July 30, 2008
ROBERTET FLAVORS, INC., PLAINTIFF-APPELLANT,
TAMI-GITHENS, INC., TRI-FORM CONSTRUCTION, INC., ROBERT KARABINCHAK, A-TECH CONCRETE COMPANY, INC., FISHER CONTRACTING, INC., AND ACADEMY GLASS, DEFENDANTS-RESPONDENTS, AND TRI-FORM CONSTRUCTION, INC., AND ROBERT KARABINCHAK, THIRD-PARTY PLAINTIFFS,
A-TECH CONCRETE COMPANY, INC., FISHER CONTRACTING, INC., NEWARK ELECTRIC, INC., ADVANCE INTERIORS, INC., ACADEMY GLASS, INC., STUCCO SYSTEMS, INC., U.S. ENGINEERING LABORATORIES, INC., AUTOMATION CONCEPTS, INC., AND FLAVIO TAMBURRI, THIRD-PARTY DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Middlesex County, Docket No. L-2607-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 12, 2008
Before Judges Stern, Collester and C.L. Miniman.
Plaintiff Robertet Flavors, Inc. (Robertet), appeals from a summary judgment dismissing Robertet's claims against defendants Academy Glass, Inc. (Academy), Tri-Form Construction, Inc. (Tri-Form), and Robert Karabinchak (Karabinchak) following the entry of two orders barring Robertet from presenting any expert testimony because it partially destroyed the evidence of the alleged defective installation of a window system in its new corporate headquarters.*fn1
Robertet is a business that creates, manufactures, and sells flavors to food, beverage, and pharmaceutical companies within the United States and Canada. In 1995 Robertet's architect began to design buildings to be constructed at 10 Colonial Drive, Piscataway, for Robertet's new headquarters. Through a series of meetings, specifications for the building were created by the architect and a committee from Robertet. Robertet was the general contractor and hired Tri-Form as the construction manager. Subcontractors were chosen through competitive bidding. Karabinchak, the president of Tri-Form, was designated as the site supervisor once work in the field began. He was responsible for coordinating, supervising and approving for payment all work done by subcontractors on the site. Construction began in the spring of 1997, the administration building was completed in December of 1998 and the warehouse was completed in March or April of 1999.
The window subcontractor was Academy, which Robertet hired to install both strip-window walls and curtain-window walls. Academy worked from late 1997 until 1998. Mark Epstein, the president of Robertet from 1997 through 2000, testified that Karabinchak supervised Academy's work.
In early 1999 Robertet noticed water leaking around the window walls located on one side of the administration building. At first, small amounts leaked in, but later the volume increased. By the beginning of 2000, Robertet was placing five-gallon buckets on the windowsills, which would fill up with water once or twice during heavy rainstorms. Robertet contacted Academy, which inspected the windows a few times beginning in early 1999. Although Academy usually did nothing, once it suggested caulking some of the windows. Academy hired someone and paid for the caulking but nothing improved. The infiltration of rainwater continued and Robertet continued to call Academy through 2000. However, by the beginning of 2001, Academy stopped returning Robertet's calls and Robertet stopped calling Academy to get the windows fixed.
Robertet eventually decided to hire someone to examine the problem and contacted a forensic architect, James Gespari, who inspected the windows and suggested Robertet hire Joe Freza and Associates (Freza). When Freza tested the windows toward the end of 2001, he informed Robertet that he needed to remove a section of the window wall to permit him to determine the cause of the problem. With Robertet's consent, Freza had Pioneer Glass remove a section of the window wall in the lunchroom in February 2002. Freza and Pioneer's employee, Mr. Munro, discovered quite a bit of black mold and a lot of moisture. Munro performed his own evaluation of the situation. Robertet then hired Consulting & Testing Services, Inc. (CTSI), to evaluate the mold issue.
By this time Robertet had filed a complaint on February 1, 2002, against these and other defendants alleging construction defects in the concrete floor of the warehouse, the concrete sidewalks, interior work, the windows, the exterior stucco and the management of the construction. Robertet was represented by Milton Breitman, Esquire, a sole practitioner in his early eighties who had represented Robertet for many years. Tri-Form and Karabinchak filed an answer on March 22, 2002, and at that time demanded an inspection of the property and immediate notice of any intended remediation. Breitman did not respond to this request.
In the meantime, Munro rendered a report and made a presentation recommending that Robertet remove all of the strip windows and replace them with a whole new system. The CTSI report showed a very large mold problem in the outside offices on both floors. Robertet decided it had to remove all areas contaminated by mold, i.e., remove and replace the window systems, the interior walls, the insulation and the carpeting.*fn2
Each exterior office would have to be redecorated.
Robertet then hired various contractors to perform the specific job functions. It hired Freza as the point man for the reconstruction and Pioneer Glass for the replacement of the window-wall systems. By late spring 2002 Robertet knew it would take up to fourteen weeks to obtain the glass for the strip-window system, so repairs to the curtain-wall system were begun first in the summer of 2002. The strip-window repairs were scheduled to start in December because Robertet closed down its plant during Christmas week each year. Robertet began the strip-window system abatement on December 13, 2002.
Robertet advised Breitman that the repairs were scheduled and proceeding. In October 2002 Breitman's son, Mark Breitman, Esquire, called Epstein to advise him that his father was hospitalized and seriously ill. The following month Epstein called counsel for Academy to advise her that remediation was in progress, but she would not allow him to communicate with her in accordance with the requirements of the Rules of Professional Conduct. Later, Breitman's son again called Epstein to inform him that his father had a second stroke and would no longer practice law. He stated that he was bringing his father's files to Franzblau Dratch.
Robertet's current counsel filed a motion on December 17, 2002, as special counsel seeking to dismiss the first suit voluntarily due to Breitman's advanced age and failing health and his failure to provide or obtain discovery. Various defendants filed motions to dismiss for failure to provide discovery, which were denied by order of April 14, 2003, when the judge granted Robertet's motion to dismiss voluntarily on condition that Robertet pay defendants' counsel fees. Robertet promptly refiled its complaint but Academy was not named as a defendant in this action. Robertet then amended the complaint on November 5, 2003, to include Academy as a defendant. Robertet does not dispute that the defendants first learned of the remediation work when the dismissal motions were argued on January 24, 2003, and that defendants were not given an opportunity to inspect the building before the work was virtually complete.
The parties participated in discovery during the time allowed in the second suit and on August 24, 2005, Academy obtained an expert report from Herbert J. Cannon, president of H.J. Cannon Group, Inc., to respond to the report submitted by Robertet's expert, Munro. Academy then filed a notice of motion based on spoliation of evidence seeking to preclude plaintiff from offering expert testimony because the remediation deprived them of the opportunity to conduct their own forensic investigation. On September 23, 2005, the judge assigned to the second suit denied the defendants' motions without prejudice, properly finding it necessary to conduct a plenary hearing. That hearing began on November 28, 2005, and took three days to complete.
On March 22, 2006, the judge entered an order precluding Robertet from offering into evidence testimony concerning the initial installation of the window systems and any alleged damages that resulted from that installation. The judge attached his findings of fact and conclusions of law to the order. He found that "the [d]efendants were not given any notice of the proposed remediation prior to the commencement of the work." They were not advised that Robertet had retained experts while the first suit was pending and that remediation was begun thereafter and virtually complete by January 24, 2003, when defendants were notified of the remediation work.
This court concludes from all of the evidence presented that neither Academy nor Tri-Form was given any notification of Robertet's intent to undertake remediation and/or that remediation was underway and/or completed in sufficient time to allow them to perform an independent investigation. Mr. Epstein implied that due to the mold condition that it was essential to proceed to remediation as quickly as possible, but almost eight months elapsed from the date of discovery to the date of abatement.
The judge concluded that Robertet breached its duty to preserve evidence under Aetna Life and Casualty Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 366 (App. Div. 1998). He found that prior to the institution of the first action on February 1, 2002, litigation was probable, Robertet knew that litigation was likely, the harm to the defense was foreseeable and the evidence was relevant to the litigation. Robertet does not dispute the sufficiency of the evidence to support these findings.
The judge then summarized the evidence respecting harm to the defendants:
Herbert J. Cannon, president of H.J. Cannon Group, Inc. testified at the evidentiary hearing on behalf of [d]efendants. He is the [d]efendants' expert. He testified that he was not provided with any opportunity to realistically address opinions and contentions contained in Robertet's expert's reports. The curtain wall had been repaired, the windows had been removed and replaced, and [the] mold condition had been abated. Although there were some photographs taken by Robertet's expert, such are two-dimensional. A visual inspection is three-dimensional and more precise. Even with that, a visual inspection of the alleged damage or deficiency is insufficient by itself. Other tests need to be performed in accordance with acceptable professional standards. Mr. Cannon testified, and the court finds, that (1) he would be unable to contradict or even comment upon the tests taken by Robertet's expert, not having had notice that such were to take place, and (2) he was unable to address each and every allegation of the deficiency or cause alleged by Robertet since the remediation or replacement work had already taken place. The windows, once removed, were placed in a pile outside a storage facility, exposed to the elements. There was no way to determine which window came from which location. Overall, it is clear that the source of any leaks could not be determined without first isolating a cause. Because the replacement and/or repairs were made to the windows, curtain wall and the EIFS,*fn3 such cannot thereafter be determined. There was no opportunity given to the [d]efendants to inspect "as installed". There are a number of factors that could have caused the water infiltration or mold problem. Defective window installation is one cause, but faulty building design or construction could be another. The building had a moisture problem. It could have been created by relatively high temperatures and humidity within the building. Robertet, in its operation, utilizes exhaust fans, which can create a negative pressure within the building thereby allowing moisture from the outside to weep through the windows into the inside. Condensation from the HVAC system could also be a source of the moisture. The problem here is that the [d]efendants could only address other potential causes without having the opportunity to exculpate them from liability.
William D. Munro, President of William Munro Consulting, LLC, testified on behalf of Robertet. Mr. Munro is Robertet's expert who was retained in February 2002. He submitted a report relating to the deficiencies and defects alleged by Robertet. On cross[-]examination, Mr. Munro testified that he did a visual inspection of the windows and noticed, among other things, that a sill extension was utilized rather than flashing. He also testified that he noticed no expansion mullions which should be placed every twenty feet to work properly. His testimony essentially corroborated the [d]efendants' contention that they were prejudiced by Robertet's disposal of the windows. The foregoing findings were a result of Mr. Munro's visual inspection prior to the removal of the windows. He also confirmed that photographs of the windows, standing alone, are inadequate to address the cause of the water leaks. Unlike Mr. Cannon, Mr. Munro was afforded that opportunity to perform water tests on the windows prior to their removal.
The judge found that Discarding the evidence, which was relevant to this case, was clearly prejudicial to the [d]efendants in that their experts could not, in any way, address the tests undertaken by Robertet's experts, observe the alleged deficiencies/defects as installed nor could they perform independent visual inspections or standardized tests to excul-pate the [d]efendants from liability or, alternatively, apportion liability among others.
The judge concluded that "the conduct of Robertet was unreasonable." Again, Robertet does not urge that these findings were not supported by the evidence, arguing only that the remedy was draconian. The judge held:
The sanctions to be imposed are discretionary with the court. Among the court's functions is to maintain a level playing field among the litigants. Sanctions can be monetary or equitable in character. Equitable relief can range from dismissal of the complaint to barring evidence or the testimony of certain witnesses. The court finds that monetary sanctions in this matter are inappropriate and ineffective. Dismissal of the complaint may be too extreme. The court has also considered the effect of giving the jury a negative inference charge, but it too is insufficient. Robertet would still have an undue advantage. Barring the testimony of Robertet's expert is the appropriate remedy. Therefore, based upon the foregoing, Robertet's experts are hereby barred from giving testimony regarding the opinions rendered against Academy and Tri-Form. Barring such witnesses places Robertet on the same level as the [d]efendants as it relates to the issues raised. . . . The [d]efendants' motions are hereby granted.
Defendants then moved for summary judgment, contending that Robertet could not prove defective construction without expert testimony. On May 26, 2006, the judge granted summary judgment in favor of Academy, Tri-Form and Karabinchak and dismissed the claims against them. The judge reviewed each count of the complaint against these defendants in ruling on the motions.
As to the first count against Tri-Form and Karabinchak, the judge determined that the claim for delay in completion did not require an expert and could proceed.*fn4 However, the judge dismissed the claim that Tri-Form and Karabinchak failed to adequately supervise the work to ensure the absence of defects.
The third count stated negligence claims against Tri-Form and Karabinchak and alleged that they failed to ensure that the building was completed according to the contract specifications. The judge concluded that the ordinary juror would not be able to determine whether the window systems deviated from the contract specifications without the assistance of an expert to establish the standard of care. Therefore, he dismissed the third count.
The ninth count was against Academy and alleged that the work was not completed in accordance with the contract specifications, the work was not done in a good and workmanlike manner and the window systems were improperly installed. The judge concluded that these allegations also required the testimony of an expert and could not be prosecuted without one. As a result, he dismissed the ninth count.
The tenth count, also against Academy, alleged that it owed a duty to Robertet to perform the work with the requisite degree of care and skill of a professional contractor. The judge found that such an allegation required the testimony of an expert to establish the standard of care and skill and to prove a deviation therefrom. Thus, he dismissed the tenth count.
The judge rejected Robertet's contention that it could prove its case through the doctrine of res ipsa loquitur. He reasoned that Robertet could not exclude all other causes for the water leakage and mold without an expert, a necessary element to shift the burden of proof to defendants, making the doctrine inapplicable.
Finally, the judge addressed the issue of damages. Even if Robertet could proceed on liability without an expert, the judge found that it could not establish proximate cause and damages without an expert. Robertet timely filed a notice of appeal on December 27, 2006, after claims against other parties were resolved.
Robertet contends on appeal that the complete preclusion of expert testimony was unwarranted and, in any event, expert testimony was not required to prove its case at trial. It asserts that it is entitled to the benefit of the doctrine of res ipsa loquitur, the installation of the defective window walls was a breach of Academy's subcontract and, in approving payment for the window work, Tri-Form breached its management contract.
More specifically as to bar to Munro's testimony, Robertet urges that Cannon, Academy's expert, ignored the fact that the remediation of the windows alone cured the water infiltration, a remedy which eliminated many, if not all, of the potential causes suggested by Cannon. Robertet also urges that Cannon was not familiar with the results of the remediation and had no expertise in the Kawneer strip-window system*fn5 installed in its headquarters.*fn6 As a consequence, Robertet asserts that the other causative possibilities were hypothetical only and disproved by the successful remediation.
Robertet argues that Munro-who owned Pioneer, a dealer and installer primarily of Kawneer systems for thirty years-focused only on matters readily observable to Academy during its inspections in 1999 and 2000 in response to complaints of leaks. He also relied on Academy's construction of the strip-window system and its failure to install the strip-window walls according to the specifications for a Kawneer 451T strip-window system specified by Robertet's architect. Munro opined that the deviations from the specifications were certain to fail based on visual observation of the windows without any disassembly. For example, when Munro arrived at the site, he initially observed that no expansion mullions were installed, contrary to the specifications. He also immediately observed that there were no sill flashings and that the sill extensions installed by Academy sealed off the weeping system, blocking water from exiting to the outside. Additionally, the sill extensions were lapped rather than butted. Munro testified that as soon as he saw these errors, he knew that the Kawneer 451T curtain-wall system was retaining water in the wall cavities before he even opened the window in the lunchroom.
Finally, Robertet argues that Academy knew what it installed and how it installed it. Robertet points out that Cannon did not consider any of Academy's shop drawings or records of installation and its inspections of the strip-window system during 1999 and 2000, which ought to have disclosed the work done at the time of installation, and compared those records to Kawneer's specifications to render an opinion as to conformance with them and the consequences of any deviation.
Robertet also notes that Academy has submitted no evidence to refute the defects observed by Munro, such as a certification that it did install sill flashing to allow water to weep out of the system. Neither has Academy raised a dispute as to the failure to install expansion mullions, caulking that blocks the escape of water and other defects. Robertet asserts that its proofs should only have been limited to the open and obvious conditions prior to remediation and the results of remediation, and that it was error to impose a blanket prohibition on Munro's testimony. It urges that none of this evidence was impacted by the remediation. As a consequence, it argues that its expert should only have been limited to the conditions observed without any disassembly of the windows. Those readily observable conditions were documented in photographs, observed by Academy before 2001, and documented in its own records of the window installation.
Academy, on the other hand, urges that the remediation deprived it of all defenses to Robertet's claims and prevented it from prosecuting its third-party claims. It asserts that Cannon "would have (1) performed a visual inspection to confirm the existence of present or past leaks;*fn7 (2) determine whether there is any correlation to the leaks and window components; (3) perform systemic water testing in conformance with the standards established by the American Architectural Manufacturers' Association ('AAMA')." Cannon explained the purpose and methodology of the AAMA standards and pointed out that Munro did not do such testing. He stated that he could not determine whether Munro's allegations were accurate and were the source of the water infiltration at the facility.
Cannon also testified that he did not even have an opportunity to inspect the lack of expansion mullions, the improper installation of gaskets, the improper installation of sill flashing and sill extension, and improper perimeter caulking and system caulking. Cannon asserted that the photographic evidence was insufficient as it did not document everything and he complained that he was not able to hire a mold expert to perform testing. Additionally, he testified that Munro did not do any water testing to rule out any other potential sources of leaks, such as the EIFS, which Cannon noticed had been recoated and resealed at some point.
Finally, Cannon testified that the water infiltration could have been a result of the windows, but also might have been caused by EIFS cracks, failure of EIFS-to-window sealants performed by others, roof leaks, or high relative humidity conditions caused by the HVAC system. He also pointed to the negative pressure in the building from the laboratory exhaust fans as a condition that would draw water into the building.*fn8 He asserted that, without an opportunity to inspect the as-built conditions, he was not able to render an opinion to a reasonable degree of probability as to less costly alternatives to the remediation undertaken nor could he opine as to the proximate cause of the water infiltration, or even its extent or existence.*fn9
Robertet points out that the defendants did not call any eyewitnesses to give testimony with respect to their knowledge of the condition of the strip-window walls prior to the remediation, relying entirely on Cannon's testimony about his ability to opine on proximate cause and damages. Robertet attacks Cannon's qualifications to render a report because he had never had any experience with any strip-window system, including the Kawneer 451T system, the very installation and components of which are at issue here. Cannon did not even review the Kawneer 451T literature and did not opine on the impact of not installing sill flashing on water infiltration. Thus, his testimony did not refer to the operation of the Kawneer 451T system, its assembly by Academy, and how that assembly might have impacted on the system's operation.
Robertet also suggests that the judge should have considered the fact that although Cannon opined in his report that Munro erred in concluding that the strip-window system was the sole cause of the water infiltration, he did not complain that the spoliation of evidence in way interfered with his ability to render an opinion. Furthermore, Robertet notes that Cannon testified that there were many potential sources for water leaks but admitted that if no repairs had been done to a specific source, such as the roof, the parapets, the HVAC, the EIFS and others, he could eliminate that component as a potential cause of the leak, later expressing a caveat that leaks sometimes disappear and reappear.*fn10
Because Robertet admits the spoliation of evidence, we review the remedy afforded to defendants for a mistaken exercise of discretion. The crafting of an appropriate remedy for a discovery violation is committed to the sound discretion of the judge so long as the remedy is "just and reasonable in the circumstances." Calabrese v. Trenton State College, 162 N.J. Super. 145, 151-52 (App. Div. 1978), aff'd, 82 N.J. 321 (1980). "'[J]udicial discretion' is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case." Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952). The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Moreover, the exercise of judicial discretion must have factual underpinnings and a legal basis. Id. at 110. Thus, we review the judicial remedy for the admitted spoliation to ascertain whether the facts supported preclusion of all expert testimony and a consequent dismissal of Robertet's causes of action against these defendants. If so, we must determine whether the remedy was just and reasonable under all the circumstances presented.
The scope of our review of the summary judgment in favor of defendants is broad. In reviewing a ruling on a summary judgment motion, we apply the same standard as that governing the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). Because this summary judgment was decided on a question of law- whether Robertet could make out a prima facie case on each of its causes of action-we owe no special deference to the judge's ruling. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference."). Of course, if the remedy was overly broad, the grant of summary judgment was erroneous.
Robertet relies on ManorCare Health Services, Inc. v. Osmose Wood Preserving, Inc., 336 N.J. Super. 218, 231 (App. Div. 2001), for the proposition that the sanction should do no more than erase the prejudice suffered by defendants.
Trial courts have the inherent discretionary power to impose sanctions for failure to make discovery. This court will not disturb such sanctions if they are just and reasonable under the circumstances. Dismissal with prejudice, the ultimate sanction, should only be ordered when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party. If a lesser sanction could erase the prejudice against the non-delinquent party, dismissal of the complaint with prejudice would not be appropriate and would therefore constitute an abuse of discretion. [Id. at 230-31 (citations and quotations omitted).]
There we considered whether any less-drastic remedy than dismissal would suffice. Id. at 231. We considered first whether an adverse inference charge would remedy the prejudice. Ibid. If not, we considered whether rendering all reports, photographs, videos, and samples taken during and after the roof renovation inadmissible, but still allowing the case to proceed against Osmose based solely upon the findings, observations, and photographs taken by both sides prior to the roof repairs, would be an adequate sanction for ManorCare's dereliction and effectively dilute the prejudice to Osmose. [Ibid.]
We concluded that an adverse-inference charge would not remedy the prejudice to Osmose because the ten panels of plywood retained after the removal of the roof were selected by ManorCare from 1800 panels and deprived Osmose of an opportunity to inspect any other panels and tilted the playing field in favor of ManorCare. Id. at 234. We noted that "we have routinely explained that exclusion of testimony and/or evidence is an appropriate sanction to alleviate the prejudice resulting from serious discovery violations." Id. at 235 (citations omitted). We then determined that exclusion of evidence could remedy the spoliation without resorting to dismissal:
Because we find that nothing short of exclusion of all evidence obtained during and as a result of the roof repairs will truly "level the playing field," this is precisely what shall be done. We therefore reverse the trial court's grant of summary judgment to Osmose and remand this case with instructions that all evidence taken during and after the commencement of the roof renovation-including but not limited to reports, photographs, videos, and sample pieces of plywood-shall be inadmissible.
ManorCare's two remaining causes of action shall proceed against Osmose based upon the observations, findings, reports, and photographs taken by ManorCare, Osmose, Hoover, and any other party to this action prior to the commencement of the actual roof repairs, along with any subsequent reports or expert testimony based solely upon the evidence obtained prior to the commencement of the repair work. [Id. at 236.]
As in ManorCare, we are satisfied that an adverse-inference charge would not suffice to remedy the prejudice to defendants. Indeed, Robertet does not urge that it would. Rather, it contends that the proper remedy was exclusion of the evidence obtained as a result of the remediation, not exclusion of all expert testimony. Defendants urge that, unlike the defendants in ManorCare, they did not have any opportunity to make observations and findings or take photographs prior to the commencement of the actual window remediation. That is only partially true. Academy had multiple opportunities to inspect the exterior of the windows over a two-year period while Robertet was complaining of leaks. It certainly was free to take photographs if it chose to do so. And any reasonable subcontractor would know that if it could not repair the leaks, a claim might well be made against it, at least for breach of contract if not other claims, especially if the subcontractor refused or neglected by 2001 to respond to Robertet's concerns and requests for repair.
More to the point, however, is that Academy was required by the subcontract to install the windows in accordance with the manufacturer's specifications. It had better knowledge of the manner in which it followed those specifications than Robertet until the remediation began. Presumably, it had shop drawings and documentary evidence of the work it did as well as the information it could obtain from its employees who fabricated component parts, installed the system and attempted to repair it. Thus, an expert for defendants could readily respond to Munro's report if that report were limited to evidence obtained before the windows were disassembled and the conclusions Munro drew from that evidence as compared to the Kawneer 451T specifications.
We are satisfied that Cannon's inability to opine that the leaks were caused by conditions other than the windows is a red herring in this particular case. He points to the roof, the parapet, the EIFS, the sealing joint between the EIFS and the windows, the sealing behind the windows, the EIFS at ground level, condensation, and the presence of negative pressure in the building. Yet after the remediation was completed, the leaks stopped and the only work done to the building was the remediation of the windows and the repair of the EIFS to a limited extent as necessary for the installation of new windows. This eliminates most of the hypothetical sources of water infiltration Cannon identified. Furthermore, Cannon was apparently not familiar with the Kawneer 451T strip-window system and its performance specifications, which anticipate that water will infiltrate the system and then weep out over the sill flashing.
We are satisfied that, like ManorCare, the prejudice from the spoliation will be adequately cured by confining the evidence and expert testimony respecting the condition of the windows to the period of time preceding the disassembly of the lunchroom window. This will, necessarily, preclude evidence of the mold infestation and its separate clean-up costs, but that exclusion of evidence and damages is just and reasonable under the circumstances of this case as defendants have no way to refute them. Calabrese, supra, 162 N.J. Super. at 151-52. The exclusion of all expert testimony here was not just and reasonable and is reversed. As a consequence, we also reverse the grant of summary judgment and remand to the judge for entry of an order that limits the evidence in accordance with this opinion. The remaining issues raised on appeal are moot in light of our determination of the remedy for the spoliation.
Reversed and remanded for proceedings consistent with this opinion.