On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2228-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Messano.
Plaintiffs, the Estate of Lois Mancini and her surviving husband, George J. Mancini, appeal from the December 15, 2008 order that denied their motion to extend discovery, and a series of subsequent orders, entered on January 23, 2009, that granted defendants summary judgment and dismissed plaintiffs' complaint with prejudice. We have considered the arguments raised on appeal in light of the record and applicable legal standards. We affirm.
We review the facts in a light most favorable to plaintiffs. See R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).*fn1 Plaintiffs owned a home located on Tarnsfield Road in Mount Holly. From the date they purchased the property until June 1996, the home's heating system was serviced by defendant McAllister Company, t/a McAllister Fuels (McAllister). Plaintiffs' service contract with McAllister provided a "Tank Protection Plan" that included a policy of insurance issued by American International Group, Inc., t/a AIG (AIG). In the winter of 1995, plaintiffs' heating system developed problems and McAllister diagnosed those to be, in part, the result of a leak in the outdoor, underground fuel oil tank. A claim was made with AIG, which in turn appointed a related company, defendant AIG Technical Services, Inc. (Technical), to investigate the problem and remediate same in accordance with environmental regulations.
Defendant DeMaio's Inc. (DeMaio) was retained to conduct an investigation of the spill and remediate the site, which they completed in August 1996. At no time did any of the defendants indicate to plaintiffs that the leak posed a health risk. The New Jersey Department of Environmental Protection, however, concluded that the site was not properly remediated, ultimately leading in 2002 to the retention of another contractor, Environmental Management Services, Inc. (EMS), to complete the job.
EMS concluded that the problem was indeed more severe than DeMaio had indicated. Complete remediation would require the excavation of a significantly greater amount of soil from the Mancini property, and EMS believed some contaminants migrated to the soil below the slab upon which the home was built. EMS recommended that the Mancinis leave their home while remediation continued.
Lois Mancini, in the interim, developed myelofibrosis, a form of cancer. Plaintiffs commenced suit in 2003 alleging that her condition was caused or exacerbated by the negligence of defendants. On September 12, 2004, Lois Mancini died from her illness; an amended complaint was filed substituting her estate as plaintiff and adding a survivorship and wrongful death claim. The matter was case managed by a Law Division judge.*fn2
The procedural history that transpired was detailed at length in our prior opinion, Estate of Mancini v. Lexington Insurance Company et al., No. A-6149-04 (App. Div. November 21, 2006); we need not recite it again. It suffices to say that we reversed the Law Division's dismissal of the complaint that was predicated on the conclusion that plaintiffs had not complied with a discovery order by supplying an adequate expert report on the issue of causation. Id. (slip op. at 9-10). We remanded the matter to the trial court. Id. (slip op. at 10).
The first case management order that followed set a new discovery schedule that required plaintiffs to submit their expert reports by July 13, 2007 and fixed the discovery end date as September 30, 2007. Plaintiffs requested extensions of time to produce the report of their expert, Elissa Ann Favata, M.D., a specialist in occupational health. By consent order dated November 21, the deadline to produce Favata's report was extended to December 15.
Favata's report, dated December 14, was served upon defendants. Favata noted that soil sampled from the site revealed the presence of benzene and other volatile organic compounds. Favata's ultimate opinion provided [B]ased on my review of the exposure data and medical records of Ms. Lois Mancini, the interview with Mr. George Mancini regarding Ms. Mancini's environmental and medical history, and review of the scientific/medical literature, and also based on a reasonable degree of medical certainty, there is a causal association between Ms. Lois Mancini's chronic residential exposure to benzene . . . and her development of myelofibrosis . . . which was the cause of her death.
Defendants produced responsive expert reports in April 2008. A report from Panos Georgopoulos, Ph.D. and Paul Lioy, Ph.D., detailed a computer model they developed to measure the upper limits of airborne benzene concentrations caused by the fuel tank leak at the Mancini home. Their report concluded that the airborne toxicity levels at the property were actually lower than those reported by the Environmental Protection Agency and the National Air Toxic Assessment for the surrounding area. Bernard D. Goldstein, M.D., opined in his report that a causal relation between Lois Mancini's disease and "exposure to fuel oil d[id] not remotely approach the level of reasonable medical probability." Goldstein based his conclusion upon the fact that Lois Mancini's "level of benzene exposure was far too low . . . [and] the natural progression of [her] disease . . . [wa]s such that it very probably began prior to any exposure to fuel oil from a leaking underground storage tank."
On June 27, a trial date of November 17 was set. On July 18, DeMaio obtained a court order compelling the deposition of Favata on August 14, which was one of only two dates that Favata would agree to sit for depositions, and the only date before discovery ended. That date, however, was cancelled due to a defense attorney's medical emergency. However, before the date of the scheduled deposition, Favata indicated to plaintiffs' counsel that she was unwilling to be deposed. In a September 3 letter to the judge, plaintiffs' counsel indicated that "professional differences with our expert have made it impossible for [her] to continue as the ...