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LENTZ v. MASON

January 11, 1999

ROBERT LENTZ AND MARY LENTZ, PLAINTIFF,
v.
CARL MASON, HELEN ROBINSON, CATHIE GALANTI, FOX & LAZO, INC., REMCOR, INC., M.J. CAPARELLI, ESTATE OF WILBUR S. GANARY, ABC CORP. I-X, JOHN DOES I-X, DEFENDANTS.



The opinion of the court was delivered by: Orlofsky, District Judge.

    OPINION

This case involves the efforts of the Plaintiffs, Robert and Mary Lentz (collectively, "the Lentzes"), to obtain monetary damages and reimbursement for clean-up costs resulting from the alleged disposal of remnants, or "end cuts," of torpedo tubes on the Lentzes' Williamstown, New Jersey property (the "Property").*fn1 The Lentzes seek to recover these costs from the remaining defendants, namely, Remcor, Inc., the manufacturer of the end cuts, M.J. Caparelli and the Estate of Wilbur S. Ganary, Remcor's former principals, and from Fox & Lazo, Inc., and Cathie Galanti (collectively, "the Defendants"), the real estate brokerage and agent who allegedly arranged for the leasing of the Property by Carl Mason, the man who disposed of the end cuts on the Property.

In the months before trial, in a paroxysm of pretrial motion practice, the remaining parties have filed thirteen pretrial motions, including ten motions in limine to prevent the introduction of certain evidence and three motions to amend the Joint Final Pretrial Order ("JFPO"), one filed by each of the remaining parties. Specifically, Defendants, Fox and Lazo, Inc., and Cathie Galanti (collectively, "the Fox & Lazo Defendants" or "Fox & Lazo"), joined by Defendants, Remcor, Inc., M.J. Caparelli, and the Estate of Wilbur S. Ganary (collectively, "the Remcor Defendants" or "Remcor"), have filed eight motions in limine to preclude: (1) evidence of alleged damages and/or expenses incurred in repairing the Property; (2) testimony of witnesses not timely identified; (3) evidence of alleged physical injury suffered by Robert Lentz; (4) evidence of the alleged market value of the Property; (5) evidence of damages resulting from the lost opportunity to sell the Property; (6) certain testimony of Andrew Havics, an expert witness for the Lentzes; (7) evidence of a claim for future repair or clean-up costs for the Property; and (8) evidence of alleged environmental damages. The Fox & Lazo Defendants alone have filed two motions in limine, seeking to preclude: (1) evidence of damages from a failure on the part of the Fox & Lazo Defendants to perform a credit check of Carl Mason or to monitor his financial status; and (2) evidence of the October 18, 1993, and October 23, 1998, Listing Agreements. Additionally, each of the remaining parties has filed either a motion or a letter application to amend the JFPO, by which the Fox & Lazo Defendants seek to add 22 new exhibits, the Remcor Defendants seek to add an expert report entitled "Review of the Havics Evaluation" prepared by Robert A. Haberlein, Ph.D., QEP, dated October 27, 1998, and the Lentzes seek to include the Stipulation of Dismissal With Prejudice as to the Third-Party Complaint Only against Third-Party Defendant, Pennsylvania National Mutual Casualty Insurance Co., and sample portions of the torpedo tubes found on the Property. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, 1367.

I shall address these motions seriatim. As will become apparent from my analysis and disposition of these motions, many of them need not have been filed. In trial advocacy, as in architecture, less is frequently more.

I.  Motions to Amend the JFPO

A. The Fox & Lazo Defendants' Motion to Amend

The Fox & Lazo Defendants have filed a motion to amend the JFPO that seeks to add 22 new exhibits. See Motion of Defendants Fox & Lazo, Inc. and Cathie Galanti to Amend Joint Pre-Trial Order, dated Oct. 21, 1998. The Lentzes oppose this motion, arguing that the documents are not relevant to the issues remaining for trial, since Charles Sprigman, the subject of the documents, is no longer a party to the case. See Letter from Jeffrey T. Kampf, Esq., to the Honorable Stephen M. Orlofsky, dated Dec. 8, 1998. In the alternative, the Lentzes contend that the Fox & Lazo Defendants should not be permitted to amend the JFPO unless they can "show that the documents were unavailable prior to entry of the Pre-Trial order" and that the documents have "significance to the claims still being litigated." Id. In a telephone conversation on January 7, 1999, Michael Brennan, Esq., counsel for the Remcor Defendants, informed this Court that the Remcor Defendants do not oppose the motion.

If the moving party has not demonstrated that manifest injustice will result without amendment, then "[i]t is within the district court's `discretionary power' to allow for amendment of a pretrial order." Daily v. Hyster Co., No. 87-1509, 1990 WL 250528, at *2 (D.N.J. Dec. 21, 1990) (Wolin, J.); see also Joy Mfg. Co. v. Sola Basic Indus., Inc., 697 F.2d 104, 109 (3d Cir. 1982). In exercising their discretion, the Third Circuit has advised the district courts in this circuit to consider "the prejudice or surprise in fact of the nonmoving party[, and] the ability of that party to cure the prejudice[,]" among other factors. Beissel v. Pittsburgh & Lake Erie Railroad Co., 801 F.2d 143, 150 (3d Cir. 1986); Berroyer v. Hertz, 672 F.2d 334, 338 (3d Cir. 1982); Joy Mfg. Co., 697 F.2d at 109.

In the present case, the Lentzes, who are the only opposing party, will experience little surprise, because the Fox & Lazo Defendants filed this motion almost three months before the start of trial, providing the Lentzes with ample opportunity to cure any potential prejudice. In addition, these exhibits do not add a new claim or any new factual evidence of which the Lentzes were unaware prior to the submission of this motion to amend. Finally, the Lentzes object primarily on the ground of relevance, and have not claimed that they would suffer any prejudice as a result of the amendment of the JFPO to include these 22 exhibits. The Lentzes will still have the opportunity to voice their objections based on relevance during the course of the trial. Accordingly, I will grant the motion of the Fox & Lazo Defendants to amend the JFPO to include the 22 exhibits listed in their motion, without prejudice to the right of the Lentzes to object to the admission of these documents if the Fox & Lazo Defendants attempt to introduce them.

B. The Remcor Defendants' Motion to Amend

The Remcor Defendants have moved to amend the JFPO to add the expert report entitled "Review of the Havics Evaluation" prepared by Robert A. Haberlein, Ph.D., QEP, dated October 27, 1998. See Notice of Motion of Defendants Remcor, Inc., M.J. Caparelli and Estate of Wilbur S. Ganary's Motion to Amend Joint Pretrial Order, dated Oct. 29, 1998. The Lentzes have not opposed the Remcor Defendants' motion to amend. Since this motion is unopposed and was filed months before the commencement of trial, I will grant it.

C. The Lentzes' Motion to Amend

The Lentzes, by letter dated December 24, 1998, have requested this Court's permission to amend the JFPO to include "the Stipulation of Dismissal With Prejudice as to the Third-Party Complaint Only, which was entered into between defendants/third-party plaintiffs, Remcor, Inc., [M.J.] Caparelli, and Estate of Wilbur S. Ganary[,] and third-party defendant, Pennsylvania National Mutual Casualty Insurance Company" (the "Stipulation of Dismissal"), and "sample portions of the torpedo tubes that existed on the plaintiffs' premises." Letter from Jeffrey T. Kampf, Esq., to the Honorable Stephen M. Orlofsky, dated Dec. 24, 1998. In a telephone conversation on January 7, 1999, Frank Nofer, Esq., counsel for the Fox & Lazo Defendants, informed this Court that the Fox & Lazo Defendants do not oppose the Lentzes' motion to amend the JFPO. By contrast, in a telephone conversation on the same day, Michael Brennan, Esq., counsel for the Remcor Defendants, informed this Court that the Remcor Defendants oppose the motion with respect to the Stipulation of Dismissal.

I have already set forth the legal standard for the consideration of a motion to amend the JFPO above and, therefore, I will not repeat it. I note, however, that the same reasons exist for granting this motion as do for the one filed by the Fox & Lazo Defendants. Specifically, the motion to amend was filed long before the commencement of trial and does not include any surprising or novel legal theories or factual evidence. Additionally, the Remcor Defendants have not claimed that they would suffer any prejudice as a result of the amendment of the JFPO to include the Stipulation of Dismissal. Finally, any objections by the Remcor Defendants with respect to the relevance of the Stipulation of Dismissal may be made at the time that the Lentzes seek to introduce this document. Accordingly, I will grant the Lentzes' motion to amend the JFPO to include the Stipulation of Dismissal and sample portions of the torpedo tubes found on the Property, without prejudice to the Defendants' right to object to the relevance of these exhibits.

II.  Motions in Limine
  A.  Motions in Limine Filed by Both the Fox & Lazo
      Defendants and the Remcor Defendants
  1.  Motion to Preclude Evidence of Alleged Damages and/or
      Expenses Incurred by the Lentzes in Repairing the
      Property

The Fox & Lazo Defendants have filed a motion, joined by the Remcor Defendants, to preclude evidence of alleged damages and/or expenses that the Lentzes incurred in repairing the Property. See Motion in Limine of Defendants, Fox and Lazo, Inc. and Cathie Galanti, to Preclude Evidence of Alleged Damages and/or Expenses Incurred in Repairing the Property ("Evidence of Alleged Damages Motion"), dated Oct. 20, 1998; Motion of Defendants Remcor, Inc., M.J. Caparelli and Estate of Wilbur S. Ganary's to Join and/or Adopt the Motion in Limine of in Limine [sic] to Preclude Evidence of Alleged Damages and/or Expenses Incurred in Repairing the Property, filed by Defendants Fox & Lazo, Inc., and Cathie Galanti, dated Oct. 29, 1998. The Defendants claim that the Lentzes have failed to produce receipts that Plaintiff, Robert Lentz, retained, which relate to expenses the Lentzes incurred in repairing the Property. See Evidence of Alleged Damages Motion at 2. The Defendants argue that Robert Lentz mentioned these receipts in his deposition and that he agreed to produce them, but that he has nonetheless failed to do so. See id. The Defendants further claim that they "would be severely prejudiced should Plaintiffs be permitted to claim damages at trial for which they have ongoingly [sic] failed to produce the relevant and exiting [sic] documentation," because "Defendants have been denied any meaningful opportunity to scrutinize and/or investigate Plaintiff's damage claim." Id. at 2-3.

In response, the Lentzes assert that they have "in fact, submitted several receipts related to remediation efforts." Plaintiffs' First Memorandum of Law in Opposition to the Motions in Limine of Defendants Fox & Lazo, Inc. and Cathie Galanti ("Plaintiffs' First Opposition"), dated Nov. 17, 1998, at 12. The Lentzes attach to their memorandum in opposition to the motions in limine photocopies of 22 receipts, which they claim represent the expenses they incurred in repairing some of the damage to the Property. See Certification of Jeffrey T. Kampf in Opposition to the Motions in Limine of defendants Fox & Lazo, Inc. and Cathie Galanti ("Kampf Cert."), dated Nov. 17, 1998, Ex. E (photocopies of receipts). Further, the Lentzes argue that both Robert and Mary Lentz testified at length in their depositions about their efforts to repair the damage allegedly done to the Property by Carl Mason. See Plaintiffs' First Opposition at 12.

"[T]he exclusion of critical evidence is an `extreme' sanction, not normally to be imposed absent a showing of willful deception or `flagrant disregard' of a court order by the proponent of the evidence." Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904-05 (3d Cir. 1977). In determining whether to exclude evidence based on a failure to comply with discovery obligations, the court must consider: "(1) the prejudice or surprise in fact of the party against whom" the evidence would have been used; "(2) the ability of that party to cure the prejudice[;] (3) the extent to which" admission or exclusion of the evidence "would disrupt the orderly and efficient trial of the case or other cases in the court[;] and (4) bad faith or willfulness" of the party who failed to comply with its discovery obligations. Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997).

Even assuming that the Lentzes failed to produce the receipts at an earlier date, the Defendants now have them. Furthermore, the Defendants did not attempt to compel production of these documents, nor have they requested further discovery on the issue of repair costs. Thus, I find that the Defendants have not suffered any prejudice. In addition, exclusion of the documents would greatly prejudice the Lentzes as they constitute an important part of their evidence of damages. I find that the equities counsel against exclusion of the receipts and of other evidence relating to repair costs and, therefore, I will deny the Defendants' motion in limine with respect to evidence of the damages and/or expenses incurred by the Lentzes in repairing the damage to the Property.

  2.  Motion to Preclude the Testimony of Witnesses Not Timely
      Identified By the Lentzes During Discovery

The Fox & Lazo Defendants, again joined by the Remcor Defendants, claim that the Lentzes failed to fulfill their discovery obligations in another respect. Specifically, the Defendants have filed a motion in limine in which they argue that, during discovery in this case, the Lentzes did not identify in a timely manner nine witnesses listed in the JFPO, namely, Pierre Desaigne, Ken Molechenow, Mike Kaplan, Captain Carney, Kenneth Reeves, Carol Lentz, David Lentz, Ken Decker, and Robert Colame. See Motion in Limine of Defendants, Fox and Lazo, Inc. and Cathie Galanti, to Preclude Witnesses Not Timely Identified ("Motion to Preclude Witnesses Not Timely Identified"), dated Oct. 20, 1998; Motion of Defendants Remcor, Inc., M.J. Caparelli and Estate of Wilbur S. Ganary's to Join the Motion in Limine of in Limine [sic] to Preclude Witnesses Not Timely Identified, Filed by Defendants Fox & Lazo, Inc., and Cathie Galanti, dated Oct. 29, 1998; see also JFPO, filed Sept. 16, 1998, at 27-30 (listing these nine individuals as potential witnesses at trial). The Defendants claim that the Lentzes failed to identify these nine individuals in disclosures made pursuant to Federal Rule of Civil Procedure 26(a) or in response to interrogatories from the Fox & Lazo Defendants, which requested that the Lentzes identify such witnesses. See Motion to Preclude Witnesses Not Timely Identified at 2. The Defendants claim that they "would be severely prejudiced should Plaintiffs be permitted to call witnesses at trial who were not timely identified during discovery and whom Defendants have never had the opportunity to investigate or depose." Id.

In their memorandum in opposition to the motions in limine, the Lentzes note that each of these witnesses, with the exception of Mike Kaplan, was identified either in response to interrogatories or by Robert Lentz in his deposition. See Plaintiffs' First Opposition at 6-9. I have reviewed the Lentzes' references to Robert Lentz's deposition transcript and to the Lentzes' responses to interrogatories from the Fox & Lazo Defendants and I have confirmed that every witness except Mike Kaplan was mentioned. See Certification of Jeffrey T. Kampf in Opposition to the Motions in Limine of Fox and Lazo, Inc. and Cathie Galanti, dated Nov. 17, 1998, Exs. A-C. As a result, I find that the Defendants were on notice of the existence of these witnesses months prior to the commencement of trial and to the filing of the JFPO. The Defendants had the chance to pursue their own investigation of these witnesses and they failed to do so. Furthermore, the Defendants have not requested additional time to conduct investigations or take depositions.

As for Mike Kaplan, the Defendants have been aware of the Lentzes' intention to call Mike Kaplan as a witness since the filing of the JFPO on September 16, 1998. See JFPO, filed Sept. 16, 1998, at 28. Since that time, the Defendants have had ample opportunity to depose Kaplan or perform any other appropriate investigation. Furthermore, the Defendants have not requested a continuance of the trial to conduct additional discovery. Thus, I find that the Defendants have not suffered any prejudice from the Lentzes' alleged failure to identify these nine witnesses, including Kaplan, in a timely manner. Accordingly, I will deny the Defendants' motion in limine with respects to these nine witnesses.

  3.  Motion to Preclude All Evidence of Alleged Physical
      Injury Suffered by Robert Lentz

The Fox & Lazo Defendants, joined by the Remcor Defendants, have filed a motion in limine to preclude any evidence of alleged physical injury sustained by Robert Lentz. See Motion in Limine of Defendants, Fox and Lazo, Inc. and Cathie Galanti, to Preclude Any Evidence of Alleged Physical Injury ("Motion to Preclude Evidence of Physical Injury"), dated Oct. 20, 1998; Motion of Defendants Remcor, Inc., M.J. Caparelli and Estate of Wilbur S. Ganary to Join and/or Adopt the Motion in Limine to Preclude Any Evidence of Alleged Physical Injury, Filed by Defendants Fox & Lazo, Inc. and Cathie Galanti, dated Oct. 29, 1998. The Lentzes claim that "[w]hen Robert Lentz entered the house and garage, he suffered from a horrific asthma attack [and] since that time, [Robert Lentz has] continued to suffer from difficulty breathing." JFPO at 15. As a result of this alleged asthma attack, the Lentzes contend that Robert Lentz "has increased the dosage of steriods in his asthma medicine," which, in turn, "caus[ed] him to suffer from a detached retina, for which he had surgery in December 1996." Id. The Defendants assert that the Lentzes cannot make such claims of physical injury without offering expert medical testimony "to establish a causal relationship between any physical harm alleged by Plaintiffs and the occurrence for which the defendants are sought to be held liable." Motion to Preclude Evidence of Physical Injury at 2.

The Lentzes admitted "that no medical expert has submitted a report on plaintiffs' behalf." Plaintiffs' First Opposition at 20. Nonetheless, they contend that such a report is unnecessary, because "any lay person can determine if there is a connection between perfect health and [a] sudden violent reaction after contact with the tubes." Id. at 21.

The Lentzes are correct. Moreover, the Defendants have dramatically misstated the law in New Jersey regarding the necessity of expert medical testimony to link a physical ailment to alleged tortious conduct. All of the cases cited by the Defendants either do not address this issue, or they reach a conclusion completely contrary to the one advanced by the Defendants. See, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 750 (3d Cir. 1994) (holding that, under Pennsylvania law, a testifying expert must reach his or her conclusion "with a reasonable degree of medical certainty"); Ayers v. Jackson Township, 106 N.J. 557, 606, 525 A.2d 287 (1987) (holding "that the cost of medical surveillance is a compensable item of damages where the proofs demonstrate [it is necessary], through reliable expert testimony"); Rubanick v. Witco Chem. Corp., 225 N.J. Super. 485, 542 A.2d 975 (1988) (considering the qualifications of a medical expert to testify outside his area of expertise), rev'd on other grounds, 242 N.J. Super. 36, 576 A.2d 4 (1990), modified and remanded, 125 N.J. 421, 593 A.2d 733 (1991) (holding "that a novel or relatively new scientific theory may be found sufficiently ...


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