sold. If Atlas raises individual issues of causation,

limitations or ownership, those issues can be resolved in the second phase, just as

with current owners. Atlas’s argument that some former class members’ claims

may fail on the merits does not mean that the class cannot be ascertained.

B. The Commonality Requirement Has Been Satisfied.

Atlas denies there is even a single common issue as required by Rule 23(a) by

claiming without explanation, that there is no common defect that caused common

damage. Presumably, Atlas is relying on an earlier section of its brief loosely hinged

on its discussion of the Rule 23(b)(3) predominance standard, which argues that no

defect is “identifiable” using class-wide proof. However, as discussed above and in

their opening brief, Plaintiffs will rely on expert testimony to show that all of the


22

shingles suffered from a common manufacturing defect upon leaving the factory and

that all class members have suffered a common injury necessitating replacement of

their roofs. (ECF #296-22 at 22 (84:12-85:5); 50 (195:4-6); & 54 (210:18-211:1).

By arguing that a roof-by-roof analysis is needed to prove a defect, Atlas

misses the point in two ways. First, Atlas is relying on its own theory of the case –

that there is no manufacturing defect in the shingles without a leak. The classwide

evidence for this theory, Atlas contends, must show that every roof has leaks.

Plaintiffs, however, have a different theory – that the shingles suffer from the same

common flaw in the manufacturing process, which causes them to fail in the same

way, and require replacement.13 Whether the common evidence can prove Atlas’s

theory of the case is irrelevant; Plaintiffs’ are entitled to have the certification issue

decided based on their theory of the case. See In re Scotts EZ Seed Litig., 304 F.R.D.

397, 408-09 (S.D.N.Y. 2015) (certification analysis is based on plaintiffs’ theory, not

on theory posed by defendant that will require individualized proof). Second, all of

Atlas’s arguments (blisters, cracking and granule loss are not excessive; causes other

than manufacturing led to the defect; conditions do not result in leaks) go “to the proof

of the merits of plaintiff’s claim, not to the common question as to the overall

13 Plaintiffs in Brooks similarly relied on the theory that “cracked, slit or torn” shingles are defective regardless of leaks. See Brooks, 201 U.S. Dist. LEXIS 150717, at *18.


23

[performance] of the product” and thus do not defeat commonality. Delarosa v.

Boiron, Inc., 275 F.R.D. 582, 594 (C.D. Ca. 2011).

Plaintiffs continue to exceed the evidentiary showing of common defect

needed for class certification. To obtain class certification, Plaintiffs need only

present “credible classwide proof that the [product] in question suffered from [a]

common defect…” Walsh v. Ford Motor Co., 130 F.R.D. 260, 269 (D.D.C. 1990).

Common issues predominate because Plaintiffs have presented “substantial

evidence … [of] a systemic problem caused by combination of design and

manufacturing defects.” Sanchez-Knutson, 310 F.R.D. at 537. Indeed, courts

routinely find commonality is similar cases. See, e.g., In re IKO Roofing Shingle

Prod. Liab. Litig., 757 F.3d 599, 603 (7th Cir. 2014) (finding it “not hard to frame

liability issues suited to class-wide resolution”); Brooks, 2012 U.S. Dist. LEXIS

150717, at *17-26 (common issues include whether defendant had prior knowledge

that shingles that crack, split or tear were defective).

C. The Typicality Requirement Has Been Satisfied.

Atlas responds to Plaintiffs’ satisfaction typicality requirement by referencing,

without any argument, two exhibits: (1) “Examples of Variation in Warranty Claim

Files,” (Exhibit No. Y), and (2) “Chart: Individualized Experiences of Named

Plaintiffs.” (Exhibit No. GG). Atlas should not expect the Court to construct its


24

argument. Even if the Court were inclined to do so, the required “nexus” exists

because the claims of Named Plaintiffs and absent class members involve the same

product, arise from a common course of conduct by Atlas, and assert the same legal

theories. See, e.g., Brooks, 2013 U.S. Dist. LEXIS 15842, at *12 (finding typicality

in a defective shingles case). This undemanding requirement has been satisfied.

D. The Adequacy Requirement Has Been Satisfied.

Atlas does not dispute that the Named Plaintiffs showing that (1) no substantial

conflicts of interest exist between them and the class ; and (2) the named plaintiffs are

able to adequately prosecute the litigation - the two factors determinative of adequacy.

Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1323 (11th Cir. 2008). Instead, Atlas

apparently argues that Plaintiff Costanza is inadequate because his claim allegedly is

time-barred. However, a class representative is not rendered inadequate simply

because he faces a statute of limitations defense. See, e.g., McDonough v. Toys “R”

Us, Inc., 638 F. Supp. 2d 461, 476 (E.D. Pa. 2009); see generally Newberg on Class

Actions, §3:45 (5th ed. 2011) (a unique defense, asserted against a class representative

will not become a major focus of the litigation, such as the statute of limitations, does

not preclude certification). In any event, Atlas does not challenge the adequacy of the

other Named Plaintiff, so the case can be certified regardless of whether Mr. Costanza

is an adequate representative.


25

V. ALTERNATIVELY, THE COMMON ISSUES MAY BE CERTIFIED PURSUANT TO RULE 23(C)(4)

This litigation would be materially advanced by certification of four

common issues under Rule 23(c)(4), namely: (1) whether the shingles suffer from a

common manufacturing defect; (2) whether the defect breaches any express or

implied warranties; (3) whether the defect necessitates replacement of all roofs

containing the shingles; and (4) whether Atlas fraudulently concealed the defect.

Because these issues turn on common evidence regarding Atlas and its

manufacturing process, the issues can be decided on a class wide basis. Should

Atlas prevail, the claims of individual class members will fail as a group. If Atlas

loses, class members will have an efficient and cost-effective way of adjudicating

their claims, either through settlement, expedited proceedings by a special master,

or vastly shortened jury trials.

Atlas rejects this assessment because individual issues, such as notice,

statute of limitations, causation and damages would remain, arguing courts should

not be allowed to “manufacture predominance” by using Rule 23(c)(4).14 (ECF

14 Atlas’s reliance on Castano v. Am. Tobacco Co., 84 F.3d 734, 745n.21 (5th Cir. 1996) is unavailing because subsequent Fifth Circuit decisions demonstrate that


26

#327) at 37. However, Rule 23 does not require the resolution of all issues; rather,

it is sufficient that a trial of core issues will materially advance the litigation.15

Certainly it would be better to resolve these four overwhelmingly common issues

at one time, rather than require the exact same evidence to be put up by individual

plaintiffs and Atlas in thousands of separate lawsuits. Such a result would either as

a practical matter deprive these individual plaintiffs of any viable remedy or

overwhelm this Court with trying essentially the same case over and over again.

VI. PLAINTIFFS’ EXPERT’S OPINIONS SATISFY FED. R. EVID. 702 Atlas seeks to exclude certain opinions of Plaintiffs’ two experts: Dean

Rutila and Anthony Mattina, however, Atlas’ motion should be denied. Both Rutila

and Mattina are highly qualified witnesses with many years of experience, skill,

training, knowledge and education in shingles and roofing who have utilized

reliable methodology in reaching their opinions and whose testimony will

undoubtedly assist the jury. This Court’s decision in a similar construction dispute,

Metromont Corp. v. Sirko Assocs., 2013 WL 2285576, at *2-3 (N.D. Ga. 2013), issue certification under Rule 23(c)(4) is a useful mechanism for certifying a class. See, e.g., In re Rodriguez v. Countrywide Home Loans, Inc., 695 F.3d 360, 369 n.13 (5th Cir. 2012) (certifying liability-only class under Rule 23(c)(4)). 15 See In re Tri-State Crematory Litig., 215 F.R.D. 660, 695 (N.D. Ga. 2003) (certifying issue class under Rule 23(c)(4) because “common issues of Defendants’ conduct … will be of great value in the ultimate resolution of each class member’s underlying cause of action” and are a “pivotal aspect” of the case as a whole).


27

denying a motion to exclude the testimony of two engineering experts, sets forth

the applicable standard:

Fed. R. Evid. 702 governs the admission of expert opinion testimony. Pursuant to that rule, before admitting expert testimony the court must consider; (1) whether the expert is competent to testify regarding the matters he intends to address; (2) whether the methodology used to reach his conclusions is sufficiently reliable; and (3) whether the testimony is relevant, in that it assists the jury to understand the evidence or determine a fact in issue.

Fed. R. Evid. 702; Daubert v. Merrell Dow Pharms, 509 U.S. 579, 289, 113

S. Ct. 2786, 125 (1993).

In ruling on the admissibility of expert testimony, “[t]he focus must be

‘solely’ on the expert’s ‘principles and methodology, not on the conclusion that

they generate.’” KW Plastics v. United States Can Co., 131 F. Supp. 2d 1289, 1292

(M.D. Ala. 2001), quoting Daubert v. Merrell Dow Pharms., 509 U.S. 579, 594-95

(1993)). The Court’s responsibility is to “make certain that an expert, whether

basing testimony upon professional studies or personal experience, employs in the

courtroom the same level of intellectual rigor that characterizes the practice of an

expert in the relevant field.” Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137,

152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). Flexibility is essential in assessing

the reliability of expert testimony and, as such ‘the law grants a district court the

same broad latitude when it decides how to determine reliability as it enjoys in


28

respect to its ultimate reliability determination.’” McGee v. Evenflo Co., 2003 WL

23350439, at *4 (M.D. Ga. Dec. 11, 2003), quoting Kumho Tire Co., 526 U.S. at

142, 119 S. Ct. 1167, 143 L. Ed. 2d 238. “[U]nlike the fields of ‘laboratory or

medical testing, which employ rigorous and replicable protocols, technical

fields such as engineering often involve more idiosyncratic methods of design

and testing.’” McGee, 2003 WL 23350439 at *4, quoting Milanowicz v. Raymond

Corp., 148 F. Supp. 2d 525, 532 (D.N.J. 2001). “As a result, it is not unusual for

a technical expert, such as an engineer, to state that his opinions are not based

upon any specific method, but are based solely upon his general experience

and knowledge after a review of evidence.” Id. (emphasis supplied).

A. Dean Rutila and Anthony Mattina are Competent Experts.

Dean Rutila, PE: Mr. Rutila is competent to give testimony about the

opinions set forth in the Simpson Gumpertz & Heger (“SGH”) reports dated April

22, 2015 and August 25, 2015. (ECF # 296-23, and ECF #296-9). Rutila is a

Senior Principal with SGH. He is a professional engineer with a registration in

Georgia and many other States. He has a B.S. and M.S. in Civil Engineering from

the University of Michigan (1979), as well as over 30 years of experience in

investigating asphalt shingle roofing issues with complex causes. Rutila does not

arrive at his opinions alone. His experience includes organizing and directing a


29

team of skilled SGH staff, scientists, and other engineers to investigate shingle

failures and repair options for cost-effective solutions.16 Bottom line, Rutila is

more than competent – he has the knowledge, skill, training, education and

experience when only one would suffice for qualification purposes. Any attack by

Atlas regarding a purported lack of any one of these goes to the weight of his

testimony – not its admissibility.

Anthony Mattina: Mr. Mattina is similarly competent to give testimony

regarding the contents of his April 20, 2015 and August 24, 2015 Affidavits, which

are premised on plethora of real world experience, knowledge, skill and training.

(ECF #296-5 and ECF #327-33). Mattina has worked in the construction and

roofing business for over twenty-nine years. Currently, Mattina is the President and

CEO of Crist Roofing & Construction, Inc., (“Crist”), a licensed general contractor

with a specialty license for roofing employing approximately 100 people in offices

across Georgia, South Carolina, and Alabama. (ECF #296-5 at 1-2). Crist. Id. at

*2. Crist installs all types of roofing material for a variety of manufacturers, but

specializes in “slope roof shingle installation for residential projects.” Id. Mattina

is familiar with “all applicable industry standards, building codes, and

16 The SGH support personnel include Arthur Davies, the laboratory manager at SGH, and 4 other engineers who assisted with the field investigations, microscopy, document review, and cost estimates. (ECF #296-23 at 7).


30

manufacturer’s recommendations” for shingle installation and removal. At Crist,

Mattina has overseen the removal and replacement of shingles on approximately

12,000 residential homes involving a variety of manufacturers, including 1,000

roofs with Atlas Chalet shingles. Id. at 4-5.

B. The Methodology Used by Rutila and Mattina to Reach Their Conclusions is Sufficiently Reliable.

Dean Rutila: The SGH report explains in detail the standard methodology

Mr. Rutila employed, not only on this project but on every project that SGH

undertakes. Rutila personally investigated and directed a team of SGH employees

which, in a nutshell, performed the following: (1) visited hundreds of homes and

other properties with Atlas Chalet and Stratford shingles; (2) observed the shingles

and roofing conditions at each property, attic observations at many properties, and

collected shingle samples from numerous roofs; (3) tested the samples in the

laboratory using generally accepted techniques; (4) reviewed industry literature

pertaining to the problems observed with the shingles; (5) reviewed thousands of

pages of Atlas documents and the deposition transcripts of Atlas witnesses; (6)

reviewed applicable industry standards and literature; and (7) visited the Atlas

plant and observed shingles being manufactured.

In summary, over many months, SGH personnel under Rutila’s direction

inspected the shingles in ten States and 351 roofs. SGH harvested 246 shingles


31

from 52 locations for further observation and laboratory testing.17 Review of the

SGH reports reveals a detailed and sophisticated investigation of the Atlas Chalet

and Stratford shingles that satisfies Fed. R. Evid. 702. Thereafter, Mr. Rutila

formed opinions regarding the cause of the observed deterioration and damage. See

a summary of Mr. Rutila’s opinions at 13-14 of Plaintiffs’ Motion for Class

Certification, ECF #296-1, at 22-23, see also ECF #296-23 at 52-53, and ECF

#296-9 at 38-41.

In performing the aforementioned investigation, SGH followed well-

accepted standards engineers utilize for building assessments, including roofs,

incorporating both ASTM E2128, Standard Guide for Evaluating Water Leakage

of Building Walls, and Qualitative Sampling of the Building Envelope for Water

Leakage, ASTM International, and ASTM E2018, Standard Guide for Property

Condition Assessments: Baseline Property Condition Assessment Process. (ECF

#296-9 at 16-17). Moreover, SGH analyzed whether the shingles conform to 17 Of these shingles, thirty-three were water jet cut and viewed under a microscope, “extractions” were performed on forty-one, and tear tests were performed on sixteen. (ECF #296-23 at 38). The water jet cuts were performed by the Massachusetts Institute for Technology (MIT). (McGee, 2003 WL 23350439). The extractions were performed pursuant to ASTM D228- Standard Test Method for Sampling, Testing, and Analysis of Asphalt Roll Roofing, Cap Sheets, and Shingles Used in Roofing and Waterproofing, Section 16. Id. at 43. The tear tests were performed pursuant to ASTM D1922- Standard Test Method for Propagation Tear Resistance of Plastic Film and Thin Sheeting by Pendulum Method with modifications defined by ASTM D228, Section 13.1. Id. at 44.


32

ASTM D3462 Standard Specification for Asphalt Shingle Made from Glass Felt

and Surfaced with Mineral Granules. (ECF #296-9 at 21-25).

Anthony Mattina: As previously indicated, Mattina has been involved with

the replacement of Atlas Chalet shingles on over 1,000 roofs. Mattina is very

familiar with the proper manner to install residential shingles and is very familiar

with applicable installation instructions (ECF #296-5 at 3, Para. 12). He has also

personally observed hundreds of roofs with Atlas Chalet shingles and has not seen

installation deficiencies contrary to the manufacturer’s installation instructions that

could cause the observed problems (ECF #327-33 at 8 Para. 5, 29-30). He has

observed hundreds of roofs with the deteriorated condition of the Chalet shingles

and was able to compare that condition, with the condition of other manufacturers

shingles of similar age. Id. In summary, Mattina’s methodology is grounded in his

practical experience as a roofer with experience in how various manufacturers’

shingles are installed, and the observed condition of the shingles at various times.

1. Technical Industry Literature Reviewed by SGH

In performing his investigation and forming his opinions, Rutila also

reviewed applicable industry literature.18 For example, Rutila reviewed and relied

18 See Section 5.3.2 of the SGH Report for a listing of industry literature reviewed and relied upon. (ECF #296-23, at 25-27, and the Rebuttal Report, ECF #296-9 at 11-15).


33

upon the article “Asphalt Roofing Shingles- Composition Performance, Function,

and Standards,” published in the industry magazine Interface in Jan. 2000 by

Raymond McNulty.19 (ECF #296-23, 26). Mr. McNulty notes blisters greater than

6.5 mm (1/4 inch) “will, in all likelihood, vent, and roofs in this condition should

be replaced.” Id. at 23. (emphasis supplied). There is no dispute that numerous

blisters in excess of ¼ inch were commonly observed on the inspected roofs in this

case. (See ECF #296-22 at 40-41 (157- 161), at 44 (171) and i.e. Photo 5-1, ECF

#296-23 at 19).

Another example is “Long Term Effects of Hail Impacts Asphalt Shingles-

An Interim Report,” from the 1999 Proceedings of the North American Conference

on Roofing Technology, by Scott Morrison PE which described “functional

damage to any roof covering… as a diminution of water-shedding capability or

reduction in the expected long-term service life of the material.” (Tab 6) (ECF

#296-23, at 27). The key point being that shingle failure or damage is not defined

as a shingle that leaks, and Atlas does not cite to any literature with such a

definition. In summary, the reliability of Rutila’s investigation and opinions is

19 There is no testimony from any defendant expert arguing this article or any article reviewed by SGH are not reputable industry articles.


34

further bolstered by his review of generally accepted industry standards and

literature.

2. Microscopy Analysis Supports Rutila’s Opinions

As indicated, SGH performed laboratory microscopy on numerous harvested

shingles. The microscopy indicated an overabundance of “exposed” fiberglass

beneath the blisters, or cracking which indicates a critical loss of the waterproofing

protection of the shingle. (See i.e. Tab 7). The SGH team also observed exposed

fiberglass on numerous shingles with ruptured blisters in the field during their

investigation. (ECF #296-23 at 48). Ruptured blisters, exposed asphalt and

fiberglass are unacceptable deterioration and ARMA (the Asphalt Roofing

Manufacturers Association) identifies such deterioration as a condition beyond

normal aging. Id. (ECF #296-23 at 48).

C. The Testimony of Rutila and Mattina is Relevant and Will Assist the Jury to Understand the Evidence or Determine a Fact at Issue

The SGH reports and Mattina affidavits reveal both a technical and real

world analysis and discussion of the disputed facts and issues centered at the heart

of this dispute. Their opinions focus on why the shingles have a common

manufacturing defect, why the shingles should be replaced, how much it would

cost to replace the shingles, and why the shingles of other manufacturers are not

experiencing similar problems. Atlas retained a legion of experts to refute SGH


35

and Mattina and its experts argue that there are no problems with the Atlas shingles

and that they should not be replaced.20 Jurors will be unable to understand the

complex technical evidence, and the performance of these shingle in the field,

especially when defendant’s experts testify, without hearing the testimony of

Rutila and Mattina.

D. Defendant’s Criticisms of Rutila and Mattina Should Be Addressed Through Cross-Examination.

As Daubert states: “Vigorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence.” See generally,

e.g., Guild v. General Motors Corp., 53 F. Supp. 2d 363 (W.D.N.Y. 1999) (“trial

judges acting as gatekeepers under Daubert must not assume ‘the role of St. Peter

at the gates of heaven, performing a searching inquiry into the depth of an expert

witness’s soul’ and thereby usurp ‘the ageless role of the jury’ in evaluating

witness credibility and weight of the evidence.”). Each of Atlas’ criticisms of

Plaintiffs’ experts goes to its weight, not its admissibility, and thus is a proper

subject for cross-examination, not exclusion. 20 Defendant’s expert’s opinions belie Atlas’ own documents documenting the problems, and the thousands of warranty claims that Atlas has settled for full roof replacement, including over 1,000 in 2015 alone. Interestingly, Atlas counsel did not provide any historical internal Atlas documents to their experts for consideration. (i.e. Tab 8 at 124:20-21; Tab 1 at 90:2-5; Tab 9 at 202:18-21).


36

1. Defendant’s Attempt to Define “Failure” as the Litmus Test for Rutila’s Opinions is Wrong.

Atlas’s entire Daubert argument is focused on what constitutes “failure” of

the shingles, and claim plaintiffs’ experts cannot predict when every shingle will

“fail,” or some similar variation. However, this attack is a red herring. Atlas’s

criticism of Plaintiffs’ experts is remarkable in the utter lack of similar cases

wherein the expert’s testimony was barred. All of Atlas’s cases simply state basic

legal principles pertaining to Rule 702, do not support its arguments, or are

otherwise inapplicable. In addition, as discussed herein, and in Plaintiff’s opening

brief, the proper focus is whether the shingles have a common manufacturing

defect, which gives rise to a number of common issues supporting class

certification. Atlas is unable to direct the Court to any industry document or

standard supporting its’ definition of “failure”- or that the shingle must actually

leak to have failed. The reason is because investigations such as the one at issue

are premised on the experience and judgment of the investigating engineer.

Atlas’s reliance on this Court’s opinion in Siharath v. Sandoz

Pharmaceuticals Corporation, 131 F. Supp. 2d 1347 (N.D. Ga. 2001) to support its

arguments pertaining to alleged “future failures” is misplaced. (Defendant’s memo,

ECF #327 at 58-61). At the outset, Silharath dealt with the complex issue of

whether the defendant’s drug caused a stroke. The opinion hinged in large part on


37

plaintiff’s lack of proper epidemiological studies and a finding that “plaintiffs’

causal chain is seriously flawed.” Id. at 20. However, as the Court noted in

Metromont, a construction product dispute involving engineering testimony is very

different from a medical dispute such as the one in Silharath. Regardless,

Plaintiffs’ experts “causal chain” is not flawed. It follows a reliable methodology

that Rutila has followed for many years, one that is supported by Atlas’s own

documents. Matina follows a similar standard process in arriving at his opinions.

In addition, Plaintiffs’ experts are not required to jump through the hurdles

of Atlas’s own devising. Atlas argues that since Rutila cannot predict when

millions of shingles will fail in the “future” his opinions lack a “scientifically

reliable basis.” (ECF #327) at 59. However, Rutila is not required to predict the

exact date that a particular shingle will fail as defined by defendant, or when they

will “all fail” to establish a sound basis for his opinions. Id., at 58. As Rutila

explains, he is not attempting such a prediction, but rather is simply testifying that

in their current condition the shingles will not withstand reasonably foreseeable

weather conditions. (ECF #296-22) at 206-07. Roofers such as Mattina make

identical assessments every day in deciding whether a customer’s roof needs to be

replaced.


38

2. Defendant Misinterprets Relevant Industry Literature Regarding Shingle Duration.

Atlas also states that “Mr. Rutila’s duration of 25-30 years is contrary to his

firm’s survey of roofers who estimated as little as 11 years as an average duration

for properly designed (“not defective”) three tab strip shingles” contending

Rutila’s opinions about shingle duration are simply impermissible “ipse dixit”,

citing in support Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 2006

WL 1663357, at *5 (N.D. Ga. June 14, 2006). Atlas misinterprets the cited

“survey,” and is wrong that Optimum supports its’ position.

The survey to which Atlas refers is entitled “2005 Roofing Industry

Durability and Cost Survey,” by Carl Cash of Simpson Gumpertz & Heger. (Tab

10). According to Cash, under the heading “Steep-Sloped Roofing Durability,

“[r]espondents were asked to provide the mean and minimum service life for 18

steep roofing systems.” For three-tab “strips,” a shingle similar to the Chalet and

Stratford, the minimum “durability,” or “service life,” was a minimum of 11 years

(as quoted by Atlas), with a mean of 18 years (not quoted by Atlas ). Perhaps more

importantly, the survey is not a scientific analysis, but rather a compilation of

anecdotal and subjective opinions from members of the National Roofing

Contractors Association and Roof Consultants Institute. The survey did not employ

a consensus standard for the useful life of a shingle or even mandate use of a


39

common definition for “durability,” or “service life.” And the potential for bias is

substantial as building owners declined to participate and the survey was sponsored

exclusively by roofing manufacturers. In short, the survey contains some helpful

information, but is not, as Atlas contends, a definitive work conclusively

establishing shingles are expected to last no more than ten years. While Atlas

certainly can ask Rutila about the survey on cross-examination, its existence does

not disprove his opinion – based on his many years of real world experience

inspecting and testing roofs – that shingles should have a 25-30 year service is

nothing but ipse dixit. See ECF #296-22 at 59-60 (230-236). 21 Indeed, consistent

with Rutila’s opinion, Atlas and other manufacturers typically warrant their

shingles for 25-30 years.22

This Court’s opinion in Optimum also does not support Atlas. In Optimum,

after initially denying a Daubert motion, holding “the rejection of expert testimony 21 If Atlas believes its shingles only have a useful life of 11 years, the fact that it warrants its shingles for 25-30 years is further evidence of its fraudulent intent. Experts on consumer warranties, as Atlas expert George Priest recognizes, opine that the length of a warranty is a “signal” to customers that the product is durable and will last for the length of the warranty. (Tab 1 at 117:20-118:9) Accordingly, under this “signal theory,” class members were led by Atlas to believe that its shingles would last 25 to 30 years. (Tab 11); See also National Association of Homebuilders article, Feb. 2007, indicating 20 year life expectancy for asphalt shingles. Tab 6 at 9 and 13. 22 If Atlas believes its shingles only have a useful life of 11 years, the fact that it warrants its shingles for 25-30 years is further evidence of its fraudulent intent.


40

is to be the exception rather than the rule,” the Court ultimately granted the motion

after the expert testified and it became obvious his analysis was based on “claims

that had been dismissed prior to trial.” Id. at *3. As a result, there was no

appropriate fit between the expert’s opinion and the facts of the case. Id. In

contrast, here there is a direct fit between Rutila’s opinions and the facts at issue.

Moreover, the fit is not based on his ipse dixit. To the contrary, Rutila’s opinions

closely hew to the same opinions expressed by Atlas’ own engineers in

unsuccessfully grappling with flaws in the manufacturing process they believed

were responsible for the problems at issue. Moreover, Rutila’s observations about

how the problems are manifested in the shingles are virtually identical to the

observations of Atlas employee Meldrin Collins and others who inspected

hundreds of Atlas Chalet roofs prior to this litigation and discovered the same

issues of blistering, cracking and granule loss. (ECF #296-10 at 39 (150: 9-16)

3. Statistical Analysis of the Shingles is not Possible or Relevant.

Among its grab bag of criticisms, Atlas contends: (1) “Mr. Rutila makes no

claim to base his opinions on a statistically significant sample;” (2) Rutila’s

opinions do not have a “known or expected rate of error,” and; (3) Rutila’s theories

thus cannot be tested. (ECF #327 at 59-61). Interestingly, Atlas cites to its own

expert, Ben Wilner, who also did not perform a statistical analysis. (Tab 12 at 56:


41

2-9). Given the total number of roofs with the shingles at issue – well over 150,000

– it would not be feasible to do a statistically significant sample or develop an

expected error rate. Instead, Rutila followed a generally accepted methodology

which is described in the “Qualitative Sampling of Building Envelopes for Water

Leakage,” Journal of ASTM International, Vol. 4, No. 9, Lonnie Haughton and

Colin Murphy, at 2-3, which states:

a cardinal principal of qualitative sampling is that resulting causal findings and theoretical statements clearly must be emergent from and grounded in purposive (or judgmental) field observation. In other words the expert’s step-by-step process of qualitative analysis builds toward general patterns that emerge from a series of purposeful collected databases, instead of being derived statistically from a dataset that has been randomly generated to prove or disprove a predetermined hypothesis.

(ECF #296-9 at 18). This is exactly what Rutila and SGH team did.

Rutila found blistering, cracking and excessive granule loss on every single

roof of the 351 he surveyed, which based upon his observations and experience

sufficiently enabled him to determine it was more likely than not that all of the

shingles shared the same defect. This is precisely the type of testimony which the

Court found in Metromont to be sufficient in a case such as this one. See 2013 WL

2285576 at *5 (“[U]nlike the fields of ‘laboratory or medical testing, which

employ rigorous and replicable protocols, technical fields such as engineering

often involve more idiosyncratic methods of design and testing.”). Further, the


42

roofs the SGH team inspected, and the laboratory testing performed could, and

was, easily duplicated by the defendants. Plaintiffs provided many days of roof

access to Atlas’s team of experts in every State where a complaint has been filed.

The locations of harvested shingles were provided to Atlas’s experts who

harvested and analyzed shingles from the same roofs.23 The aim of Daubert is to

prevent the admission of “junk science,” not to exclude scientific testing and

conclusions where the experts for the different parties disagree. GE v. Joiner, 522

U.S. 136, 153 (1997).

Rutila’s opinions came under a similar attack in In Re: Chinese

Manufactured Drywall Products Liability Litigation, MDL. 2047, Doc. 1090

(2/17/10) (Tab 13). Defendants sought to exclude his opinions pertaining to the off

gassing of Chinese drywall. Rutila employed the same methodology he did in this

case. He and his team investigated and visited homes with Chinese drywall,

collected samples, analyzed them in the lab, studied articles pertaining to drywall

and corrosion, and reviewed documents from the defendant in arriving at his

opinions. The court denied the motion to exclude his testimony, finding that the

defendant’s objections could be addressed “through vigorous cross-examination.”

Id. at 9. 23 Defendant’s expert Rene Dupuis performed similar microscopic analysis of the shingles at issue.


43

4. Rutila Considered and Ruled Out Other Potential Causes for the Problems.

Atlas also argues Rutila’s opinions should be barred because he fails to “rule

out” “potential alternative causes of future failure,” “e.g. hail, tornado, mechanical

damage.” (ECF #327 at 61-62). This argument misses the mark. Rutila plainly

addressed – and rejected – the notion that other potential problems caused the

problems he observed. Section 6.5 of his report states:

Although every shingle installation has some number of installation imperfections, including deck venting, deck stability, shingle underlayment, and flashing, shingle fastening and exposure, and site conditions such as solar exposure and shading, none of these conditions explain or cause the blistering, excessive granule loss, and cracking observed. (ECF #296-23 at 51).

Further, possible other future damage to the shingles is irrelevant. The shingles are

already in a state of advanced premature deterioration and should be replaced now,

not at some point in the future. (See ECF #296-23, at 52-53). Even assuming

arguendo the Court believes there are better methods of analysis that Rutila did not

use, it does not mean his opinions should be excluded. In re Stand ‘N Seal

Products Liability Litigation, 623 F. Supp. 2d 1355 (N.D. Ga. 2009) at 13 (citing

Heller v. Shaw Indus., 167 F.3d 146, 152-53 (3d Cir. 1999)) (“Even if the judge

believes… that there are flaws in the scientist’s methods, if there are good grounds

for the expert’s conclusion, it should be admitted”).


44

5. Atlas’s Attacks Belie Its Own Documentation.

Atlas argues as if Rutila and Mattina’s opinions are a surprise and some sort

of subjective mumbo jumbo with no basis in fact. However, Atlas unsuccessfully

grappled for many years with the precise problems documented by Rutila and

Mattina as demonstrated by Atlas’s extensive internal engineering documents,

some of which are described in Plaintiffs’ opening brief. The documents disclose

Atlas’s own engineers reached the same conclusions, namely that the shingles

prematurely fail, shortly after the shingles were placed on the market. One

document written in 2001 states: After a “few years of outdoor exposure...the

whole overlay section experience rapid failure.” See ECF #296-18 (emphasis

added). A document from 2007 shows that the problems continued for years: “The

issue of blistering on the overlay pad has become a serious problem for the

management of Atlas Roofing”; and another from 2008 states: “My testing is not

going well. I still see blisters on the test results”; and one from 2011: “…we do not

intend for the shingle to blister.”24 Most startling is an admission by Atlas’ chief

engineer that he did not know the long term repercussions of the problems.25 Yet,

24 See Dep. Exhs. 46, ECF #296-18, 123, ECF #296-7, 144, ECF #296-51, 356, ECF #296-54. 25 Dudley Lightsey, Director of Corporate Engineering in a 12/09/08 email, Subject: Overlay Blistering Team, stated “I am not sure what the effects would be


45

Atlas argues that Rutila’s and Mattina’s opinions should be excluded because they

are allegedly unable to predict “failures” in the manner Atlas claims is necessary.

Particularly in light of the conclusions of its own engineers, Atlas’s criticisms of

the work of Rutila and Mattina fall flat. These criticisms do not merit exclusion of

the opinions of Plaintiffs’ experts, but are at most are fodder for cross-examination.

VII. CONCLUSION

Respecrtfully, Plaintiffs Motion for Class Certification should be granted.

Dated: April 11, 2016.

Respectfully submitted, /s/Daniel K. Bryson Daniel K. Bryson Whitfield Bryson & Mason LLP 900 W. Morgan Street Raleigh, NC 27603 Tel: 919-600-5000 Fax: 919-600-5035 Email: [email protected] Plaintiffs’ Co-Lead Counsel

on aging and weathering.” (ECF #296-52). In a 12/12/08 email Hazem Shanab, a key Atlas employee dealing with the blistering problems, stated to Dudley Lightsey, subject: Overlay Blistering Team Test, “What we don’t know: “Does water penetrate from the bottom of the shingle and make it’s appearance as a blister,” “[d]oes the expansion contraction of the shingle encourage cracks to form on the shingles underside providing a path for water to penetrate?” (emphasis supplied). (ECF #296-53)


46

On the Brief: Gary E. Mason Ben Branda Whitfield Bryson & Mason LLP 1625 Massachusetts Ave, Suite 605 Washington, DC 20036 Tel: 202-429-2290 Fax: 202-429-2294 Email: [email protected] [email protected]

Christopher L. Coffin Pendley, Baudin & Coffin, LLP 1515 Poydras Street, Suite 1400 New Orleans, LA 70112 Tel: 504-355-0086 Fax: 504-523-0699 Email: [email protected] Plaintiffs’ Co-Lead Counsel Kenneth S. Canfield GA Bar No.: 107744 Doffermyre Shields Canfield & Knowles, LLC 1355 Peachtree Street, Suite 1600 Atlanta, GA 30309 Tel: 404-881-8900 Email: [email protected] Plaintiffs’ Liaison Counsel


47

Stan Baudin Pendley, Baudin & Coffin, LLP 1515 Poydras Street, Suite 1400 New Orleans, LA 70112 Tel: 504-355-0086 Fax: 504-523-0699 Email: [email protected] Counsel for Plaintiffs

LOCAL RULE 7.1 COMPLIANCE CERTIFICATE

Pursuant to L.R. 7.1D, this is to certify that the foregoing pleading complies

with the font and point selections approved by the Court in L.R. 5.1B. The

foregoing pleading was prepared on a computer using the Times New Roman font

(14 point).

This the 11th day of April, 2016.

/s/ Daniel K. Bryson Daniel K. Bryson


48

CERTIFICATE OF SERVICE

I, Daniel K. Bryson, do hereby certify that the foregoing was electronically

filed through the CM/ECF system for the Northern District of Georgia, which will

send a notice of electronic filing to the following attorneys of record:

Joel G. Pieper William M. Ragland, Jr. Womble Carlyle Sandridge & Rice, LLP 271 17th Street, N.W., Suite 2400 Atlanta, GA 30363-1014 Email: [email protected] Email: [email protected]

Keith A. Clinard Womble Carlyle Sandridge & Rice, LLP One West Fourth Street Winston-Salem, NC 27101 Email: [email protected]

Henry B. Smythe, Jr. James E. Weatherholtz Womble Carlyle Sandridge & Rice, LLP PO Box 999 Charleston, SC 29402 Email: [email protected] Email: [email protected]




mailto:[email protected]





UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION IN RE: ATLAS ROOFING ) CORPORATION CHALET SHINGLE ) MDL DOCKET NO. PRODUCTS LIABILITY ) LITIGATION ) 1:13-md-2495-TWT

___________________________________________________________ DIANE and RODNEY DISHMAN ) and ANTHONY COSTANZO, on ) behalf of themselves and all others ) similarly situated, ) ) CASE NO. 1:13-cv-02195 Plaintiffs, ) v. ) ) ATLAS ROOFING CORPORATION, ) ) Defendant. ) ____________________________________)

PLAINTIFFS’ APPENDIX OF EXHIBITS RELIED UPON IN SUPPORT OF THEIR REPLY BRIEF

IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Tab: Description: 1. Excerpts from the deposition of Kenneth M. Lies taken on November 12,

2015. 2. Declaration of Amanda K. Mkamanga dated April 11, 2016. 3. Atlas Warranty – Dishman 000004. 4. Excerpts from the deposition of Hazem Shanab taken on December 17,

2014.

Case 1:13-md-02495-TWT Document 340-1 Filed 04/11/16 Page 1 of 5

5. Excerpts from the deposition of Dale Rushing taken on January 20, 2015. 6. Plaintiff’s Deposition Exhibit 318, Article: Study of Life Expectancy from

the National Association of Home Builders. 7. Appendix 9 to Simpson Gumpertz & Heger, Dean A. Rutila, report dated

April 22, 2015. 8. Excerpts from the deposition of Richard H. Moores P.E. taken on

November 11, 2015. 9. Excerpts from the deposition of George L. Priest taken on November 3,

2015. 10. Deposition Exhibit 1 of Deposition of Dean Rutila, Ph.D. taken on October

7, 2015, article titled 2005 Roofing Industry Durability and Cost Survey. 11. Article: A theory of the Consumer Product Warranty dated January 1, 1981

by George L. Priest. 12. Excerpts from the deposition of Benjamin S. Wilner, PH.D. taken on

December 11, 2015. 13. Judge Fallon’s Order and Reasons dated February 17, 2010 in the case In re

Chinese Manufactured Drywall Products Liability Litigation, MDL No. 2047 in the U.S.D.C. for the Eastern District of Louisiana, ECF #1090.


Dated: April 11, 2016 By: /s/Daniel K. Bryson Daniel K. Bryson Whitfield Bryson & Mason LLP 900 W. Morgan Street Raleigh, NC 27603 Telephone: 919-600-5000 Facsimile: 919-600-5035 Email: [email protected] Plaintiffs’ Co-Lead Counsel Christopher L. Coffin Pendley, Baudin & Coffin, LLP 1515 Poydras Street, Suite 1400 New Orleans, LA 70112 Telephone: 504-355-0086 Facsimile: 504-523-0699 Email: [email protected] Plaintiffs’ Co-Lead Counsel Kenneth S. Canfield GA Bar No.: 107744 Doffermyre Shields Canfield & Knowles, LLC 1355 Peachtree Street, Suite 1600 Atlanta, GA 30309 Telephone: 404-881-8900 Email: [email protected] Plaintiffs’ Liaison Counsel





On the brief:

Gary E. Mason Ben Branda Whitfield Bryson & Mason LLP 1625 Massachusetts Ave. NW Suite 605 Washington, D.C. 20036 Telephone: 202. 429.2290 Facsimile: 202.429.2294 Email: [email protected]

[email protected]

Stan Baudin Pendley, Baudin & Coffin, LLP 1515 Poydras Street, Suite 1400 New Orleans, LA 70112 Telephone: 504-355-0086 Facsimile: 504-523-0699 Email: [email protected] Counsel for Plaintiffs





CERTIFICATE OF SERVICE

I, Daniel K. Bryson, do hereby certify that the foregoing was electronically

filed through the CM/ECF system for the Northern District of Georgia, which will

send a notice of electronic filing to the following attorneys of record:

Joel G. Pieper William M. Ragland, Jr. Womble Carlyle Sandridge & Rice, LLP 271 17th Street, N.W., Suite 2400 Atlanta, GA 30363-1014 Email: [email protected] Email: [email protected]

Keith A. Clinard Womble Carlyle Sandridge & Rice, LLP One West Fourth Street Winston-Salem, NC 27101 Email: [email protected]

Henry B. Smythe, Jr. James E. Weatherholtz Womble Carlyle Sandridge & Rice, LLP PO Box 999 Charleston, SC 29402 Email: [email protected] Email: [email protected]









Kenneth M. Lies, AIA

Golkow Technologies, Inc. - 1.877.370.DEPS

Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

IN RE: ATLAS ROOFING )

CORPORATION CHALET SHINGLE )

PRODUCTS LIABILITY ) MDL Docket No. 2495

LITIGATION ) ALL CASES

)

)

VIDEOTAPED DEPOSITION OF KENNETH M. LIES, AIA

(Taken by Plaintiffs)

November 12, 2015

9:37 a.m.

Suite 2400

171 17th Street N.W.

Atlanta, Georgia

Reported by:

F. Renee Finkley, RPR, RMR, CRR, CLR, CCR-B-2289

TAB 1Case 1:13-md-02495-TWT Document 340-2 Filed 04/11/16 Page 1 of 3



Page 90

1 A. Yes.

2 Q. You were never -- did you ever request any

3 Atlas documents in performing your analysis in this

4 case?

5 A. I did not.

6 Q. On page 13 of 15 in your report under

7 plaintiffs' damage analysis, in the second paragraph

8 you talk about -- you put the word "failed" in

9 quotes, correct?

10 A. Yes.

11 Q. And then you say, "Leaked or blown off due

12 to deterioration." Is that your definition of

13 failure, of shingle failure?

14 A. That was my interpretation of what

15 Mr. Ruttila was referring to, but it wasn't the -- I

16 mean, as I said in my other report -- or this report

17 and the other, it's not well defined what constitutes

18 a, you know, catastrophic or sudden failure.

19 Q. What's your definition of shingle failure?

20 A. A shingle that -- that does not serve its

21 intended purposes. No longer serves its intended

22 purposes.

23 Q. Is there any -- so does that mean it

24 doesn't necessarily have to leak?


Amanda

Highlight



Page 91

1 A. It needs to be -- it has to be water

2 shedding. That's a primary function. It has to be

3 resistant to wind. It has to serve its aesthetic

4 function. Those are the three main things, I

5 believe.

6 Q. So you could have a shingle failure if the

7 shingle is not serving its aesthetic function?

8 A. Yes, I believe you can.

9 Q. In your opinion, on the aesthetic function

10 is that it's fine?

11 A. Yes.

12 Q. And I believe we've already established

13 though that you don't have any peer-reviewed

14 literature to -- that discusses aesthetic function

15 for a shingle, correct?

16 A. I don't understand what you just asked.

17 Q. You don't have any peer-reviewed

18 literature that discusses aesthetic function for a

19 shingle?

20 A. What, that that's a proper --

21 Q. That that --

22 A. That's something that it provides?

23 Q. No.

24 A. I'm not understanding.


Amanda

Highlight

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

IN RE: ATLAS ROOFING CORPORATION CHALET SHINGLE PRODUCTS LIABILITY LITIGATION

MDL Docket No.: 2495 Hon. Thomas W. Thrash, Jr.

This Document Relates to All Actions

DECLARATION OF AMANDA K. MKAMANGA

I, Amanda K. Mkamanga, declare as follows pursuant to 28 U.S.C. § 1746:

1. I am a paralegal in the law firm of Whitfield Bryson & Mason LLP,

one of the law firms of record for Plaintiffs.

2. I have reviewed all of the Atlas claims files produced in this litigation.

These documents appear to have been submitted pursuant to the terms of Atlas’s

Limited Warranty. On the basis of this review, I offer the following observations:

a. Since January 1, 2002, Class Members have submitted

thousands of warranty claims related to blistering, cracking, or granule loss of their

shingles.


2

b. Atlas does not appear to require claimants to prove that they

have filed their claim in accordance with the warranty’s 30-day notice requirement.

Atlas’s claim intake form does not have a field relevant to this requirement.

3. I was unable to identify any claims where Atlas denied the claim on

the basis of the claimant’s failure to comply with the 30-day notice requirement.

I declare under penalty of perjury under the laws of the United States that

the foregoing is true and correct.

Executed on this 11th day of April, 2016.

s/ Amanda Mkamanga Amanda Mkamanga Whitfield Bryson & Mason LLP 900 W. Morgan Street Raleigh, NC 27603 Tel: 919-600-5000 Fax: 919-600-5035 Email: [email protected]



Case 1:13-cv-02195-TWT Document 1-1 Filed 07/01/13 Page 2 of 2

DISHMAN 000004

Limited Shingl arranty

Limited Warranty: ATLAS ROOFING , CORPORATION ("Atlas") warrants to you, the original owner of its roofing product, that the roofing products listed in the chart below, are free frmp manufacturing defects, which result in leaks, '

The limited warranty is the sale and exclusive remedy, and during the warranty period specified in the chart below, the maximum repair or replacement

cost to ATLAS shall not exceed during the Premium Protection years, the replacement cost to the owner for the product plus replacement application cost (exclusive of metal work, flashing or other work), During the remaining Warranty period, ATLAS will adjust valid claims (materially affected by a manufacturing defect), by an amount determined by decreasing monthly the replacement cost of the product only in proportion to the unexpired warranty period. In no event shall ATLAS' liability extend to any cost for the tear off of the product or for the replacement installation cost of the new product during the prorated period.

Limited Wind Warranty: (covers Shingles only) ATLAS warrants that its shingles will resist damage by wind gusts up to a maximum of the Wmd Speed Limits specified herein for the first five (5) years only, from the date of installation provided that the shingles have been installed in accordance with the printed application instructions on the shingle bundle wrapper, and have had the opportunity to seal down. If during this five (5) year period, damage occurs to the shingles as a result of wind gusts under the specified Wind Speed Limits, ATLAS will fumish at no charge, replacement shingles for the damaged shingles only, but no replacement labor. Sealant Feature: In order to activate the sealant feature, the shingles must be exposed to direct sunlight for a continued period of time for the shingles to seal. Shingles installed in fall or winter ani!! not exposed to adequate surface temperatures, or other conditions, which temporarily or permanently preclude activation of the sealant, may never seal and must be hand sealed at the time of installation. It is not a manufacturing defect if shingles fail to seal under the above circumstances, and Atlas will not be responsible for repair, replacement, or hand sealing shingles, under these circumstances. However, in the event the shingles fail to self-seal after pJ:oper installation and climatic exposure, and Atlas is notified within the 1st year after installation, ATLAS' sale responsibility shall be to pay a reasonable cost to hand seal the affected shingles.

Limited Algae Resistant Warranty: (if applicable) ATLAS warrants that its algae resistance shingles (ARS) will remain free of obvious and unsightly discoloration due to algae growth for a period of ten (10) years from the date of installation. In the event the algae resistant shingles fail to meet this coverage, ATLAS' sole and only liability shall be to pay the reasonable cost of repair or replacement of the defective shingles, up to the following limits: (a) during the Premium Protection Period, the maximum repair or replacement to ATLAS shall be the replacement cost of those shingles exhibiting discoloration due to algae, including replacement installation cost; (b) during the remainder of the algae warranty period (if applicable), the maximum repair or replacement cost to ATLAS shall be the replacement cost of those shingles exhibiting algae discoloration, in

, proportion to the nnexpired warranty period, excluding all installation costs,

BY LAW INCLUDING TIlE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO THE TIME PERIODS STATED ABOVE. ATLAS MAKES NO

,REPRESENTATION OR WARRANTY OF ANY KIND, OTHER THAN THE LIMITED WARRANTY SET FORTH HEREIN. THIS LIMITED WARRANTY CONTAINS ALL OF THE PROVISIONS OF YOUR REMEDIES FROM ATLAS. ATLAS' LIABILITY IS LIMITED TO THE PROVISIONS OF THIS LIMITED WARRANTY, WHETHER ANY CLAIM AGAINST IT IS BASED UPON STRICT LIABILITY, NEGLIGENCE, BREACH OF WARRANTY OR ANY OTHER THEORY OR CAUSE OF ACTION. NO PERSON IS AUTHORIZED TO ALTER TIllS LIMITED WARRANTY EITHER ORALLY OR IN WRITING. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitations of Coverage (what is not covered): ATLAS shall not be liable for and . " the Lirniteq Warranties set fOrth herein do not apply to:

"'::' a. Fanlty or improper application of said products or products not installed or applied ''', in" accordance with the printed instructions on the product bundle wrappers;

b. DAMAGE TO THE PRODUCTS CAUSED BY INADEQUATE ATTIC/).. ,SHEATHING VENTILATION (Note: Ventilation must meet the FHA and HUD Minimum Property Standards or a minimum of one (I) square foot free venting area per 150 square feet of attic floor area, whichever provides the most ventilation);

c. Replacement of products for the first six (6) months after application due to: L Loss of Granules: Products when fITSt applied will have some excess granule wash off. 2. Discoloration: i) Some color shading may occur due to positioning or embedment of the granule; ii) Yellow staining and/or powder-like shading may occur due to transfer of backing materials.

The conditions listed in section (c) are normal and should be eliminated by natural weathering conditions over a six (6) month period after application;

d. Damage to a roof due to settlement, distortion, failure or cracking of the roof deck, walls or foundation of a buil~ing or to any defect in or failure of material used as a roof base over which products are applied or for damage by foot traffic ou the roof;

e. Damage from any cause other than inherent manufacturing defect; f. Acts of God including lightning, winds in excess of the specified Wind Speed Limits listed

herein, hurricane, tornado, hailstorm, impact of foreign objects or other violent storms; g. We are not liable to you if you make a warranty claim in the future, or make structural changes

and any replacement shingles vary in color either due to normal weathering or changes in our product line or color blend;

h. Claims by owners or transferees not qualifying as Original Owners or Authorized Transferees under this Limited Warranty.

TRANSFERABILITY: The original owner may transfer this warranty to the subsequent owner, with the following limitations: For transfer of this warTanty during the product PREMIUM PROTECTION PERIOD, the remaining portion of the warranty for the new owner will be the same as for the original owner. This will include any remaining time available for the PREMIUM PROTECTION PERIOD. For product warranties transferred after the PREMIUM PROTECTION PERIOD has elapsed, the remaining portion of the transferred warranty will be two years from the date of the real estate transfer. The second owner MUST NOTIFY ATLAS IN WRITING (see attached warranty transfer card) WITHIN 30 DAYS after the real estate transfer for any coverage to be transferred. However after you have transferred this warranty to the purchaser of your home, it may not be transferred again. That is, the purchaser of your home may not transfer this warranty to any subsequent purchasers.

*4 nails = 60 mph 6 nails = 80 mph

WARRANTY REGISTRATION:You must complete and mail the attacheL warranty registration card within 30 days of the installation date of your shingles to qualify for applicable warranty coverage.

CLAI1\1 REPORTING PROCEDURE:Any claim made hereunder must be made within thirty (30) days after discovery of the alleged defect by calling 1-800-478-0258 or in writing to:

Atlas Roofing Corporation Attn: Consumer Services 2564 Valley Road Meridian, MS. 39307

To fully evaluate your claim we may ask you to provide and forward, at your expense, pictures of your shingles and/or 2 full shingle samples for us to test Repairs made prior to or during the investigation period without Atlas Roofing Corporation's prior written approval shall be at the owner's expense. With all claims, the original proof of purchase must be submitted with any other claim information requested. ,

WARRANTY NOT VALID IF INFORMATION IS ERRONEOUS. This warranty is effective on all product types stated herein and sold in the United States after 11112002.

STORMMASTER DG Product Limited Warrauty StormMaster DG is warranted to the installer to be free of manufacturing defects for a period of five (5) years. StormMaster DG is warranted to the building owner for the warranty life of the roof covering being installed, or as a limit of 30 years maximum. This is for affected STORMMASTER DG ONLY. Atlas is not liable for any consequential damages including the building, its contents, or any persons therein. Removal or replacement of any shingles applied over StormMaster DG material will void this warranty. IN NO INSTANCE IS ATLAS RESPONSIBLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE DURATION OF ANY IMPLIED WARRANTY IS HEREIN LIMITED IN DURATION TO THAT OF THE EXPRESS WARRANTY STATED HEREIN. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the limitations or exclusions may not apply to you.

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Limited Shingl arranty

Limited Warranty: ATLAS ROOFING . CORPORATION ("Atlas") warrants to you, the original owner of its roofing product, that the roofing products listed in the chart below, are free frmp manufacturing defects, which result in leaks. .

The limited warranty is the sale and exclusive remedy, and during the warranty period specified in the chart below, the maximum repair or replacement

cost to ATLAS shall not exceed during the Premium Protection years, the replacement tost to the owner for the product plus replacement application cost (exclusive of metal work, flashing or other work). During the remaining Warranty period, ATLAS will adjust valid claims (materially affected by a manufacturing defect), by an amount determined by decreasing monthly the replacement cost of the product only in proportion to the unexpired warranty period. In no event shall ATLAS' liability extend to any cost for the tear off of the product or for the replacement installation cost of the new product during the prorated period.

Limited Wind Warranty: (covers Shingles only) ATLAS warrants that its shingles will resist damage by wind gusts up to a maximum of the Wmd Speed Limits specified herein for the first five (5) years only, from the date of installation provided that the shingles have been installed in accordance with the printed application instructions on the shingle bundle wrapper, and have had the opportunity to seal down. If during this five (5) year period, damage occurs to the shingles as a result of wind gusts under the specified Wind Speed Limits, ATLAS will fumish at no charge, replacement shingles for the damaged shingles only, but no replacement labor. Sealant Feature: In order to activate the sealant feature, the shingles must be exposed to direct sunlight for a continued period of time for the shingles to seal. Shingles installed in fall or winter ani!! not exposed to adequate surface temperatures, or other conditions, which temporarily or permanently preclude activation of the sealant, may never seal and must be hand sealed at the time of installation. It is not a manufacturing defect if shingles fail to seal under the above circumstances, and Atlas will not be responsible for repair, replacement, or hand sealing shingles. under these circumstances. However, in the event the shingles fail to self-seal after pJ:oper installation and climatic exposure, and Atlas is notified within the 1st year after installation, ATLAS' sale responsibility shall be to pay a reasonable cost to hand seal the affected shingles.

Limited Algae Resistant Warranty: (if applicable) ATLAS warrants that its algae resistance shingles (ARS) will remain free of obvious and unsightly discoloration due to algae growth for a period of ten (10) years from the date of installation. In the event the algae resistant shingles fail to meet this coverage, ATLAS' sale and only liability shall be to pay the reasonable cost of repair or replacement of the defective shingles, up to the following limits: (a) during the Premium Protection Period, the maximum repair or replacement to ATLAS shall be the replacement cost of those shingles exhibiting discoloration due to algae, including replacement installation cost; (b) during the remainder of the algae warranty period (if applicable), the maximum repair or replacement cost to ATLAS shall be the replacement cost of those shingles exhibiting algae discoloration, in

. proportion to the nnexpired warranty period, excluding all installation costs,

b. DAMAGE TO THE PRODUCTS CAUSED BY INADEQUATE ATTIC/).. . SHEATHING VENTILATION (Note: Ventilation must meet the FHA and HUD Minimum Property Standards or a minimum of one (I) square foot free venting area per 150 square feet of attic floor area, whichever provides the most ventilation);

c. Replacement of products for the first six (6) months after application due to: I. Loss of Granules: Products when flISt applied will have some excess granule wash off. 2. Discoloration: i) Some color shading may occur due to positioning or embedment of the granule; ii) Yellow staining andlor powder-like shading may occur due to transfer of backing materials.

The conditions listed in section (c) are normal and should be eliminated by natural weathering conditions over a six (6) month period after application;

d. Damage to a roof due to settlement, distortion, failure or cracking of the roof deck, walls or foundation of a buil~ing or to any defect in or failure of material used as a roof base over which products are applied or for damage by foot traffic au the roof;

e. Damage from any cause other than inherent manufacturing defect; f. Acts of God including lightning, winds in excess of the specified Wind Speed Limits listed

herein, hurricane, tornado, hailstorm, impact of foreign objects or other violent storms; g. We are not liable to you if you make a warranty claim in the future, or make structural changes

and any replacement shingles vary in color either due to normal weathering or changes in our product line or color blend;

h. Claims by owners or transferees not qualifying as Original Owners or Authorized Transferees under this Limited Warranty.

TRANSFERABILITY: The original owner may transfer this warranty to the subsequent owner, with the following limitations: For transfer of this warTanty during the product PREMIUM PROTECTION PERIOD, the remaining portion of the warranty for the new owner will be the same as for the original owner. This will include any remaining time available for the PREMIUM PROTECTION PERIOD. For product warranties transferred after the PREMIUM PROTECTION PERIOD has elapsed, the remaining portion of the transferred warranty will be two years from the date of the real estate transfer. The second owner MUST NOTIFY ATLAS IN WRITING (see attached warranty transfer card) WITHIN 30 DAYS after the real estate transfer for any coverage to be transferred. However after you have transferred this warranty to the purchaser of your home, it may not be transferred again. That is, the purchaser of your home may not transfer this warranty to any subsequent purchasers.

Sole Warranty: THE LIMITED WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND LIMITS AS TO DURATION ALL OTHER WARRANTIES

---WHEliiER ExPRESSED OR IMPLIED BY LAW INCUIDING THE IMPLIED'-------WARRANTIES OF MERCHAN1ABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO THE TIME PERIODS STATED ABOVE. ATLAS MAKES NO

. REPRESENTATION OR WARRANTY OF ANY KIND, OTHER THAN THE LIMITED WARRANTY SET FORTH HEREIN. TIllS LIMITED WARRANTY CONTAINS ALL OF THE PROVISIONS OF YOUR REMEDIES FROM ATLAS. AliAS' LIABILITY IS LIMITED TO THE PROVISIONS OF TIllS LIMITED WARRANTY, WHETHER ANY CLAIM AGAINST IT IS BASED UPON STRICT LIABILITY, NEGLIGENCE, BREACH OF WARRANTY OR ANY OTHER THEORY OR CAUSE OF ACTION. NO PERSON IS AUTHORIZED TO ALTER THIS LIMITED WARRANTY EITHER ORALLY OR IN WRITING. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitations of Coverage (what is not covered): ATLAS shall not be liab)e for and . '. the Limiteq Warranties set fOrth herein do not apply to:

".::' a. Fanlty or improper application of said products or products not installed or applied .. -. in .. accordance with the printed instructions on the product bundle wrappers;

*4 nails = 60 mph 6 nails = 80 mph

WARRANTY REGISTRATION: You must complete and mail the attacheL warranty registration card within 30 days of the installation date of your shingles to qualify for applicable warranty coverage.

CLAI1\1 REPORTING PROCEDURE:Any claim made hereunder must be made within thirty (30) days after discovery of the alleged defect by calling 1-800-478-0258 or in writing to:

Atlas Roofing Corporation Attn: Consumer Services 2564 Valley Road Meridian, MS. 39307

To fully evaluate your claim we may ask you to provide and forward, at your expense, pictures of your shingles andlor 2 full shingle samples for us to test. Repairs made prior to or during the investigation period without Atlas Roofing Corporation's prior written approval shall be at the owner's expense. With all claims, the original proof of purchase must be submitted with any other claim information requested. .

WARRANTY NOT VALID IF INFORMATION IS ERRONEOUS. This warranty is effective on all product types stated herein and sold in the United States after 11112002.

STORMMASTER DG Prodnct Limited Warranty StormMaster DG is warranted to the installer to be free of manufacturing defects for a period of five (5) years. StormMaster DG is warranted to the building owner for the warranty life of the roof covering being installed, or as a limit of 30 years maximum. This is for affected STORMMASTER DG ONLY. Atlas is not liable for any consequential damages including the building, its contents, or any persons therein. Removal or replacement of any shingles applied over StormMaster DG material will void this warranty. IN NO INSTANCE IS ATLAS RESPONSIBLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES. THE DURATION OF ANY IMPLIED WARRAN1Y IS HEREIN LIMITED IN DURATION TO THAT OF THE EXPRESS WARRAN1Y STATED HEREIN. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the limitations or exclusions may not apply to you.

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Hazem Shanab

Golkow Technologies, Inc. Page 1

1 IN THE UNITED STATES DISTRICT COURT


2

3 MDL Docket No. 2495

4 ALL CASES

5

6 -----------------------------------------------X

7 IN RE: ATLAS ROOFING CORPORATION

CHALET SHINGLE PRODUCTS

8 LIABILITY LITIGATION

9 -----------------------------------------------X

10

11

12

13

14 VIDEOTAPED DEPOSITION OF HAZEM SHANAB

15 Atlanta, Georgia

16 December 17, 2014

17

18

19

20

21 Reported by:

22 JoRita B. Meyer, RPR, RMR, CRR, CCR

23

24


Hazem Shanab


Page 30 1 But I'm sure there was a lot of efforts. 2 Q. Well, just to be clear, sir, you're 3 here today to answer the questions that are 4 posed to you in the clearest way you can. And 5 if there's anything I ask you that you simply 6 don't know the answer to, you are welcome to 7 say: I don't know. 8 So let's go back to my question, sir. 9 And with regards to the efforts by Atlas to10 eliminate moisture from the manufacture of the11 Chalet shingle, do you recall any other efforts12 besides the three you've told me, which is13 renting a chiller, purchasing a vacuum oven,14 and killing the overspray?15 A. I'm trying to answer your questions.16 But if you don't give me the opportunity to17 tell you the background around the answer, then18 I think you're just handcuffing the answer.19 I'm trying to give you a very20 precise, accurate answer because I think that's21 what you deserve and that's what you need.22 But, unfortunately, you're not giving me the23 opportunity. You try to -- all the effort you24 keep sticking to, so I don't know what all the

Page 31 1 effort. And I keep telling you the answer. 2 Q. Are you aware of any besides the 3 three you've told me so far, sir? Easy 4 question. 5 A. As I sit here today, in this room, 6 you know, I need to think was there -- there 7 was a lot of efforts by a lot of folks, and it 8 was not just we were just looking at moisture. 9 Q. Well, let's stay with moisture for10 just a second and then we'll come back to what11 else you all looked at. All right?12 With regards to the efforts to13 eliminate moisture from the manufacture of the14 Chalet shingle, tell us, if you would, please,15 why Atlas was making an effort to eliminate16 moisture from the manufacture of the Chalet17 shingle.18 A. That question I can understand. And19 thank you.20 Really, as a researcher -- and maybe21 you can appreciate this -- we were trying to22 see, among all the factors that may contribute23 to asphalt blistering or shingle blistering,24 what can we do in our own processes -- our own

Page 32 1 backyard, if you would -- that may potentially 2 contribute to this blistering. 3 So we were trying to make sure that 4 we're covering, turning every stone, looking at 5 every -- under every rock. That's what we were 6 after, just to see: Can we do anything? 7 Q. Is there any other reason, sir, 8 besides the answer you just gave as to why 9 Atlas was making a concerted effort to10 eliminate the moisture from the manufacture of11 the Chalet shingle?12 A. We are -- we were trying to eliminate13 moisture in all our product lines. Does that14 put it in perspective?15 Q. I'm only asking you about the16 manufacture of the Chalet shingle, sir.17 A. I understand. No, we were just18 looking at -- you know, moisture is not good19 for our process.20 Q. Have you ever had a reason to believe21 that moisture in the manufacturing process22 could have been contributing to the blistering23 of the Chalet overlay shingle?24 A. Yes.

Page 33 1 Q. And what was the theory behind that, 2 please? 3 A. I had a lot of theories. I thought 4 maybe it gets in there and eventually it gets 5 out. So that's kind of what one of the 6 theories were. 7 Q. What other theories do you have? And 8 then I'll come back and ask you in more detail 9 about those theories.10 A. Basically, that it got into the11 membrane. And that's kind of, you know, the12 theory.13 Q. That moisture would get into the14 membrane during the manufacturing process?15 A. Yeah, I speculated that perhaps there16 is a chance, and I wanted to look at the17 speculation.18 Q. Okay. And then you referenced it19 getting out. What does that have to do with20 blistering?21 A. At the time, one of the speculations22 I made is: Could it be moisture? And could it23 be something in our process? So that's -- that24 was the speculation back then.


Amanda

Highlight

Dale Rushing


1 IN THE UNITED STATES DISTRICT COURT


2

3 MDL Docket No. 2495

4 ALL CASES

5

6 -----------------------------------------------X

7 IN RE: ATLAS ROOFING CORPORATION


8 LIABILITY LITIGATION

9 -----------------------------------------------X

10

11

12

13

14 VIDEOTAPED DEPOSITION OF DALE RUSHING

15 Atlanta, Georgia

16 January 20, 2015

17

18

19

20

21 Reported by:

22 JoRita B. Meyer, RPR, RMR, CRR, CCR

23

24


Dale Rushing


Page 90 1 shingles that we've had blistering claims on. I'm 2 not aware of any particular study, investigation, 3 that sort of thing. But claims, yes. 4 Q What other type of shingles are you aware 5 of claims on, blistering claims? 6 A I'd say over the course of my career, all 7 of them. 8 Q All Atlas' shingles have had blistering 9 claims?10 A I -- most of them. Let's just say it that11 way, I -- only because I'm not -- I don't know every12 single product that we've made. But I'd say a good13 many of them, we've had a claim or claims over the14 years filed for blistering.15 Q Have any of the product lines, any of the16 Atlas shingle product lines, had more blistering17 claims than the other product lines?18 A I don't have the data. I don't know.19 Q Okay. And you are -- you are currently,20 and have been for some eight years now, the vice21 president of manufacturing in charge of all five22 roofing plants, correct?23 A That is correct.24 Q And the vice president of manufacturing

Page 91 1 for Atlas is unaware as to whether or not any of the 2 Atlas shingle product lines have had more blistering 3 claims than any other product line? 4 A I am unaware, yes. 5 Q Let's go forward in time on the Chalet. 6 As I understand it, the overlay 7 modifications we've been looking at from late 2003 8 and early 2004 were implemented by the end of 2004? 9 A Or the first of 2005, yeah.10 Q And did these modifications solve the11 blistering issue?12 MR. WEATHERHOLTZ: Objection.13 THE WITNESS: Which blistering issue are14 you referring to?15 BY MR. LUCEY:16 Q The ones you were attempting to solve by17 making modifications.18 A We didn't recognize this as an issue that19 was specific to these modifications. Or at least I20 didn't.21 Q Okay. Sir, was the Chalet quality issue22 that you referred to as "the biggest quality issue23 at Hampton" on March 23, 2004 solved by the24 modifications that were implemented by early 2005?

Page 92 1 A What we solved was -- what we attempted to 2 solve was removing variability, improving our 3 process, and our people. 4 Q Was the blistering solved? 5 A What blistering? 6 Q In the Chalet shingle. 7 A I mean, we know there's a whole lot of 8 different reasons why a shingle, Chalet or any 9 other, will blister. So to answer your question,10 then, we solved -- we didn't solve any of those, or11 any of those other opportunities, or other12 possibilities. We knew that. We knew that there13 were other ways that -- and we weren't -- we weren't14 attempting to solve those. We were trying to15 improve our process and take out anything that we16 might be doing that would be part of the cause.17 Q So blistering continued?18 A The number of the claims continued, yes.19 Q And y'all would check those claims to see20 whether or not they had, in fact, blistered,21 correct?22 A When you say "y'all" --23 Q Atlas.24 A Atlas, through our process of the claims

Page 93 1 filed, yes, we -- we go through the process of 2 investigating. 3 Q And Atlas continued to see blisters on 4 these claims being made by consumers, correct? 5 A We continued to see claims. 6 Q And you checked for blisters on these 7 roofs, correct? 8 A We checked for whatever they were 9 complaining about, whatever the claim was for.10 Q And you confirmed the existence of11 blisters on many of these claims' roofs, correct?12 MR. WEATHERHOLTZ: Objection.13 THE WITNESS: Many? I don't -- that's too14 vague of a term, I guess.15 BY MR. LUCEY:16 Q How about "some"?17 A We would, yes, see some blistering on some18 shingles on roofs. Yes.19 Q Tell me, if you would, please, what20 efforts, if any, you're aware of that Atlas made to21 investigate the cause of blistering on the Chalet22 overlay shingle after early 2005.23 A Repeat the question, please.24 MR. LUCEY: Read the question back,


Amanda

Highlight

Dale Rushing


Page 214 1 was some general history on Chalet, some general 2 discussion about how shingles are made in general. 3 I think we talked about some of the raw materials 4 that go into making the shingle. But I don't 5 remember specifically talking about theories behind 6 it. 7 You know, I think our goal by going into 8 the meeting was, they could help us figure out those 9 things.10 Q Sir, do you deny that the purpose of the11 Georgia Tech consultation was with regards to12 learning the cause of the blistering of the overlay13 shingle?14 MR. WEATHERHOLTZ: Objection.15 THE WITNESS: You asked me if we discussed16 these theories. To my knowledge, we didn't17 discuss any theories.18 When Mel reached out to Georgia Tech, I19 can't say for sure what his goal was as far as20 identifying things that were happening in our21 process that were showing up in the -- the22 vacuum oven or, you know, things that were23 happening out in the field. I don't know that24 we knew what we would get out of Georgia Tech.

Page 215 1 BY MR. LUCEY: 2 Q Let's try a simple approach. Did y'all 3 discuss blistering with Georgia Tech? 4 A I'm sure that blistering was discussed, 5 yes. 6 Q Was the purpose of the consult to solve 7 the blistering issue? 8 MR. WEATHERHOLTZ: Objection. 9 THE WITNESS: The purpose of the consult10 or the meeting was to give them an overview of11 what we had experienced up until then.12 BY MR. LUCEY:13 Q Regarding blistering?14 MR. WEATHERHOLTZ: Objection.15 THE WITNESS: Regarding Chalet, the16 process, the raw materials, that sort of thing.17 BY MR. LUCEY:18 Q You deny you consulted with Georgia Tech19 purely for the purpose of solving the Chalet20 blistering?21 MR. WEATHERHOLTZ: Objection.22 THE WITNESS: I don't think we ever23 thought we would solve blistering. There's24 just too many other variables that are out

Page 216 1 there beyond our control. So no, I don't think 2 that was the purpose of the meeting. 3 I think the purpose of the meeting was to 4 see if they could help us understand how raw 5 materials and changes in our process might be 6 affecting what we're doing. 7 BY MR. LUCEY: 8 Q Sir, can you tell us what the title of the 9 background paper is that Atlas provided to Georgia10 Tech for the consultation?11 A I'm sorry. I don't -- background paper?12 Q Yes. Plaintiffs' Exhibit 123. This was13 provided to Georgia Tech, correct?14 A Yes.15 Q And it provides background, correct?16 A It provides a problem statement, product17 history, manufacturing -- I mean, I'm missing your18 question.19 Q What is the title of the document?20 A "Overlay Shingle Blistering Overview for21 Georgia Tech Research Institute."22 Q Now, do you still deny you consulted with23 Georgia Tech on the blistering issue?24 MR. WEATHERHOLTZ: Objection.

Page 217 1 THE WITNESS: We consulted with Georgia 2 Tech on various things that were done in our 3 process. We discussed Chalet. We discussed 4 raw materials. But there never was a -- a 5 feeling that by doing this, this was going to 6 eliminate blistering. 7 Again, there's just too many -- too many 8 reasons, too many causation -- too much 9 causation.10 BY MR. LUCEY:11 Q You were simply trying to reduce12 blistering?13 A We were simply trying to see where they14 might be able to help us in our efforts.15 Q To reduce blistering?16 MR. WEATHERHOLTZ: Objection.17 THE WITNESS: To improve our process, to18 take out unknowns, raw material, that sort of19 thing.20 BY MR. LUCEY:21 Q And, sir, have you ever heard at Atlas the22 theory that the blistering might have something to23 do with the use of SBS rubber in the modified24 asphalt?


Amanda

Highlight

Amanda

Highlight

february 2007

National Association of Home Builders / Bank of America Home Equity

Study of Life expectancy of Home componentS


National Association of Home Builders/ Bank of America Home Equity

Study of Life Expectancy of Home Components

Prepared by the Economics Group of NAHB

Dr. David Seiders, Senior Staff Vice President and Chief Economist

Gopal Ahluwalia, Staff Vice President - Research

Steve Melman, Director Economic Services

Rose Quint, Director of Survey Analysis

Ashok Chaluvadi, Senior Research Associate

Mei Liang, Senior Research Associate

Adam Silverberg, 2006 Summer Intern

Cyprien Bechler, 2006 Summer Intern

Jackie Jackson, Editor

Sponsored by Bank of America Home Equity

Bank of America is one of the world's largest financial institutions, serving individual consumers, small and middle market businesses and large corporations with a full range of banking, investing, asset management and other financial and risk-management products and services. The company provides unmatched convenience in the United States, serving more than 55 million consumer and small business relationships with more than 5,700 retail banking offices, through more than 17,000 ATMs and award-winning online banking with more than 21 million active users. Bank of America is the No. 1 overall Small Business Administration (SBA) lender in the United States and the No. 1 SBA lender to minority-owned small businesses. The company serves clients in 175 countries and has relationships with 98 percent of the U.S. Fortune 500 companies and 80 percent of the Global Fortune 500. Bank of America Corporation stock (NYSE: BAC) is listed on the New York Stock Exchange.


Contents

Introduction --------------------------------------------------------------------------------- 1

Findings -------------------------------------------------------------------------------------- 2

Tables

1. Appliances ------------------------------------------------------------------------- 7 2. Cabinetry and Storage ------------------------------------------------------------ 7 3. Concrete and Masonry ----------------------------------------------------------- 8 4. Countertops ------------------------------------------------------------------------ 8 5. Decks ------------------------------------------------------------------------------- 8 6. Doors ------------------------------------------------------------------------------- 8 7. Electrical and Lighting ----------------------------------------------------------- 9 8. Engineered Lumber --------------------------------------------------------------- 9 9. Faucet and Fixtures --------------------------------------------------------------- 9

10. Flooring ---------------------------------------------------------------------------- 10 11. Footings and Foundations-------------------------------------------------------- 10 12. Framing and Other Structural Systems----------------------------------------- 10 13. Garages ----------------------------------------------------------------------------- 11 14. Home Technology ---------------------------------------------------------------- 11 15. HVAC ------------------------------------------------------------------------------ 11 16. Insulation and Infiltration Barriers---------------------------------------------- 12 17. Jobsite Equipment----------------------------------------------------------------- 12 18. Molding and Millwork ----------------------------------------------------------- 12 19. Paint, Caulks and Adhesives ---------------------------------------------------- 12 20. Panels ------------------------------------------------------------------------------- 13 21. Roofing ----------------------------------------------------------------------------- 13 22. Siding and Accessories----------------------------------------------------------- 14 23. Site and Landscaping ------------------------------------------------------------- 14 24. Walls, Ceilings and Finishes ---------------------------------------------------- 15 25. Windows and Skylights ---------------------------------------------------------- 15


1

National Association of Home Builders/ Bank of America Home Equity

Study of Life Expectancy of Housing Components

INTRODUCTION The life expectancies of the components of a home depend on the quality of installation, the level of maintenance, weather and climate conditions, and the intensity of use. Some components may remain functional but become obsolete due to changing styles and preferences or improvements in newer products while others may have a short life expectancy due to intensive use. The average life expectancy for some components has increased during the past 35 years because of new products and the introduction of new technologies, while the average life of others has declined. NAHB’s last such study on the life expectancy of housing components was published in Housing Economics in August 1993.

U.S. HOUSING STOCK The 2005 American Housing Survey by the U.S. Census Bureau shows that there are more than 124 million homes in the housing stock, with a median age of 32 years. About one-third of the housing stock was built in 1960 or earlier. About 10 percent was built in the 1960s, and another 20 percent was built in the 1970s. Of the remainder, 13 percent was built in the 1980s, another 13 percent was built in the 1990s, and 8 percent in the first years of the 21

st

century. Of the total stock of 124.3 million housing units, about 109 million are occupied housing units, 11.6 million are vacant and about 4 million are seasonal. Two-thirds of all units in the nation’s housing stock are single-family detached or attached, 8 percent are in buildings with 2 to 4 units, and about 17 percent are in buildings with 5 or more units. The remaining 7 percent of the stock is in HUD-code homes. About 18 percent of the occupied housing stock is in the Northeast, 23 percent is in the Midwest, 37 percent is in the South, and 21 percent is in the West.

THE STUDY In the summer of 2006, NAHB conducted a comprehensive telephone survey of manufacturers, trade associations and researchers to develop information about the longevity of housing components. Many of the people interviewed emphasized that the life expectancy of housing components is greatly affected by the quality of maintenance. They also noted that changing consumer preferences can result in products being replaced long before -- or after -- the end of their practical life expectancy. This article provides a synopsis of the survey results (Table 1).

[Note: This report should be used as a general guideline only. None of the information in this report should be interpreted as a representation, warranty or guarantee regarding the life expectancy or performance of any individual product or product line. Readers should not make buying decisions and/or product selections based solely on the information contained in this report.]


2

Findings

Appliances

The life expectancy of a typical appliance depends to a great extent on the use it receives. Moreover, appliances are often replaced long before they are worn out because changes in styling, technology and consumer preferences make newer products more desirable. Of the major appliances in a home, gas ranges have the longest life expectancy: 15 years. Dryers and refrigerators last about 13 years. Some of the appliances with the shortest lifespan are: compactors (6 years), dishwashers (9 years) and microwave ovens (9 years).

Cabinetry and Storage

Kitchens are becoming larger and more elaborate, and together with the family room, modern kitchens now form the “great room.” Great rooms are not only a place to cook, but also a space where people gather to read, eat, do homework, surf the Internet and pay bills. Kitchen cabinets are expected to last up to 50 years, medicine cabinets for 20+ years, and garage/laundry cabinets for 100+ years. Closet shelves are expected to last for a lifetime.

Concrete and Masonry

Masonry is one of the most durable components of a home. Chimneys, fireplaces, and brick veneers can last a lifetime, and brick walls have an average life expectancy of more than 100 years.

Countertops

Natural stone countertops, which are less expensive than a few years ago, are gaining in popularity and are expected to last a lifetime. Cultured marble countertops have a life expectancy of about 20 years.

Decks

Because they are subject to a wide range of conditions in different climates, the life expectancy of wooden decks can vary significantly. Under ideal conditions, they have a life expectancy of about 20 years.


3

Doors

Exterior fiberglass, steel and wood doors will last as long as the house exists, while vinyl and screen doors have a life expectancy of 20 and 40 years, respectively. Closet doors are expected to last a lifetime, and French doors have an average life of 30 to 50 years.

Electrical and Lighting

Copper plated wiring, copper clad aluminum, and bare copper wiring are expected to last a lifetime, whereas electrical accessories and lighting controls are expected to last 10+ years.

Engineered Lumber

Floor and roof trusses and laminated strand lumber are expected to last a lifetime, and engineered trim is expected to last 30 years.

Faucets and Fixtures

Kitchen sinks made of modified acrylic will last 50 years, while kitchen faucets will work properly for about 15 years. The average life of bathroom shower enclosures is 50 years. Showerheads last a lifetime, while shower doors will last about 20 years. Bath cabinets and toilets have an unlimited lifespan, but the components inside the toilet tank do require some maintenance. Whirlpool tubs will function properly for 20 to 50 years, depending on use.

Flooring

All natural wood floorings have a life expectancy of 100 years or more. Marble, slate, and granite are also expected to last for about 100 years, but can last less due to a lack of maintenance. Vinyl floors last up to 50 years, linoleum about 25 years, and carpet between 8 and 10 years (with appropriate maintenance and normal traffic).

Footings and Foundations

Poured as well as concrete block footings and foundations last a lifetime, assuming they were properly built. Termite proofing of foundations will last about 12 years if the chemical barriers put in place during construction are left intact. Waterproofing with bituminous coating lasts 10 years, but if it cracks it is immediately damaged. Concrete or cast iron waste pipes are expected to last 100 years or more.


4

Framing and Other Structural Systems

Framing and structural systems have extended longevities: poured-concrete systems, timber frame houses and structural insulated panels will all last a lifetime. Wall panels and roof and floor trusses will similarly last a lifetime. Softwood, hardboard, and plywood last an average of 30 years, while OSB and particleboard are expected to function properly for 60 years.

Garages

Garage door openers are expected to last 10 to 15 years, and light inserts for 20 years.

Home Technology

Home technology systems have various life expectancies. While a built-in audio system will last 20 years, security systems and heat/smoke detectors have life expectancies of 5 to 10 years. Wireless home networks and home automation systems are expected to work properly for more than 50 years.

Heating, Ventilation, and Air Conditioning (HVAC)

Heating, ventilation, and air conditioning systems require proper and regular maintenance in order to work efficiently, but even in the best case scenarios most components of such systems only last 15 to 25 years. Furnaces on average last 15-20 years, heat pumps 16 years, and air conditioning units 10-15 years. Tankless water heaters last more than 20 years, while an electric or gas water heater has a life expectancy of about 10 years. Thermostats usually are replaced before the end of their 35-year lifespan due to technological improvements.

Insulation and Infiltration Barriers

As long as they are not punctured, cut, or burned and are kept dry and away from UV rays, the cellulose, fiberglass, and foam used in insulation materials will last a lifetime. This is true whether the insulation was applied as loose fill, house wrap, or batts/rolls.

Jobsite Equipment

Ladders are expected to last a lifetime, and life expectancy of lifts is about 8 to 10 years. Molding and Millwork

Custom millwork will last a lifetime, and all stairs – circular and spiral stairs, prebuilt stairs and attic stairs – are expected to last a lifetime.


5

Paint, Caulks and Adhesives

Both interior and exterior points can last for 15 years or longer, however home owners often paint more frequently.

Panels

Hardboard panels and softwood panels are expected to last 30 years, while oriented strand board and particleboard have a life expectancy of 60 years. Wall panels are expected to last a lifetime.

Roofing

The life of a roof depends on local weather conditions, proper building and design, material quality, and adequate maintenance. Slate, copper, and clay/concrete roofs have the longest life expectancy – over 50 years. Roofs made of asphalt shingles last for about 20 years while roofs made of fiber cement shingles have a life expectancy of about 25 years, and roofs made of wood shakes can be expected to last for about 30 years.

Siding and Accessories

Outside materials typically last a lifetime. Brick, engineered wood, stone (both natural and manufactured), and fiber cement will last as long the house exists. Exterior wood shutters are expected to last 20 years, depending on weather conditions. Gutters have a life expectancy of more than 50 years if made of copper and for 20 years if made of aluminum. Copper downspouts last 100 years or more, while aluminum ones will last 30 years.

Site and Landscaping

Most landscaping elements have a life expectancy of 15 to 25 years. Sprinklers and valves last about 20 years, while underground PVC piping has a lifespan of 25 years. Polyvinyl fences are designed to last a lifetime, and asphalt driveways should last between 15 and 20 years.

Tennis courts can last a lifetime if recoated; most coatings last 12 to 15 years. The concrete shell of a swimming pool is expected to last over 25 years, but the interior plaster and tile have life expectancies of about 10 to 25 years.


6

Walls, Ceilings and Finishes

Walls and ceilings last the full lifespan of the home.

Windows and Skylights

Aluminum windows are expected to last between 15 and 20 years while wooden windows should last upwards of 30 years.


Life in Years Comments

1. APPLIANCES

Exhaust Fan 10Compactors 6Dishwashers 9Disposers, Food Waste 12Dryers, Electric 13Dryers, Gas 13Freezers 11Microwave Ovens 9Ranges, Electric 13Ranges, Gas 15Range/Oven Hoods 14Refrigerators, Compact 9Refrigerators, Standard 13Washers 10Water Heaters, Electric 11Water Heaters, Gas 10Air-Conditioners, Room 10Air-Conditioners, Unitary 15Boilers, Electric 13Boilers, Gas 21Dehumidifiers 8Furnaces, Warm-Air, Electric 15Furnaces, Warm-Air, Gas 18Furnaces, Warm-Air, Oil 20Heat Pumps 16Humidifiers 8

Note: Life expectancy is based on first-owner use.

2. CABINETRY & STORAGECabinet Lines

Bath Cabinets LifetimeEntertainment Centers/Home Office 10Garage/Laundry Cabinets 100+Kitchen Cabinets 50Medicine Cabinets 20+

Manufacturing TypesModular/Stock 50

Closet systemsCloset Shelves Lifetime

Table 1: Life Expectancy of Different Products/Items/Materials in the Home

Source: Appliance Magazine, Sep 2005 issue, Grainger

Source: Wellborn Cabinet, Zaca, Timberlake Cabinet Co., Wellborn Cabinet, Moduline, Canyon Creek Cabinet Co., Easyclosets.com, Wellborn Cabinet

7




3. CONCRETE & MASONRY

Brick 100+Veneer LifetimeCaulking (for sealer) 2-20

4. COUNTERTOPS

Cultured Marble 20Natural Stone LifetimeTile LifetimeWood Lifetime

5. DECKS

Wood 20 Dry areas last 20-25, South 10-15, North 20-30.Deck Planks 25

6. DOORS

Exterior DoorsFiberglass LifetimeScreen 40 Pine 20 yrs, Cedar 40 yrs, Mahogany 60 yrsSteel, Fire-Rated LifetimeVinyl 20Wood Lifetime

Interior DoorsFrench 30 to 50Closet Lifetime

Source: Fiberframe, Neoporte, Timeline Vinyl Products/Timeline Vinyl Windows, Victoriana East, Coppa Woodworking Inc., Marvin Windows and Doors, Kestrel

Source: General Shale Brick, NHACP and NCSG, Sashco Sealants

Source: Rynone, Buffalo stone, Architectural Products by Outwater, Formica Corp, Gibco Services, Florida Tile Industries, United States Ceramic Tile Co., National Hardwood Flooring & Moulding

Source: Decks.com, Timbertech

8




7. ELECTRICAL & LIGHTING

Accessories 10+Lighting Controls 10+

Copper WiringCopper Plated Lifetime If used in a non-corrosive environment.Copper Clad Aluminum LifetimeBare Copper Lifetime

8. ENGINEERED LUMBER

Engineered Trim 30Laminated Strand Lumber LifetimeLaminated Veneer Lumber 30+Trusses, Floor LifetimeTrusses, Roof Lifetime

9. FAUCETS & FIXTURES

Accessible/ADA Products LifetimeFaucets, Bar/Hospitality 15Faucets , Kitchen Sinks 15Faucets, Lavatory 20+Faucets, Tub/Shower 20+Faucets, Toilets/Bidets 10 Wear issues depending on use, new cartridges or seals. Saunas/Steam Rooms 15-20Shower Doors 20+Shower Enclosures/Modules 50Showerheads Lifetime

Toilets/Bidets Lifetime The components inside toilet tank and valves that operate bidet will require occasional maintenance.

Whirlpool Tubs 20-50 Lifespan of the rotating engine depends on the use made of the tub.

Sinks: Kitchen & othersEnamel Steel 5-10Modified Acrylic 50Soapstone 100+

Source: Lutron Electronics, Lighting Controls Association, Copper Development Assoc.

Source: Delta Faucet Co., Grohe, Kohler Co., Moen, Plexicor (part of Karran), Toto USA, Acquinox, Alumax, Alsons, Karran, Green Mountain Soapstone Corp., Saunastore

Source: Engineered Wood Association, Georgia Pacific Corp., Georgia Pacific Corp., Lumber Specialties

9




10. FLOORING

All Wooden Floors LifetimeBamboo LifetimeBrick Pavers 100+Carpet 8-10Concrete 50+Engineered Wood 50+Exotic Wood LifetimeGranite 100+Laminate 15-25Linoleum 25Marble 100+Slate 100Tile 75-100Vinyl 50Other Domestic Wood LifetimeTerrazo 75+

11. FOOTINGS & FOUNDATIONS

Poured Footings and Foundations Lifetime Concrete Block Lifetime Properly built foundations last indefinitely. Termite Proofing 12 "Pre-treatment during construction: longevity of treatment

depends on disturbance or not of the chemical barriers in place."

Bituminous Coating Waterproofing 10 If it cracks, it is immediately damaged. Pargeting with Ionite 20-30 It's not typical in a residential setting. Its downfall is when it

cracks.

Baseboard System 50

PlumbingConcrete Waste Pipe 100Cast Iron Waste Pipe 100

12. FRAMING &OTHER STRUCTURAL SYSTEMS

Poured-Concrete Systems LifetimeStructural Insulated Panels LifetimeTimber Frame Homes Lifetime

Source: Dry Up Basement, Unexco, Cast Iron Soil Pipe Institute, American Concrete Pipe Association, National Ready Mixed Concrete Assoc, Quikrete

Source: ConForm Pacific, NGS Materials, Post & Beam Factory

Source:Marble Institute of America, Berg & Berg, Dal-Tile Corp, Floortec, National Wood Flooring Association, General Shale Brick, Masland Carpets, Beaulieu of America, Concrete Designs, Formica Corp, Linoleumstore.com, DePaoli Mosaic, Monarch Ceramic Tile

10




13. GARAGES

Garage Door Openers 10-15Light Inserts 20

14. HOME TECHNOLOGY Audio, Built-in 20 Heat/Smoke Detectors <10 National Fire Alarm Code requires that detectors be replaced

every 10 years. Home Automation Systems Lifetime Home Networks, Wireless 50+ Security Systems 5-10

15. HVACAir Conditioners 10-15Air Quality Systems 15Boilers 13-21Dehumidifiers 8Ducting 10Furnaces 15-20Heat Pumps 16Heat Recovery Ventilators 20+Thermostats 35Ventilators 7Water Heaters, Tankless 20+Electric Radiant Heater 40Hot Water or Steam Radiant Heater 15+Diffusers, Grilles, and Registers 25Induction and Fan-Coil Units 10-15Dampers 20+DX, Water, or Steam 20Electric 15Shell-and-Tube 20Molded Insulation Lifetime Not usually used residentially.

Burners <10 Oil burners need more maintenance and don't last as long as gas burners.

Source: LiteTouchHome Director, ADT and Slomin's Home Security, Home Director, Home Seer

Source: CenterPoint Energy and Trane Residential system Group, Smarter Way Inc., CenterPoint Energy, Air Quality Engineering, CenterPoint Energy and Luxaire Unitary Products Group, Association of Home Appliance Manufacturers, American Society of Heating, Refrigerating and Air-Conditioning Engineers, Econar, Lomanco, Honeywell, American Society of Heating, Refrigerating and Air-Conditioning Engineers, EWC Controls, Fantech, No. American Insulation Manufacturers Assoc.US Dept. of Energy, Radiant Electric Heat, Radiantec, Radiantec, American Society of Heating, Refrigerating and Air-Conditioning Engineers, Power Flame Inc., Appliance Magazine

Source: Wayne-Dalton Corp.

11




16. INSULATION & INFILTRATION BARRIERS

Insulation MaterialCellulose 100+Fiberglass LifetimeFoam Lifetime

Insulation TypeBatts/Rolls LifetimeHouse Wrap LifetimeLoose Fill Lifetime

17. JOBSITE EQUIPMENT

Ladders LifetimeLifts 8-10

18. MOLDING & MILLWORK

Custom Millwork LifetimeStair Parts LifetimeStairs, Circular & Spiral LifetimeStairs, Prebuilt LifetimeStairs, Attic Lifetime

19. PAINTS, CAULKS, & ADHESIVES

AdhesivesRoofing 7

Paints & StainsPaint, Exterior 15+Paint, Interior 15+ Depends on whether or not it is washable paint.

Source: York Spiral StairAzek, Authentic Pine Floors, Century Architectural Specialties, StairWorld, National Hardwood Flooring & Moulding

Source: The Sherwin-Williams Co.,Slate Savers, Tamko Roofing Products, Dutch Boy Paints

Source: DuPont, National Fiber, Johns Manville, RHH Foam Systems, No. American Insulation ManufacturerAssociation

Source: Putnam Rolling Ladder Co., Genie Industries

12




20. PANELS

Hardboard 30Oriented-Strand Board 60Particleboard 60Plywood 25-30Softwood 30Underlayment, Flooring 25Wall Panels Lifetime

21. ROOFING

MaterialAluminium Roof Coating 3-7Fiber Cement 25Asphalt 20Modified Bitumen 20Copper LifetimeSimulated Slate 50Wood 30Clay/Concrete LifetimeSlate 50+Coal and Tar 30

Source: Gardner-Gibson, Maxitile, National Roofing Contractors Association, GAF Material Corp., Asphalt Roofing Manufacturer's Association, Johns Manville, Metal Roof Specialties, Nycore, Authentic roof, 208 Shake&Shingle, The Northern Roof Tile Sales Co., Universal Marble & Granite, Slate Savers, Koppers, Northern Elastomeric, EcoStar, Metals USA, GAF Material Corp.

Source: Georgia Pacific Corp., NGS Materials, Weyerhaeuser, James Hardie Building Products

13




22. SIDING & ACCESSORIES

MaterialBrick LifetimeEngineered Wood LifetimeFiber Cement LifetimeManufactured Stone LifetimeStone LifetimeStucco 50-100Vinyl Lifetime

Related AccessoriesSoffits/Fascias 50 This time period applies for fascia in fiber-cement only.Trim 25

ShuttersWood/Exterior 20Wood/Interior 15+Aluminium/Interior 10+ Sun can cause the strings to break.

Gutters and DownspoutsCopper 50+Aluminium 20Galvanized Steel 20Downspouts (Aluminum) 30Downspouts (Copper) 100

23. SITE & LANDSCAPING

Asphalt Driveway 15-20Polyvinyl Fences LifetimeClay Paving LifetimeUnderground PVC Piping 25Valves 20Sprinklers 20 Usually made obsolete by advances in technology.Controllers 15 Lifespan given for areas not prone to lighting strikes.

Tennis CourtFast-Dry Green Lifetime

Source: Boral Bricks, APA, GAF Material Corp., James Hardie Building Products, Boulder Creek Stone and Brick, Owens Corning, Genstone Enterprises, El Rey Stucco, Heartland Building Products, Azek, James Hardie Building Products, Blinds.com, Vixen Hill Mfg. Co., Yost Mfg. & Supply, Berger Building Products, Guttersupply.com, (Rain Trade Corp. division)

14




23. SITE & LANDSCAPING (Continued)

Asphalt with Acrylic Coating 12-15 Age before requiring major work. Requires recoating every 5-7 years.

Asphalt with Acrylic Cushion 12-15 Age before requiring major work. Requires recoating every Coating 5-7 years.

American Red Clay Lifetime Fast-Dry with Subsurface Lifetime Maintenance: average 10 minutes a day per court. Irrigation Red or Green

Swimming pool

General LifetimeConcrete Shell 25+Interior Finish/Plaster 10-15Interior Finish/Pebble-tec 25-35Interior Finish/Tile 15-25Cleaning Equipment 7-10Decking 15Waterline Tile 10

24. WALLS, CEILINGS, & FINISHES

Accoustical Ceiling Lifetime Moisture or movement can affect lifespan.Ceiling Suspension LifetimeCeramic Tile LifetimeStandard Gypsum Lifetime

25. WINDOWS, SKYLIGHTS, & GLASS

Glass & Glazing MaterialsWindow Glazing 10+

WindowsAluminum/Aluminus Clad 15-20

Wood 30+ Some parts of the window may have to be replaced, so lifespan may vary.

Source: Polygal, Gallina USA, LLC, Allied Window

Source: Interceramicusa, United States Gypsum Co., Messmers Inc., DAP

Source: Paddock Pools, Patios & Spas, Boral Bricks, Accurate Tennis, Aquatic Technology, Huyser, Digger Specialties, Inc., Aquatech Pools - Society of Professional Builders, Inyo Pool Products, Omega Pool Structures, Inc.

[Note: This report should be used as a general guideline only. None of the information in this report should be interpreted as a representation, warranty or guarantee regarding the life expectancy or performance of any individual product or product line. Readers should not make buying decisions and/or product selections based solely on the information contained in this report.]

15


1201 15th Street Washington, DC 20005

800-368-5242


APPENDIX 9


Appendix 9_Microscopy

Photo 82

Blister at Arrow 1

View of broken blister on the lower edge of horizontal strip at the single surfacing. The bottom of the blister is at the top of the fiberglass mat.

Photo 83

Blister at Circle 2

View of broken blister in the single surfacing. Fibers from the fiberglass mat are visible inside the blister (arrow).

1

2

7233 JC‐1J 7233 Joseph Court, Florence, KY Named Plaintiff 60


Richard H. Moore, P.E.


Page 1







)

)

VIDEOTAPED DEPOSITION OF RICHARD H. MOORE, P.E.

(Taken by Plaintiffs)

November 11, 2015

9:36 a.m.

Suite 2400


Atlanta, Georgia

Reported by:

F. Renee Finkley, RPR, RMR, CRR, CLR, CCR-B-2289


Richard H. Moore, P.E.


Page 124

1 expansion/contraction of that material different

2 from, perhaps, the underlying asphalt?

3 A. I didn't do any study of the -- of the

4 actual constituent parts of the shingles.

5 Q. That's --

6 A. My familiarity with SBS modified --

7 modified sheets is that the SBS modifier helps the

8 characteristics of asphalt in a sheet product.

9 Q. So you don't have any opinions as to

10 whether or not that could have had any impact on the

11 cracking that was observed?

12 A. No, I don't have any separate opinions

13 about that.

14 Q. Haven't -- hadn't looked at any of the

15 Atlas internal documents that may discuss that, in

16 any way?

17 A. I have not.

18 Q. Of whether or not the SBS modifier

19 contributed in any way to the blistering?

20 A. I have not looked at internal Atlas

21 documents.

22 Can we go off the record for -- for two

23 minutes?

24 MR. BRYSON: Sure. We're getting -- let's


Professor George L. Priest


Page 1



MDL Docket No. 2495

ALL CASES

-----------------------------------------------X

IN RE: ATLAS ROOFING CORPORATION


LIABILITY LITIGATION

-----------------------------------------------X

VIDEOTAPED DEPOSITION OF

PROFESSOR GEORGE L. PRIEST

Atlanta, Georgia

November 3, 2015

Reported by:

JoRita B. Meyer, RPR, RMR, CRR, CCR




Page 117

1 measures in this paper of useful life of a product.

2 Maybe that's what "mechanical reliability" means. I

3 don't know. Maybe it means something more than

4 that.

5 Q But dropping on down a little bit, after

6 your Footnote 40 on that same page, "A consumer,

7 however" --

8 A Just a second, please. Okay.

9 Q "A consumer, however, may look to the

10 warranty as a signal of product reliability because

11 reliability is correlated negatively with the cost

12 of warranty coverage."

13 Did I read that correctly?

14 A Yes, you did.

15 Q What does that mean?

16 A Again, I think it means that consumers --

17 according to this signal theory, consumers may

18 believe that a longer warranty signals a more

19 reliable product.

20 Q So that if a shingle -- there's a 30-year

21 shingle warranty, under the signal theory, that

22 would be a signal to the consumer that that product

23 is very reliable?

24 A Well, more reliable than a 10-year


Amanda

Highlight



Page 118

1 warranty or a 20-year warranty.

2 Q Right.

3 A I'm sorry, than a shingle with a 20-year

4 warranty.

5 Q But under the signal theory, the length of

6 the warranty would be a signal to the consumer about

7 the potential quality?

8 A That's the -- that's the signal theory,

9 yes.

10 Q And that a consumer or a consumer's agent

11 would see the duration of the warranty and use that

12 information as a signal when making a purchasing

13 decision?

14 MR. SMYTHE: Objection.

15 THE WITNESS: That's the -- that's the

16 signal theory, yes. Now, it's a little more

17 complicated when you talk about the agent of

18 the consumer and talking about contractors;

19 it's a little more complicated. It would

20 require a more complicated analysis, which the

21 signal theory is not trying to address, with

22 regard to shingles or anything else.

23 BY MR. BRYSON:

24 Q And under the signal theory -- if you


Amanda

Highlight



Page 202

1 different from the rest, we don't have -- we don't

2 require registration cards, if that's really

3 important to consumers, it would attract a lot of

4 consumers; but it doesn't seem to be.

5 Q What percentage of owners, in your

6 experience, send -- if you know, send in warranty

7 registration cards?

8 A I don't know that. Again, I don't -- I

9 have no information, generalized information, about

10 that.

11 A lot of my colleagues are very fastidious

12 in the academic community and they all send them in.

13 But I don't know. I can't say for the population as

14 a whole.

15 Q You don't know what it is for Atlas, do

16 you?

17 A I do not.

18 Q And you've not reviewed any of the

19 internal documentation that Atlas may have had on

20 this issue, have you.

21 A I have not.

22 Q What about subsequent purchases? Under

23 the title "TRANSFERABILITY" --

24 A Yes.


Amanda

Highlight

2005 Roofing Industry Durability and Cost Survey

Carl G. Cash, PE

Simpson Gumpertz & Heger, Inc. Waltham, Massachusetts

.1.4' ..,. ..

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, wor-v"IP1101 ,-;-,- --

rcI Roof Consultants Institute

Proceeedings of the RCI 2 s st International Convention

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Date__IBIT

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Cash - 77


ABSTRACT

Simpson Gumpertz & Heger Inc., with the help of NRCA and RCI, surveyed those associations' members concerning the durability and life cycle cost of steep -sloped and low- sloped roofing systems. The resulting data is included in this paper. This work is supported by major roofing materials manufacturers invited to support the venture. The paper is believed to provide an unbiased estimate of the mean and minimum durability of properly- designed, installed, and maintained roofing materials, the influence of the climate on durability, and the estimated life cycle cost of each system.

SPEAKER

CARL G. CASH, PE, is a principal of Simpson Gumpertz & Heger Inc., where he has worked since 1971. He is a professional civil engineer, building pathologist, and chemist. Mr. Cash received his B.S. in chemistry from Wagner College and his M.B.A. in business administration from Fairleigh Dickinson College. During his more than 50 years of experience in the roofing industry, he has worked in research, product development, manufacturing, quality control, mar- keting, and sales. Carl is a past chairman for ASTM's Committee D -08 on Roofing, Waterproofing, and Bituminous Materials. His last 30 years have been devoted to consulting, solving problems for clients, and using the information obtained through his research and projects to prevent problem recurrence. He has gained recognition for his work by receiving the Walter C. Voss Award in 1998 and the American Society of Testing and Materials' Award of Merit in 1983.

Cash - 78 Proceeedings of the RCI 2 ist International Convention


2005 Roofing Industry Durability and Cost Survey

INTRODUCTION Several of my friends in the

roofing industry asked if I was going to repeat my 1995 durability survey. I agreed, providing the questionnaire distribution was handled by others and the data reduction costs were covered. NRCA (National Roofing Con- tractors Association) and RCI (Roof Consultants Institute) both agreed to distribute the questionnaires and several manufacturers agreed to support the data reduction. The survey included questions on installed, disposal, and maintenance costs; these were used to calculate life cycle costs.

I also asked BOMA (Build- ing Owners and Managers Association) to participate in the study because the contrast between the BOMA member responses and the NRCA -RCI responses would be inter- esting, if not revealing. After consulting with its research committee, BOMA's director of research declined to survey its members, quoting "a lack of interest in the subject." While disappointing, the response reveals what I perceive as a rather serious communication problem between the roofing industry and the building owners and managers.

NRCA sent out 3,052 questionnaires by U.S. mail; RCI sent out 677 questionnaires by e -mail. The response rate in 1995 was about ten percent. The response rate in 2005 is much less (I am still receiving some responses), and the NRCA and RCI response rates

are identical at this time. Perhaps the relatively low response rate from the NRCA and RCI members has the same root cause as the lack of interest by BOMA. Perhaps all roofing systems are perceived as equal - differing only in minor details?

LOW- SLOPED ROOFING SYSTEM DURABILITY

The respondents were asked

roofing system - the years that half of all the roofs installed will perform satisfactorily, assuming proper design, installation, and maintenance; and the minimum life - the years of life typical for the worst 1% of the roofs installed.

The averages of the values submitted by the respondents are shown in Appendix A; the ranked values were obtained by sorting

to enter the average life of each the mean life expectancies from

Table 1 - Ranked Low -sloped Roofing Durability (2005) and 1995 Survey Data

2005 DATA 1995 DATA

Series 1

Low -sloped Roofing System Metal panels - copper Metal panels - stainless steel Metal panels - Terne

Mean 40

Min. 28

Mean 25

Min. 12

2

Metal panels - zinc

Metal panels - aluminum Metal panels - aluminized steel Metal panels - Galvalume BUR - gravel- surfaced pitch - tar /organic felts Metal panels - galvanized steel

25 14 22 12

3

BUH - gravel -surfaced pitch - pitch /glass telts

BUR - gravel -surfaced asphalt glass plies SBS modified pitch - multi ply SBS modified asphalt - multi ply

18 10 17 8

4

BUR -Cy. r dvel-bur!duel.l UIy. dl riu Ie

APP modified asphalt - multi ply Evaloy PVC alloy - reinforced EPDM Ketone ethylene ester (KEE) - reinforced

16 9 14 7

5

Puly (vir lyl C.I llur i iU) - lei' IÍuu L..e J

Granule -surfaced APP modified pitch BUR - unsurfaced asphalt glass plies Thermoplastic polyolefin (TPO) - reinforced Hypalon (CSPE) and PIB Spray urethane foam - coated

14 7 12 5

Proceeedings of the RCI 2 ist International Convention Cash - 79


Graph 1 - Low -sloped Roofing Durability

M:adsí'e.vslb.9!'

1

F.`

k):

Series i

Senas 2

' Serias 3

Series 4

Serias 5

longest to shortest and then recording the membranes in the groups in which the membranes appeared to fall. These ranked values are shown in Table 1 along with the values obtained from our 1995 survey.

The roofing systems within each series are listed in decreasing durability estimates. There is no statistical difference between the members of each series. We weighted the mean and minimum life expectancies in each series by considering the number and values of the individual responses to obtain the average and minimum for each series. The mean and minimum values reported for the 1995 data are estimates because we did not use identical categories in the two questionnaires. As an example, we used "metal panels" in the 1995 questionnaire and separate types of metal panels in the 2005 survey. This also explains the increase in durability reported in the 2005 survey (Series 1) for metal panels; these are of the architectural metals separated from the more industri- al metals (Series 2).

In organic systems, coal -tar pitch BUR systems still rank

higher than the other BUR, modified bitumen, elastic, and plastic systems.

Both the mean and minimum service life estimates increased

when the 2005 data are compared to the 1995 data, but the ranking between systems remained relatively constant.

The durability of the systems in each series is assumed to be normally distrib- uted. Therefore, the estimated standard deviation for the durability curve for each series is given by:

ß - (x1 - x50)/ -2.326

where a is the estimated standard deviation of the curve, x1

is the minimum value of the series and x50 is the mean value. The durability range can then be calculated using:

F(y) = 1-(13(x1 - X50) / 6

Table 2 - Steep -sloped Roofing Durability and Previous (1996) Data

2005 Data 1996 Data

Series Steep -sloped Roofing System Mean Min. Mean Min.

1 Natural slate 70 36 60 35

2 Metal panels - copper Metal panels - stainless steel Metal panels - Terne Clay tile Metal panels - zinc

51 33 26

47

14

25

3 Concrete tile Metal panels - aluminum Metal panels - Aluminized steel Metal panels - Galvalume Metal panels - galvanized steel

31 17

26 14

4 SBS mod. asphalt - glass shingles Asphalt - glass laminated shingles

25 17

5 Rubber or plastic shingles Cedar shakes or shingles Asphalt - glass interlocking shingles

21 12

6 Asphalt - glass 3 -tab strips Asphalt - organic -3 tab strips

18 11 18 9

Cash - 80 Proceeedings of the RCI 21st International Convention


where F(y) is the sur- vival fraction of the population by age x and ' is the standard normal distribution function. These data are depicted in Graph 1. Series 1

curve is on the right of the diagram; the other series are drawn to the left.

The lower end of the graph is about the same as the lower end of the 1995 calculated ranges. The upper end is significantly broader than the 1995 calculated ranges, because of architectural metals listed in Series 1 that were not included sepa- rately in 1995.

In general, the respondents are more optimistic in 2005 than they were in 1995; they expect the roofing systems to last longer than in the previous survey, and perhaps now there are fewer con- cerns about longevity.

STEEP -SLOPED ROOFING SYSTEM DURABILITY

Respondents were asked to provide the mean and minimum service life for 18 steep roofing systems. The averages of the data reported by the respondents are shown in Appen- dix 13.

The mean life responses were ranked

Graph 2 - Steep -sloped Roofing Durability Ranges

Xw M:,F.Yíitati.+A'Y K'.J.OY.. :.R":..........:X::X.-« .X:Y:3.'Lx:Nii, ... .... ...,........ ...... : - -,,

Series t

Series 2

Serias 3 * 3 Series 4

Series 5

Series 6 ñ

=!

.......

**:

WPM

.a.. ...,. .. ,.. .. ..... .

Low -Sloped Roofing

2005 Survey 1996

Installed Cost

Disposal Cost

Maintenance Cost/Year

Life Cycle Cost/Year

Evaloy PVC alloy, reinforced $3.13 $0.81 $0.13 $0.37 Granule -surfaced SBS multi ply $3.70 $1.00 $0.15 $0.41 $0.34

Metal panels - aluminum $5.69 $0.91 $0.24 $0.47 Metal panels - aluminized steel $5.37 $1.08 $0.24 $0.48 Metal panels - galvanized steel $5.48 $1.00 $0.21 $0.48 EPDM $3.45 $0.48 $0.24 $0.49 $0.33 Metal panels - copper $10.46 $0.56 $0.23 $0.49 Metal panels - Galvalume $5.16 $0.94 $0.25 $0.49 Poly vinyl chloride, reinforced $3.49 $0.92 $0.21 $0.49 Metal panels - Terne $9.32 $0.96 $0.22 $0.49 $0.36 Metal panels - stainless steel $9.38 $1.14 $0.25 $0.51 Metal panels - zinc $9.32 $0.88 $0.22 $0.51 Gravel -surf. pitch /organic BUR $5.17 $1.48 $0.27 $0.53 Gravel -surf. pitch /glass BUR $5.44 $1.43 $0.23 $0.54 $0.32 Unsurfaced APP multi ply $2.80 $1.12 $0.22 $0.54 $0.30

Gravel -surf. asphalt /glass BUR $3.83 $1.21 $0.32 $0.57 Granule -surf. APP pitch, multi ply $3.82 $1.23 $0.25 $0.58 Granule -surf. APP asphalt, multi ply $3.43 $3.92 $0.18 $0.63 $0.34 Unsurfaced asphalt/glass BUR $2.94 $1.01 $0.37 $0.64 Gravel -surf. asphalt /organic BUR $3.44 $1.06 $0.39 $0.65 $0.31 Hypalon (CSPE) or PIB $3.50 $0.94 $0.31 $0.66 $.38

Granule -surf. SBS pitch multi ply $4.48 $1.19 $0.36 $0.68 Thermoplastic poly olefin (TPO) $3.24 $4.36 $0.24 $0.80 $0.37 Ketone ethylene ester (KEE) $3.48 $0.98 $0.58 $0.86

Spray urethane foam - coated $3.12 $1.44 0.68 $1.05 $0.42

Proceeedings of the RCI 2 /St International Convention Cash - 81


and separated into series as had been done for the low slope roofing data. We then calculated the weighted mean and minimum service life expectancies for each series. These data are shown in Table 2.

With the exception of the S- tab strip shingles, the expecta- tions increased for the other categories, but did not change their relative ranking.

Natural slate has the highest estimated durability, followed by architectural metals and clay tile, followed by metal panels and concrete tile. SBS modified asphalt and laminated shingles rated higher than their 3 -tab strip shingle cousins. The relatively new rubber or plastic shingles rated about the same as cedar shakes.

The durability ranges of each of these steep- sloped series were calculated the same way the ranges for the low- sloped roofing had been calculated. The results are shown in Graph 2. The curve closest to the right of the curve is Series 1; the other series are shown in numerical order, from right to left.

LIFE CYCLE COSTS - LOW - SLOPED AND STEEP - SLOPED ROOFING SYSTEMS

The respondents listed the installed cost (dollars per square foot), disposal cost (dollars per square foot), and maintenance cost (dollars per square foot per year) for each of the roofing systems. The life cycle cost (dollars per square foot per year) was calculated by adding the installed and disposal costs, dividing by the mean durability, and adding the maintenance cost. Table 3 lists the costs for low- sloped roofing.

The life cycle costs for low- sloped roofing range from $0.37 to $1.05. This is a broader range than the costs

reported in our 1996 survey. The life cycle costs increased in every roofing system we could compare. The life cycle costs increased roughly in proportion to the decrease in the value of the dollar at the lower life cycle costs. The increases in the higher life cycle costs are much greater than can be accounted for by inflation.

Table 4 shows the installed, maintenance, disposal, and calculated life cycle cost of each of the steep roofing systems in the survey. The life cycle cost for steep roofing ranged from 21 to 82 cents per square foot per year. The systems with the lowest life cycle cost include SBS modified asphalt -glass shingles, asphalt - glass 3 -tab strips, and copper panels. The highest life cycle costs include clay tile and cedar shakes. The lowest first cost steep -sloped roofing system is still a conventional asphalt- glass, S- tab strip shingle.

ACKNOWLEDGEMENTS

The cooperation of NRCA and RCI in distributing these surveys made this work possible and is

greatly appreciated. We also must thank the respondents who used their valuable time to fill out the questionnaires and send the surveys back to us.

We also appreciate the following manufacturers who supported this study:

Certainteed Products Company

Firestone Building Pro- ducts

Johns Manville Interna- tional

Sarnafil Inc.

Siplast /Icopal

The principals and associates of Simpson Gumpertz 86 Heger Inc. provided the home for this work and Brian Pailes, a Northeastern University co -op student engineer with SGH, was very helpful in setting up the corn - puter to accept and sort these data.

Table 4 - Steep -sloped Roofing Costs - $ /square foot

Steep -Sloped Roofing System

2005 Survey

Installed Cost

Disposal Cost

Maintenance Cost/Year

Life Cycle

SBS modified asphalt -glass shingles $3.26 $0.98 $0.04 $0.21 Asphalt -glass 3 -tab strip shingles $2.13 $0.73 $0.07 $0.23 Metal panels - copper $10.44 $0.66 $0.06 $0.25 Asphalt -glass laminated shingles $2.74 $0.75 $0.13 $0.27 Asphalt -glass interlocking shingles $2.06 $0.91 $0.14 $0.29 Asphalt- organic 3 -tab strip shingles $2.16 $0.74 $0.15 $0.31 Metal panels - Galvalume $7.73 $0.63 $0.04 $0.33 Metal panels - aluminum $7.00 $0.76 $0.16 $0.39 Metal panels - Terne $11.60 $0.70 $0.15 $0.41 Metal panels - aluminized steel $6.82 $0.86 $0.20 $0.44 Metal panels - zinc $13.20 $0.68 $0.14 $0.44 Metal panels - stainless steel $14.05 $0.73 $0.16 $0.44 Natural slate $13.91 $1.11 $0.26 $0.48 Concrete tile $7.59 $2.60 $0.24 $0.53 Rubber or plastic shingles $9.08 $0.93 $0.10 $0.56 Metal panels - galvanize steel $8.37 $0.84 $0.21 $0.56 Clay tile $9.84 $1.35 $0.35 $0.58 Cedar shakes or shingles $5.80 $1.09 $0.49 $0.82

Cash - 82 Proceeedings of the RCI 21st International Convention


Appendix A Low- sloped Roofing System Survey

RoofJras Vit Ot«to /alir Weal".

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IEPrid 15.:04 45 sr t Appendix B

Low -sloped Roofing System Survey Fakit<:ou Sods in IOW í s L. r 1,4

$trokA rei;.

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Appendix C Low -sloped Roofing Survey

Your location (city, state):

Roofing System Mean Life

Minimum Life

Installed Cost

Main. Cost

Disposal Cost

BUR - gravel- surfaced asphalt - glass felt plies BUR - gravel- surfaced asphalt - organic felt plies BUR - gravel -surfaced pitch - pitch/glass felt plies

BUR - gravel surfaced pitch - coal tar /organic felt plies BUR - unsurfaced asphalt - glass felt plies Evaloy PVC alloy - reinforced

Granule -surfaced APP modified asphalt - multi ply Granule- surfaced APP modified pitch - multi ply Unsurfaced APP modified asphalt - multi ply

Granule surfaced SBS modified asphalt - multi ply Granule- surfaced SBS modified pitch - multi ply Hypalon (CSPE) and polyisobutylene (PIB)

Ketone ethylene ester (KEE) reinforced Metal panels - aluminized steel Metal panels - aluminum

Metal panels - copper Metal panels - Galvalume Metal panels - galvanized steel

Metal panels - stainless steel Metal panels - Terne Metal panels - zinc

Poly vinyl chloride - reinforced Spray urethane foam - coated Thermo plastic olefin - (TPO) reinforced

Cash - 84 Proceeedings of the RCI 2 ist International Convention


Appendix D Steep -sloped Roofing Survey

Roofing System Mean Life

Minimum Life

Installed Cost

Main. Cost

Disposal Cost

Asphalt - glass felt - 3 tab Asphalt - glass felt - interlocking Asphalt - glass felt - laminated

Asphalt - organic felt -3 tab Cedar shakes and shingles Clay tile

Concrete tile Metal panels - aluminized steel Metal panels - aluminum

Metal panels - copper Metal panels - Galvalume Metal panels - galvanized steel

Metal panels - stainless steel Metal panels - Terne Metal panels - zinc

Natural slate Rubber or plastic shingles SBS mod. asphalt - glass shingles

Please enter your name, company name, address and your e -mail address if you want a summary of this survey.

Name

Company name

Street address

City, State and zip code

Your e -mail address (if possible)

Thank you.



Benjamin S. Wilner, Ph.D.


Page 1







)

)

VIDEOTAPED DEPOSITION OF

BENJAMIN S. WILNER, PH.D.

December 11, 2015

9:30 a.m.

Suite 2400


Atlanta, Georgia

Reported by: F. Renee Finkley, RPR, RMR, CRR, CLR,

CCR-B-2289


Benjamin S. Wilner, Ph.D.


Page 56

1 A. I do not know.

2 Q. So you're indicating that Mr. Rutila did

3 not investigate a statistically-valid sample, but

4 you've not performed any independent analysis of any

5 type as to what that statistically-valid sample would

6 be?

7 A. I have not created -- I have not done a

8 statistical sampling, independent statistical

9 analysis.

10 Q. Assuming the population of Atlas Chalet

11 roofs is about 185,000 --

12 A. Yes.

13 Q. -- how big would the random sample need to

14 be if every roof that was visited exhibited

15 blistering problems which were found to be abnormal?

16 MR. PIEPER: Objection.

17 THE WITNESS: It depends upon certain

18 mathematics, and I cannot say for certain what

19 it would be. I know it's bigger than one. I

20 know it's bigger than zero and --

21 Q. (By Mr. Bryson) Is it less than a hundred

22 though?

23 A. Could be.

24 Q. Probably is, isn't it?


UNITED STATES DISTRICT COURTEASTERN DISTRICT OF LOUISIANA

: MDL NO. 2047IN RE: CHINESE MANUFACTURED DRYWALL : PRODUCTS LIABILITY LITIGATION : SECTION: L

:: JUDGE FALLON: MAG. JUDGE WILKINSON

.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. :

This Document Relates to Germano, et al. v. Taishan Gypsum Co. Ltd., et al., case no. 09-6687

ORDER & REASONS

Before the Court are Daubert motions filed by the Plaintiffs’ Steering Committee

(“PSC”) and Intervenor Knauf Plasterboard Tianjin Co. Ltd. (“Knauf”) to exclude specific

aspects of expert witness testimony. For the following reasons, IT IS ORDERED that the PSC’s

Motion to Exclude the Expert Opinions of Roger G. Morse, AIA, and Matthew J. Perricone,

Ph.D. (Rec. Doc. No. 832) is GRANTED IN PART with regard to expert testimony on the

Environmental Control System (“ECS”) and on the X-Ray Fluoroscopy Device’s (“XRF”) use to

detect individual sheets of Chinese drywall, and DENIED IN PART with regard to expert

testimony on the XRF’s use to detect the general presence of Chinese drywall and the visual

corrosion grading scale. IT IS FURTHER ORDERED that Knauf’s (1) Motion to Exclude

Portions of Expert Report and Testimony of Dean Rutila (Rec. Doc. No. 854), (2) Motion to

Exclude Portions of Expert Report and Testimony of Donald Galler (Rec. Doc. No. 851), and

(3) Motion to Exclude Portions of Expert Report and Testimony of Dr. J.R. Scully (Rec. Doc.

No. 856) are DENIED.

I. BACKGROUND

In the aftermath of Hurricanes Katrina and Rita, rebuilding put a strain on U.S. building

Case 2:09-md-02047-EEF-JCW Document 1090 Filed 02/17/10 Page 1 of 11TAB 13


-2-

supplies, including drywall. As a result, drywall manufactured in China was brought into the

United States and used in the construction and refurbishing of homes in coastal areas of the

country, notably the Gulf Coast and East Coast. Sometime after the installation of the Chinese

drywall, homeowners began to complain of emissions of smelly gasses, the corrosion and

blackening of metal wiring, surfaces, and objects, and the breaking down of appliances in their

homes. Many of these homeowners also began to complain of various physical afflictions

believed to be caused by the Chinese drywall. Accordingly, these homeowners began to file suit

in various state and federal courts against homebuilders, developers, installers, realtors, brokers,

suppliers, importers, exporters, distributors, and manufacturers who were involved with the

Chinese drywall. Because of the commonality of facts in the various cases, this litigation was

designated as multidistrict litigation. Pursuant to a Transfer Order from the United States

Judicial Panel on Multidistrict Litigation on June 15, 2009, all federal cases involving Chinese

drywall were consolidated for pretrial proceedings in the U.S. District Court, Eastern District of

Louisiana.

The present matter, Germano, et al. v. Taishan Gypsum Co. Ltd., et al., Case no. 09-

6687, was transferred to this Court after being filed in the United States District Court for the

Eastern District of Virginia as a class action on behalf of owners and residents of homes in the

Commonwealth of Virginia containing defective Chinese-manufactured drywall that was

designed and manufactured by Defendant Taishan Gypsum Co. Ltd. (“Taishan”).

Defendant Taishan is a Chinese corporation with its principal place of business located in

Shandong Province, China. In June 2009, summons was issued to Taishan, and on September

23, 2009, it was returned executed. In short, Taishan has been properly served. The delay for

answering has long passed and yet no answer or responsive pleading has been filed by Taishan.



1Jerry and Inez Baldwin, Steven and Elizabeth Heischober, Joseph and Kathy Leach,Preston and Rachael McKellar, J. Frederick and Vannessa Michaux, William and DeborahMorgan, and Robert and Lea Orlando, all homeowners in Virginia with homes containingChinese drywall manufactured by Taishan, intervened as plaintiffs to provide a cross-section ofproperties afflicted with Chinese drywall for the Court to consider in its scope of remediationhearing.

-3-

On November 18, 2009, the Plaintiffs’ Steering Committee (“PSC”) filed a Motion for Default

Judgment as to Taishan. On November 20, 2009, the Court issued an Order of Preliminary

Default. Subsequently, the Court issued a Scheduling Order for a hearing on default judgment

proceedings against Taishan. The Court declared its intent to use the hearing as a vehicle to

consider the scope and extent of the appropriate remediation necessary for properties that are

impacted by Chinese drywall. Some seven properties were selected as being representative of

the variety of claimed damages in the MDL.1 Parties similarly situated or having a common

interest in this matter were given an opportunity to intervene and participate in these

proceedings. One of these intervenors was Knauf Plasterboard Tianjin Co. Ltd. (“Knauf”).

Because the issues involved in this default judgment hearing necessitate expert

testimony, the Court is required to vet the proposed experts to make a determination as to the

sufficiency, reliability, and relevance of the facts and data used and the methodology relied upon

by these experts in formulating their opinion. Accordingly, the Court set a hearing which is

often termed a Daubert hearing on January 29, 2010, to consider these preliminary matters.

Subsequently, on February 19, 20, and 22, 2010, the Court will convene a final default judgment

hearing at which the interested parties will have an opportunity to present evidence in support of

their respective positions. Following that hearing, the Court will make a determination of the

nature and scope of remediation for the properties involved with the hope that this will also

provide some guidance for other cases similarly situated.



-4-

II. DAUBERT ADMISSIBILITY STANDARD

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony.

Rule 702 is in effect a codification of the United States Supreme Court’s opinion in Daubert v.

Merrel Dow Pharmaceuticals, 509 U.S. 579 (1993). In Daubert, the Supreme Court held that

trial courts should serve as the gatekeeeper for expert testimony and should not admit such

testimony without first determining that the testimony is both “reliable” and “relevant.” Id. at

589.

Scientific testimony is reliable only if “the reasoning or methodology underlying the

testimony is scientifically valid,” meaning that such testimony is based on recognized

methodology and supported by appropriate validation based on what is known. Id. at 592-93. In

Daubert, the Supreme Court set forth a non-exclusive list of factors to consider in determining

the scientific reliability of expert testimony. Id. at 593-95. These factors are: (1) whether the

theory has been tested; (2) whether the theory has been subject to peer review and publication;

(3) the known or potential rate of error; (4) whether standards and controls exist and have been

maintained with respect to the technique; and (5) the general acceptance of the methodology in

the scientific community. Id. Whether some or all these factors apply in a particular case

depends on the facts, the expert’s particular expertise, and the subject of his testimony. Kumho

Tire Co. v. Carmichael, 526 U.S. 137, 138 (1999).

In addition to the five factors laid out in Daubert, a trial court may consider additional

factors in assessing the scientific reliability of expert testimony. Black v. Food Lion, Inc., 171

F.3d 308, 312 (5th Cir. 1999). Some of these factors may include: (1) whether the expert’s

opinion is based on incomplete or inaccurate dosage or duration data; (2) whether the expert has

identified the specific mechanism by which the drug supposedly causes the alleged disease; (3)



-5-

whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded

conclusion; (4) whether the expert has adequately accounted for alternative explanations; and (5)

whether the expert proposes to testify about matters growing directly out of research he or she

has conducted independent of the litigation. See, e.g., id. at 313; Moore v. Ashland Chem., Inc.,

151 F.3d 269, 278-79 (5th Cir. 1998); Christophersen v. Allied-Signal Corp., 939 F.2d 1106,

1114 (5th Cir. 1991); Newton v. Roche Labs., Inc., 243 F. Supp. 2d 672, 678 (W.D. Tex. 2002).

Scientific testimony is relevant only if the expert’s reasoning or methodology can be

properly applied to the facts in issue, meaning that there is an appropriate fit between the

scientific testimony and the specific facts of the case. Daubert, 509 U.S. at 593. Scientific

evidence is irrelevant, however, when there is too great an analytical gap between the data and

the opinion proffered. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

The party seeking to introduce the expert testimony bears the burden of demonstrating

that the testimony is both relevant and reliable. Moore, 151 F.3d at 275-76. The focus is not on

the result or conclusion, but on the methodology. Id. The proponent need not prove that the

expert’s testimony is correct, but must prove by a preponderance of the evidence that the

methodology used by the expert was proper. Id.

The trial court is the gatekeeper of scientific evidence. Daubert, 509 U.S. at 596. It has

a special obligation to ensure that any and all expert testimony meets these standards. Id.

Accordingly, it must make a preliminary assessment of whether the reasoning or methodology

underlying the testimony is scientifically valid and whether the reasoning or methodology can be

properly applied to the facts in issue. Id. at 592-93. In making this assessment, the trial court

need not take the expert’s word for it. Joiner, 522 U.S. at 147. Instead, when expert testimony

is demonstrated to be speculative and lacking in scientific validity, trial courts are encouraged to



-6-

exclude it. Moore, 151 F.3d at 279.

In satisfying its “gatekeeper” duty, the Court will look at the qualifications of the experts

and the methodology used in reaching their opinions and not attempt to determine the accuracy

of the conclusion reached by the expert. The validity or correctness of the conclusions is for the

fact finder to determine.

II. PRESENT MOTIONS

The PSC and Knauf have filed Daubert motions. The PSC filed a Motion to Exclude

portions of the Expert Opinions of Roger G. Morse, AIA, and Matthew J. Perricone, Ph.D. (Rec.

Doc. No. 832). Knauf filed three Daubert Motions: (1) Motion to Exclude Portions of Expert

Report and Testimony of Dean Rutila (Rec. Doc. No. 854), (2) Motion to Exclude Portions of

Expert Report and Testimony of Donald Galler (Rec. Doc. No. 851), and (3) Motion to Exclude

Portions of Expert Report and Testimony of Dr. J.R. Scully (Rec. Doc. No. 856).

The Court has reviewed the reports from the experts at issue and studied the extensive

briefs submitted by the parties. Counsel further presented their respective positions at the

Daubert hearing on January 29, 2010. It is now appropriate for the Court to rule on these

Motions. The Court will address each challenged expert in turn, starting first with the PSC’s

Motion and then proceeding to Knauf’s Motions.

A. PSC’S MOTION

1. Roger G. Morse

Roger G. Morse, an architect, was retained by Knauf to testify as an expert. One of his

opinions is that the emission of corrosive and noxious gas from Chinese drywall can be reduced

by installing a retrofitted air-conditioning system termed as an Environmental Control System

(“ECS”) in the affected homes.



-7-

The Court has considered the briefs submitted and arguments made by the parties with

regard to Mr. Morse and his testimony regarding the ECS. The ECS technology has not been

used in an occupied residential home, nor has its use been endorsed by the government or

scientific group. These are not “red herring” issues as Knauf claims, but rather bear on the fact

that the ECS technology is at best experimental and at worst useless. In fact, Knauf concedes

that the ECS’s use in a residential setting has not been tested or peer reviewed since it has only

been used in five test houses and one occupied house as of the time of the Daubert hearing.

Additionally, there exists no known error rate for the device. Finally, there exists no peer review

or published literature supporting the use of the device in an occupied, residential home.

Accordingly, the Court holds that under the Daubert standards for admissibility of expert

opinions, testimony from any experts, including Mr. Morse, regarding the use of the ECS is to be

excluded, and the PSC’s Motion to Exclude that portion of Mr. Morse’s testimony is GRANTED

consistent with this holding.

2. Matthew J. Perricone, Ph.D.

Matthew J. Perricone, Ph.D., a material sciences analyst, was retained by Knauf to testify

as an expert that he has developed a plan to reliably eliminate the need to remove all drywall in a

“mixed” (Chinese and domestic) drywall house by selectively identifying corrosive Chinese

drywall for removal, while at the same time identifying the non-corrosive domestic drywall and

leaving it behind. Dr. Perricone proposes using two different tools to carry out his plan. The

first is a visual corrosion grading scale which requires pulling all electrical receptacles and

switches from the wall, but not detaching such, and grading them on a four point scale. The

second is by utilizing an X-Ray Fluoroscopy Device (“XRF”) which is used to examine drywall

board to determine whether the strontium content is over a certain level.



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regard to Dr. Perricone. With regard to the visual corrosion grading scale testimony, the Court

finds that this testimony satisfies Daubert standards. The visual corrosion grading has been

adopted by the Consumer Products Safety Commission and the Florida Department of Health in

conjunction their own efforts to identify Chinese drywall in properties. Further, Knauf intends to

conduct field training and develop a manual to ensure consistency and precision in the

application of the testing. Accordingly, the Court DENIES the PSC’s Motion to Limit or

Exclude with regard to any testimony, including that of Dr. Perricone, involving visual corrosion

grading scale.

With regard to the use of the XRF technology, the Court finds that this technology may

be of significance in testing the general presence of Chinese drywall in a home, but that it is not

reliable for selective identification of which individual boards are Chinese drywall and which are

not. This finding is based on data suggesting that the use of the XRF to detect individual sheets

of Chinese drywall results in many false readings. Accordingly, the Court GRANTS the PSC’s

Motion to Limit or Exclude with regard to all expert testimony, including that of Dr. Perricone,

on the use of the XRF to detect individual sheets of Chinese drywall in a home, but DENIES the

Motion with regard to expert testimony on the use of the XRF to detect the presence of Chinese

drywall in a home generally.

B. KNAUF’S MOTIONS

1. Dean Rutila

Dean Rutila, a civil engineer and senior project manager, was retained by the PSC to

testify as an expert witness in metallurgical, electrical, and mechanical engineering related fields

using an admitted “multi-disciplinary” approach to opine regarding the cause and scope of



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chemical-based, electrical wiring corrosion, and resulting damages in homes with Taishan

drywall.


regard to Mr. Rutila. The Court finds that Mr. Rutila served as the supervisor of the PSC’s team

of experts and has been retained to provide a “big picture” opinion as to the total effects of

Chinese drywall on the seven homes. In this role, the Court concludes that Mr. Rutila is entitled

to rely upon the opinions of other experts under Rule 702 of the Federal Rules of Evidence in

rendering his own informed opinion. The Court finds that Knauf’s objections can be properly

addressed through vigorous cross-examination. Accordingly, Knauf’s Motion to Exclude is

DENIED.

2. Donald Galler

Donald Galler, an electrical engineer who focuses his practice on analysis of electrical

and system failures, was retained by the PSC to testify as an expert witness that silver wiring and

contacts in Chinese drywall homes are attacked by airborne sulphur vapors emitted from the

drywall, causing corrosion. Mr. Galler examined samples of electrical devices taken from the

seven affected homes at issue to reach this opinion.


regard to Mr. Galler. The Court notes Mr. Galler is a highly qualified professional who works at

the Massachusetts Institute of Technology and has 20 plus years of studying silver contacts.

Further, Mr. Galler’s examination of samples of silver contacts on switches from the Chinese

drywall affected homes satisfy Daubert standards for admissibility. He examined at least five

samples and determined that these samples exhibited exceptional corrosion, providing objective

support to his opinion the extrapolation of this data shows other similar switches will fail.



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Accordingly, the Court DENIES Knauf’s Motion to Exclude.

3. Dr. J.R. Scully

Dr. J.R. Scully, a corrosion scientist, was retained by the PSC to testify as an expert

witness that measurements of corrosion on copper wires directly, as opposed to on copper

reactivity coupons, can be used to determine with any predictability the corrosivity of

environments and future risk. Dr. Scully further opines that these measurements also provide

evidence of capillary corrosion that would result in the further risk of corrosion.


regard to Dr. Scully. The Court finds that Knauf has failed to raise Daubert issues in its Motion,

and that its challenges to Dr. Scully’s testimony are best addressed by vigorous cross-

examination. Knauf concedes that Dr. Scully is a well educated, well respected, qualified

corrosion expert. Additionally, Dr. Scully’s testing methods using copper wires are identical to

the testing methods used by Sandia National Laboratories, the U.S. Government’s gold standard

for testing. Accordingly, Knauf’s Motion to Exclude is DENIED.

IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that the PSC’s Motion to Exclude the Expert

Opinions of Roger G. Morse, AIA, is and Matthew J. Perricone, Ph.D. (Rec. Doc. No. 832) is

GRANTED IN PART with regard to expert testimony on the ECS and on the XRF’s use to

detect individual sheets of Chinese drywall, and DENIED IN PART with regard to expert

testimony on the XRF’s use to detect the general presence of Chinese drywall and the visual

corrosion grading scale. IT IS FURTHER ORDERED that Knauf’s (1) Motion to Exclude

Portions of Expert Report and Testimony of Dean Rutila (Rec. Doc. No. 854), (2) Motion to

Exclude Portions of Expert Report and Testimony of Donald Galler (Rec. Doc. No. 851), and



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(3) Motion to Exclude Portions of Expert Report and Testimony of Dr. J.R. Scully (Rec. Doc.

No. 856) are DENIED.

New Orleans, Louisiana, this 12th day of February 2010.

____________________________________ELDON E. FALLONUNITED STATES DISTRICT JUDGE



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