2009 – EVIDENCE/DISCOVERY 

Often having what appears to be a good case, claim or defense can be lost for lack of the necessary evidence to support it.  Evidence may come from your own files or from your adversaries’ records through discovery.  The courts spend considerable time in parsing through evidentiary and discovery issues.  Some of the more significant holdings during 2009 follow. 

Electronic Records

Stengart v. Loving Care Agency Inc. (Law Div. Bergen County Jan. 2009) Unpublished           

In this non-construction case, the Law Division was faced with an employee/employer dispute and whether e-mails sent by the employee to her attorney on her employer’s e-mail account were protected from discovery.  The Court found, based upon a written policy of the employer that was provided to employees and which specifically advised that e-mails were not to be considered private, that the employee was not entitled to protection of these communications. 

            While not a construction case, this case emphasizes the growing involvement of electronic communications in the litigation discovery process, the need for persons using e-mail communications to exercise care and for employers to have well articulated written and disseminated policies surrounding employee computer use. 

Expert Opinions - Mold

Smith v. Northridge at Edison, et al (App. Div. Oct., 2009) Unpublished 

            Defendants had sought summary judgment on the basis that plaintiff’s doctor had rendered only inadmissible “net opinions” on a mold contamination claim.  The Appellate Division found that although the doctor had not personally reviewed the premises, nor had identified the specific species of mold spore that had caused plaintiff’s symptoms, the doctor was entitled to rely upon the findings of the industrial hygienist who had inspected the premises and to rely upon the history as provided by plaintiff and his own examinations and diagnoses in reaching opinions.  As such, the Court found that the doctor’s opinions were more than “bare conclusions unsupported by factual evidence.”  

While this case was not brought in the context of a construction dispute, mold and resultant personal injury claims have often been brought in construction based claims involving leaks and water/moisture penetration or HVAC system defects. 

Late Expert Opinions/Net Opinions

APS Contractors, Inc. v. School District for the Chathams (App. Div. April, 2009) Unpublished 

            In this appeal from a $1.45 million verdict in favor of the contractor against the school district on claims for changed and extra work, the Court was faced primarily with issues dealing with the expert report submitted by the defendant school district.  After the time for discovery had passed, the district tried to submit an expert report defending against plaintiff’s claims and asserting construction defects.  The Court found that exceptional circumstances had not been shown to allow a late submitted report and that the trial court’s suppression was appropriate.  The Court further found that following an evidentiary hearing of the district’s expert, that he was unable to establish that he had satisfactory support for his opinions on corrective work pricing and that his opinions were, therefore, inadmissible “net opinions.”  The Court found that the expert was not able to “give the why and wherefore of his…opinion”. 

Vitale v Seibert (App. Div. December, 2009) Unpublished 

            In another case where the testimony and opinions of an “expert” (here an architect”) were being challenged as representing a “net opinion, not supported by accepted standards”, the Court found that although the specific opinions that the defendant architect failed to meet appropriate professional standards by not referring an observed structural issue to an engineer, were not supported by any articulated written standard, source or text, there was sufficient support through the testimony that the consensus of architects was that when confronted with substantial structural defects, the standard of care was to recommend reference of the problem to engineers.  The Court found that this was a “relatively self-evident proposition” and did not violate the rule against “net opinions”.

 Over-reaching Claims; Loss of Credibility

Lucca Contracting, Inc. v. Targan, et al  (App. Div. Oct, 2009) Unpublished 

            In this case, a site contractor sought unpaid contract and consequential sums from a developer.  Factually, the case dealt with confusion over certain elevations of curbing and sidewalks with the removal and replacement of portions or the installed areas.  The contractor had failed to receive payments claimed under the contract and left the site before completion.  Among its claimed damages were three judgments rendered against it that it claimed to have suffered as a result of the developer’s breach.  The jury found in favor of the contractor in a sum below what it had claimed.  The appeal focused upon credibility issues arising out of evidence that at least two of the claimed judgments were not associated with the project and in fact one was against a separate entity.  The Court found that the Trial Court’s allowance of developer’s counsel to cross examine and impeach the contractor’s credibility, the ability of counsel to against raise the credibility issue during closing argument and the Court’s instructions to the jury which advised it to disregard the affected judgments, satisfactorily cured any error that had resulted by way of allowing the contractor to initially identify the judgments.

Proof of Damages

Benjamin v. Lizarbe, et al (App. Div. July, 2009) Unpublished           

In this case, the Appellate Division analyzed damages calculations on a home improvement contract, where consumer fraud was not at issue.  Where the contractor had apparently performed roughly 50% of the contract work, but had been paid the full contract price and the owner paid roughly another $10,000 in addition to have the project completed, the owner’s damages would be calculated by the “cost to complete.”  The Court was faced with use of the “difference-in-value” formula for damages as opposed to the cost to complete.  Where the actual cost to complete is known, the Court ruled that the difference-in-value approach would not be applicable.   

From a practical standpoint, since the owner had originally contracted to have the work performed at a certain price, his actual damages would be the difference between what he paid and what the contracted price had been, whether he had paid some or all of that price to the defaulting contractor. 

Expert Testimony Required on Condo Unit Damage Claim

Mann v. Harris (App. Div., January, 2009) Unpublished           

Where plaintiff, a condominium unit owner, produced no expert testimony to conclude that a water leak in his unit was the result of leakage from pipes or other sources from the unit immediately above him, the Court would not allow the claim against the unit owner above to stand.  The Court found that there had been no evidence produced to show that the defendant failed to either exercise due care in respect to any leak, or even that he had exclusive control over any plumbing that caused the damage. 

Ordinary Home Seller Not Subject to Consumer Fraud Claims; Lack of Evidence of Knowledge of  Defects, Lazar v. Braverman (App. Div., January, 2009) Unpublished 

            In this dispute between buyers and sellers of a single family home that included claims by the buyers of violations of the Consumer Fraud Act (“CFA”) and of concealment of defective conditions, the Court rejected these claims.  The Court found that the CFA does not apply to individual home sellers who are not in the business of selling houses.  It also found that the buyers had not been able to present proofs that the sellers were aware of, had caused or had concealed the defective conditions.

                                                                                  CURETON CLARK, P.C.                                                                                   James H. Landgraf, Esq.