January 17, 2008
FREDERICK SCHNEIDER, PLAINTIFF-APPELLANT,
CONECTIV THERMAL SYSTEMS, THOMAS W. HERZOG, CONECTIV V.P., KEN LEHBERGER, CONECTIV PLANT MGR., TAJ MAHAL HOTEL & CASINO, ATLANTIC CITY SHOWBOAT, INC.,*FN1 LOU DEFEO, SHOWBOAT MAINTENANCE SUPERVISOR, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Civil Division, Atlantic County, L-2282-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Graves, Sabatino, and Alvarez.
This is an appeal from summary judgment awarded to defendants, Conectiv Thermal Systems; Thomas W. Herzog, Conectiv Vice President; Ken Lehberger, Conectiv Plant Manager; Taj Mahal Hotel & Casino; Atlantic City Showboat, Inc.; and Lou DeFeo, Showboat Maintenance Supervisor. Plaintiff, Frederick Schneider, appearing pro se, filed a complaint seeking damages and injunctive relief, alleging that exhaust tower emissions from defendants' nearby rooftops caused him serious pulmonary and other health problems. He also sought, by way of cross- motion, to enjoin defendants from emitting toxic substances into the air. After several management conferences and discovery orders, plaintiff was unable to provide an expert report substantiating his claim. For that reason, his complaint was dismissed. We affirm. In his appeal, plaintiff raises the following issues:
POINT I JUDGE NUGENT & JUDGE JOHNSON DEFIED NEW JERSEY COURT RULES BY NOT ORDERING THE ALLEGATIONS IN THE AMENDED COMPLAINT RETROACTIVE TO THE ORIGINAL COMPLAINT AS REQUIRED BY N.J.C.R. 49:3.
POINT II JUDGE NUGENT & JUDGE JOHNSON DEFIED NEW JERSEY COURT RULES BY NOT PERMITTING APPELLANT TO SERVE PROPER INTERROGATORIES ON ALL [DEFENDANTS] & TAKE PROPER DEPOSITIONS FROM ALL [DEFENDANTS] AND RELEVANT EYEWITNESSES AS REQUIRED BY N.J.C.R. 4:14 & 4:17.
POINT III JUDGE NUGENT & JUDGE JOHNSON DEFIED NEW JERSEY COURT RULES BY NOT PERMITTING APPELLANT TO CONDUCT PROPER DISCOVERY AS REQUIRED BY N.J.R.E. 401
POINT IV JUDGE NUGENT & JUDGE JOHNSON DEFIED NEW JERSEY COURT RULES BY NOT ISSUING ORDERS PURSUANT TO A CASE MANAGEMENT CONFERENCE CONDUCTED BY JUDGE NUGENT ON JANUARY 19, 2006 AS REQUIRED BY R. 1:2-6.
POINT V IT WAS IMPROPER FOR JUDGE JOHNSON TO RULE ON THE LEGALITY OF JUDGE JOHNSON'S OWN CONDUCT.
POINT VI APPELLANT DID NOT TEST THE EMISSIONS FROM THE TOWERS REFERENCED IN THE ORIGINAL COMPLAINT, BECAUSE OF JUDICIAL ORDERS, WHICH UNFAIRLY PREJUDICED & LIMITED APPELLANT'S ABILITY TO SHOW CAUSATION, LIABILITY & DAMAGES
POINT VII SMOKY EMISSIONS WHETHER DELETERIOUS OR NON-DELETERIOUS ARE STILL AND HAVE BEEN HARMFUL TO THE VULNERABLE RESPIRATORY SYSTEM OF APPELLANT
POINT VIII APPELLANT'S EYEWITNESSES & EXPERT OPINIONS QUALIFY UNDER THE COMMON KNOWLEDGE DOCTRINE & ARE CREDIBLE ENOUGH TO BE PRIMA FACIE AS TO CAUSATION[,] LIABILITY AND DAMAGES.
At plaintiff's urging, the Environmental Protection Agency (EPA) investigated the emissions and found no harmful substances were being discharged from defendants' roofs. Specifically, the EPA verified that water vapor was indeed being discharged, but concluded that the steam did not pose a health risk. Plaintiff also obtained a letter from the chief meteorologist at a local television station verifying his claim that easterly winds blew the emissions from casino towers towards the apartment complex in which he resides in Atlantic City, but the meteorologist could not speak to the content of the vapor.
Plaintiff did secure the services of a certified industrial hygenist, who wrote a letter on his behalf stating as follows:
[v]isible particulate emissions were observed coming from the cooling towers of the Taj Mahal and Showboat Casino. The chemical or biological content of the emissions is unknown. No testing was performed. Improperly maintained or malfunctioning cooling towers could be a source of microbial contamination, such as Legionella bacteria and other potential contaminants which could degrade air quality and cause deleterious effects to susceptible individuals.
Although the letter from plaintiff's expert touches upon the possibility that the emissions are toxic, no actual testing was performed to substantiate the claim. Everyone concurs that some particulates in smoke can be harmful to a person's health, as corroborated in plaintiff's letters from his medical treatment providers, and that the damage can be particularly harmful to a person whose lungs are vulnerable due to disease. None of the documents plaintiff provided, however, actually identified any toxic substances in the emissions.
The motion judge stated:
[E]ven if I were, contrary to [the court's] order, to consider everything that [plaintiff] has submitted, there is nothing to create a genuine issue of fact for the trier of fact. If I consider the reports, even though procedurally I should not because they're not certified, and there are other problems with the reports; but even if I were to consider them, they are based solely on speculation at this time. They are not based on any medical or scientific probability.
I don't think that the defendants seriously dispute that certain contaminants, including smoke, can be harmful to the pulmonary system of humans, generally; and that exposure to those type of contaminants can put the elderly at a greater risk of health problems. But speculation about whether there are emissions coming from the buildings that have contamination in them, speculation about whether those contaminants, if they even exist, are finding their way into [plaintiff's] residence, is simply not going to help.
There's nothing probable about anything in this record, including the reports of the meteorologist and the other experts, including the medical experts, that suggest that to any probability whatsoever.
But one of the reasons that there is no probability, as distinguished from speculation or mere possibility in this case, is because [plaintiff] chose not to do the testing that the [c]court, not only permitted, but at least with respect to his apartment directed that he do.
So for those reasons, and just to summarize, because [the court] barred experts in this case . . . [it is] my view that this is not a case where common knowledge can permit a jury to evaluate evidence and return a verdict in this case. . . .
And the reason is, among other things, that [plaintiff] - - again, for reasons that he feels are legitimate - - chose not to take the discovery and do the testing in this case the way that the [c]court structured the management of this case. So for all those reasons, I am granting what I am going to refer to as the "Showboat Defendants' Motion for Summary Judgment."
Plaintiff also complains that despite his failure to have an expert actually test the tower emissions, the court wrongfully denied him the opportunity to test emissions from other areas in defendants' buildings by way of additional discovery. Plaintiff requested a discovery order permitting him to spot check defendants' buildings so as to test the "deleterious emissions" coming from "unidentified places" within them. The judge reasoned that since plaintiff never established that any emissions from the towers were toxic, there was nothing to be gained by allowing him intrusive access to the defendants' buildings. Additionally, as the judge said, there was "an absolute lack of any evidence that, other than the emission towers, there are any places in those buildings that are emitting smoke."
A court will only disturb a discovery order where there has been an abuse of discretion. Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997) (citing Hammock v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 380 (1995), Garden State Cmty. Hosp. v. Watson, 191 N.J. Super. 225, 228 (App. Div. 1982), certif. denied, 94 N.J. 518 (1983)). As plaintiff did not test any emissions from areas to which he had ready access, it was not an abuse of discretion for the judge to have barred him from intrusive testing throughout casino buildings. The court's exercise of discretion as to this discovery request was eminently reasonable.
Plaintiff also objects to the discovery order limiting his use of duplicate questions and duplicate sets of interrogatories. He believes discrepancies will develop through his use of repetition. This is a meritless claim. This claim, like plaintiff's remaining claims, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). In accordance with Rule 4:46-2(c), summary judgment:
"shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
An issue of fact is considered to be "genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Viewing the proofs in the light most favorable to the plaintiff, the evidence at this juncture is not "sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. Defendants are entitled to judgment as a matter of law.