ADRIANNEBRANDECKER individually and as Executrix and Executrix ad Prosequendum of the Estate of LORENZ BRANDECKER v. E&B MILL SUPPLY CO.; GENERAL ELECTRIC CO.; HOMASOTE COMPANY LAIRD PLASTICS, INC individually and as successor in-interest to Almac Plas
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5733-14T4
ADRIANNE BRANDECKER,
individually and as
Executrix and Executrix
ad Prosequendum of the
Estate of LORENZ BRANDECKER,
Plaintiff-Appellant,
v.
E&B MILL SUPPLY CO.; GENERAL
ELECTRIC CO.; HOMASOTE COMPANY;
LAIRD PLASTICS, INC.,
individually and as successor-
in-interest to Almac Plastics,
Inc.; ROHM AND HAAS CHEMICALS,
LLC; UNION CARBIDE CORP.;
UNIROYAL HOLDINGS, INC., f/k/a
Uniroyal, Inc.; CBS CORPORATION,
a Delaware corporation, f/k/a
VIACOM, INC., successor by
merger to CBS Corporation, a
Pennsylvania corporation, f/k/a
WESTINGHOUSE ELECTRIC CORP.;
and ROHM & HAAS COMPANY,
Defendants,
and
THE SCOTTS COMPANY, LLC,
Defendant-Respondent.
_______________________________________
Argued September 13, 2017 – Decided February 26, 2018
Before Judges Fuentes, Koblitz, and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No.
L-4662-12.
Jeffrey P. Blumstein argued the cause for
appellant (Szaferman, Lakind, Blumstein &
Blader, PC, and Levy Konigsberg, LLP,
attorneys; Mr. Blumstein, of counsel and on
the brief).
Lori Elliott Jarvis (Hunton & Williams, LLP)
of the Virginia Bar, admitted pro hac vice,
argued the cause for respondent (McCarter &
English, LLP, and Lori Elliott Jarvis,
attorneys; Lori Elliott Jarvis and Thomas R.
Waskom (Hunton & Williams, LLP) of the
Virginia Bar, admitted pro hac vice, of
counsel; John C. Garde, of counsel and on the
brief; Elizabeth Monahan, on the brief).
PER CURIAM
Adrianne Brandecker, individually and as Executrix and
Executrix ad Prosequendum of the Estate of Lorenz Brandecker,
appeals the July 10, 2015 Order of Disposition that dismissed the
case. She and the estate also appeal the August 21, 2015 order1
that denied their motion under Rule 4:50-1 to vacate orders that
were entered on January 10, 2014. The January 2014 orders excluded
1
The Notice of Appeal shows the date of July 10, 2015 and the
handwritten insertion of "8/21/15." The word "Judgment" is
underlined and that box is checked. We consider plaintiffs to
have appealed both the August 21, 2015 and July 10, 2015 orders.
2 A-5733-14T4
or limited the "report, opinions and testimony" of four of
plaintiffs' experts and then granted summary judgment to
defendant, The Scotts Company, LLC (Scotts), dismissing the
complaint, counterclaims, and cross-claims against Scotts.
We reverse the August 21, 2015 order as a misapplication of
the court's discretion and vacate the final judgment under Rule
4:50-1(b), based on new evidence. We leave to the trial court's
discretion to determine whether plaintiffs should be given
additional time to file a motion addressing the effect of the new
evidence on the January 2014 in limine and summary judgment orders.
We relate only such facts from the record as are necessary
for our determination.
I
Decedent Lorenz Brandecker, a cabinetmaker by trade, was
diagnosed with mesothelioma in March 2012 and died on October 20,
2012. Twice a year, from 1967 to 1980, he used a spreader to
apply two bags of Scotts Turf Builder (Turf Builder), a lawn
fertilizer, to the lawn of his property in Wayne Township.
Plaintiffs' theory of the case against Turf Builder is that its
fertilizer contained asbestos; decedent was exposed to this
carcinogen when opening the bags of that fertilizer or after its
3 A-5733-14T4
application to the lawn. He developed mesothelioma based on these
interactions with the product.
Turf Builder was manufactured by Scotts from vermiculite ore.
Until 1980, Scotts purchased ore from a mine in Libby, Montana.
No one disputes that the ore mined in Libby contained amphibole
asbestos. Two-thirds of the vermiculite ore used by Scotts from
1966 to 1980 came from the Libby mine.
Turf Builder was produced by heating the raw vermiculite ore,
causing it to "exfoliate," meaning that the non-vermiculite
materials would separate from the vermiculite. Then, the
vermiculite was "trionized" by coating it with a polymer resin
called urea. Plaintiffs contended that Turf Builder contained
asbestos which remained after the exfoliation process. Scotts
disputes this. Scotts contends that even if some asbestos remained
after exfoliation, the process of trionization coated the
vermiculite.
Before his death, Brandecker filed a complaint on July 6,
2012, against Scotts and other defendants.2 The complaint alleged
that he contracted mesothelioma from his exposure to asbestos-
containing products in his employment and from his exposure to
asbestos in Turf Builder. The complaint alleged liability for
2
The other defendants are not part of this appeal.
4 A-5733-14T4
breach of warranties, marketing of an ultra-hazardous product,
breach of a non-delegable duty to warn, and civil conspiracy. The
complaint also included a per quod claim by plaintiff Adrianne
Brandecker, decedent's wife. Scotts answered and discovery
commenced. Brandecker's trial testimony was preserved in a
videotaped de bene esse deposition. He also provided discovery
depositions. Following his death, an amended complaint was filed
in January 2013, naming Adrianne Brandecker individually and in
her capacity as executrix of the Estate of Lorenz Brandecker and
adding claims for wrongful death and pain and suffering.
Plaintiffs served discovery on Scotts, including requests for
admissions, supplemental interrogatories, and the production of
documents. Of relevance here, plaintiffs' admissions asked if
Scotts "possesses . . . samples of Turf Builder containing
vermiculite sourced from Libby, Montana." Scotts responded that
"it has in its possession a small sample of Turf Builder containing
vermiculite. However, Scotts is not able to determine the date
of manufacture of the Turf Builder or the source of the exfoliated
vermiculite in the Turf Builder." Plaintiffs also asked Scotts
to admit that it no longer possessed the samples referenced, to
which it responded that the "Request for Admission is admitted."
Plaintiffs sent follow-up supplemental interrogatories and
5 A-5733-14T4
requests for the production of documents about the samples. Scotts
responded by incorporating its responses and objections to
plaintiffs' requests for admissions. The discovery requests
included an instruction to supplement answers as a continuing
obligation.
Plaintiffs served reports from four expert witnesses. Sean
Fitzgerald, a geologist, mineralogist, and asbestos analyst,
opined about the presence of asbestos in Turf Builder even after
the exfoliation process and that the resin coating did not remove
the asbestos or prevent release. James Webber, Ph.D., an
environmental health scientist, opined that the vermiculite from
the Libby, Montana region was an asbestos-containing product and
that "use, disturbance, and/or manipulation" of these products can
result in "significant exposure to asbestos fibers." In addition,
exposure is "known to cause asbestos-related diseases including
mesothelioma." Tracey Carrillo, Ph.D., an agronomist, opined
about the decomposition of the polymer resin coating, which would
"decompose over time . . . exposing any asbestos fibers present."
Jacqueline Moline, M.D., whose report purported to link decedent's
level of exposure to the cause of the mesothelioma, concluded that
decedent's "exposures to . . . insulating boards and to the Scotts
fertilizer products were substantial contributing factors to the
6 A-5733-14T4
development of his mesothelioma." She relied on the opinions of
Fitzgerald and Carrillo.
Scotts' initial summary judgment motion in May 2013, was
withdrawn while discovery continued. However, Scotts again filed
for summary judgment in October 2013. Scotts argued that
Brandecker was not "regularly, frequently or proximately" exposed
to asbestos from Turf Builder and even if he were, he admitted
that he would not have heeded the package warnings. Scotts relied,
in part, on the testing of their products by outside laboratories.
Scotts was critical of both Fitzgerald and Webber because
"[n]either ha[d] identified a positive test for amphibole asbestos
fibers in Scotts Turf Builder. Both instead rel[ied] on testing
[of] vermiculite insulation manufactured by W.R. Grace, not
Scotts." Scotts criticized the reliance by plaintiffs' experts
on an EPA draft document regarding the "toxicological review" of
the conditions in Libby because the document "says nothing about
the purported contamination of the Scotts Turf Builder final
product." In November 2013, plaintiffs filed opposition to the
summary judgment motion, including reports and certifications from
their experts.
7 A-5733-14T4
While the summary judgment motion was pending, Scotts filed
in limine motions to bar all or portions of plaintiffs' four expert
reports. The in limine motions were opposed by plaintiffs.
The trial court heard the summary judgment and in limine
motions on December 19, 2013. Scotts' in limine motions were
granted on January 10, 2014. The trial judge excluded Fitzgerald's
opinions, finding he unreasonably relied on a preliminary draft
of an EPA document that was "not intended to be a comprehensive
treatise on the agent or toxicological nature of Libby [a]mphibole
asbestos." The document did not constitute a learned treatise
that could reasonably be relied on by an expert witness. The
trial court concluded that Fitzgerald could not "establish a proper
factual basis or conclusion for his opinions." However, the
deposition of Drew Van Orden, Scott's expert, did allow the court
to make a reasonable inference that "expanded vermiculite ore
could contain asbestos fibers."
The judge excluded Webber's report and testimony because
during his deposition, he "was unable to state within a reasonable
degree of scientific certainty or whether it was more or less
likely to occur that an individual consumer using [d]efendant's
turf builder would be exposed to friable asbestos." The court
noted that Scotts submitted deposition testimony from Richard
8 A-5733-14T4
Martinez that Libby, Montana ore had been tested in 1977 and 1978,
with both tests showing, according to the judge, "that a consumer
is not exposed to asbestos fibers in the normal application of
Turf Builder [to] lawns."
Carrillo's admissible testimony was limited by the court to
"how a fertilizer affects plant life and how a fertilizer releases
its nutrients into the soil" because Carrillo had stated in his
deposition that he could not "give an opinion as to the release
of asbestos fibers."
Moline's testimony was excluded because she relied on the
opinions of Carrillo and Fitzgerald and that without that
testimony, she "cannot provide the court with an adequate basis
to establish [the deceased]'s exposure to friable asbestos."
Scotts' summary judgment motion was granted on January 10,
2014. Citing to the cases of Sholtis v. Am. Cyanamid Co.,
238 N.J. Super. 8 (App. Div. 1989), and James v. Bessemer Processing
Co.,
155 N.J. 279 (1998), the court held that "no evidence is
contained in the record that would allow a reasonable inference
that following [Scotts'] coating process any asbestos fibers
possibly contained in the vermiculite remained respirable." This
was so even though Scotts did not dispute for purposes of the
9 A-5733-14T4
motion that it used Libby, Montana mined vermiculite ore
contaminated with asbestos.
The court found a reasonable inference could be made that
"the fertilizer used by [the decedent] contained vermiculite ore
mined from Libby, Montana," and also that "a reasonable inference
could be made that expanded vermiculite ore could contain asbestos
fibers." Finding that Dr. Carrillo could not "give an opinion on
the breakdown of [Scotts'] product prior to it being applied to
the ground or whether any asbestos fibers were present or released
once applied," the court found that plaintiffs could not "establish
that [the deceased] was exposed to friable asbestos on a regular
and frequent basis when he opened the bag of Scotts Turf Builder
or during the process of applying Scotts Turf Builder to his lawn."
The case proceeded against the remaining defendant, Homasote
Company. After we denied leave to appeal the January 10, 2014
orders, plaintiffs and Homasote reached a settlement. All of the
asbestos cases statewide, including this one, were consolidated
before another judge. That judge entered the final judgment on
July 10, 2015, that dismissed this case.
10 A-5733-14T4
In May 2015, plaintiffs' counsel learned by their
representation of another plaintiff3 that Scotts had in its
possession twenty-six pre-1980 "vintage" samples of its trionized
product, one sample of which had been exfoliated, that Scotts
believed were manufactured when the vermiculite was obtained from
the Libby mine. In May 2015, Scotts served notice about these
samples in the Fishbain case, but not in the Brandecker case where
Scotts had been dismissed on summary judgement.
Scotts disclosed that the twenty-six samples came from
Scotts' headquarters and had been there since 1979. In 2006,
Scotts' attorneys "categorized and stored" these samples as part
of a litigation sweep. Scotts rediscovered them in the Spring of
2014 and provided the samples to its expert, William Longo, but
without notifying other parties or the court. Longo tested the
samples and then the samples were lost or destroyed.
On July 19, 2015, plaintiffs filed a motion under Rule 4:50-
1 to vacate the January 10, 2014 in limine and summary judgment
orders, and requested to restore the case to the active docket.
Plaintiffs alleged that the vintage samples constituted newly
discovered evidence under Rule 4:50-1(b), and that Scotts' answers
3
The other case is Fishbain v. Colgate-Palmolive Co., Docket No.
MID-L-56633-13AS.
11 A-5733-14T4
to discovery and failure to disclose the samples constituted
misrepresentations under Rule 4:50-1(c). Plaintiffs also relied
on Rule 4:50-1(f). Plaintiffs alleged that Scotts' in limine
motions were critical of plaintiffs for having failed to test
samples of vermiculite from the pre-1980 timeframe. Plaintiffs
argued that Fitzgerald's testimony was barred by the trial court
on this basis. Fitzgerald certified in the Fishbain case that
Longo did not perform testing on the samples that was adequate to
determine whether asbestos was released into the environment by
the product. Scotts opposed the motion.
On August 21, 2015, the trial court denied plaintiffs' motion
to vacate. The court found it was undisputed that the vintage
samples of the trionized product had been in Scotts' possession
since 1979, had been collected by Scotts' counsel in 2006 as part
of a "litigation sweep" and then "categorized." The court found
that Scotts had a "duty" to provide the vintage samples under the
discovery rules. Nonetheless, the court denied plaintiffs' motion
on procedural grounds, finding that Rule 4:50-1 only applied to
final orders and judgments, and not to the January 10, 2014 orders,
which were interlocutory.
On appeal, plaintiffs claim that the court erred in denying
their motion to vacate the January 10, 2014 orders under Rule
12 A-5733-14T4
4:50-1. Because the motion was timely filed within days of the
final judgment and before any appeal, plaintiffs contend it should
have been decided based on the merits. Plaintiffs also allege the
trial court erred in 2014 by granting the in limine and summary
judgment motions. Those alleged errors include that the trial
court failed to acknowledge evidence presented by plaintiffs, and
that the court erred in excluding or limiting reports and testimony
by Fitzgerald, Webber, Carrillo, and Moline.
II
"[A] motion for vacation of judgment is addressed to the
sound discretion of the trial court, whose resolution of the motion
will not be disturbed on appeal unless it results from a clear
abuse of discretion." In re Adoption of Child of Indian Heritage,
111 N.J. 155 (1988). Rule 4:50-1 allows for vacation of a judgment
for:
(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under R. 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
13 A-5733-14T4
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.
[R. 4:50-1.]
Motions made under Rule 4:50-1 shall "be made within a
reasonable time, and for reasons (a), (b) and (c) of R[ule] 4:50-
1, not more than one year after the judgment, order or proceeding
was entered or taken." R. 4:50-2. Plaintiffs sought relief under
Rule 4:50-1, but did not ask to vacate the final judgment; they
asked instead to vacate the January 2014 in limine and summary
judgment orders.
The court's denial on procedural grounds of plaintiffs' Rule
4:50-1 motion was a misapplication of discretion. Although
plaintiffs could have challenged the January 2014 interlocutory
orders under Rule 4:49-2 at any time before entry of the final
judgment, after its entry, plaintiffs were required to proceed
under "the strict and exacting standards" of Rule 4:50-1. Johnson
v. Cyklop Strapping Corp.,
220 N.J. Super. 250, 257 (App. Div.
1987); Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on
R. 4:50-1 (2018) ("This rule applies only to final orders and
judgments."). Plaintiffs’ failure to seek reconsideration of the
trial court’s 2014 interlocutory order pursuant to Rule 4:49-2
14 A-5733-14T4
does not bar them from filing a timely motion to vacate a final
judgment under Rule 4:50-1.
The trial court found that Scotts had a duty to disclose its
possession of the vintage samples.4 We agree. "[Rule] 4:17-7
provides that where a party who has furnished answers to
interrogatories thereafter obtains information rendering the
answers incomplete or inaccurate, 'amended answers shall be served
not later than [twenty] days prior to the date first fixed for
trial.'" Westphal v. Guarino,
163 N.J. Super. 139, 145 (App. Div.
1978) (quoting R. 4:17-7). Rule 4:18-1(b)(3) obligates a party
who has furnished a written response to a request for production
to thereafter produce "additional documents that are responsive
to the request." It is not disputed that information about the
vintage samples was not provided to plaintiffs in discovery.
We do not know what affect knowledge about the vintage samples
would have had on the outcome of the in limine or summary judgment
motions. We do know that the in limine motions criticized
plaintiffs' experts, particularly Fitzgerald, for not having
tested samples of vermiculate from the Libby Mine, by relying on
a draft EPA report and by not testing Turf Builder from the
applicable time frames.
4
Scotts has not cross-appealed.
15 A-5733-14T4
The effect of the trial court's order denying plaintiffs'
motion to vacate under Rule 4:50-1 was to leave plaintiffs without
a remedy before the trial court to address the discovery violation
after it was revealed. It also left us without a record to
determine whether the discovery violation would have altered the
court's decision on the in limine or the summary judgment motions.
A final judgment can be vacated based on "newly discovered
evidence which would probably alter the judgment or orders and
whether by due diligence could not have been discovered in time
to move for a new trial under Rule 4:49." R. 4:50-1(b). "To
obtain relief from a judgment based on newly discovered evidence,
the party seeking relief must demonstrate 'that the evidence would
probably have changed the result, that it was unobtainable by the
exercise of due diligence for use at the trial, and that the
evidence was not merely cumulative.' All three requirements must
be met." DEG, LLC v. Twp. of Fairfield,
198 N.J. 242, 264 (2009)
(quoting Quick Chek Food Stores v. Twp. of Springfield,
83 N.J.
438, 445 (1980)).
Plaintiffs satisfied the intendment of Rule 4:50-1(b).
Plaintiffs did not know about the samples before the orders were
entered; the evidence was not cumulative, but something new. If
plaintiffs had the ability to test the samples, they could have
16 A-5733-14T4
refuted the criticism that it was inappropriately relying on draft
reports and testing of materials other than Turf Builder.
We reverse the August 21, 2015 order as a misapplication of
the court's discretion. We also vacate the final judgment of July
2015 under Rule 4:50-1(b) based on the new evidence related to
vintage samples. We leave to the discretion of the trial court
to determine whether plaintiffs should be given additional time
to file a motion addressing the effect of the discovery violation
on the in limine and summary judgment orders.
Reversed and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
17 A-5733-14T4
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