ALEJANDRO POPLAWSKI, et al. v. JOSEPH APPEZZATO BUILDING CONTRACTORS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7013-03T37013-03T3

A-7147-03T3

ALEJANDRO POPLAWSKI and

HELEN POPLAWSKI, his wife,

Plaintiffs-Appellants/

Cross-Respondents.

vs.

JOSEPH APPEZZATO BUILDING

CONTRACTORS, INC.

and/or JOSEPH APPEZZATO,

Defendants-Respondents/

Cross-Appellants,

and

JOSEPH APPEZZATO BUILDING

CONTRACTORS, INC.

and/or JOSEPH APPEZZATO,

Defendants/Third-Party

Plaintiffs-Respondents/

Cross-Appellants,

vs.

THE COLEMAN COMPANY, INC.,

Third-Party Defendant-

Respondent/Cross-Respondent.

_______________________________________

 

Argued: February 14, 2006 - Decided April 24, 2006

Before Judges Cuff, Parrillo, and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-11423-01.

George J. Shamy, Jr. argued the cause for appellants/cross-respondents (Shamy & Shamy, attorneys; Mr. Shamy, on the brief).

James L. Melhuish argued the cause for respondents/cross-appellants (Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, attorneys; Mr. Melhuish, of counsel and on the brief).

James H. Heller argued the cause for respondent/cross-respondent (Cozen O'Connor, attorneys; Mr. Heller and Terry N. Henry on the brief).

PER CURIAM

Plaintiff Alejandro Poplawski was injured when a propane space heater malfunctioned in a house in which he was working as a trim carpenter. He filed a complaint against defendants Joseph Appezzato Building Contractors, Inc. and/or Joseph Appezzato (Appezzato), the general contractor, alleging that it supplied defective and unsuitable equipment. He also asserted a products liability claim against fictitious defendants. Plaintiff appeals from an order denying his motion to amend his complaint to name third-party defendant The Coleman Company, Inc. (Coleman), the manufacturer of the propane heater, as a direct defendant and from another order granting Appezzato's motion for summary judgment and dismissing plaintiff's complaint. Appezzato appeals from the order granting summary judgment in favor of third-party defendant Coleman and dismissing its third-party complaint. We affirm.

On December 9, 1999, plaintiff was working as a subcontractor installing trim for Appezzato at a single family home in Montgomery Township. Appezzato had supplied a twenty-nine inch propane space heater for Poplawski's use, and on the morning of December 9, 1999, one of Poplawski's co-workers, Vladimir Babak, ignited the heater before Poplawski arrived for work. When he arrived at the building site, Poplawski noticed the building temperature was warm and went to adjust the heater located on the floor in the foyer.

According to plaintiff, when he approached the heater, he noticed the flame at the top was "way too much" and too hot. He bent over to adjust the propane valve with his right hand. As he adjusted the propane valve, however, the heater sprayed propane on his long-sleeve flannel shirt. An explosion occurred around the area of the valve that ignited Poplawski's left sleeve and badly burned his left arm, chest and upper back.

Plaintiff's expert, Ernest A. Niles, issued a report and was deposed. Niles testified that he inspected the heater on November 4, 2003, almost four years after the accident. The controls on the heater "operated as they were supposed to, with the exception that there was a flame coming out of the top at the full setting." At the time of his inspection, "there was actually flame coming out and licking the edges of the, of the cover." Niles testified that it is possible that the flame may be so hot it is not readily visible when propane is burning. Such a flame would be capable of igniting clothing or other substances.

During his inspection of the heater, Niles saw no indication or evidence of propane leaking from the heater. The heater's manifold pressure was in accordance with the instruction manual. He remarked, however, that if there is a source of ignition, like a burning heater, in the vicinity of propane that has escaped into the atmosphere, "you'd get an explosion, you'd get burning if there's an ignition source that close."

Based on his observations and Poplawski's testimony, Niles opined that Poplawski's shirts caught fire from flames escaping from the top of the heater and possibly down around the vent openings and control areas "due to potential leaks or whatever the cause of the flame down there." When he inspected the heater, he observed flames only at the top of the heater that were capable of igniting clothing. Based on Poplawski's testimony that there were flames around the vent and control areas, Niles opined that there were two possible sources of flame that could have ignited Poplawski's clothing. Moreover, Niles opined that the setup and arrangement of the subject heater was improper because "it allowed the flames to come through the top and from out into the approachable area around the heater." The flame created by the heater was excessive and unsafe because "it allowed tongues of flame to extend out beyond the top cap edges and into foreseeable and inadvertent personal approach areas during regular adjustment procedures."

On cross-examination, Niles conceded that his report indicates two possible causes of the excessive flames: Appezzato's inadequate maintenance or supervision of the equipment, or the manufacturer improperly set the regulator. Niles, however, could not determine which caused the accident. Niles further testified that extreme flames are frequently caused by an improper regulator setting, but a high flame can also be caused by using the wrong gas or inadequately setting the control. He identified three probable and likely causes of a potential leak: 1) an improper regulator setting; 2) an improper tightening of the connections between the hose and the heater unit when it was first installed and placed in the building by Appezzato; 3) or inadequate maintenance by Appezzato.

Niles testified that the top of the heater should have had flame arresters, which would have prevented the flames from extending beyond the cap and into an area around the heater. He indicated, however, that there is no government or industry standard that requires the use of flame arresters on construction heaters. Moreover, he opined that a warning should have been placed on the heater in an area where it would be easily seen.

Niles did not believe plaintiff was sprayed by propane, as related by plaintiff. Rather, he surmised it was more likely that a flame came out of the heater. Moreover, Niles conceded that if there was a design defect that caused the flame to come out of the top of the heater when it was on the highest setting, the flame would come out of the top every time the heater was set at that setting. Niles did not rule out a leak towards the bottom of the heater as one of the causes of the fire.

Judge Ciccone, the motion judge, held that plaintiff's expert, Niles, rendered a net opinion. In fact, Judge Ciccone held that plaintiff's expert "has no conclusion about what caused the alleged malfunction to the heater." She noted that plaintiff's expert could not determine whether plaintiff's injury was caused by flame from the top of the heater or a propane leak. Rather, Niles simply listed several potential causes.

To establish his claim against Appezzato, plaintiff was required to present evidence that the worksite and the equipment provided by Appezzato were unsafe. To do so, plaintiff was required to submit expert testimony because his claim was founded on information beyond the common expertise of the finder of fact, which in this case was a jury.

"Qualified expert testimony is admissible to assist the jury, N.J.R.E. 702, but there must be a factual and scientific basis for an expert's opinion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). New Jersey Rule of Evidence 703 governs the basis of expert opinion. It states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

[N.J.R.E. 703.]

Based upon this rule, "[a]n opinion lacking in foundation is worthless." Jimenez, supra, 286 N.J. Super. at 540. "An expert opinion that is not factually supported is a net opinion or mere hypothesis to which no weight need be accorded." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 43 (App. Div. 2003). "The net opinion rule is a prohibition against speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998). "'Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities.'" Ibid. (quoting Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990)).

The net opinion rule also "focuses upon 'the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.'" Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102 (App. Div. 2001) (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)). The doctrine is "a mere restatement of the established rule that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible." Buckelew, supra, 87 N.J. at 524. Where, as here, an expert offers an opinion without providing specific underlying reasons for the alleged malfunction, he fails to aid the trier of fact and becomes nothing more than an additional juror. Ibid.

In his report and deposition testimony, Niles offered several "possible" causes of Poplawski's injuries, but failed to conclude whether a design/manufacturing defect or Appezzato's negligence ultimately caused Poplawski's burns. While Niles concluded that the heater's flame was "excessive and unsafe," his report indicates two possible causes of the excessive flame: Appezzato's inadequate maintenance/supervision or Coleman's failure to properly set the regulator. Thus, on cross-examination, Niles conceded that he had "no way of determining" which caused the excessive flames.

In addition, Niles could not ascertain the cause of the propane leak that Poplawski claimed to have witnessed. Instead, he gave several potential reasons for the leak:

The extreme pressure at the burner area due to an improper regulator setting, an improper tightening of the connections between the hose and heater unit when it was first installed and placed in the building foyer by Mr. Appezzato, and/or inadequate prior maintenance of the unit by him, would all be probable and likely causes of the potential leak and small fire as indicated by Mr. Poplawski. (emphasis added.)

The highlighted language illustrates Niles' inability to isolate the cause of the condition that in turn caused the injury to plaintiff, as well as to identify the defect that allowed the equipment to malfunction. When questioned about these "potential" causes of the propane leak that plaintiff described, Niles testified that "they would all be probable and likely causes of a potential leak" and "it could be any one of them or it could be any combination of them . . . all are likely or probable reasons." When questioned about the regulator's setting and whether it was improperly set, Niles testified, "I am giving you potential reasons for a condition that was observed."

Moreover, even though Niles opined that there were several probable causes of the propane leak, his inspection of the heater did not disclose any evidence of a propane leak, and he also determined that the heater's manifold pressure was proper. Thus, Niles provided no more than a catalog of possible causes of plaintiff's injuries unsupported by ascertainable facts. Such an opinion does not serve the purpose of expert testimony because it provides no assistance to the jury in its fact-finding function. The motions for summary judgment were properly granted.

Plaintiff also appeals from the order denying his motion to substitute Coleman for a fictitious party defendant. He contends that he acted with due diligence. The record before the motion judge does not support this contention.

Rule 4:26-4, which governs fictitious-party practice, addresses the situation in which a plaintiff is aware of a cause of action against a defendant, but does not know that defendant's identity. Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11 (2005). Rule 4:26-4 provides:

In any action, irrespective of the amount in controversy, other than an action governed by R. 4:4-5 (affecting specific property or a res), if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained. If, however, defendant acknowledges his or her true name by written appearance or orally in open court, the complaint may be amended without notice and affidavit. No final judgment shall be entered against a person designated by a fictitious name.

[R. 4:26-4.]

Identification of a defendant by a fictitious name may be used only if a defendant's true name cannot be ascertained by the exercise of due diligence prior to filing the complaint. Mears v. Sandoz Pharms., Inc., 300 N.J. Super. 622, 631-33 (App. Div. 1997). If a defendant is properly identified by a fictitious name before expiration of the applicable limitations period, an amended complaint replacing the fictitious name with defendant's true name will relate back to the filing date of the original complaint. Viviano v. CBS, Inc., 101 N.J. 538, 548 (1986); Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 120-23 (1973). To be entitled to the benefit of this rule, a plaintiff must proceed with due diligence to ascertain the fictitiously identified defendant's true name and amend the complaint to correctly identify that defendant. Farrell, supra, 62 N.J. at 120; Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J. Super. 203, 208 (App. Div. 1999). In determining whether a plaintiff acted with due diligence in substituting the true name of a fictitious defendant, a key factor is whether the defendant has been prejudiced by the delay in its identification as a potentially liable party and in its service of the amended complaint. Farrell, supra, 62 N.J. at 122-23.

The purpose of this due diligence requirement is to prevent undue prejudice as a result of delay in defendant's awareness of the action. Johnston, supra, 326 N.J. Super. at 208. Nevertheless, even though "a defendant suffers some prejudice merely by the fact that it is exposed to potential liability for a lawsuit after the statute of limitations has run[,]" Mears, supra, 300 N.J. Super. at 631, absent evidence that "the lapse of time has resulted in a loss of evidence[,] impairment of ability to defend" or advantage to plaintiffs, "[j]ustice impels strongly towards affording the plaintiffs their day in court on the merits of their claim[.]" Farrell, supra, 62 N.J. at 122.

Here, plaintiffs filed a complaint against Appezzato on December 4, 2001. The second count of the complaint alleged that ABC Manufacturing Corp., a fictitious party, negligently and carelessly designed or manufactured the propane heater. Despite obtaining photographs of the heater depicting the Coleman brand name in June 2002, plaintiffs did not move to amend the complaint and replace ABC Manufacturing Corp. with Coleman until June 30, 2004, more than three years after plaintiffs filed the initial complaint and two years after receiving evidence of the identity of the manufacturer. While a complaint may be amended to reflect a defendant's true name after the statute of limitations has run, a court will deny leave to amend where a plaintiff had ample opportunity to discover the defendant's identity before the running of the statute. Matynska v. Fried, 175 N.J. 51, 53 (2002).

Plaintiff knew, at least by June 2002, that Coleman manufactured the heater. Nevertheless, plaintiff waited until November 2003 before enlisting an expert to examine the heater and then waited until June 2004 before moving to amend the complaint. Such action does not suggest diligence. Moreover, the prospect for prejudice is real. Coleman was first notified about Poplawski's accident in January 2004 when Appezzato served a third-party complaint. At that time, four years had passed since the accident, discovery had ended and Appezzato had continued to regularly use the heater. Coleman was thus precluded from investigating the heater and obtaining evidence within a reasonable time after the accident's occurrence and also prior to Appezzato's further use of the heater.

Plaintiffs' reliance on Claypotch v. Heller, Inc., 360 N.J. Super. 472 (App. Div. 2003), in support of their contention that Coleman would not be prejudiced if substituted as a direct defendant is misplaced. There, the manufacturer had been named as a third-party defendant more than a year before the end of the discovery deadline. Id. at 493. Therefore, this court held that leave to amend should have been granted because the manufacturer was already involved in the lawsuit and had an opportunity to participate in discovery. Id. at 480.

Here, after discovery had ended, defendant filed a third-party complaint thus precluding Coleman from participating in discovery. Moreover, unlike the plaintiff in Claypotch, who had a legitimate excuse for failing to ascertain the identity of the manufacturer within the limitations period, here plaintiffs knew the identity of the manufacturer at the inception of the litigation and waited over four years, two years past the applicable limitations period, to amend the complaint. Judge Ciccone properly denied the motion to amend the complaint.

Affirmed.

 

These appeals were consolidated by order dated December 6, 2004, with the Appezzato appellants in A-7147-03T3 deemed cross-appellants in the consolidated action.

His wife, Helen, is also a plaintiff. She has asserted a loss of consortium claim.

Plaintiff was wearing a long-sleeve flannel shirt and a long-sleeve thermal shirt.

(continued)

(continued)

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A-7013-03T3

April 24, 2006