DEBORAH DIGIOVANNI VS. SAKER SHOP RITES, INC.,ET AL.(L-4465-11, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4307-14T1
DEBORAH DIGIOVANNI and
RICHARD DIGIOVANNI,
Plaintiffs-Appellants,
v.
SAKER SHOP RITES, INC. and
ANTHONY INTERNATIONAL,
Defendants,
and
WAKEFERN FOOD CORPORATION;
LEER, INC.; LEER LIMITED PARTNERSHIP;
DEXTER APACHE HOLDINGS, INC.;
A & J REFRIGERATION, INC.; and
ARCTIC GLACIER, INC.,
Defendants-Respondents.
__________________________________________
Submitted November 1, 2016 – Decided June 14, 2017
Before Judges Fisher, Leone, and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
4465-11.
Shebell & Shebell, LLC, attorneys for
appellants (Thomas F. Shebell, III, of
counsel; Robert A. Morley, on the briefs).
Wolff, Helies, Spaeth & Lucas, attorneys for
respondent Wakefern Food Corporation (Bruce E.
Helies, on the brief).
Rawle & Henderson LLP, attorneys for
respondents Leer, Inc.; Leer Limited
Partnership; and Dexter Apache Holdings, Inc.
(Valerie Kellner, on the brief).
Law Offices of Styliades & Jackson, attorneys
for respondent A&J Refrigeration, Inc. (Denise
F. Tunney, of counsel and on the brief).
Daly, Lamastra, Cunningham, Kirmser & Skinner,
attorneys for respondent Arctic Glacier, Inc.
I/P/A Arctic Glacier (Olivier J. Kirmser, on
the brief).
PER CURIAM
In this slip and fall lawsuit, the trial court dismissed the
complaint on summary judgment. Plaintiffs appeal. We affirm.
I.
Plaintiff Deborah DiGiovanni was a cashier at the ShopRite
supermarket in Hazlet.1 Plaintiff claims that she slipped and
fell on a puddle of water near a freestanding ice machine at the
entrance to the store. She sued the owner of the store, defendant
Saker ShopRites, Inc., but summary judgment was granted because
Saker ShopRites was her employer and thus was immune from suit
under the Workers' Compensation Act. See N.J.S.A. 34:15-8. She
1
Although the complaint was filed by Deborah and her husband
Richard DiGiovanni, his claim of loss of consortium is derivative
of her claims. Thus, we will refer to Deborah as "plaintiff."
2 A-4307-14T1
does not appeal that ruling, so the liability of the owner of the
store is not before us.
Instead, plaintiff appeals the trial court's orders granting
summary judgment to defendants Wakefern Food Corporation
(Wakefern), a cooperative that supplied the ice machine to the
store; Arctic Glacier, Inc. (Artic Glacier), which had a contract
to service and repair Wakefern's ice merchandising equipment; A&J
Refrigeration, Inc. (A&J), which serviced the ShopRite's
refrigeration systems; and Leer, Inc., Leer Limited Partnership,
and Dexter Apache Holdings, Inc. (collectively Leer), which
manufactured the ice machine.2
Plaintiff claims the ice machine was not properly serviced,
causing the water to leak from the ice machine. We summarize the
pertinent deposition testimony.
Plaintiff testified as follows. On October 8, 2009, she was
leaving the store on break. She slipped and fell on "[t]he water
that was leaking from the ice machine." She knew the water was
from the ice machine because "[i]t was underneath the machine" and
"there's nowhere else for water to come [from]." The water was
"[r]ight in front of it . . . by the door." She did not see the
2
The court also granted summary judgment to Anthony International,
which manufactured the ice machine doors. Plaintiff did not appeal
that ruling.
3 A-4307-14T1
water before she fell on her back, but her "whole back was wet."
The ShopRite was always having trouble with the ice machine, and
she often saw store employees pulling bags of ice out of it.
The ShopRite's night manager in October 2009, Robert J. Scott,
testified that on occasion "there would be some water that would
once in a while leak to the floor in and around the ice case." He
"noticed water coming from the machine probably between five and
ten times" in the three or four months surrounding the incident,
including "one or two times" in October. "[T]he case would leak
from the bottom underneath the doors and then it would pool around
the case itself."
Scott clarified that "[w]hen I say I've seen water in that
area several times, it doesn't necessarily mean that it always
came from the case." When customers removed bags of ice from the
machine, the bags sometimes broke open and spilled loose ice on
the floor. Customers who were buying multiple bags, and employees
who were loading bags into the machine, sometimes set bags on the
floor, causing condensation to accumulate. He did not know whether
the water was coming from the ice machine on the day of the
incident.
Brian Hagman, ShopRite's maintenance chief, testified he
cleaned liquid off the floor within ten feet of the ice machine
six or seven times since the incident, but he never saw liquid
4 A-4307-14T1
coming directly from the machine, and he was unaware of any leakage
from the machine prior to the incident.
Philip Proteau, a refrigeration mechanic employed by Arctic
Glacier, testified he serviced the ice machine on October 9, 2009,
the day after the incident. He cleaned a clogged condenser and
replaced a slow-turning condenser fan motor. Dust and dirt could
accumulate on the condenser coils, block the air flow, and cause
the fan motor to burn out and turn more slowly, which could result
in the condenser overheating and shutting off and the ice beginning
to melt. However, the Leer ice machine was "a self-sealed unit"
that had a twelve-inch well below the doors to hold any melted
water, and that "doesn't allow any water to escape unless the
floor plug is not in the bottom of the box" or is installed
incorrectly. When he serviced the machine, he did not note any
problem with the floor plug, the door hinges, or the door gaskets,
or any evidence of leaking.
Plaintiff retained an expert, George H. Meinschein, who
drafted a January 9, 2013 report. On October 21, 2013, the trial
court barred the report as net opinion. On June 23, 2014, the
court granted summary judgment in favor of Wakefern, A&J, and
Arctic Glacier. Plaintiff sought reconsideration of both orders,
which the court denied on December 19 and 22, 2014. On July 13,
2015, the court denied plaintiff's motion to vacate those orders.
5 A-4307-14T1
Meanwhile, on April 22, 2015, another judge entered a judgment in
favor of Leer, confirming a February 26, 2015 no-cause arbitration
award. Plaintiff appeals all those orders.
II.
We first address the trial court's exclusion of Meinschein's
expert report. "When, as in this case, a trial court is
'confronted with an evidence determination precedent to ruling on
a summary judgment motion,' it 'squarely must address the evidence
decision first.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015)
(citation omitted). "Appellate review of the trial court's
decisions proceeds in the same sequence, with the evidentiary
issue resolved first, followed by the summary judgment
determination of the trial court." Ibid."The admission or exclusion of expert testimony is committed
to the sound discretion of the trial court. As a discovery
determination, a trial court's grant or denial of a motion to
strike expert testimony is entitled to deference on appellate
review." Id. at 52 (citation omitted). Accordingly, we review a
trial court's decision whether to admit expert testimony under an
abuse of discretion standard. Id. at 53. We must hew to that
standard of review.
"The net opinion rule is a 'corollary of'" N.J.R.E. 703,
"'which forbids the admission into evidence of an expert's
6 A-4307-14T1
conclusions that are not supported by factual evidence or other
data.'" Id. at 53-54 (citation omitted). Thus, "an expert's bare
opinion that has no support in factual evidence or similar data
is a mere net opinion which is not admissible and may not be
considered." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 372 (2011).
Moreover, the net opinion "rule requires that an expert '"give
the why and wherefore" that supports the opinion, "rather than a
mere conclusion."'" Townsend, supra, 221 N.J. at 54 (citation
omitted). The rule "mandates that experts 'be able to identify
the factual bases for their conclusions, explain their
methodology, and demonstrate that both the factual bases and the
methodology are reliable.'" Id. at 55 (citation omitted). Under
the rule, "a trial court must ensure that an expert is not
permitted to express speculative opinions or personal views that
are unfounded in the record." Ibid.
Meinschein's January 9, 2013 four-page report listed the
materials he reviewed and gave a brief description of the accident.
The report then described Meinschein's physical examination of the
ice machine on February 9, 2012, which found no defect in the
machine. In the brief "Discussion & Analysis" section that
followed, the report summarized the deposition testimony of three
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individuals. On the key issue of whether water leaked from the
ice machine, he cited the deposition testimony of
Robert J. Scott, the night manager of the
Hazlet Shop Rite at the time of Ms.
DiGiovanni's incident, [who] testified that he
had seen water leak from the subject ice
merchandiser on several occasions and that
"the case would leak from the bottom
underneath the doors and then it would pool
around the case itself."3
Meinschein's report then concluded:
1. The history of repeated water leakage
from the subject ice merchandiser
indicates that Wakefern Food Corporation
failed to have the unit properly
serviced.
2. Wakefern Food Corporation's lack of
maintenance and service records for the
subject ice merchandiser is
representative of substandard equipment
maintenance practices.
3. Wakefern Food Corporation's lack of
maintenance and service records for the
subject ice merchandiser contributed to
the unit's degraded condition and
propensity to leak water onto the floor
in front of the unit.
4. Inadequate and substandard equipment
service procedures by Wakefern Food
Corporation were causative factors in the
October 8, 2009 water accumulation on the
floor in front of the subject ice
merchandiser.
3
Meinschein also referenced testimony by Hagman and John Mendola,
Wakefern's merchandizing supervisor, but Meinschein cited only
their testimony about who serviced the ice machine, not about
whether or why the ice machine might have leaked.
8 A-4307-14T1
5. Inadequate and substandard service
procedures by Wakefern Food Corporation
were causative factors in Ms.
DiGiovanni's October 8, 2009 slip, fall,
and subsequent injuries.
Meinschein did not allege any design or manufacturing defects or
negligence by anyone other than Wakefern.
The trial court properly found Meinschein's report was a net
opinion. The only fact the report mentioned supporting that water
leaked from the ice machine was plaintiff's version of the incident
and Scott's testimony about other occasions. The report then
leapt to conclusions about improper servicing without explaining
why improper servicing caused the machine to leak.
Meinschein's deposition testimony added no support for those
conclusions. He testified his physical inspection found nothing
wrong with the doors or the gaskets sealing the door. He saw no
leak when he inspected the machine, and the doors were shut tight.
He noticed no rust on the machine and did not tilt the machine to
look underneath to examine the drain plug or the floor underneath
the ice machine. Based on his inspection, he found "no evidence
that it had been leaking" or "had ever leaked."
Meinschein testified nothing indicated the water on the floor
at the time of the incident leaked from the ice machine other than
"the testimony of the night manager that said the machine had
9 A-4307-14T1
leaked from time to time." However, Meinschein agreed with Scott
that the handling of ice bags by customers and store employees
could result in water in front of the machine, including at the
time of the incident.
Meinschein testified there were only "two possibilities" of
how water could have come from the ice machine:
Number one is excessive frost buildup prevents
the doors from sealing properly. So then we
can have leakage at the edge of the door. Or
number two, the machine wasn't working
properly and things were starting to melt and
we have water leaking out of the bottom of the
well that the plug wasn't put in properly.
However, Scott testified that he had not seen any water
leaking from the doors, and that the doors had nothing to do with
the leaking. Moreover, Meinschein conceded there was no record
that the plug was installed improperly. Thus, Meinschein had no
factual support that either of these theoretical sources of leakage
had occurred. Meinschein ultimately admitted he did not know if
the machine leaked or why it leaked.
Therefore, Meinschein offered only a "bare opinion" with "no
support in factual evidence or similar data" and no explanation
why the ice machine leaked on this occasion. Thus, we affirm the
trial court's October 21, 2013 order excluding Meinschein's report
and testimony as a net opinion.
10 A-4307-14T1
After Proteau's May 20, 2014 deposition, Meinschein prepared
a May 29, 2014 supplemental memorandum. Meinschein stated Proteau
"found that the condenser fins were clogged and that the condenser
fan motor had failed." Meinschein added that when he examined the
ice machine on February 9, 2012, he "observed that the condenser
fins were loaded with dust/debris and partially clogged." He
stated:
Clogged condenser fins diminish the
dissipation of heat from the refrigeration
system, which ultimately results in the
inability of the ice merchandiser to maintain
the interior of its cabinet below the freezing
point of water. The ice inside and any frost
buildup on the walls and doors begins to melt,
thereby presenting water droplets that puddle
under the doors at the front of the machine.
He concluded "the October 9, 2009 service provided by Mr. Proteau
is fully consistent with an ice merchandiser that would have leaked
water onto the floor in front of the machine on October 8, 2009."
However, Meinschein never explained how water would have
leaked from the self-sealed, water-tight case. Thus, he failed
to establish "a causal connection between the act or incident
complained of and the injury or damage allegedly resulting
therefrom." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).4
4
Because plaintiff's claim fails even when we consider both
Meinschein's original and supplemental reports, we need not
address plaintiff's claim that Wakefern's motion to exclude the
original report was premature.
11 A-4307-14T1
Plaintiff moved for reconsideration of the order excluding
Meinschein's net opinion, attaching his supplemental report and
Proteau's testimony. Although the motion to reconsider that non-
final ruling was not untimely, the decision whether to grant
reconsideration is left to the "sound discretion" of the trial
court. Lombardi v. Masso, 207 N.J. 517, 534 (2011) (quoting R.
4:42-2). "[A] trial court's reconsideration decision will be left
undisturbed unless it represents a clear abuse of discretion."
Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super.
378, 382 (App. Div. 2015) (citing Hous. Auth. v. Little, 135 N.J.
274, 283 (1994)). We find no clear abuse of discretion in the
trial court's ruling on the merits of the motion. Thus, we affirm
the court's December 19 and 22, 2014 denial of reconsideration of
its order excluding Meinschein's net opinion, and its July 13,
2015 refusal to vacate that order.
III.
We next address the trial court's orders granting summary
judgment to Wakefern, Arctic Glacier, and A&J. Summary judgment
must be granted if the court determines "that there is no genuine
issue as to any material fact challenged and that the moving party
is entitled to a judgment or order as a matter of law." R. 4:46-
2(c). The court must "consider whether the competent evidential
materials presented, when viewed in the light most favorable to
12 A-4307-14T1
the non-moving party in consideration of the applicable
evidentiary standard, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 523 (1995). "[W]e review the trial court's grant of
summary judgment de novo under the same standard as the trial
court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.
of Pittsburgh, 224 N.J. 189, 199 (2016).
A.
In granting summary judgment to Wakefern, the trial court
stressed Meinschein's report "was barred by the Court as a net
opinion," so "plaintiff has no support [for] his claim by way of
expert opinion to satisfy the burden of proof."5 The court reached
that conclusion even considering "the findings of [Proteau] with
regard to the fan having residue and . . . not being maintained
in the manner it should have been maintained."
5
Plaintiff complains the trial court also mentioned Wakefern's
expert report. Of course, "[i]n considering a request for summary
judgment, the trial court, as is well-settled, 'must accept as
true the evidence supporting [the non-moving party].'" Ames v.
Gopal, 404 N.J. Super. 82, 85 (App. Div. 2008) (quoting Gen. Elec.
Capital Auto Lease v. Violante, 180 N.J. 24, 28 (2004)), certif.
denied, 198 N.J. 316 (2009). However, the trial court relied not
on Wakefern's report but on the absence of any expert testimony
supporting plaintiff's claim. Cf. Strumph v. Schering Corp., 256
N.J. Super. 309 (App. Div. 1992), rev'd, 133 N.J. 33 (1993)
(reversing substantially for the reasons stated in the dissent).
13 A-4307-14T1
Having excluded Meinschein's expert opinion, the trial court
did not err in granting summary judgment. "[A] negligence cause
of action requires the establishment of four elements: (1) a duty
of care, (2) a breach of that duty, (3) actual and proximate
causation, and (4) damages." Jersey Cent. Power & Light Co. v.
Melcar Util. Co., 212 N.J. 576, 594 (2013). "The plaintiff bears
the burden of establishing those elements, 'by some competent
proof.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406
(2014) (citations omitted). "Claims involving workplace accidents
commonly fall into the category in which the plaintiff must produce
reliable expert testimony to establish the standard of care and
to explain how the defendant's actions departed from that
standard." Fernandes v. DAR Dev. Corp., 222 N.J. 390, 405 (2015).
Moreover, "[w]hen the proofs involve a defect in a complex
instrumentality, an expert is frequently required to assist the
jury in understanding the mechanical intricacies and weighing
competing theories of causation." Ford Motor Credit Co., LLC v.
Mendola, 427 N.J. Super. 226, 236-38 (App. Div. 2012) (finding
expert testimony is required to explain the proper maintenance of
an automobile). The ice machine was a complex instrumentality.
See Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J. Super.
320, 331-32 (App. Div. 2004) (finding "the locking mechanism of
[a] gurney is sufficiently complex to require expert testimony").
14 A-4307-14T1
The proper maintenance of the ice machine "'constitutes a
complex process involving assessment of a myriad of factors' that
'is beyond the ken of the average juror.'" See Davis, supra, 219
N.J. at 408 (citation omitted). What duty of care governs
maintenance of an ice machine, how that duty was breached, and
whether improper maintenance would cause the ice machine to leak
"falls outside of the common knowledge of the factfinder and
depends on scientific, technical, or other specialized knowledge
[so] expert testimony [is] required." See Jerista v. Murray, 185
N.J. 175, 199 (2005). Thus, without expert testimony, plaintiff
could not show a duty of care, a breach of that duty, or causation.
Plaintiff, who offered expert testimony, now contends expert
testimony was not required. We recognize that "[w]hen the average
juror can deduce what happened without resort to scientific or
technical knowledge, expert testimony is not mandated" even for
complex instrumentalities. Id. at 200. Thus, in Jerista, where
a supermarket conceded its automatic door closed on and injured a
customer, the jury could infer, "based on common knowledge without
resort to expert testimony," that an automatic door "probably does
not close on an innocent patron causing injury unless the premises'
owner negligently maintained it." Id. at 197.
Here, by contrast, defendants disputed both that the ice
machine had leaked and that negligent maintenance of the condenser
15 A-4307-14T1
and fan would have caused the machine to leak. Further, it was
conceded even by plaintiff's expert that water could have gotten
on the floor by other causes, namely in the handling of ice bags
by customers and store employees. Under those circumstances,
"only with the assistance of expert testimony could the jurors
decide the question." Id. at 200.
Plaintiff next offers several theories why Wakefern could be
liable without expert testimony. She argues Wakefern owed a non-
delegable duty to persons who walked past the ice machine. She
cites cases involving owners, landlords, and licensees of real
property. "An owner of a building has a non-delegable duty to
exercise reasonable care for the safety of tenants and persons
using the premises at his invitation. That the owner contracts
for maintenance of [equipment on its premises] does not relieve
it of that duty[.]" Rosenberg v. Otis Elevator Co., 366 N.J.
Super. 292, 303 (App. Div. 2004) (citation omitted). However,
"[t]hat rationale does not apply in the present case," because
Wakefern does not own the ShopRite building. Kuzmicz v. Ivy Hill
Park Apartments, Inc., 147 N.J. 510, 517 (1997). Rather, the
building was owned by Saker ShopRites, which, under the Workers'
Compensation Act, is immune from suit by plaintiff. Wakefern
merely provided ShopRite stores with Leer ice machines in exchange
for them selling its private ice brand.
16 A-4307-14T1
Moreover, the ShopRite's entrance passageway adjacent to the
ice machine was not "within the exclusive control of" Wakefern.
Kramer v. R. M. Hollingshead Corp., 5 N.J. 386, 390 (1950)
(distinguishing Cicero v. Nelson Transp. Co., 129 N.J.L. 493(1943)). Nor was Wakefern a general contractor in "physical
control" of the premises. See Wellenheider v. Rader, 49 N.J. 1,
12 (1967) (distinguishing Schwartz v. Zulka, 70 N.J. Super. 256(App. Div. 1961), modified on other grounds sub nom. Schwartz v.
N. Jersey Bldg. Contractors Corp., 38 N.J. 9 (1962)). Wakefern
was not a "possessor of land" of the ShopRite's entrance
passageway, as there was no evidence Wakefern occupied or
controlled or intended to control that passageway. Parks v.
Rogers, 178 N.J. 491, 497 n.2 (2003) (quoting Restatement (Second)
of Torts § 328E(a) (1965)); see Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 49(a) (2012).6
6
In her appellate reply brief, plaintiff argues for the first
time Wakefern was "[o]ne who does an act or carries on an activity
upon land on behalf of the possessor," Restatement (Second) of
Torts § 383 (1965), and thus owed a "duty to warn" plaintiff, La
Russa v. Four Points at Sheraton Hotel, 360 N.J. Super. 156, 163
(App. Div. 2003) (imposing a duty to warn where a delivery person
tracked snow into a hotel, creating a puddle). "'To raise [this]
issue initially in a reply brief is improper.'" State v. Lenihan,
219 N.J. 251, 265 (2014) (citation omitted). "We generally decline
to consider arguments raised for the first time in a reply brief."
Bacon v. N.J. State Dep't of Educ., 443 N.J. Super. 24, 38 (App.
Div. 2015), certif. denied, 224 N.J. 281 (2016).
17 A-4307-14T1
Plaintiff next cites a "mode of operations" case, Wollerman
v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966), one of "a
series of decisions arising from personal injuries sustained by
business invitees on the premises of businesses whose operations
involve customer self-service." Prioleau v. Ky. Fried Chicken,
Inc., 223 N.J. 245, 248 (2015). "Under the mode-of-operation
rule, a business invitee who is injured is entitled to an inference
of negligence and is relieved of the obligation to prove that the
business owner had actual or constructive notice of the dangerous
condition that caused the accident." Ibid. However, Saker
ShopRite was the business owner on whose premises plaintiff
slipped. Wakefern did not own the premises, have employees on the
premises, invite customers to the premises, or make sales to those
customers. Cf. Wollerman, supra, 47 N.J. at 429. Accordingly,
plaintiff cannot show duty, breach of duty or causation without
expert testimony. See Townsend, supra, 221 N.J. at 60.
B.
Summary judgment was similarly appropriate as to Arctic
Glacier. Without expert testimony establishing a duty to
plaintiff, breach of duty, and causation, plaintiff could not
establish negligence by Arctic Glacier. Not only was Meinschein's
expert report an inadmissible net opinion, but Meinschein did not
18 A-4307-14T1
even purport to offer an opinion of negligence by anyone other
than Wakefern.
In addition, the trial court granted summary judgment because
the evidence indicated Arctic Glacier was only "responsible for
repairs on an on-call basis," as there was "no causal connection."
Plaintiff argues the trial court misunderstood Arctic Glacier's
role. We need not address plaintiff's argument, as the absence
of expert testimony justified summary judgment on causation.
C.
For the same reason, summary judgment was also appropriate
in favor of A&J. The exclusion of Meinschein's expert testimony,
and the absence of any expert testimony indicating A&J had a duty,
breached a duty, and caused plaintiff's incident, was itself
sufficient grounds for summary judgment.
In addition, the trial court ruled A&J "did not service[,]
maintain or repair the ice unit in question" and "had no ongoing
responsibility" to do so. Plaintiff argues this contravenes
Scott's testimony. Again, given the lack of expert testimony to
show A&J was negligent, we need not resolve plaintiff's argument.
Plaintiff also argues A&J failed to provide full discovery,
specifically the documents A&J's Sigmund Gremboeic reviewed before
testifying A&J did not service the ice machine. "A motion for
summary judgment is not premature merely because discovery has not
19 A-4307-14T1
been completed, unless plaintiff is able to '"demonstrate with
some degree of particularity the likelihood that further discovery
will supply the missing elements of the cause of action."'"
Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (citation
omitted). Absent expert testimony, plaintiff cannot show
discovery of the documents would "alter the outcome." Young v.
Hobart W. Grp., 385 N.J. Super. 448, 469 (App. Div. 2005).
Accordingly, we affirm the trial court's June 23, 2014 grant
of summary judgment to Wakefern, Arctic Glacier, and A&J, its
denial of reconsideration on December 19 and 22, 2014, and its
July 13, 2015 refusal to vacate summary judgment.
IV.
Finally, plaintiff argues, "in the event the [c]ourt reverses
summary judgment granted to Wakefern, Arctic Glacier and A&J, it
should likewise reverse [the April 22, 2015] judgment granted
pursuant to R. 4:21A-6 to Leer" confirming the arbitration award
that Leer was not at fault. Plaintiff's argument fails because
we affirm those grants of summary judgment.
In any event, plaintiff did not seek a trial de novo to
challenge the arbitration award or oppose Leer's motion to confirm
the award. See R. 4:21A-6. "Once the award is confirmed and a
judgment is entered, an appeal from the award or any interlocutory
order is barred." Grey v. Trump Castle Assocs., L.P., 367 N.J.
20 A-4307-14T1
Super. 443, 449 (App. Div. 2004). Reversal of summary judgment
against other defendants would not revive plaintiff's action
against Leer. Cf. Mettinger v. Globe Slicing Mach. Co., 153 N.J.
371, 389 (1998) (addressing contribution between defendants).
Affirmed.
21 A-4307-14T1