STEVEN MAKAI VS. WINSTON TOWERS 200 ASSOCIATION, INC. (L-0275-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2742-18T1
STEVEN MAKAI and
BECKY CHACKO,
Plaintiffs-Appellants,
v.
WINSTON TOWERS
200 ASSOCIATION, INC.,
RCP MANAGEMENT
COMPANY, BHB INSURANCE
SERVICES, and BARBARA
LOMBARDI,
Defendants-Respondents,
and
RAMESH MEHTA, J&Y
CONSTRUCTION COMPANY,
JACQUELINE CORDOVA
and/or JULIAN CORDOVA,
partners and owners, and
JULIAN CORDOVA,
Individually, and GREENWAY
PLUMBING AND HEATING CORP.,
Defendants,
and
WINSTON TOWERS 200
ASSOCIATION INC.,
Defendant/Third-Party
Plaintiff-Respondent,
v.
BHB INSURANCE SERVICES
and BARBARA LOMBARDI,
Defendants/Third-Party
Defendants-Respondents,
and
RAMESH MEHTA,
Third-Party Plaintiff,
v.
J&Y CONSTRUCTION
COMPANY, JACQUELINE
CORDOVA and/or
JULIAN CORDOVA,
partners and owners
and JULIAN CORDOVA
Individually,
Third-Party Defendants.
________________________
Argued November 9, 2020 – Decided December 9, 2020
Before Judges Sabatino, Currier and Gooden Brown.
A-2742-18T1
2
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-0275-16.
Daniel Lebersfeld argued the cause for appellants
(Franzblau Dratch, PC, attorneys; Brian M. Dratch, of
counsel and on the briefs).
Michael T. Caufield argued the cause for respondents
Winston Towers 200 Association, Inc. (Schepisi &
McLaughlin, PA, attorneys; Michael T. Caulfield, on
the brief).
Timothy E. Burke argued the cause for respondents
RCP Management Company (McElroy, Deutsch,
Mulvaney & Carpenter, LLP, attorneys; Timothy E.
Burke, of counsel and on the brief).
Robert E. Campbell argued the cause for respondents
BHB Insurance Services and Barbara Lombardi (White
and Williams LLP, attorneys; Robert E. Campbell and
Christopher P. Leise, on the brief).
PER CURIAM
This case concerns water leaks in a residential unit within a high-rise
condominium building in Cliffside Park known as Winston Towers 200. The thirty-
one-story building, one of two towers, was constructed in 1973 on the grounds of
the former Palisades Amusement Park.
The complex is overseen by a condominium association, Winston Towers 200
Association, Inc. ("the association"). The association engages a separate firm, RCP
Management Company ("RCP"), to manage the premises.
A-2742-18T1
3
Plaintiffs Steven Makai and Becky Chacko bought Unit 1720 within Winston
Towers in 2013. After they moved in, plaintiffs started to renovate their master
bathroom. Their bathroom contractor noticed mold behind the walls, so plaintiffs
retained a mold remediation expert, Charles Schwartz. Schwartz substantially traced
the mold to water emanating from Unit 1820 directly above plaintiffs' unit. That
upstairs unit is owned by Ramesh Mehta, who had been renovating his own
bathroom.
Mehta’s contractor, J&Y Construction Company, attempted to repair the
leaks, but mold spots returned in Unit 1720. Concerned about the mold spots for
health reasons, Makai temporarily vacated the premises until the mold and water
problem was finally abated. Makai claims he lost income because he was not able
to work from home during the time the mold persisted.
Plaintiffs sued Mehta, J&Y, the condominium association, its management
company RCP, and various other parties for negligence in failing to act reasonably
to prevent the mold and water infiltration. The association named its insurance
broker, BHB Insurance Services and claims manager Barbara Lombardi, as third-
A-2742-18T1
4
party defendants for failing to procure mold coverage.1 Extensive discovery
overseen by the Law Division ensued.
Eventually plaintiffs settled with Mehta and J&Y for an undisclosed sum.
They are now pursuing the association and RCP for additional damages.
Plaintiffs argue the association had a duty to warn them about latent mold and
water leakage behind the walls. They contend such a duty is consistent with this
court's opinion in Siddons v. Cook, 382 N.J. Super. 1 (App. Div. 2005) (holding that
a condominium association, based on its knowledge of widespread problems, had a
duty to warn unit owners that dishwasher hoses in their units were prone to leaks).
To support their causation argument that the water infiltrated their unit from
common areas within the association's purview, plaintiffs rely upon the report of
their expert, Schwartz. In that regard, they note Schwartz's hypothesis that the leaks
may be attributed, at least in part, to long-standing "historical" water problems
within the tower. Plaintiffs also attempt to rely upon expert opinions of Robert
Strode, an industrial hygienist who had originally been retained by Mehta. In his
expert report prepared for Mehta before the settlement, Strode opined the water leaks
in Unit 1720 predominantly did not come from Mehta's unit above.
1
Because of the trial court's dismissal of claims against the association, the
court never needed to address the viability of those coverage claims.
A-2742-18T1
5
The trial court granted the association and RCP summary judgment. Among
other things, the court found plaintiffs lacked what it deemed to be a necessary expert
on building management practices. The court also found plaintiffs had no expert
showing, with an appropriate evidential foundation, that the cause of the leaks to
Unit 1720 stemmed from any common areas in the building.
Although it did not need to reach damages issues, the court dismissed
plaintiffs’ claims for lost income and bodily injury damages. It imposed those
sanctions upon plaintiffs for failure to cooperate in discovery in scheduling a
physician's deposition and obtaining requested tax records.
Plaintiffs now appeal, mainly arguing that the trial court erred in concluding
their claims against the association and RCP lack sufficient expert support. They
further argue the court misapplied its discretion in imposing severe discovery
sanctions against them on the damages issues.
For the reasons to follow, we affirm the summary judgment order. Although
we disagree with certain aspects of the trial court's analysis, we likewise conclude
plaintiffs have not marshalled sufficient expert support to establish the leaks to their
unit originated in common areas. Consequently, plaintiffs have no viable claims
against the association and RCP. Because of that failure to establish liability, we
need not grant any relief as to the damages-related discovery sanctions.
A-2742-18T1
6
I.
Familiar principles guide our analysis of the trial court's summary
judgment order. Summary judgment "must be granted if 'the pleadings,
depositions, answers to interrogatories and admissions on file, together with t he
affidavits, if any, show 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.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R.
4:46-2(c)). The court must decide whether "the competent evidential materials
presented, when viewed in the light most favorable to the non-moving party, 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., 142 N.J. 520,
540 (1995). We review de novo the grant or denial of a motion for summary
judgment. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 349-50 (2016).
A.
To perform our review, we first consider the legal framework for
plaintiff's claims against the association and its management firm, RCP.
A condominium association is composed of unit owners, N.J.S.A. 46:8B-
9, -12, -12.1, and "is responsible for the administration and management of the
condominium." Siddons, 382 N.J. Super. at 6 (App. Div. 2005) (citing N.J.S.A.
A-2742-18T1
7
46:8B-8, -12). An association's operations are informed by the Condominium
Act, N.J.S.A. 46:8B-1 to -38, as well as the contents of the master deed and the
condominium by-laws. Siddons, 382 N.J. Super. at 6 (citing N.J.S.A. 46:8B-13,
-14, -15).
By statute, a condominium association is responsible for the
"maintenance, repair or replacement of any common elements therein or
accessible therefrom or for making emergency repairs necessary to prevent
damage to common elements or to any other unit or units." N.J.S.A. 46:8B-
15(b) (emphasis added). A unit owner nevertheless remains liable "for injuries
or damages resulting from an accident in his own unit in the same manner and
the same extent as the owner of any other real estate." N.J.S.A. 46:8B-16(c)
(emphasis added).
Here, the By-Laws and Master Deed for Winston Towers 200 reiterate this
important distinction between common areas and private unit areas. The overall
administration, management, maintenance, repair, and operation of the Winston
Towers 200 building is governed by the By-Laws of the association. Section 3
of the By-Laws, which governs damage to the property, provides:
If the damage is only to those parts of one Apartment
Unit for which the responsibilities of maintenance and
repair are those of the Unit Owner, then the Unit Owner
A-2742-18T1
8
shall be responsible for reconstruction and repair after
casualty.
[(Emphasis added).]
The property rights of the association and the owner of each residential unit
within Winston Towers 200 are further governed by the Master Deed. The Master
Deed defines the term "Apartment Unit" as follows:
(d) "Apartment Unit" shall mean a part of the Building
designed and intended for independent use as a private
dwelling and shall consist of the interior walls and
partitions which are contained within the private
dwelling and shall also consist of the inner decorated
and/or finished surfaces of the perimeter walls, floors
and ceilings, including dri-wall [sic], paint, wallpaper,
etc. contained in the dwelling, as shown on the Survey,
but shall not mean any part of the Common Elements
situated within the Apartment Units.
[(Emphasis added).]
The Master Deed defines "Common Elements" as follows:
(f) "Common Elements" shall consist of all parts of the
Property other than the Apartment Units, including the
items set forth in the Condominium Act, and the rights
of the Association pursuant to the Additional
Recreational Facilities Agreement annexed hereto and
made a part hereof as Exhibit A, subject to the terms,
provisions, conditions and charges thereunder.
[(Emphasis added).]
A-2742-18T1
9
The Master Deed provides that each unit owner "shall furnish and be
responsible for, at his own expense, all of the maintenance, repairs and replacements
within his own Apartment Unit," which include "the refrigerators, ranges and other
kitchen appliances and lighting fixtures and other electrical appliances and plumbing
fixtures . . . ." In contrast, the Master Deed provides that the maintenance, repairs
and replacements to be made to the Common Elements "shall be furnished by the
Association as part of the common Expenses."
In addition, a fellow unit owner—such as Mehta here—may be liable for
causing damage to either (1) common areas or (2) the apartments of other unit
owners in the building. As the Master Deed specifies:
If, due to the negligent act or omission of a Unit Owner,
or of a member of his family or household pet or of a
guest or other authorized occupant or visitor of such
Unit Owner, damage shall be caused to the Common
Elements or to an Apartment Unit or Apartment Units
owned by others, or maintenance, repairs, or
replacements shall be required which would otherwise
be at the Common Expense, then such Unit Owner shall
pay for such damage and such maintenance, repairs and
replacements to the Common Elements or the
Apartment Units . . . .
[(Emphasis added).]
A-2742-18T1
10
B.
The functions of the association in the present case were substantially
delegated to RCP, which the association hired in January 2008 to serve as its
Managing Agent. A management agreement between RCP and the association
defined RCP’s duties to the association and its members. That agreement delineates
RCP’s obligations to unit owners as follows:
The Managing Agent shall maintain businesslike
relations with condominium unit owners and with all
tenants and residents of the Condominium, all of whose
service requests and complaints shall be received,
considered, acted upon, and recorded systematically,
showing the action taken with respect to each. Requests
deemed by the Managing Agent to be unreasonable,
outside the scope of its responsibilities or those of the
Association, or those of a serious nature, shall, after
thorough investigation, be reported to the Board with
appropriate recommendations.
[(Emphasis added).]
Regardless of any contract it may have with a management firm, the
governing body of a condominium association "has a fiduciary obligation to the
unit owners 'similar to that of a corporate board to its shareholders.'" Siddons,
382 N.J. Super. at 7 (quoting Kim v. Flagship Condo. Owners Ass'n, 327 N.J.
Super. 544, 550 (App. Div. 2000)). Condominium association board members
are required to "act reasonably and in good faith in carrying out their duties."
A-2742-18T1
11
Jennings v. Borough of Highlands, 418 N.J. Super. 405, 421 (App. Div. 2011)
(quoting Papalexiou v. Tower West Condo., 167 N.J. Super. 516, 527 (Ch. Div.
1979)).
To sustain a cause of action for negligence against a condominium
association, like any other negligence claim, "a plaintiff must establish four
elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and
(4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo
v. Cnty. of Essex, 196 N.J. 569, 584 (2008)).
"Whether a duty exists is a matter of law, to be decided by the court, not
the factfinder." Siddons, 382 N.J. Super. at 8 (citing Rogers v. Bree, 329 N.J.
Super. 197, 201 (App. Div. 2000)). When determining the existence of a duty,
courts consider fairness, public policy, and foreseeability of injury to others
from a defendant’s conduct. Snyder v. Am. Ass’n of Blood Banks, 144 N.J.
269, 292 (1996).
In Siddons, the key case plaintiffs rest upon in alleging the association's
liability, we illustrated how these concepts of duty and negligence operate.
There, the plaintiff’s condominium unit was flooded by water from a broken
dishwasher hose in another unit. Id. at 5. The condominium association was
aware that similar hoses had previously broken and caused flooding in other
A-2742-18T1
12
units. Ibid. The trial court granted the association’s summary judgment motion,
finding it owed no duty to warn the plaintiff about the potential flooding hazard.
Ibid. We reversed.
Although the plaintiff in Siddons conceded that the dishwasher was not a
common area the association was responsible for maintaining, we reasoned that
"under some circumstances the knowledge of a dangerous condition, regardless
of control over that condition, may impose upon a person a duty to warn third
parties of the danger. Those circumstances exist here." Id. at 10. Before the
flooding incident in Siddons that damaged the plaintiff’s unit, the association
had been notified on "at least three occasions that the dishwasher hoses that had
been installed by the original developer caused flooding to other condominium
units." Id. at 11. This information was not known by most of the unit owners.
In that particular factual setting, we held it would not have been unreasonably
burdensome for the association to have a duty to notify the unit owners about
the hazard. Ibid. Consequently, we vacated summary judgment in Siddons and
remanded the matter for a trial. Id. at 14.
Tracking these principles, plaintiffs contend the association had a
fiduciary duty to "preserve and protect the common elements and areas for the
benefit of all of its members," and failed to do so here. According to plaintiffs,
A-2742-18T1
13
two expert opinions concluded that water infiltration into their unit came from
the common elements of the building, which the association and RCP are
responsible for by statute and contractual agreement.
Plaintiffs cite in this regard to a history of water infiltration in the building
dating back to as early as 1998, fifteen years before they moved into the unit,
where there was leaking associated with the curtain wall windows in unspecified
other units. Plaintiffs also point to water intrusion in the building from a water
main leak during boiler replacement work in 2013, as well as previous mold
testing between 2009 and 2011 that was a "repeated" topic of discussion at board
meetings between 2010 and 2012.
C.
In the first part of its summary judgment analysis, the trial court ruled that
plaintiffs could not pursue their negligence claims against the association and
RCP because they did not retain an expert witness on condominium association
management practices. Under the circumstances presented here, we disagree
that such an expert is vital to support these negligence claims alleging
unreasonable conduct or lack of action.
As a general matter of evidence law, N.J.R.E. 702 provides that "[i]f
scientific, technical, or other specialized knowledge will assist the trier of fact
A-2742-18T1
14
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise." (Emphasis added).
Expert testimony "should not be permitted unless it concerns a subject
matter that is 'so distinctively related to some science, profession, business or
occupation as to be beyond the ken of the average layman.'" Jacobs v. Jersey
Cent. Power & Light Co., 452 N.J. Super. 494, 505 (App. Div. 2017) (emphasis
added) (quoting Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence,
cmt. 1 on N.J.R.E. 702 (2017)). Expert testimony is not necessary when the jury
can understand the concepts in a case "utilizing common judgment and
experience." Ibid. (quoting Campbell v. Hastings, 348 N.J. Super. 264, 270
(App. Div. 2002)); see also Mayer v. Once Upon A Rose, Inc., 429 N.J. Super.
365 (App. Div. 2013) (holding that an expert to opine on the physical properties
of glass was not required to support plaintiff's claim that a defendant negligently
held a glass vase and caused it to shatter).
By contrast, "expert testimony is required when 'a subject is so esoteric
that jurors of common judgment and experience cannot form a valid
conclusion.'" Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993)
(quoting Wyatt by Caldwell v. Wyatt, N.J. Super. 580, 591 (App. Div. 1987));
A-2742-18T1
15
see also Ford Motor Credit Co., LLC v. Medola, 427 N.J. Super. 226, 239 (App.
Div. 2012) (requiring a qualified expert to opine on esoteric issues involving a
complex instrumentality to determine why car engine seized).
In Jacobs, 452 N.J. Super. at 497, a negligence case, we ruled that the
plaintiff was not required to retain an expert to establish the standard of care of
a public utility company when the plaintiff fell in a hole in the ground left by
the utility for two months after performing electrical repairs. We rejected the
defendant’s argument that a jury could not determine without an expert whether
its actions were negligent, because as a public utility company it was heavily
regulated by the State. Id. at 506. We reasoned, "[a]lthough electrical power is
undoubtedly a complex and technical subject matter that often would call for
expert insight, [the] plaintiff in this case was not harmed by an electrical shock
or surge. She simply fell into . . . a hole in the ground, a hole which the jurors
reasonably found to have been left unattended too long." Id. at 508 (emphasis
added). The jury was readily capable of determining without expert assistance
whether the utility company acted negligently by leaving a hole in the ground
for two months with no durable warning signs on the ground by the plaintiff’s
home. Id. at 507. A basic standard of reasonable care was sufficient to guide
the jurors. Ibid.
A-2742-18T1
16
Here, that same basic standard of reasonableness likewise could be
applied by jurors to defendants' conduct in light of their common judgment and
experience. If, as plaintiffs allege, the leaks into their unit were caused by water
infiltration from common areas, and the association and RCP had reason to be
aware of such persisting hazards, the jurors would be capable of evaluating
whether those defendants were unreasonable in failing to do anything about the
problem. It is not an "esoteric" question.
In fact, there is no indication in Siddons that the plaintiff in that case
retained an expert on condominium management practices. Nor did our opinion
in Siddons say that such an expert was required to show the association had been
unreasonable. We therefore part company with the trial court in its declaration
that such an expert was required here. To be sure, plaintiff's case might have
been strengthened by calling such an expert, but one was not absolutely
necessary.
D.
That said, the expert deficiency that does sink plaintiffs here concerns not
proving breach of a duty, but causation. We agree with the trial court that
plaintiffs failed to establish, with appropriate expert opinion, that the damage in
A-2742-18T1
17
their unit was caused by water leaks from common areas. Plaintiffs' reliance on
the expert reports of Strode and Schwartz is unavailing, for several reasons.
We begin with Strode. As we have noted, Strode was retained by
defendant Mehta in an effort to try to show the water and mold in plaintiffs' unit
was not caused, or substantially caused, by water leaking from Mehta's upstairs
unit. Strode is a certified industrial hygienist "with a background in evaluating
the workplace and environment for potential hazards with regard to work
practices, measuring and evaluating exposures to various substances, and
determining and controlling the nature and extent of health risks in occupational
settings." In his expert report, Strode states he is familiar with "the evolution of
knowledge with respect to fungi (aka mold) in the field of industrial hygiene."
He is not an engineer.
Strode concluded in his report that "[a]lthough Unit 1820 has also had
Property-related water intrusions over the years, there was no indication that any
water originating from Unit 1820 had entered Unit 1720 prior to or after
September 2014, when it was alleged that water originated from the master
bedroom shower in Unit 1820 dripped into Unit 1720 during the remediation
activities [in Unit 1720]." His report further noted that "[a]lthough there
appeared to be some historical leaking associated with the curtain wall windows
A-2742-18T1
18
in Unit 1720, it did not appear that Mr. Makai, Ms. Chacko, or EASI requested
or performed any investigation or remediation under or around the exterior wall
where the windows were located." Along those lines, "[t]he Association board
meeting documents . . . support the presence of historical curtain wall window
leaks [in the building] and that consultants were hired as early as 1998 to
investigate the cause of the leaks."
Strode further opined in his report "[t]he water intrusion, if any,
originating in Unit 1820 would have been de minimis and insufficient to have
been a substantial factor in the water intrusion and/or potential fungal growth in
the interstitial spaces of the Unit 1720 walls . . . ." Instead, Strode stated "Unit
1720 apparently experienced numerous long-standing historical water intrusion
events and at least one significant water intrusion event associated with a water
main leak during boiler replacement work in 2013." He added, "[t]he conditions
observed in the interstitial spaces during invasive investigation and remediation
. . . indicate that long-standing and/or significant water intrusion events were
the cause of the fungal growth in these areas."
As a threshold procedural question, we agree with the trial court that
plaintiffs did not have the right to call Strode as their own expert witness after
they consummated a settlement with Mehta. That is because the deadline for
A-2742-18T1
19
plaintiffs to designate additional expert witnesses under the court's case
management orders had expired more than three months earlier.
The pertinent chronology is as follows. On September 28, 2017 the trial
court ordered that "the discovery end date [("DED")] in this matter is January
29, 2018." About a month later, on October 30, 2017, the court issued a
superseding management order requiring plaintiffs to serve all expert reports by
December 17, 2017. The court thereafter entered an order on December 15,
2017 extending the DED to May 1, 2018.
Plaintiffs received a further extension of time for their experts on January
5, 2018, when the court issued an order mandating that "plaintiff[s] shall
exchange expert reports." On April 13, 2018, the court issued another extension
order, specifying "that defendants shall serve any and all expert reports, in
response to any expert report timely served by plaintiffs by February 16, 2018,
on or before June 1, 2018." (Emphasis added). In a fifth case management order
issued on June 11, 2018, the court ordered that "in the event that any defendant
or third-party defendant should timely serve an expert report, between July 2,
2018 and August 1, 2018, that . . . [the parties] shall have until September 1,
2018 to serve an expert report responding to that defendant or third -party
defendant's report."
A-2742-18T1
20
In their earlier answers to interrogatories, plaintiffs identified Schwartz,
their mold remediation consultant, as an expert witness on liability. Plaintiffs
also reserved the right to supplement their response as to which experts they
intended to rely upon at trial.
On May 1, 2018, plaintiffs' counsel wrote a letter to counsel for the
Association, RCP, and BHB, announcing that plaintiffs "reserve[d] the right to
call Robert D. Strod[e] as an expert at the time of trial in this matter," and
accordingly "amend[ed] answers to interrogatories to include same." Notably,
plaintiffs did not tender an amended report from Strode. Instead, they simply
relied on the report he had originally prepared for Mehta in fending off plaintiffs'
claims of Mehta's responsibility.
During the oral argument on the summary judgment motions, the trial
court disallowed plaintiffs from using Strode as their own expert, under a
premise that plaintiffs had not retained him. We are not sure if that premise is
correct. Plaintiffs were not required to present to the court a retention letter or
other documentation confirming that Strode had agreed to serve as their expert
and the terms of that retention.
We will presume that the May 1 letter from plaintiffs' counsel was based
upon a good faith representation that Strode had agreed to testify for plaintiffs.
A-2742-18T1
21
The problem, as we have noted, is that the deadline for plaintiff to designate
additional expert witnesses had already lapsed in February, after multiple
extensions. The trial court is afforded wide latitude in managing pretrial
discovery. Abtrax Pharms., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995).
In order for that oversight to be successful, the parties must adhere to the
deadlines specified in case management orders. Appellate courts generally will
not interfere with discovery and pretrial case management rulings unless it is
demonstrated that the trial court abused its discretion. Id. at 517.
Given the chronology here, we are unpersuaded the trial court abused its
discretion in ruling that plaintiffs could not rely on Strode as their own expert.
It appears that plaintiffs originally targeted their efforts in this case heavily
against Mehta, arguing that water had leaked into their unit from Mehta's due to
his renovation activities. Strode's expert report was generated as part of Mehta's
defense of those allegations, and plaintiffs' original liability expert Schwartz
apparently did not amend his report to address any of Strode's opinions.
It was not until after plaintiffs achieved a settlement with Mehta did they
pivot, in essence, their liability focus to the association and RCP. Their adoption
of Strode's report as part of that late shift was after the court's specified deadline,
and hence too late.
A-2742-18T1
22
We are aware that Rule 4:17-7 provides that except as otherwise provided
by Rule 4:17-4(e), "if a party who has furnished answers to interrogatories
thereafter obtains information that renders such answers incomplete or
inaccurate, amended answers shall be served not later than 20 days prior to the
end of the discovery period, as fixed by the track assignment or subsequent
order." This provision did not entitle plaintiffs to disregard the February 2018
deadline for their expert reports and belatedly expand their expert designations
in May 2018 without the court's permission.
We are mindful that defendants had already received Strode's report from
Mehta's counsel and would not have been surprised by his opinions.
Nonetheless, the late designation of Strode as part of plaintiffs' case -in-chief
was never sanctioned by the trial court, and we will not interfere with that case
management decision.
Even, assuming, for the sake of discussion, we were to reverse the trial
court's procedural ruling as to Strode, the content of his report and his
qualifications and methodology fall short in supporting plaintiffs on the critical
issue of causation. These deficiencies likewise pertain to plaintiffs' expert
A-2742-18T1
23
Schwartz, whose opinions on causation the trial court expressly and soundly
rejected, for the reasons we now explore. 2
Schwartz has been certified by the American Council for Accredited
Certification as a microbial consultant, as well as an indoor environmental
consultant, indoor air quality consultant, and microbial remediation supervisor.
Like Strode, Schwartz is not an engineer.
Plaintiffs initially retained Schwartz to take air samples of their unit.
Schwartz inspected the unit in July 2014. He found evidence of mold on the
surface of the inside of the wall cavity between plaintiffs' hall bathroom and the
common-area hallway. He also detected mold spores "in low concentrations" in
the master bedroom and master bathroom. 3
During their investigation of the source of the water infiltration, building
maintenance staff located an active leak in the wall of the master bath of Unit
1720, which they concluded was likely causing water to flow through the wall
of plaintiffs' bathroom into the wall space next to it. A mold remediation project
thereafter was undertaken in August 2014.
2
Our discussion is confined to the contents of the liability experts' reports, as
there were apparently no expert depositions taken.
3
The record on appeal does not contain a copy of the mold test report.
A-2742-18T1
24
In September 2014, after plaintiffs' contractor had gutted both bathrooms,
it discovered water dripping through an opening in the slab between Unit 1720
and the unit above, Unit 1820. Chacko reported this new leak to RCP's office.
The leak was identified immediately above the space between the common-area
hallway and the hall bathroom of Unit 1720, which adjoins the wall space
between the hall bathroom and the master bathroom. Building maintenance staff
suspected the water in Unit 1720 was coming from a bathroom upstairs in Unit
1820.
The maintenance staff contacted Mehta and obtained his cooperation in
conducting a test to confirm that his shower was the source of the water
infiltration in Unit 1720. The workers opened up the wall outside of Unit 1820
in order to pinpoint the source of the leak into Unit 1720. They concluded the
leak into Unit 1720 was coming from Unit 1820. Accordingly, repairs to the
upstairs unit were conducted, and the reconstruction and remediation of
plaintiffs' unit were completed.
In October 2015, Schwartz's firm issued a post mold remediation
clearance report, confirming there was no more evidence of mold in Unit 1720.
However, Makai asked the firm to return to look for "any other mold issues."
Schwartz's company did so in November 2015 and found moisture in the floor
A-2742-18T1
25
in a hallway and in two rooms, as well as evidence of water damage on a wall
near the kitchen exhaust shaft. These findings indicated the initial repairs and
remediation had been inadequate.
Schwartz recommended further mold remediation, which was performed
by the same contractor who had conducted the first remediation project.
Thereafter, Schwartz's firm did further mold tests and concluded that air
throughout plaintiffs' unit now "met clearance criteria."
Schwartz issued an expert report in connection with this litigation in
February 2018. Among other things, his report concluded that "our moisture
and assessment services identified several separate mold growth impacted areas
in apartment 1720 which were caused by historical building system leaks pre-
existing to and not caused by the residents of apartment 1720, Mr. Makai and
Mrs. Chacko."
The trial court found such conclusory assertions to be inadequate to
support plaintiffs' causation arguments against the association and RCP.
Accordingly, the court dismissed plaintiffs' claims for lack of competent expert
proof of causation.
On appeal, defendants echo the court's reasoning. They argue that
Schwartz, a mold specialist who is not an engineer, lacks the qualifications to
A-2742-18T1
26
attribute the cause of the water damage in plaintiffs' unit to systemic water
infiltration in this massive building. They further contend Schwartz's attribution
to such systemic causes emanating from common areas is an inadmissible "net
opinion," noting that he did not perform testing with a proper methodology that
could determine such causation. We agree.
A fundamental element of any negligence case is proximate causation.
Rappaport v. Nichols, 31 N.J. 188, 203 (1959); Camp v. Jiffy Lube No. 114, 309
N.J. Super. 305, 309-11 (App. Div. 1998). Here, establishing such causation is
a complicated, "esoteric" task, which requires the admissible opinions of a
qualified expert. Wyatt, 217 N.J. Super. at 591.
We do not question Schwartz's credentials as a highly qualified mold
specialist. But his expertise is inadequate to provide a jury with an appropriate
evidential foundation to conclude that the leaks in this case originated from
common areas in the building. He did not rely on the building's engineering
records or plans, even though they were made available to him. He and his
company made no expert observations of water presently leaking through the
windows or migrating from common elements during the time frame of
plaintiffs' problems. The only testing done by Schwartz's firm, as indicated by
A-2742-18T1
27
in the report, was to detect the presence of mold in the air and surfaces, not to
trace water flow through the building.
Similar deficiencies are patent in Strode's analysis. Although Strode has
extensive credentials as an experienced industrial hygienist with a master's
degree in microbiology, he too is not an engineer. 4 He did not perform forensic
testing that could establish, with a proper methodology, that the water in
plaintiffs' unit originated from common elements. In fact, Strode never
inspected the site. He confined his expert report to a review of documents and
transcripts. Cf. Townsend, 221 N.J. at 57 (in excluding a causation expert under
the net opinion doctrine, the Court noted the expert "took no measurements" and
"did not apply his engineering expertise to present empirical evidence" that
supported the plaintiffs' liability theory).
Strode's conclusion, like that of Schwartz, that the leaks in plaintiffs' unit
were the result of historical water infiltration within the building are
inadmissible net opinion.
4
See N.J.S.A. 45:8-28(b) (defining the profession of engineering to entail "the
application of special knowledge of the mathematical, physical and engineering
sciences to such services [as] . . . [the] investigation, evaluation, planning and
design of engineering works and systems, planning for the use of land and water
. . . in connection with any engineering project including . . . structures [and]
buildings").
A-2742-18T1
28
The doctrine barring the admission of net opinions is a "corollary of
[N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other data."
Townsend, 221 N.J. at 53-54 (alterations in original) (quoting Polzo, 196 N.J. at
583). The net opinion principle requires that experts "give the why and
wherefore" supporting their opinions, "rather than . . . mere conclusion[s]." Id.
at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115,
144 (2013)).
Experts must "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 (quoting Landrigan v. Celotex Corp., 127
N.J. 404, 417 (1992)). An expert's conclusion should be excluded "if it is 'based
merely on unfounded speculation and unquantified possibilities.'" Ibid. (quoting
Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)). "[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. (emphasis added); see
also Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 401 (2014); Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 373 (2011).
A-2742-18T1
29
In the present case, we agree that plaintiffs have not presented competent
expert opinion, based upon a sound methodology, to support their theory of
causation against the association and RCP. 5 Consequently, we affirm summary
judgment in favor of those defendants.
II.
We need not reach plaintiffs' arguments concerning the discovery
sanctions, as they relate solely to damages.
All other points raised on appeal lack sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
Affirmed.
5
We are mindful the record contains documents showing the building has had
numerous problems of water leaks during its three-decade history, and that the
association's board minutes reflect concerns about leaks in past years.
Nonetheless, such lay and anecdotal proof is not sufficient to support plaintiffs'
claim that the damage to their own unit was proximately caused by water leaking
from common areas. Proper expert support was vital.
A-2742-18T1
30