Waterfall Homeowners Ass'n v. Viega, Inc.

279 F.R.D. 586, 2012 WL 271873, 2012 U.S. Dist. LEXIS 10315
CourtDistrict Court, D. Nevada
DecidedJanuary 30, 2012
DocketNo. 2:11-cv-01498-JCM-GWF
StatusPublished

This text of 279 F.R.D. 586 (Waterfall Homeowners Ass'n v. Viega, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waterfall Homeowners Ass'n v. Viega, Inc., 279 F.R.D. 586, 2012 WL 271873, 2012 U.S. Dist. LEXIS 10315 (D. Nev. 2012).

Opinion

ORDER

Joint Motion to Sever Claims—# 49

GOERGE FOLEY, JR., United States Magistrate Judge.

This matter is before the Court on the Vanguard/Viega Defendants’ Joint Motion to Sever Claims against Different Products (# 49), filed on December 2, 2011; Defendant Centex Homes’ Joinder in the Motion to Sever (#54), filed on December 13, 2011; Joinder of the Defendants Uponor, Inc. and Uponor Wirsbo Company in the Motion to Sever (# 56), filed on December 19, 2011; Plaintiffs’ Opposition to the Motion to Sever (# 57), filed on December 19, 2011; and the Vanguard Defendant’s Reply in Support of Motion to Sever (#59), filed on December 29,2011.

[587]*587 BACKGROUND

This action involves claims for damages and other relief brought by two Nevada Homeowners Associations, individually and in their representative capacities, involving allegedly defective “yellow brass” plumbing fittings and components that were installed in the residences of the associations’ members. Plaintiff Red Bluff At The Crossings Owners Association (“Red Bluff’) represents the owners of 272 condominium units. Plaintiff Waterfall Homeowners Association (“Waterfall”) represents the owners of 734 single family residences. Both residential developments were constructed by Defendant Centex Homes. Defendants Dynamic Plumbing Systems, Inc. and Interstate Plumbing and Air Conditioning, Inc. installed the potable water systems in the subject residences. Both Dynamic Plumbing Systems and Interstate Plumbing performed plumbing work in the Waterfall development. Plaintiffs allege that Defendant Interstate Plumbing installed Uponor/Wirsbo yellow brass plumbing fittings in the Waterfall residences and that Dynamic Plumbing installed the Vanguard/Viega yellow brass fittings. Plaintiffs allege that only the Vanguard/Viega products were installed in the Red Bluffs development.

Plaintiffs characterize the subject residences as either “Vanguard Homes” or ‘Wirsbo Homes” which they define as “all residences in the Las Vegas Valley that contain or contained potable-water-delivery systems utilizing defective high-zinc-content brass [Vanguard/Viega or Uponor/Wirsbo] brand fittings and attendant high-zinc-content brass plumbing components.” Complaint (# 1), ¶¶ 13, 15. Plaintiffs allege that the plumbing systems and components in both sets of homes have “prematurely failed due to dezincification, which is a well-known form of corrosion attack to the high-zine-content brass components.” Id. Plaintiffs seek to certify a class consisting “of all similarly situated Nevada common-interest communities, as statutory claimants on behalf of themselves and their members (residence owners), and others in the Las Vegas Valley whose residences, or whose members’ residences, contain defective high-zinc-content brass Vanguard/Viega-brand or Wirsbo/Uponor-brand potable-water-delivery systems and attendant high-zinc-eontent brass plumbing components.” Complaint (# 1), ¶32. Plaintiffs allege causes of action for breach of the implied warranties of fitness for a particular purpose, merchantability, habitability, quality and workmanship, breach of express warranties, negligence, including negligent misrepresentation, failure to warn/instruct, negligent selection and negligent installation, strict products liability, declaratory and equitable relief, and violation of the Nevada Deceptive Trade Practices Act.1

Defendants have moved to sever Plaintiffs’ claims against the Vanguard/Viega Defendants from their claims against the Uponor/Wirsbo Defendants on the grounds that the Defendants “sold different products with different metallurgical characteristics, made to different industry standards, to different customers for installation at different locations.” Motion to Sever (# k9), pgs. 2-3. The Uponor/Wirsbo Defendants state in their joinder that the Uponor/Wirsbo and Vanguard/Viega brass fittings have been manufactured pursuant to different American Society for Testing & Materials (ASTM) standards. The Uponor/Wirsbo fittings are manufactured pursuant to the ASTM F1960 standard, while the Vanguard/Viega fittings are manufactured pursuant to ASTM F 1807 standard. The designs of the fittings involve different methods for attaching them to nonmetallic water piping or tubing. The Uponor/Wirsbo Defendants state that “the F1960 Uponor/Wirsbo fitting has a greater wall thickness which affects the performance of the fitting and increases that fitting’s resistance to “through-wall” corrosion as opposed to the F1807 Vanguard/Viega fitting.” Joinder (# 56), pg. 4. The Uponor/Wirsbo Defendants also argue that their fitting has a larger cross sectional area than the Vanguard/Viega fitting which results in greater water flow through the fitting which also impacts dezincifieation/corrosion, and has a greater minimal internal diameter which also [588]*588impacts the performance of the Uponor/Wirsbo fitting as compared to the Vanguard/Viega fitting. Id. Defendants argue that because of these product differences, there is a substantial danger of jury confusion and potential prejudice to the Defendants if the claims are tried together. Defendants also argue that joinder of both sets of Defendants will result in unnecessary or inefficient discovery because each Defendant will be required to participate in discovery relating to the other manufacturer-defendant, rather than focusing solely on the claims involving its product.

Plaintiffs argue that their claims against the Vanguard/Viega and Uponor/Wirsbo Defendants are properly joined because this case concerns a common product defect—the dezincification of the yellow brass fittings used in the potable water systems of the subject residences. Plaintiffs allege that both Defendants’ fittings and components are made of “high zinc yellow brass” which Plaintiffs define as “a general class of brass alloy that contain 35-38% zinc.” Plaintiffs allege that “[t]he problem with high-zinc yellow brass fittings of any kind or type is that they have been known for many years to corrode in use.” Opposition (#57), pg. 4.

Plaintiffs have attached the report of their expert, David Coates of Coates Engineering Services, Inc., regarding his inspection of Vanguard/Viega yellow brass fittings removed from residences in the Waterfall community. Opposition (#57), Exhibit 1. According to Mr. Coates, “[yjellow brasses containing greater than 15% zinc are generally found to be susceptible to dezincification corrosion. The fittings and valves analyzed contained approximately 34-^0% zinc and showed a two phase (alpha-beta) microstructure.” Id. pg. 3. Mr. Coates goes on to state that based on his examination of the fittings and valves from the Waterfall development and:

CES’ experience, examination and/or evaluation of hundreds of similar fittings and valves used in plumbing systems throughout the Las Vegas Valley, which collectively represent a valid and reliable sampling of high zinc content brass plumbing fittings and valves, it is my opinion that all similarly situated residences within the Waterfall development and the Las Vegas Valley with high zinc content (> 15% Zn) yellow brass plumbing fittings and valves will suffer similar degradation due to dezincification corrosion attack leaving porous, brittle copper rich matrices and accumulations of zinc corrosion products (meringue), leading to failure (e.g., reduced material strength and integrity; reduced water flow; water leakage; and/or cracks).

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Bluebook (online)
279 F.R.D. 586, 2012 WL 271873, 2012 U.S. Dist. LEXIS 10315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waterfall-homeowners-assn-v-viega-inc-nvd-2012.