On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Morris County, Docket No. L-0398-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2008
Before Judges Stern, Rodríguez and Payne.
Mary Lee Senatore and the Estate of Joseph J. Senatore*fn1 (plaintiffs) appeal from a grant of summary judgment dismissing Mary's claim for negligent infliction of emotional distress. This relief was sought in connection with product liability claims against General Motors Corporation (GM) and Jim Salerno Pontiac Buick, Inc. (Salerno) (collectively "defendants"). Defendants cross-appealed from the denial of their motion to exclude the testimony and report of plaintiff's treating psychologist. We reverse on the appeal and affirm on the cross-appeal.
These are the salient facts. On December 25, 2002, Joseph Senatore heard a loud noise as he attempted to start his 1998 Buick Park Avenue, which was manufactured by GM and sold by Salerno. Joseph's son and his wife Mary went into the garage, where the car was parked, to investigate. Mary saw flames coming from the front of the Buick "around the tire area."
According to Mary, she feared for her own safety and the safety of her family members present in the garage. She alleged that she "just stood there immobile" because she was "terrified." She feared that she or her family might be injured by the fire or an explosion. Fortunately, she and her family escaped injury. However, the garage and attached house were completely destroyed by the fire. The parties have stipulated that "the fire was the result of a condition described in General Motors Product Safety Recall Bulletin Number 03054 . . . which provided in relevant part that certain vehicles could experience fuel pressure regulation diaphragm leaks . . . ."
Plaintiffs sued GM and Salerno. This suit was consolidated with subrogation actions brought by State Farm Indemnity Company and State Farm Fire & Casualty Company, plaintiffs' automobile and home insurance carriers respectively, to recover approximately $400,000 in first party insurance payments. In 2006, Joseph died of causes unrelated to the fire. His estate was substituted as a party.
After the fire, Mary began attending psychotherapy sessions with Irene E. Parisi, Ph.D., a licensed professional psychologist, who opined that Mary "was experiencing significant difficulty in coping with feelings of depression and anxiety in relation to the fire which destroyed her home . . ." According to Parisi, Mary felt "totally overwhelmed" and "was grieving the loss of her home, furnishings, memorabilia, and her pet cat." The therapy "focused on verbalizing feelings associated with the loss, and adjusting to the stressful process of rebuilding her home, as well as coping with anxiety about her future." Treatment was terminated in March 2003.
Following her husband's death, Mary returned to therapy. According to Dr. Parisi's original report dated December 19, 2006:
[Mary] was again struggling with feelings of loss and grief, this time in relation to the unexpected illness and death of her husband, coupled with regret and anger that so much of her husband's last years had been spent coping with the stressful process of rebuilding after the loss of their home. Thoughts of the fire have apparently intensified again, with an exacerbation of the emotional pain she had experienced several years earlier as she again finds herself adjusting to a significant and unexpected changed in her life.
In a follow-up report dated December 22, 2006, Parisi stated that:
[Mary's] symptoms are consistent with a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood (309.28 DSM IV), and are considered, within the realm of medical probability, to be causally related to the fire which damaged her home on December 25, 2002. Although the symptoms described had diminished to some degree in response to the patient's participation in psychotherapy in late 2003 and early 2004, their underlying residuals were apparently exacerbated by the death of her husband in August, 2006, resulting in her return to therapy. At this point, it is anticipated that this woman's condition is permanent, although determination of the extent of residual symptoms cannot be definitively made until the present course of treatment is completed.
Both of Dr. Parisi's reports were served on the defendants several weeks after the September ...