Opinion
DOCKET NO. A-0186-11T2
04-18-2013
LEANDRO R. NISTICO and MICHAEL STEWART, Plaintiffs-Appellants, v. BORGATA HOTEL CASINO & SPA, MARINA DISTRICT DEVELOPMENT CORPORATION, LLC, a joint venture of BOYD ATLANTIC CITY, INC., a wholly owned subsidiary of BOYD GAMING CORPORATION, INC. AND MAC CORPORATION, a wholly owned subsidiary of MIRAGE RESORTS, INC., BOYD GAMING CORPORATION, INC., OLSON COMPANY, INC., WEATHERBY CONSTRUCTION & RENOVATION CORPORATION, J&R CONSTRUCTION, LLC, TRACEY STUSSY AND BOOM METIX, INC., Defendants, and YATES TISHMAN CONSTRUCTION CORPORATION, a joint venture of W.G. YATES & SONS CONSTRUCTION COMPANY and TISHMAN CONSTRUCTION CORPORATION, an affiliate of the TISHMAN REALTY AND CONSTRUCTION COMPANY, and COMMERCE RISK CONTROL SERVICES, Defendants-Respondents.
Dominic R. DePamphilis argued the cause for appellants (D'Amato Law Firm, P.C., attorneys; Mr. DePamphilis, on the brief). Jeffrey S. Bell argued the cause for respondent Yates Tishman, A Joint Venture (Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., attorneys; Mr. Bell, of counsel; Rey O. Villanueva, on the brief). Nancy L. Siegel argued the cause for respondent Commerce Risk Control Services (White and Williams LLP, attorneys; Ms. Siegel, of counsel; Jared K. Levy and Ms. Siegel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Sabatino and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2042-07.
Dominic R. DePamphilis argued the cause for appellants (D'Amato Law Firm, P.C., attorneys; Mr. DePamphilis, on the brief).
Jeffrey S. Bell argued the cause for respondent Yates Tishman, A Joint Venture (Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., attorneys; Mr. Bell, of counsel; Rey O. Villanueva, on the brief).
Nancy L. Siegel argued the cause for respondent Commerce Risk Control Services (White and Williams LLP, attorneys; Ms. Siegel, of counsel; Jared K. Levy and Ms. Siegel, on the brief). PER CURIAM
Plaintiffs, Leandro Nistico and Michael Stewart, workers injured in an accident during the construction of The Water Club at Atlantic City's Borgata Hotel Casino & Spa, appeal from a pretrial order barring their liability expert's testimony as a net opinion and from the subsequent summary judgment dismissal of their personal injury negligence complaint against defendants Yates Tishman Construction Corporation (Yates Tishman) and Commerce Risk Control Services (Commerce). We affirm.
The salient facts giving rise to these orders are largely undisputed. Plaintiffs were employed by Weatherby Construction & Renovation Corporation to perform masonry work at the site. At the time of the accident on December 12, 2006, a weld on section C of a Putzmeister Concrete Placing Boom Pump failed, and the boom fell into the wet concrete where plaintiffs were working. The boom struck plaintiffs, injuring them.
According to an April 15, 2010 report prepared by Paul K. Goldberg, P.E., of Consulting Engineers & Scientists, Inc., the pump was used to transport concrete to the higher floors of the building during construction. The concrete pump included a "folding boom" that provided support to a flexible pipe through which concrete was pumped. That folding boom could be folded into a "Z" position when it was moved. When the accident occurred, the boom was extended, and the failure occurred in section C, the third of four sections.
The boom was owned and operated by J&R Delaware, Inc. (J&R). About eighteen months before the accident, J&R contracted with Olson Company, Inc. (Olson Company) to make repairs to the boom. While performing the repairs, an employee of Olson Company, Tracy Stussy, apparently had applied heat to section C of the boom in an attempt to straighten it. According to another employee, Mark Olson, heating metal distorts it and reduces the metal's strength. By heating the metal, Olson explained, "[y]ou make it more brittle instead of being able to flex, it will then just break." After Stussy and Olson performed the repairs to the boom, J&R painted the entire boom blue. According to Olson, it was necessary to paint the boom:
The primer and the paint on this equipment is [] very important to protect the material of the boom. The concrete and just the environment and being in the [e]ast [coast] with the salt air without the protection of the paint, starts chewing at the boom pretty fast.
After the boom was painted, it was brought to the Borgata construction site on October 2, 2006. An employee of J&R was operating the boom at the time of the accident. He had visually inspected the equipment just prior to the accident and found no defects.
Yates Tishman served as the construction manager at the Borgata site. In connection with the project, Yates Tishman instituted a safety program through Commerce, its safety consultant at the site, who was retained to, among other things, conduct daily inspections of the heavy machinery at the site. The daily inspections included performing a visual examination of the boom. In addition, Yates Tishman would hold weekly staff meetings to discuss safety issues at the site. According to an employee of Yates Tishman, a visual inspection of the boom was conducted before each use, and nothing ever appeared to be wrong with this piece of equipment before the instant accident.
There appears to be no serious dispute that the welding was faulty. At issue instead was defendants' failure to detect the faulty welding by a proper inspection.
On this point, plaintiffs retained Stephen Estrin, a professional engineer, as their expert in construction safety and liability. He agreed with Goldberg's earlier finding of faulty welding. Estrin, however, further concluded that Yates Tishman and Commerce, among other entities, were partially responsible for the failure of the boom.
Estrin opined
to a reasonable degree of construction means/methods, welding certainty, that the weld on the C arm, third section of the concrete placing boom broke because of:
1. inadequate penetration, heat to a greater depth in base metal, backer plates;
2. lack of fusion, lack of the flow/mixing of the base metal with the weld metal;
3. inadequate filler metal as a result of grinding down of the weld flush with the surface of the C arm.
[I]t is Mr. Estrin's opinion, to a reasonable degree of construction management and construction safety certainty, that Commerce's failure to comply with their
contractual obligation to inspect daily for 29 C.F.R. 1926, revised compliance, specifically Section 1926.702(e)(1), was a proximate/root cause of the [p]laintiffs' accident and injuries on December 12, 2006. As such, they acted unreasonably under the circumstances. Their failure is assignable to [Yates Tishman] as it was Mr. DeVille's responsibility to ensure that Commerce complied with [its] contractual obligations.
In support of this conclusion, Estrin further opined that the recently painted boom should have been a "red flag" that necessitated more than a visual inspection of the boom, to include an additional tactile examination and, if indicated, a closer inspection of the weld by x-ray. Estrin's expert report detailed the proper inspections that should have been conducted when the boom was found to be freshly painted:
Inspections of construction equipment cannot simply be visual, particularly when a part has been painted more recently than the rest of the equipment [—] placing boom. "Hands on" is required to detect repairs if a weld is not readily apparent visually, as it should be. Once a roughness, discontinuity, is felt under a hand, the paint is required to be removed in the area and a closer look, visual inspection made.
. . . .
What a proper inspection of the weld after the paint had been removed would have shown was that the weld on the C arm had been ground off to make it flush with the remaining portions of the C arm[.] This would also have been a "red flag" because grinding down a weld to that extent removes the filler metal to a questionable amount,
necessitating a detailed inspection of the weld by x-ray. That would not have been a problem on a job such as the North Tower where x-ray testing of welds would have been commonplace.
Defendants filed motions in limine to bar Estrin's testimony and report as improper net opinion, and attendant motions for summary judgment. In response to those motions, plaintiffs submitted a supplemental certification from Estrin, in which he repeated his "fresh paint" theory. Following argument, the judge granted these motions, reasoning in part:
Earlier, plaintiffs agreed to a stipulation of dismissal with prejudice as to defendants Boyd Atlantic City, Inc., Boyd Gaming Corporation, Inc., MAC, Corporation, and Mirage Resorts, Inc., and subsequent thereto, as to defendants Borgata Hotel & Casino & Spa and Marina District Development Corporation, LLC, a joint venture of Boyd Atlantic City, Inc. and MAC, Corporation. Still later, plaintiffs settled with Olson Company, Inc., Boom Medix, Inc. and Tracy L. Stussy, and an order dismissing plaintiffs' claims against those parties with prejudice was entered on October 18, 2010. Thereafter, plaintiffs settled with J&R Construction.
[I]t's a net opinion for a couple reasons:
. . . .
I have to agree with defense counsel when we start talking about freshly-painted steel as being some sort of red flag. I don't know by who. You know, . . . I don't know . . . by whose standards.
. . . .
Mr. Estrin is an advocate. It is clear that he is not here to educate anybody except about his personal opinions and it is clear
that he has a . . . position that he wishes to advance, that he wishes to advocate and I have much difficulty permitting an expert to be an advocate before a jury or myself.
The motion judge later amplified his decision, in a letter submitted pursuant to Rule 2:5-1(b), further reasoning:
[Estrin's] report and the proffered testimony are not to educate a fact finder but, rather, to advance a position based upon his personal opinions.
Mr. Estrin's report cites no standard of practice, regulations or learned treatises to support his contention that the property owner and its contractors had a duty to conduct the type of inspection he states is required. In lieu of providing an objective basis for his opinion, he relies upon a story from 1962 [] told by his father regarding a defective piece of structural steel at a construction project in The Bronx, New York. The story is quaint, but not probative.
The photos and the entire record provide "context" for how unrealistic Mr. Estrin's requirements are. Despite conceding that failure of a concrete placing boom is "rare" [] he would have the [d]efendant scrape the paint from the massive steel arm of a crane, tactilely examine it and then x-ray it. His justification for doing so is the 1962 incident recalled to him by his father.
The pivotal portion of his opinion is the "red flag" of freshly painted steel. While he never makes clear the part of the crane nor how much of the crane needs to be painted before it becomes a "red flag" thus necessitating this thorough examination, what is clear is that his opinion has nothing to do with how things work in the
real world at large construction sites involving multi-party contractors.
On appeal, plaintiffs principally argue that the motion judge erred in excluding Estrin's proffered testimony as a net opinion. We disagree.
I
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 Cmty. 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.) (quoting Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 299 (App. Div.), certif. denied, 122 N.J. 333 (1990)) (alteration in original), certif. denied, 146 N.J. 569 (1996).
"[I]f an expert cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is 'personal,' it fails because it is a mere net opinion." Pomerantz, supra, 207 N.J. at 373. Indeed, this court has stressed that "opinion testimony 'must relate to generally accepted . . . standards, not merely to standards personal to the witness.'" Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999) (quoting Fernandez v. Baruch, 52 N.J. 127, 131 (1968)); see also Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001) (discussing that the court in Taylor was "concerned by the 'the total absence in [plaintiff's expert's] testimony of reference to any text book, treatise, standard, custom or recognized practice, other than his personal view.'" (quoting Taylor, supra, 319 N.J. Super. at 182) (alteration in original)). "A standard which is personal to the expert is equivalent to a net opinion." Taylor, supra, 319 N.J. Super. at 180.
"Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience." Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002). Indeed, in a case involving an expert testifying about battered women, our Supreme Court found that an expert's "education, training, and most importantly, her experience, provided a sound foundation for her opinion and that her opinion was not a net opinion." State v. Townsend, 186 N.J. 473, 495 (2006).
Here, Estrin was unable to point to any objective industry standard, nor any type of documentary or written support, for his opinion that the existence of fresh paint was a red flag and required a hands-on inspection.
In his deposition, Estrin admitted as much:
Q.: I think you told [counsel] that we couldn't consult any book to find the requirement that freshly, newly-painted equipment should alert someone — a safety consultant to do a hands on inspection?
ESTRIN: That's correct.
. . . .
Q.: Putting standards aside, have you ever seen any written material which requires that a hands on testing be done when there's evidence of fresh paint?
ESTRIN: I taught it —
Q.: That wasn't my question. Have you ever seen anything written?
ESTRIN: No.
In fact, Estrin's own safety manual for use by his contractors does not contain a warning to conduct inspections — much less detailed examinations — of recently painted concrete pumping booms. Nor did the written materials drafted by the boom's manufacturer contain any requirement for a hands-on inspection.
Again, in his deposition, Estrin acknowledged:
Q.: What does your book say about concrete pumping booms?
ESTRIN: Nothing.
Q.: Does it say anything about . . . how a proper inspection should occur to a concrete pumping boom specifically?
ESTRIN: No.
Q.: Does it say anything about what to do when you see a concrete pumping boom have new, fresh paint on it?
ESTRIN: No. That's my job. That doesn't go for anybody else. I know that. I tell that to my people who work for me. But I'm the guy who does — on my job I inspect all the equipment.
Q.: And will you agree with me that none of the written materials that Putzmeister provided suggests that a safety consultant do a hands-on inspection of the equipment?
ESTRIN: Correct.
Rather, the exclusive basis for Estrin's red flag theory lies in a personal experience shared with his father, which the expert has since orally passed along to those working directly for him:
[I]n 1962, as a young construction superintendent, Mr. Estrin was erecting the intermediate bearing structural steel for a 7-story apartment house with two floors of parking below on Giles Place, in the Bronx, New York. The steel arrived on the job painted gray. Mr. Estrin was aware that the specifications called for the top flanges to be painted, but did not see the entire members being painted as a "red flag".
When the "picking" of the steel began, the General Superintendent, Hyman Estrin, arrived at the jobsite and immediately stopped the "pick" and inspected the steel. He then directed the crane operator to lift the rigged beam, swing it out and drop it on the ground from a height of approximately 5 feet. When the beam landed, the plugs that had been used to fill in the holes that had been made from the steel having previously been used, popped out. H. Estrin rejected the steel immediately and called for a detailed inspection of the steel and it was found to have been in a fire and then
straightened by heating by the design engineers.
From that time on, Mr. Estrin also has seen the painting of construction materials and equipment as a "red flag," requiring immediate action to be taken.
[(Emphasis added).]
To be sure, Estrin has extensive experience in the construction industry. And while evidential support for an expert opinion may include what the expert has learned from personal experience, that experience, in turn, must be informed and given content and context by generally accepted standards, practices or customs of the pertinent industry. We do not hold, however, that an expert always must tie his or her opinions to written publications. The key is not whether the industry standard is written but instead whether it has sufficient objective support. In this instance, based solely on anecdote, Estrin testified to a standard that is personal to himself. He provided no facts to support his view beyond that anecdotal experience. At most, Estrin alluded to his work for two other contractors; however, this hardly equates with the generally accepted standards required of expert opinion testimony. See, e.g., Fernandez, supra, 52 N.J. at 131; Kaplan, supra, 339 N.J. Super. at 103; Taylor, supra, 319 N.J. Super. at 180. In any event, Estrin seems to have suggested that this hand-me-down standard may no longer be applied. And his supplemental certification, which was equally non-specific, failed to cure this deficiency.
Q.: Is there any reference in the handbook relating to the fact that a new or recent paint job would constitute a red flag?
ESTRIN: No, because that's something that's passed . . . on from super to super. That's not something I would call out in my safety manual.
Q.: When you say super to super, you mean within your organization?
ESTRIN: Sure, and with all the supers that I knew who worked for other people. Because I worked for Chrysler Bore (Phonetic), I worked for Paterno (Phonetic) Contracting as well as my own family, and on those jobs I was not a full super, and those were things that we discussed constantly — look out for this, look out for that.
These fellows were older guys. They were in their late forties, they had come up — carpenters — and they passed their knowledge on to me. It wasn't only my dad that pointed this out. This one incident was so important to me that I have never forgotten it.
Q.: Is that still the case? This is the old days, but I mean —
ESTRIN: Good supers? Right. We [] pass it on. Unfortunately, supers today, more and more, are not trade-oriented. They go to school and they get a construction management degree. They didn't come up the hard way.
Now, we all know that I have a pretty substantial education behind me, but I came up the hard way. I swung a hammer. I'm real proud of that. I learned more about how to build a building swinging a hammer and supervising the work, than I ever did on architectural Bachelor's and my Master's in civil engineering.
Yes, there were things I learned about how to compute, falling head, how to do cross section of a beam, that were very important to me. But the actual nuts and bolts about having to do it, I learned because I had the family trade. That's how I learned, and that's the information that I can pass on.
Now, my son, for example, chose not to go into a trade — for whatever reason — and he's testified to the reason and I won't go into it — and it's a great reason. However, there are certain things I can pass on to him that have nothing to do with swinging a hammer and pouring concrete.
I can pass on to him the issue of, watch out for painted stuff. He's heard this story. He's heard this from my Dad and I talking. He's heard other things about what you watch out for.
He's gone to school. He's taken the Associated General Contractors construction safety management and advanced management courses. Those are five days each. He has obtained a body of knowledge in a different manner.
I learned mine by doing. He's learned his by sitting at my shoulder and by going to classes. Is he as good as I am? No. Will he ever be as good as I am? No. But he'll still be pretty good.
[(Emphasis added).]
It is clear from the record that the only authority Estrin cites is himself. Equally plain is that the opinion rendered was personal to Estrin and not based on any consensus in the industry. Of course, more than simply a personal view is required to support Estrin's putative testimony. As such, we discern no abuse of discretion in its exclusion as a net opinion.
Q.: And would you agree with me that your complete and thorough and accurate report cites no authority for your opinion that the safety consultant should have done a hands on inspection — from Putzmeister, that that wasn't part of —
ESTRIN: I'm an authority.
Q.: I'm sorry?
ESTRIN: I'm an authority.
Because we find the court properly barred Estrin's testimony and report as a net opinion, we need not address the other reason proffered by the motion judge for its exclusion, namely the indemnification language in the contract executed by defendants Yates Tishman and Commerce.
Nor do we need to dwell on the court's failure to conduct a Rule 104 hearing before barring Estrin's testimony since not claimed as error by plaintiffs. Suffice it to say, while necessary "[w]hen there is a challenge to novel scientific evidence proffered by the plaintiff to support a complex theory of causation in a tort case . . . even if the parties fail to request one[,]" Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 104 (2012) (emphasis added); see also Kemp ex rel. Wright v. State, 174 N.J. 412, 43233 (2002), a Rule 104 hearing may not be necessary where, as here, the expert had an opportunity to explain the basis for his opinion in his report, at depositions, and in his supplemental certification that he filed after his deposition and after defendants moved to bar his testimony. See Feit v. Great West Life & Annuity Ins. Co., 460 F. Supp. 2d 632, 63738 (D.N.J. 2006).
II
The motion judge, having properly excluded Estrin'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 either defendant.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION