Nelson Lebron, Appellant,v.SML Veteran Leather, LLC, Respondent.BriefN.Y.February 12, 2014To be Argued by: CHRISTOPHER M. YAPCHANYK Bronx County Clerk’s Index No. 308490/08 New York Supreme Court Appellate Division—First Department NELSON LEBRON, Plaintiff-Respondent, – against – SML VETERAN LEATHER, LLC, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT LAW OFFICES OF EDWARD M. EUSTACE Attorneys for Defendant-Appellant 1133 Westchester Avenue, Suite S-325 White Plains, New York 10604 (914) 989-6650 cyapchanyk@eustacelaw.com PRINTED ON RECYCLED PAPER TABLE OF CONTENTS ARGUMENT ............................................................................................................. 1 PLAINTIFF-RESPONDENT HAS FAILED TO DEMONSTRATE AN ISSUE OF FACT FACT EXISTS AS TO WHETHER SML COMMITTED AN INTENTIONAL TORT ............................................................................ 1 I: PLAINTIFF'S EXPERT DISCLOSURE WAS UNTIMELY, IS PROCEDURALLY AND SUBSTANTIVELY DEFECTIVE AND SHOULD BE DISREGARDED BY THIS COURT. ..................................... 2 A.Dr. Abraham's Affidavit Is Procedurally Defective .................................... 2 B.Dr. Abraham's Report Is Substantively Deficient ....................................... 4 II: PLAINTIFF FAILED TO DEMONSTRATE AN ISSUE OF FACT AS TO WHETHER THIS CASE FALLS WITHIN THE INTENTIONAL WRONG EXCEPTION OF THE NEW JERSEY WORKER'S COMPENSATION ACT. ................................................................................................................ 6 A.SML Has Never Been Cited With An OSHA Violation ............................. 7 B.Plaintiff Alleges The Intetional Wrong Is The Removal Of The Screen Which Alone Is Irrelevant Under The Totality Of The Circumstances ...... 8 C.Plaintiff Has Cited To As Case That Is No Longer Good Law And When Combined With A Review Of Laidlow and Mull, It Is Clear SML Cannot Be Liable As A Matter Of Law ................................................................. 10 CONCLUSION ........................................................................................................ 15 ii TABLE OF AUTHORITIES New York State Cases Constr. by Singletree v. Lowe, 55 A.D.3d 861 (2d Dep't 2008) ...........................2, 5 Cutogeorge v. Hertz Corp., 264 A.D.2d 752 (2d Dep't 1999) ................................... 3 De Long v. County of Erie, 60 N.Y.2d 296 (1983) ................................................... 5 Hudson Ins. Co. v. Oppenheim, 31 Misc.3d 1203A (Sup. Ct. Nas. Cty. 2010) ........ 5 Hudson Ins. Co. v. Oppenheim, 81 A.D.3d 427 (1st Dep’t 2011) ........................... 5 Maura v. Rosedale Enters., 60 A.D.3d 410 (1st Dep't 2009) ........................... 3, 4, 5 Pellechia v. Partner Aviation Enters. Inc., 80 A.D.3d 740 (2d Dep't 2011) .............. 2 New Jersey State Cases Fisher v. Sears, Roebuck & Co., 363 N.J. Super. 457 (App. Div. 2003) .................. 8 Laidlow v. Hariton Machinery Co., 170 N.J. 602 (2002) ................................ passim Marinelli v. Mitts & Merrill, 303 N.J.Super. 61 (App. Div. 1997) .......................... 7 Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985) ........... 4, 9, 10, 14 Mull v. Zeta Consumer Prods., 176 N.J. 385 (2003) ................................ 6, 8, 12, 13 Tomeo v. Thomas Whitesell Construction Co. Inc., 176 N.J. 366 (2003) ..................................................................... 4, 9, 10, 14 VanDuck v. Reckson Associates Realty Corp., 415 N.J. Super 490 (1985) ...... 6, 10 VanDuck v. Reckson Associates Realty Corp., 210 N.J. 449 (June 26, 2012) ..................................................... 6, 11, 12, 13 Federal Cases Fermaintt v. McWane, Inc., 694 F.Supp.2d 339 ........................................................ 7 New Jersey Statues N.J.S.A. 34:15-8 .......................................................................................... 7, 8, 9, 14 ARGUMENT PLAINTIFF-RESPONDENT HAS FAILED TO DEMONSTRATE AN ISSUE OF FACT EXISTS AS TO WHETHER SML COMMITTED AN INTENTIONAL TORT. In both procedure and substance, plaintiff has failed to demonstrate that issues of fact exist as to whether defendant-appellant SML Veteran Leather, LLC (hereinafter “SML”) committed an intentional tort by having knowledge that its actions were substantially certain to result in the injury that occurred. First, plaintiff’s alleged expert was improperly exchanged under applicable case law, even case law cited by plaintiff for support of the report’s consideration. The expert affidavit also fails to substantively make any proper legal conclusions adverse to SML. Secondly, plaintiff fails to prove substantively that enough evidence exists demonstrating an issue of fact as to SML’s substantial certainly of any injury to plaintiff. Plaintiff’s brief goes so far as to cite to a New Jersey appellate-level case in purported support of this position even when such case had been reversed by the New Jersey Supreme Court and prominently cited in SML’s Appellant’s Brief. - 2 - I. PLAINTIFF’S EXPERT DISCLOSURE WAS UNTIMELY, IS PROCEDURALLY AND SUBSTANTIVELY DEFECTIVE AND SHOULD BE DISREGARDED BY THIS COURT Plaintiff’s Counterstatement of the facts includes a recitation of purported OSHA violations by SML. (Pltf-Resp Br. at 6-7). This information is taken from an affidavit of a Dr. Carl J. Abraham, P.E. who inspected the machine on July 21, 2010. (491-95)1. This report should be disregarded on procedural and substantive grounds. A. Dr. Abraham’s Affidavit Is Procedurally Defective. Dr. Abraham’s affidavit was never served on SML at any time prior to receipt of plaintiff’s affirmation in opposition to the underlying summary judgment motion. As the motion for summary judgment was made after the filing of the Note of Issue, this report is procedurally defective and should be disregarded. Pellechia v. Partner Aviation Enters, Inc., 80 A.D.3d 740 (2d Dpe’t 2011) (Holding plaintiff’s expert affidavit was properly rejected by the Supreme Court because expert was first identified only in opposition to the defendant's summary judgment motion after the filing of the Note of Issue and Certificate of Readiness); Constr. By Singletree v. Lowe, 55 A.D. 861 (2d Dep’t 2008) (Holding that Supreme Court did not improvidently exercise its discretion in declining to consider the affidavits of the purported experts since the expert was not disclosed in pretrial discovery and 1 Unless otherwise indicated, numbers in parenthesis refer to the pages in the Record on Appeal - 3 - the affidavit was served after the filing of the Note of Issue and Certificate of Readiness).2 Plaintiff’s case cited in support for the inclusion and consideration of Dr. Abraham’s affidavit and conclusions, Cutsogeorge v. Hertz Corp., [264 A.D.2d 752 (2d Dept’ 1999)] is inapplicable herein. First, Cutsogeorge involved a plaintiff’s service of medical expert reports upon defendant during the liability phase of a bifurcated trial that had already commenced. Id. at 753-53. Clearly that is not the procedural posture of this case. Additionally, the reports in Cutsogeorge were admitted as the defendants had the medical records upon which the expert based his opinion, something that is clearly not the case herein which involves a liability expert who made conclusions upon an inspection of a machine. Id. at 754. Finally, while there was no evidence of an intentional failure to disclose on the part of plaintiff in Cutsogeorge (Id. at 753-54) in this action, plaintiff fails to offer an explanation why, if the inspection occurred on July 10, 2010, and the expert affidavit was signed and notarized on August 20, 2010 (495), the report was not exchanged until served as part of plaintiff’s underlying affirmation in opposition dated October 13, 2011. (489). 2 It is conceded that the First Department has not yet spoken directly on this issue. See e.g. Maura v. Rosedale Enters, 60 A.D.3d 410 (1st Dep’t 2009) (Holding there was no need to determine whether the affidavit of plaintiffs' expert should not have been considered in light of a - 4 - B. Dr. Abraham’s Report Is Substantively Deficient. Regardless of the procedural defects in the affidavit of Dr. Abraham, the report’s substantive legal conclusions are conclusions designed for a negligence case, and not an intentional tort action. As this case requires a substantial certainty standard that is defined as an intentional tort, Dr. Abraham’s conclusions are irrelevant and this Court should reject its conclusions. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985). First, Dr. Abraham concludes to a degree of scientific certainty that SML had actual and constructive knowledge of the hazardous and dangerous conditions that led to plaintiff’s injury. (R. at 494, ¶ 6). However, actual and constructive knowledge are legal standards in negligence actions and are not the liability requirements in this intentional tort action, wherein the standard is substantial or virtual certainty of an injury. Tomeo v. Thomas Whitsell Construction Co., Inc., 176 N.J. 366 (2003). Furthermore, the report continues on to say that the removal of the machine’s safety features was intentional and willful, violating the intent of New Jersey’s Worker’s Compensation Act, that there was substantial knowledge plaintiff would be exposed to injury and that SML took advantage of plaintiff’s financial and family status. (494, ¶7). However, Dr. Abraham failed to state that failure to identify the expert during pretrial disclosure, as the expert affidavit, even if considered - 5 - he has concluded with a degree of engineering or scientific certainty that said acts were intentional. Additionally, Dr. Abraham’s conclusions about plaintiff’s family or financial status are wild and groundless speculation given that Dr. Abraham was charged only with inspecting a machine and researching OSHA regulations. Finally, Dr. Abraham’s conclusion that an injury was a substantial certainty is this case’s ultimate legal conclusion and not one that is beyond the ken of a typical juror and thus improper for an expert to opine on. De Long v. County of Erie, 60 N.Y.2d 296 (1983) (“The guiding principle is that expert opinion is proper when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror”); Hudson Ins. Co. v. Oppenheim, 31 Misc.3d 1203A (Sup. Ct. Nas. Cty. 2010) (Precluding expert from testifying to the ultimate conclusion of law as to whether fraud occurred) rev’d on other grounds Hudson Ins. Co. v. Oppenheim, 81 A.D.3d 427 (1st Dep’t 2011). Therefore, Dr. Abraham’s affidavit should be precluded and disregarded by this Court for purposes of deciding the appeal of the underlying motion for summary judgment. failed to raise a triable issue of fact, citing to Constr. By Singletree, Inc. v. Lowe, supra.) - 6 - II: PLAINTIFF FAILED TO DEMONSTRATE AN ISSUE OF FACT AS WHETHER THIS CASE FALLS WITHIN THE INTENTIONAL WRONG EXCEPTION OF THE NEW JERSEY WORKER’S COMPENSATION ACT. Plaintiff’s has not demonstrated that an issue of fact exists as to whether SML acted with substantial certainty and knowledge that plaintiff would suffer an injury. As will be discussed in greater detail infra, plaintiff has no support in the record for his claims that SML violated OSHA regulations prior to plaintiff’s injury. Plaintiff’s own allegations restrict the alleged intentional wrong committed by SML to the removal of the safety screen and in any event, the overall actions of SML do not rise to the level of an intentional wrong. Finally, plaintiff’s citation to Van Dunk v. Reckson Associates Realty Corp., 415 N.J. Super 490 (N.J. App. Div. 2010) for support of their position is plainly and grossly inaccurate as that decision was reversed by the New Jersey Supreme Court in 2012. Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449 (Jun. 26, 2012). That New Jersey Supreme Court decision was prominently cited in SML’s brief and indeed supports SML’s contention that – when also considering the New Jersey Supreme Court’s holding in Mull v. Zeta Consumer Prods., [176 N.J. 385 (2003)] and Laidlow v. Hariton Machinery Co., [170 N.J. 602 (2002)] – SML cannot be liable in an intentional tort action to the plaintiff, a former SML employee. - 7 - A. SML Has Never Been Cited With An OSHA Violation. Plaintiff tries to repeatedly assert in his brief that SML violated OSHA regulations. (Pltf-Resp Br. at 2, 3, 5-7). However, as the record and facts before this Court provides, SML has never been cited with an OSHA violation. Instead, plaintiff’s “support” for his contention that SML violated OSHA are simply repeated citations to his own expert’s conclusion’s and not facts of any actual OSHA violation that preceded or proceeded plaintiff’s injury. (491-95). Indeed, the record reflects, and it has gone uncontested by plaintiff, that OSHA never inspected SML’s Hillside, New Jersey plant. (293-94, 412). OSHA never issued violations to SML. (293-94, 412). Plaintiff’s expert – notwithstanding the objections to the report on its face discussed in Point I, supra – cannot, after the incident, invent facts that existed prior to the incident. Therefore, contrary to plaintiff’s assertion, there is no record of an OSHA violation to SML. It is even questionable whether any OSHA violations – assuming any existed –would have, by themselves, demonstrated an intentional act under N.J.S.A. 34:15- 8. What is not questionable however is that the absence of OSHA violations clearly and unequivocally proves SML had no substantially certainty. See Laidlow v. Hariton Machinery Co., 170 N.J.at 622-23; Marinelli v. Mitts & Merrill, 303 N.J. Super. 61, 67, 73 (App. Div. 1997); Fermaintt v. McWane, Inc., 694 F.Supp.2d 339, 349 (D.N.J. 2010). - 8 - B. Plaintiff Alleges The Intentional Wrong Is The Removal Of The Screen Which Alone Is Irrelevant Under The Totality Of The Circumstances Plaintiff’s Complaint and Bill of Particulars both allege that the removal of a safety device (the front screen) from the machine at issue is the intentional wrong that provides that foundation for this action in tort under § 34:15-8 of the New Jersey Worker’s Compensation Act. (30, 51). In the brief in opposition, plaintiff now lists a litany of other purported alterations of the machine that constitute facts demonstrating an intentional wrong. (Pltf-Resp Br. at 1, 3). However, although plaintiff’s allegations remain solely about the alleged removal of the screen, no one fact compels a holding on whether the employer’s actions constitute an intentional wrong, rather, the totality of facts must be analyzed. Laidlow v. Hariton Machinery, Co., 170 N.J. 602; Mull v. Zeta Consumer Products, 176 N.J. 385 (2003); Fisher v. Sears, Roebuck & Co., 363 N.J. Super 457 (App. Div. 2003). As discussed in the primary appellant brief, plaintiff alleges that upon direction from Mr. Sapienza and unnamed others, the front screen was removed and the foot pedal was taped in the “down” position so as to increase productivity from this machine. (136-140). However, Mr. Spaienza denied this illogical allegation as altering this machine that was only used for creating samples would not increase productivity or profit margin. (266, 275, 279). Again, even assuming these alterations took place this, there is no per se rule that whenever an employer - 9 - alters equipment or machinery that employer’s conduct equates with in intentional wrong within the meaning of N.J.S.A. 34:15-8. Laidlow v. Hariton Machinery Co., 170 N.J.at 622-23. More importantly, SML did not intentionally eliminate the screens from the machine. Indeed, Plaintiff himself testified that the screens were boxed up and shipped from Queens to Hillside, New Jersey, but accidentally discarded as garbage. (174-175). An accidental discarding unavoidably eliminates intent on the part of SML. Therefore, SML at most knew of and tolerated this situation between the equipment’s arrival in January 2007 and the accident in October of 2007. Under applicable law such toleration falls shorts substantial certainty requirement, even if such toleration could be considered negligent, grossly negligent or reckless. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. at 178; Tomeo v. Thomas Whitesell Construction Company, Inc., 176 N.J. 366, 374 (2003); Laidlow v. Hariton Machinery Co., 170 N.J. at 617 (2002). Further, there were no prior closes calls which can be used to prove knowledge of substantial certainty3. Laidlow v. Hariton Machinery Co., 170 N.J. at 621. Plaintiff argues that, contrary to SML’s argument, other incidents occurred on this machine. (Pltf-Resp. Br. at 11, citing 291-292). Plaintiff is wrong. A 3 Contrary to plaintiff’s groundless claims, SML is making no argument that seeks to blame its predecessor Veteran Leather for any allegedly illegal modifications to the machine. (Pltf-Resp. Br. at 12). - 10 - complete reading of the record at 291-292 reveals there have been incidents of injuries on other machine over the years, but the subject machine nor a manner of injury similar to the plaintiff’s is never specifically discussed. It has gone undisputed that once a piece of leather became stuck in the machine, the screen’s removal was necessary and either the broom or long screwdriver were used to retrieve the leather. (270-71, 348). This was the process used by every SML supervisor and indeed the admissible evidence reveals that prior to plaintiff’s accident there was no record of a previous incident resulting in an injury like plaintiff’s. (101-02, 342 409). Therefore when reviewing the totality of the circumstances in which there were no OSHA violations, no prior close-calls, a lack of intent on the part of SML from permanently removing the safety screen and debate as to whether altering the machine would have increased productivity, the only conclusion to be drawn is that SML had no virtual certainty of an injury to plaintiff. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. at 178; Tomeo v. Thomas Whitesell Construction Company, Inc., 176 N.J. at 374. C. Plaintiff Has Cited To A Case That Is No Longer Good Law And When Combined With A Review Of Laidlow and Mull, It Is Clear SML Cannot Be Liable As A Matter Of Law The plaintiff’s citation to Van Dunk v. Reckson Associates Realty Corp., 415 N.J. Super 490 (N.J. App. Div. 2010) throughout his brief for support of his - 11 - argument that SML had committed an intentional wrong is improper. (Pltf-Resp. Br. at 10, 14). The cited case is no longer good case law. The Appellate Division’s conclusion that the “substantially certain test” was met when plaintiff’s safety was disregarded to increase profit was reversed by the New Jersey Supreme Court in 2012 which held: Although a reasonable fact finder could determine that the employer’s actions constituted gross negligence, that showing is not enough overcome that Act’s exclusivity requirement. We hold that neither the conduct nor the context prongs of the Millison substantial certainty test is satisfied in this matter. Accordingly, the Act’s exclusivity provision, and, specifically, its statutory bar, prevail to bar plaintiff’s action against his employer. The judgement of the Appellate Division is reversed. Van Dunk v. Reckson Associates Realty Corp., 210 N.J. 449, 474 (Jun. 26, 2012). Plaintiff’s failure to recognize this reversal is peculiar, given that SML cited to the Supreme Court’s holding throughout its primary appellant brief. In any event, the employer in VanDunk was found to have violated OSHA regulations regarding the standards for protecting worker’s safety in a trench dug into the ground and that additionally a supervisor, acting out of frustration sent plaintiff into a trench that had been observed to be cracking and weakening as a result of moisture seepage in order to speed up work. Van Dunk v. Reckson Assocaites Realty Corp., 210 N.J. at 454. - 12 - In Van Dunk an OSHA violation for the very incident that caused the injury, combined with a supervisor admitting he acted out of frustration and in disregard for safety was still not enough for the New Jersey Supreme Court to conclude a fact finder could determine whether the employer acted with substantial certainty that an injury could occur. In this instant case SML was not issued an OSHA violation as a result of plaintiff’s incident, nor were any violations issued prior. Further, contrary to the employer in Van Dunk who conceded disregarding safety for the sake of speed, the SML employers in this case saw no benefit to the modifications plaintiff claims were made to the machine for productivity’s sake. Clearly the acts of gross negligence that the New Jersey Supreme Court found were apparent, but not actionable in Van Dunk are more than the alleged “bad acts” of SML. Consequently, the case against SML should be dismissed. Moreover, and contrary to plaintiff’s allegations, the cases in which the New Jersey Supreme Court did find properly should go to a jury for a determination of an intentional wrong under the substantial certainty test are not compatible with the facts of this case. In Mull v. Zeta Consumer Prods., plaintiff was injured when a machine known as a winder, designed to wind plastic bags onto spools, pulled plaintiff’s left hand into the machine. 176 N.J. at 387-88. The facts in the case revealed that that the employer disengaged the winder's critical safety devices knowing of the - 13 - dangerous consequences of such conduct, that a prior similar accident had occurred, that another employee’s safety concerns had been disregarded and that OSHA had issued citations prior to the incident. Id. at 387-89. In Laidlow v. Hariton Machinery Co, plaintiff, suffered a degloving injury when his glove was caught in a part of the machine that pulled his hand toward a mill’s roller. 170 N.J. at 607. The facts in Laidlow revealed that employees’ gloves had become caught on the machine two previous times, that the employer had purposely disengaged a safety guard for the mill and placed said guard back only when OSHA inspectors came to the plant, that the employer ignored plaintiff’s request to restore the guard, and that the employer conceded that the guard was removed for speed and convenience. Id. at 608. Compare Mull and Laidlow to this case where there were no prior incidents, no intentional disregarding of safety producers in favor of profit, no OSHA violations, no intentional deceptions of OSHA and that the injury itself occurred not during the machine’s normal operations, but in a repair-type situation where the machine’s screen’s purpose was irrelevant in any event. SML’s conduct does not rise to the employer’s conduct in either Mull or Laidlow. Indeed SML’s conduct does not rise to the grossly negligent conduct of the employer in Van Dunk. - 14 - However, even if SML’s conduct was grossly negligence, reckless or otherwise negligent, that is not enough to pierce the exclusivity of recovery under the New Jersey Worker’s Compensation Act 34-15-8. Millison v. E.I. du Pont de Nemours & Co., 101 N.J. at 178; Tomeo v. Thomas Whitesell Construction Company, Inc., 176 N.J. 366, 374 (2003); Laidlow v. Hariton Machinery Co., 170 N.J. at 617 (2002). There is no evidence to support plaintiff’s allegations of knowledge of a substantial or virtual certainty of an injury. Tomeo v. Thomas Whitesell Construction Company, Inc, supra. Plaintiff’s complaint must be dismissed. - 15 - CONCLUSION THE ORDER APPEALED FROM SHOULD BE REVERSED, WITH COSTS. THE LAW OFFICE OF EDWARD M. EUSTACE Attorneys for Appellants, By: Christopher M. Yapchanyk, Esq. August 31, 2012 - 16 - PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2002, using Times New Roman 14. According to the aforementioned processing system, the entire brief, including portions that may be excluded from the word count pursuant to 22 N.Y.C.R.R. § 600.10(d)(1)(i), contains 2,996 words. THE LAW OFFICE OF EDWARD M. EUSTACE Attorneys for Appellants, By: Christopher M. Yapchanyk, Esq. August 31, 2012