On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1772-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Yannotti and Kennedy.
Plaintiff appeals from a May 7, 2010 order of the Law Division dismissing with prejudice his complaint for personal injury, as a consequence of plaintiff's pervasive lies during discovery and his efforts to subvert the discovery process. We affirm essentially for the reasons expressed by Judge Ann G. McCormick in her thorough opinions from the bench.
On March 6, 2008, plaintiff filed a complaint in the Law Division alleging that he developed mesothelioma through the "inhalation and ingestion" of asbestos dust and particles while working as a mechanic's helper at "local auto body shops throughout Williamstown, New Jersey," and while assisting his grandfather in "extensive automotive maintenance and repair work," beginning in the early 1980s. The thirteen named defendants were alleged to have marketed asbestos-containing products for the automobile industry "which plaintiff used or [to which he] was exposed."
In his initial answers to interrogatories, plaintiff, who was born in 1975, stated he would "regularly assist neighborhood mechanics . . . repairing and replacing brakes and clutches" between 1981 and 1991. During the course of such work, plaintiff "believe[d] he worked with and around" brakes and clutches manufactured and sold by various defendants and that he "was exposed to asbestos containing brakes, clutches and gaskets . . . ."
In his answer to an interrogatory asking plaintiff to set forth a "complete history" of his employment, plaintiff asserted he worked as a cook at several restaurants; as a Manpower employee for a cereal company and a "junk mail" company; as a cabinet installer at Stanford University for a period in 2002; and as a sales associate at Home Depot. He also stated that "[f]rom time to time throughout his early childhood," he helped family members "who performed various construction side jobs including new residential home construction." Plaintiff added he "does not recall exposure to any types of fumes or dust" at any of these jobs.
During depositions commencing in 2009, plaintiff stated he had helped his uncle and cousin in the construction of two homes in the 1990s, but denied otherwise working "on a construction or demolition work site." When presented with a copy of his Home Depot employment application which stated he had worked at Hahnel and Sons Construction prior to 2003, plaintiff denied that he had ever worked there, denied knowing the telephone number for the entity's owner, Stan Hahnel, and denied he had spoken with Hahnel recently. He also denied speaking about the lawsuit with anyone other than his lawyers and his family.
Defense counsel was able to secure an affidavit of Nancy Walling, who stated that plaintiff worked for her husband, Kenneth Walling, at TLB Construction, on "many occasions." Plaintiff did roofing work, trench work, and "general labor duties on construction sites[,]" according to Walling, who also stated she knew plaintiff and was not aware that he ever worked on cars.
Telephone records revealed that plaintiff called Walling and her daughter over twenty-five times both before and after their depositions in November 2008. Thomas L. Berardi, the owner of TLB Construction, later gave a statement confirming that plaintiff had worked for his construction company in 1993. These records and the statement were secured through investigators hired by defense counsel.
In addition, Michael Massaro gave several statements pertaining to plaintiff. In an affidavit, Massaro stated he worked with plaintiff at Hahnel and Sons Construction for four or five years in the mid-1990s, and that he and plaintiff, among other things, removed asbestos roofs and asbestos siding without wearing protective respirators. In a supplemental statement, Massaro stated he grew up with plaintiff and never saw plaintiff undertake any automotive work.
Massaro also indicated in another statement that in late December 2008, plaintiff began calling him every day and urged Massaro to avoid a deposition, or to testify that he knew plaintiff worked on cars. According to Massaro, plaintiff stated he was "about to get rich" and offered to fly Massaro and his family to Florida for a vacation in which "we would not want [for] anything."
Massaro was later deposed and stated that he and plaintiff worked at Hahnel and Sons for three summers between 1992 and 1995, doing demolition work and remodeling which exposed both of them to asbestos. He also testified to the telephone conversations he had with plaintiff, noted above.
Stanley Hahnel was located and deposed. He confirmed that he had, in fact, spoken to plaintiff about the litigation. However, Hahnel testified that neither plaintiff nor Massaro had ever worked for his company.
Further, Peter Chupashko and Anthony Boyd testified that they worked with plaintiff at Mid-Atlantic Rigging and that the company had performed work at sites with asbestos. The owner of Mid-Atlantic later claimed plaintiff had not worked for him.
Trial was scheduled for September 14, 2009. However, on September 8, 2009, plaintiff's counsel at the time,*fn1 wrote to defense counsel to advise "we have recently learned that plaintiff Michael Gaskill's trial testimony will differ from his sworn testimony at his depositions, in the following manner[,]" and then listed six changes. Counsel stated that plaintiff would testify that he worked in construction for Hahnel, TLB Construction, Mid-Atlantic Roofing, Tom Berardi, and Ken Walling. He added that plaintiff would also testify he had telephone conversations with Massaro and Hahnel after the filing of suit.
Defense counsel promptly wrote to the court requesting an adjournment of the trial date, and on October 19, 2009, Judge McCormick entered an order allowing defendants to undertake additional discovery and to obtain supplemental expert reports. The order also established a date for a conference to consider "outstanding issues."
During his subsequent deposition, plaintiff admitted that he lied about his prior employment and omitted various jobs he had had because he did not want defendants "let off the hook." He further admitted lying about not communicating with Massaro and with Hahnel. After being shown phone records, plaintiff conceded that he had several telephone conversations with them at or about the time of their depositions. Plaintiff further conceded that he had spoken to the witnesses and then concealed his ...