Teresa Edelglass v. Cts Cement Manufacturing

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0905-23

TERESA EDELGLASS,

Plaintiff-Appellant,

v.

CTS CEMENT MANUFACTURING,

and HOME DEPOT,

Defendants-Respondents.

______________________________

Submitted December 12, 2024 – Decided January 30, 2025

Before Judges Walcott-Henderson and Vinci.

On appeal from the Superior Court of New Jersey, Law

Division, Ocean County, Docket No. L-1637-21.

Teresa Edelglass, appellant pro se.

McElroy, Deutsch, Mulvaney & Carpenter, LLP,

attorneys for respondents (Jennifer M. Jones, of counsel

and on the brief).

PER CURIAM

Plaintiff Teresa Edelglass appeals from the September 8, 2023 order

granting summary judgment in favor of defendants, CTS Cement Manufacturing

Corporation (CTS Cement) and Home Depot U.S.A., Inc. (Home Depot)

(collectively defendants). Plaintiff filed suit against defendants alleging she

suffered personal injury caused by defendants' negligence related to her use of

defective sealant manufactured by CTS Cement and purchased from Home

Depot. Plaintiff alleges the use of the defective sealant caused her carpal tunnel

syndrome and pain in her right hand. Perceiving no error in the court's dismissal

of plaintiff's negligence complaint, we affirm.

I.

In May and June of 2019, plaintiff, intending to fix a crack in her pool,

purchased thirteen tubes of sealant from two separate Home Depot locations

because "neither had enough of the product on hand." According to plaintiff,

the sealants she bought from the first Home Depot location w in an open box in

the store. Because the first Home Depot did not have enough sealant, plaintiff

went to a second location where she purchased more, this time from a sealed

box. On June 17, 2019, plaintiff used a "standard caulking gun" to apply the

sealant. At deposition, plaintiff testified the caulking gun she used was between

ten- and twenty-years old.

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Upon finishing the sealant from the first box, plaintiff used a tube from

the second box and "noticed it was of an entirely different consistency" and

flowed easily from the tube. She contends the sealant from the first box was

"very thick and extremely hard to expel from [the] tubes." Nevertheless,

plaintiff used twelve of the thirteen tubes.

Realizing the difference in consistency in the sealant, plaintiff contacted

Home Depot. At deposition, plaintiff testified she read the numbers off the

bottom of the tube to a Home Depot employee over the phone who "told [her] it

was an expiration [date]." Plaintiff did not preserve any of the actual tubes of

sealant and instead provided two photographs of the product in opposition to

defendants' motion for summary judgment. Plaintiff contends the photographs

show an expiration date of 2008.

Following her use of the sealant, plaintiff consulted with several doctors

regarding her complaints of pain in her right hand and later in her left hand. On

July 18, 2019, plaintiff was seen by Dr. Timothy Leddy, an orthopedist. Plaintiff

claims to have developed an injury to her right hand from using the sealant.

Specifically, plaintiff states she experienced "a very unusual pain in her right

(dominant) hand," "[b]oth during and after the project was completed." During

this visit, Dr. Leddy did not diagnose plaintiff or identify the cause of her pain.

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Approximately two months later at plaintiff's follow-up appointment, Dr. Leddy

noted that plaintiff had some tenderness in her right hand when palpated, grip

weakness, and that she had a "normal pain-free active range of motion." He did

not diagnose plaintiff with a medical condition at the second visit.

In December 2019, plaintiff consulted with Dr. Violeta Avramov, a

neurologist. According to plaintiff, Dr. Avramov diagnosed her with carpal

tunnel syndrome. In February 2020, another doctor, Paul Gennaro, administered

a non-invasive electromyography (EMG) test and confirmed the diagnosis of

carpal tunnel syndrome.

On June 17, 2021, plaintiff filed a pro se complaint against defendants

alleging negligence and served a demand for discovery. She alleged defendants

owed her "a reasonable duty of care to not cause injury or harm," and they were

negligent in breaching their duty by failing "to ensure that only fresh, usable

product[s] remained on the shelf for sale." Plaintiff further alleged defendants'

breach of their duty of care was the actual and proximate cause of her injury

which negatively impacts "every aspect of her daily life both physically and

emotionally."

In August 2022, defendants provided discovery, including answers to

interrogatories which stated the product was not distributed to Home Depot until

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2017, and "each sealant cartridge or tube has an expiration date clearly printed

on the bottom edge of its surface consisting of letters or digits representing the

month and two numerical digits representing the year." After CTS Cement

provided answers to plaintiff's interrogatories, plaintiff served a request for

supplemental discovery styled as a "reply." In response, CTS Cement provided

the affidavit of Aaron Hall, its product line manager for sealants, coats, and

adhesives, in which he stated the sealant depicted in plaintiff's photographs

could not have expired in 2008 because it was first manufactured in 2017 and

was not distributed by Home Depot until 2017. In addition, the illegible stamp

on the bottom of the tube identified by plaintiff in her photographs was not an

expiration date. On October 13, 2022, plaintiff sat for a deposition.

On March 23, 2023, defendants referred plaintiff to Dr. David

Kirschenbaum, an orthopedist, for an independent medical evaluation. Dr.

Kirschenbaum's physical examination of plaintiff revealed no swelling, redness,

or ecchymosis, and he found plaintiff had symmetrical rotation, no weakness or

atrophy, and no tenderness. He also noted that plaintiff denied experiencing

numbness or tingling and never experienced pain at night. Dr. Kirschenbaum

issued a report on May 26, 2023 attributing plaintiff's pain to "overuse," noting

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plaintiff had been experiencing a similar problem with her hand prior to May

2019, when she used the sealant to fix her pool.

On March 29, 2023, plaintiff moved to compel defendants to provide

responses to supplemental interrogatories. Defendants opposed the motion,

arguing they had already provided answers, including the affidavit of CTS

Cement's product manager, Hall. The court granted plaintiff's motion to compel

supplemental interrogatories and extended discovery through June 9, 2023, "so

that the parties c[ould] resolve any outstanding discovery disputes."

On June 10, 2023, plaintiff sought an adjournment of court ordered

arbitration, arguing defendants "ha[d] failed to comply with [the order]

compelling discovery." The court denied plaintiff's motion. On June 12, 2023,

plaintiff provided defendants with "additional evidentiary material," including

an office note from Dr. Leddy dated April 4, 2023, and several pages of

"customer reviews" from Home Depot's website. Defendants objected to the

additional discovery as untimely, arguing the customer reviews and doctor's note

were available to plaintiff during the discovery period and, therefore, could have

been disclosed during that time.

On August 11, 2023, defendants moved for summary judgment, asserting

plaintiff's expiration date theory lacked merit and she failed to prove the sealant

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was defective or that it caused her alleged injuries. Plaintiff opposed the motion,

and the court scheduled oral argument via Zoom for September 8, 2023.

Plaintiff, who was pro se at the time, did not appear on Zoom. When plaintiff

did not appear for oral argument, defendants waived their virtual appearance,

and the court decided the motion solely based on the parties' papers, including

their briefs.1 The court stated, "[u]nder the circumstances I think we'll leave

everything in equipoise. We'll just rely on the papers that are submitted [,] and

I'll execute the order."

The court placed its oral decision on the record the same day, granting

summary judgment in favor of defendants. The court found plaintiff could not

establish defendants owed potential customers a duty not to warehouse or sell

expired products and explained that the products at issue "cannot be determined

to have [been] expired or to have been sold in violation of any duty that Home

Depot may have had." The court found Home Depot had no duty to "routinely

1

Plaintiff claims her failure to appear was due to her not being notified of the

oral argument date. The court stated "[w]e have sent her an invitation for today's

oral argument on this application. She has not communicated with the [c]ourt.

We have received no information from her as to whether or not she is unable to

appear." Defendants' counsel emailed plaintiff the day prior to oral argument

"to make sure [she was] aware of it . . . [and to send her] a courtesy email."

Defendants waived oral argument and agreed to have the court rely on the papers

in making its determination.

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test or inspect the sealant to make a determination as to the viscosity" and, at

that time, plaintiff had not provided any proof as to whether "the sealant

exceeded any manufacturing guidelines or any established standards within the

industry as to what the viscosity should have been."

Additionally, the court concluded there was no expert report causally

relating plaintiff's injury to the use of defendants' products and there is "nothing

that the plaintiff can establish in regard to the viscosity of the product." The

court found plaintiff failed to supply a medical report to indicate the problems

with her hands "were causally related to the use of the product which was sold

by Home Depot to the plaintiff which she then indicates caused an injury

because of the increased viscosity of the sealant itself." The court further

concluded "[t]he principal defect in the plaintiff's case is that she has no medical

expert to indicate that the injury that she is suffering from is causally related to

her [use of the sealant]." Plaintiff appealed.

On appeal, plaintiff argues the court erred in granting summary judgment

in favor of defendants based on the following: (1) defendants' motion "was

knowingly predicated on a false, debunked theory of their own making;" (2)

there was a genuine issue of disputed material fact whether defendants breached

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their duty of care to plaintiff; (3) and the trial court failed to consider plaintiff's

"entire body of medical evidence."

II.

We review the trial court's summary judgment ruling de novo, applying

the same standard as the motion judge. Davis v. Brickman Landscaping, Ltd.,

219 N.J. 395, 405 (2014); R. 4:46-2(c). We consider the facts in a light most

favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995). The court must analyze the evidence "to identify whether

there are genuine issues of material fact and, if not, whether the moving party is

entitled to summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J.

22, 38 (2014).

To defeat a motion for summary judgment in a negligence action, a

plaintiff must present competent evidence of a duty of care owed, breach of that

duty, causation, and damages. Siddons v. Cook, 382 N.J. Super. 1, 13 (App.

Div. 2005). "A duty is an obligation imposed by requiring one party to conform

to a particular standard of conduct toward another." Acuna v. Turkish, 192 N.J.

399, 413 (2007). "The question is whether a reasonably prudent person at the

time and place should recognize and foresee an unreasonable risk or likelihood

of harm or danger to others by his or her conduct." Franco v. Fairleigh

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Dickinson Univ., 467 N.J. Super. 8, 25 (App. Div. 2020) (quoting Est. of

Narlesksi v. Gomez, 244 N.J. 199, 226 (2020)). Breach of the duty of care

occurs when the person's "conduct . . . falls below a standard recognized by the

law as essential to the protection of others from unreasonable risks of harm."

Marshall v. Klebanov, 378 N.J. Super. 371, 378 (App. Div. 2005) (quoting

Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961))."Although the existence of a duty

is a question of law, whether the duty was breached is a question of fact."

Jerkins v. Anderson, 191 N.J. 285, 305 (2007) (citing Anderson v. Sammy Redd

& Assocs., 278 N.J. Super. 50, 56 (App. Div. 1994)).

Plaintiff bears the burden of proving defendants' negligence proximately

caused the alleged injuries and damages. Paxton v. Misiuk, 34 N.J. 453, 463

(1961). To establish causation, a plaintiff must show by competent evidence

that the breach of duty was a substantial contributing factor in producing the

alleged damages. Scafidi v. Seiler, 119 N.J. 93, 104-05 (1990).

N.J.R.E. 702 provides: "[i]f scientific, technical or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherw ise."

In some cases, expert testimony becomes "necessary" to the trier of fact's proper

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functioning where a lay jury will need to determine areas of specialized

knowledge. In these areas of substantive law, the party with the burden of

establishing a proposition must proffer expert testimony. Jerista v. Murray, 185

N.J. 175, 188 (2005).

When a layperson's common knowledge is not competent to establish the

standard for measuring a defendant's conduct, expert testimony is required to

establish the requisite standard of care. See Davis, 219 N.J. at 407. Likewise,

expert testimony may be needed when "the matter dealt with is so esoteric that

jurors of common judgment and experience cannot form a valid judgment as to

whether the conduct of the party was reasonable." Ibid. (quoting Butler v. Acme

Markets, Inc., 89 N.J. 270, 283 (1982)). In such cases, the jury "would have to

speculate without the aid of expert testimony." Ibid. (quoting Torres v.

Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001)). In Davis, the Court

concluded expert testimony necessary to establish the standard of care for the

inspection of fire sprinklers by contractors because such practice "constitutes a

complex process involving assessment of a myriad of factors . . . beyond the ken

of the average juror." Id. at 408 (quoting Giantonnio v. Taccard, 291 N.J. Super

31, 44 (App. Div. 1996)); see also Ford Motor Credit Co., LLC v. Mendola, 427

N.J. Super. 226, 239 (App. Div. 2012) (concluding expert testimony was

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necessary to assess whether a repair shop and car dealership had breached their

duty because a car is a "complex instrumentality" that the general public is

unfamiliar with).

At the outset, we reject plaintiff's argument the motion court erred in

granting summary judgment because there was a genuine issue of material fact

concerning whether defendants had breached their duty of care. Discovery

revealed plaintiff's theory that the sealants she purchased from Home Depot

were expired proved to be incorrect because the stamped information on the

sealant tube plaintiff initially relied on to argue the sealant in the opened box

was expired was not an expiration date. Moreover, plaintiff offered no evidence

to dispute defendants' contention that the sealant was manufactured and sold to

Home Depot in 2017, and could not have expired in 2008 as she initially

asserted. In fact, plaintiff admits in emails to defendants' counsel that "the

product was first manufactured in 2017." Plaintiff also did not preserve the

allegedly defective tubes of sealant for inspection.

Based on her theory of negligence, plaintiff needed an expert to opine on

the mechanics of how her use of the tubes of allegedly expired or defective

sealant caused her specific injuries. N.J.R.E. 702. Without an expert to opine

on the duty of care required for the manufacturing and sale of the sealant, a lay

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juror would be unable to determine the product was defective, let alone

determine the allegedly defective product caused her hand injury. Davis, 219

N.J. at 408. Like automobile repairs in Ford, 427 N.J. Super. at 239, the general

public is likely unfamiliar with the standards used in manufacturing sealant

without expert testimony. In other words, plaintiff did not satisfy her burden of

proof to establish that defendants owed her a duty of care which they breached

by selling, manufacturing, or stocking a defective product. Siddons, 382 N.J.

Super. at 13.

Plaintiff also failed to establish causation: that the use of the sealant

caused her carpal tunnel injury in her right hand. Plaintiff testified that in

attempting to fix her pool, she used a caulking gun that was between ten and

twenty-years old and that the sealant was "very thick and extremely hard to expel

from [the] tubes." Nevertheless, plaintiff attributes her pain solely to her use of

the sealant, not her use of the admittedly old caulking gun, or other cause.

Medical diagnoses describing possible causes of an injury are "relevant to a

subject that is beyond the understanding of the average person of ordinary

experience, education, and knowledge." Jerista, 185 N.J. at 188.

Plaintiff argues she can prove causation because she was treated for carpal

tunnel syndrome. Defendants argue plaintiff's medical records show she

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complained of pain in her right hand as early as September 13, 2016 , prior to

her use of the sealant, which cuts against her negligence claims against them.

The record reflects that plaintiff had prior complaints of pain in her right hand

as defendants argue. This fact combined with the absence of any medical

evidence causally linking plaintiff's injury to the use of the sealant leaves

plaintiff unable to establish the necessary elements in support of her negligence

suit. Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999) (stating "the

burden of proving negligence in any particular case is on the plaintiff" (citing

Buckalew v. Grossbard, 87 N.J 512, 525 (1981))).

The court correctly determined plaintiff's failure to obtain an expert

opinion establishing defendants had a duty of care which they breached and

causally relating her injury to the use of the sealant, based on competent

evidence, renders her negligence claim unsupported. A plaintiff must establish

the essential elements of negligence "by some competent proof." Townsend v.

Pierre, 221 N.J. 36, 51 (2015). Thus, based on our de novo review of the

undisputed facts in the record, defendants are entitled to judgment as a matter

of law. Bhagat, 217 N.J. at 38.

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To the extent we have not otherwise addressed plaintiff's arguments, they

are without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

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