SAYTA SANKALP, LLC v. FIVE STAR AUCTION INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

SAYTA SANKALP, LLC, t/a

DOLLAR DREAM,

Plaintiffs-Appellants,

v.

FIVE STAR AUCTION, INC.,

Defendant-Respondent.

-

September 10, 2014

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-000495-09.

Marc L. Dembling argued the cause for appellants (Methfessel & Werbel, attorneys; Mr. Dembling, of counsel and on the brief; Christopher P. Ward, on the brief).

Neal A. Thakkar argued the cause for respondent (Sweeney & Sheehan, attorneys; Christopher J. O'Connell, of counsel; Mr. Thakkar, on the brief).

PER CURIAM

Plaintiff Satya Sankalp, LLC (Sankalp) appeals from the summary judgment dismissal of its complaint for damages as a result of a fire that occurred in defendant's building in 2008. On defendant's motion, the Law Division judge concluded plaintiff's expert rendered a net opinion when analyzing the cause of the fire. On appeal, plaintiff challenges the court's determination as error. We disagree with plaintiff and affirm.

I.

We derive these facts from the motion record, viewed in a light most favorable to plaintiff as the non-moving party. R. 4:46-2(c); Robinson v. Vivirito, 217 N.J. 199, 203 (2014). Plaintiff owned and operated a business trading as Dollar Dream, located in a four-unit strip mall known as Five Star Plaza, on Fifth Street in Salem. Defendant, Five Star Auction (Five Star), also operated a business at Five Star Plaza, occupying the space adjacent to plaintiff's unit. On March 25, 2008, a fire started in a warehouse section of the unit occupied by defendant, and then spread to plaintiff's unit, causing substantial damage. On February 9, 2009, plaintiff instituted this action against defendant, claiming the fire "was caused by the carelessness, negligence and recklessness" of defendant.

Following the fire, plaintiff retained John Oakley, C.F.E.I., to determine the origin and cause of the fire. Oakley conducted three days of scene examination on March 26, 2008, April 7, 2008, and April 12, 2008.

On the day of the fire, three of defendant's employees worked at the warehouse, loading a truck with merchandise for an auction in Philadelphia. They were Mike Hryckowian, the owner's son; Harold Cossadoon, a stockman/loader; and Joe Trala, a driver.

According to Oakley, on April 7, 2008, he spoke with Cossadoon, who confirmed he was a smoker. Oakley reported Cossadoon stated that although there is a "no smoking" policy in the building, Cossadoon had observed people smoking in the warehouse. On the same date, Oakley spoke with Hryckowian, who informed him that smoking is not allowed in the warehouse.

Five Star's warehouse was equipped with a security system that logged access to the building. On the day of the fire, the log showed Hryckowian entered the building at 9:19 a.m. and exited at 11:23 a.m., and then reentered at 3:22 p.m. and exited at 10:20 p.m. Cossadoon stated he left the premises not later than 8:00 p.m. The fire triggered Five Star's burglary alarm system at 11:16 p.m., and its fire alarm at 11:17 p.m.

At deposition, Cossadoon testified that, at the time of the fire, he had worked for defendant for about two years. He stated he smoked cigarettes in March 2008; he further testified, however, that no one was allowed to smoke in the warehouse, and he did not recall ever seeing anyone smoke in the warehouse. Cossadoon said he did not recall speaking to Oakley or telling anyone he had observed people smoking in the warehouse.

On April 12, 2008, Terence Duvall, P.E., an electrical engineer with National Forensics Engineering, examined the recovered wiring, lighting fixtures, and electrical components. He concluded these items were not the ignition source for the fire.

At deposition, John Dougherty, a fire investigator for defendant, testified he could not recall if he ever spoke to Cossadoon about the fire. Nevertheless, he found "[n]o physical evidence of smoking in the area. No physical evidence of smoking material at the point of origin."

Captain Rodman Meyer of the New Jersey Division of Fire Safety investigated the fire and said he eliminated careless discarding of smoking materials as the cause of the fire because of the statements of the building owner and the owner's son that "they absolutely did not allow anyone to smoke in the building." Captain Meyer concluded that the cause of the fire was "undetermined." Captain Meyer could not rule out "some accidental act or a deliberate act by the occupants of the building." However, he further explained that in "a smoking fire, . . . you may not find the remains of the filter or the cigarettes, but generally, a smoking fire is a slow much slower smoldering fire and you would have a longer timeframe tha[n] it would take for this fire to get going."

In his report, Oakley stated "that the fire originated in the north area of the . . . warehouse," where pallets were kept on the floor. Regarding the cause of the fire, Oakley stated:

The ignition sources for this fire, such as electrical, spontaneous combustion, weather-related conditions, and an intentional human act, we're considered, examined and eliminated.

. . . .

Based on the physical evidence, as well as facts developed through investigation, it is our opinion that the most probable cause of the fire is related to careless smoking.

In response to Oakley's report, defendant retained an expert, Frank Schwalje, P.E., who opined:

Mr. Oakley's concluding opinion that careless smoking was responsible for the fire in question lacks supporting data and fails to comply with the scientific methodology prescribed by NFPA 921[1] for testing hypotheses and eliminating all other feasible hypotheses. Accordingly, in the writer's opinion, Mr. Oakley's analysis and concluding opinion do not meet the requirements of NFPA 921 or a reasonable degree of scientific certainty and is, therefore, nothing more than pure speculation. In the absence of physical evidence or witness statements to confirm that careless smoking had occurred, this fire must be classified as undetermined.

Oakley addressed Schwalje's criticism in a supplemental report, stating:

During the course of our investigation, the testing of our hypothesis, in part, was through the acceptable thought experiments (cognitive) process. It has been tested and is well documented in the fire investigation and scientific community that a lit cigarette is a competent ignition source for the described ordinary combustibles disclosed at the point of origin of this fire; therefore, physical experimentation was not necessarily conduc[]ive in this matter.

Defendant moved for summary judgment, contending Oakley's opinions concerning the cause of the fire constituted an inadmissible net opinion. On February 17, 2012, the trial court denied the motion for summary judgment, finding that Oakley's opinion "is not a net opinion," and that his report "sufficiently gives the why and wherefore of his expert opinion . . . ."

Defendant moved for reconsideration, and on May 11, 2012, the court summarized defendant's argument:

[T]he problem that the defense points out is there is no one that can actually pinpoint [Cossadoon] smoking nor is there any evidence of habitual smoking in the area, which is admissible . . . . [T]his is a net opinion, because there is no factual basis for the conclusion . . . . if we had a witness that he was smoking there, then we wouldn't need the expert opinion, because it would therefore be for the jury to draw [its] own conclusions . . . .

After oral argument, the judge denied the motion for reconsideration, without prejudice to permit additional depositions. Thereafter, defendant renewed its motion for reconsideration. On February 8, 2013, the court granted the motion for reconsideration, striking the Oakley opinion as a net opinion and granting defendant's motion for summary judgment. This appeal followed.

II.

"In reviewing a grant of summary judgment, we apply the same standard as the motion judge." Fedor v. Nissan of N. Am., 432 N.J. Super. 303, 311 (App. Div. 2013) (citing EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 136 (App. Div. 2008)); see also Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Pursuant to Rule 4:46-2, we "consider 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. of Am., 142 N.J. 520, 540 (1995).

The admissibility of expert testimony is guided by N.J.R.E. 702 and 703. N.J.R.E. 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact 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." N.J.R.E. 703, which provides that "[t]he 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[,]" recognizes that an expert's opinion must be founded on "facts or data . . . ." Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008).

We apply a "deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Pomerantz Paper Corp. v. New Comm. Corp., 207 N.J. 344, 371 (2011). "[A] court must ensure that the proffered expert does not offer a mere net opinion." Id. at 372. A net opinion is "an expert's bare opinion that has no support in factual evidence or similar data . . . ." Ibid.

An expert witness's opinions that are not reasonably supported by the factual record and an explanatory analysis from the expert may be excluded as net opinion. Creanga v. Jardal, 185 N.J. 345, 360 (2005); accord Greenberg v. Pryszlak, 426 N.J. Super. 591, 607 (App. Div. 2012). In general, an expert should provide the "whys and wherefores" supporting his or her analysis. Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002). As this court has explained, "'[e]xpert testimony should not be received if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.'" Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div. 1996) (alteration in original) (quoting Vuocolo v. Diamond Shamrock Chem., 240 N.J. Super. 289, 299 (App. Div. 1990), certif. denied, 122 N.J. 333, (1990)), certif. denied, 146 N.J. 569 (1996).

"As a practical matter, a trial court confronted with an evidence determination precedent to ruling on a summary judgment motion squarely must address the evidence decision first." Estate of Hanges v. Met. Prop. & Cas. Ins., 202 N.J. 369, 384-85 (2010).

It is only after the trial court has made the findings required to either admit or exclude the proffered evidence and has made a ruling thereon that it may proceed to determine the then-pending summary judgment. On appeal, then, those rulings will be gauged separately: the evidentiary ruling under an abuse of discretion standard, and the legal conclusions undergirding the summary judgment motion itself on a plenary de novo basis.

[Id. at 385.]

As guided by the Court, we first address the motion judge's decision to bar, as a net opinion, Oakley's expert opinion that careless smoking caused the fire in defendant's warehouse. Plaintiff argues that the motion judge "improperly held that plaintiff's expert report was a net opinion." Defendant asserts the motion judge properly exercised his discretion, "recognized that this is a textbook net opinion, and barred it, accordingly."

The record shows smoking was not permitted in defendant's warehouse, the employees were aware of this rule, and all denied seeing anyone smoke in the building. While Cossadoon was a smoker, he left by 8 p.m., well over three hours before the fire set off the fire alarm. Without proof, Oakley's conclusion that the fire's cause was careless smoking is, at best, an educated guess, but does not rise to the level of an opinion stated with reasonable scientific certainty. See Dawson, supra, 289 N.J. Super. at 323.

Plaintiff argues an issue of fact remains for the jury to decide, namely, Oakley's claim that Cossadoon told him he saw people smoke in the warehouse, despite the no smoking policy. If there were sufficient facts and evidence to determine smoking as the cause of the fire, then Cossadoon's alleged statement could have relevance in identifying the person or persons responsible. However, Cossadoon's alleged statement does not create a genuine issue of material fact as to the cause of the fire.

We note that Captain Meyer concluded the fire likely did not result from a discarded lit cigarette, which would cause a slower, smoldering fire with a longer timeframe for the fire to get going. Similarly, defendant's expert, Schwalje, noted in his report, "[i]f alarms are both smoke and heat activated, as reported, a smoke condition should have activated the alarm far sooner than heat activating the alarm, if fire started low in pallet as alleged."

The record strongly supports the motion judge's conclusion that Oakley's opinion, as to the cause of the fire, "is a net opinion . . . devoid of supporting facts." The motion judge, having properly excluded Oakley's testimony as a net opinion, also properly granted summary judgment dismissal of plaintiff's complaint, as without such expert proof, no reasonable jury could have found negligence on the part of defendant.

Affirmed.

1 The National Fire Protection Association (NFPA) publishes NFPA 921, "Guide for Fire and Explosion Investigations", as a "guide for rendering accurate opinions as to incident origin, cause, responsibility, and prevention." http://www.nfpa.org/codes-and-standards/document-information-pages?mode=code&code=921
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