DEBORAH DIGIOVANNI VS. SAKER SHOP RITES, INC.,ET AL.(L-4465-11, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4307-14T1

DEBORAH DIGIOVANNI and
RICHARD DIGIOVANNI,

Plaintiffs-Appellants,

v.

SAKER SHOP RITES, INC. and
ANTHONY INTERNATIONAL,

Defendants,

and

WAKEFERN FOOD CORPORATION;
LEER, INC.; LEER LIMITED PARTNERSHIP;
DEXTER APACHE HOLDINGS, INC.;
A & J REFRIGERATION, INC.; and
ARCTIC GLACIER, INC.,

Defendants-Respondents.

__________________________________________

Submitted November 1, 2016 – Decided June 14, 2017

Before Judges Fisher, Leone, and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
4465-11.

Shebell & Shebell, LLC, attorneys for
appellants (Thomas F. Shebell, III, of
counsel; Robert A. Morley, on the briefs).
 Wolff, Helies, Spaeth & Lucas, attorneys for
respondent Wakefern Food Corporation (Bruce E.
Helies, on the brief).

Rawle & Henderson LLP, attorneys for
respondents Leer, Inc.; Leer Limited
Partnership; and Dexter Apache Holdings, Inc.
(Valerie Kellner, on the brief).

Law Offices of Styliades & Jackson, attorneys
for respondent A&J Refrigeration, Inc. (Denise
F. Tunney, of counsel and on the brief).

Daly, Lamastra, Cunningham, Kirmser & Skinner,
attorneys for respondent Arctic Glacier, Inc.
I/P/A Arctic Glacier (Olivier J. Kirmser, on
the brief).

PER CURIAM

In this slip and fall lawsuit, the trial court dismissed the

complaint on summary judgment. Plaintiffs appeal. We affirm.

I.

Plaintiff Deborah DiGiovanni was a cashier at the ShopRite

supermarket in Hazlet.1 Plaintiff claims that she slipped and

fell on a puddle of water near a freestanding ice machine at the

entrance to the store. She sued the owner of the store, defendant

Saker ShopRites, Inc., but summary judgment was granted because

Saker ShopRites was her employer and thus was immune from suit

under the Workers' Compensation Act. See N.J.S.A. 34:15-8. She

1
Although the complaint was filed by Deborah and her husband
Richard DiGiovanni, his claim of loss of consortium is derivative
of her claims. Thus, we will refer to Deborah as "plaintiff."

2 A-4307-14T1
does not appeal that ruling, so the liability of the owner of the

store is not before us.

Instead, plaintiff appeals the trial court's orders granting

summary judgment to defendants Wakefern Food Corporation

(Wakefern), a cooperative that supplied the ice machine to the

store; Arctic Glacier, Inc. (Artic Glacier), which had a contract

to service and repair Wakefern's ice merchandising equipment; A&J

Refrigeration, Inc. (A&J), which serviced the ShopRite's

refrigeration systems; and Leer, Inc., Leer Limited Partnership,

and Dexter Apache Holdings, Inc. (collectively Leer), which

manufactured the ice machine.2

Plaintiff claims the ice machine was not properly serviced,

causing the water to leak from the ice machine. We summarize the

pertinent deposition testimony.

Plaintiff testified as follows. On October 8, 2009, she was

leaving the store on break. She slipped and fell on "[t]he water

that was leaking from the ice machine." She knew the water was

from the ice machine because "[i]t was underneath the machine" and

"there's nowhere else for water to come [from]." The water was

"[r]ight in front of it . . . by the door." She did not see the

2
The court also granted summary judgment to Anthony International,
which manufactured the ice machine doors. Plaintiff did not appeal
that ruling.

3 A-4307-14T1
water before she fell on her back, but her "whole back was wet."

The ShopRite was always having trouble with the ice machine, and

she often saw store employees pulling bags of ice out of it.

The ShopRite's night manager in October 2009, Robert J. Scott,

testified that on occasion "there would be some water that would

once in a while leak to the floor in and around the ice case." He

"noticed water coming from the machine probably between five and

ten times" in the three or four months surrounding the incident,

including "one or two times" in October. "[T]he case would leak

from the bottom underneath the doors and then it would pool around

the case itself."

Scott clarified that "[w]hen I say I've seen water in that

area several times, it doesn't necessarily mean that it always

came from the case." When customers removed bags of ice from the

machine, the bags sometimes broke open and spilled loose ice on

the floor. Customers who were buying multiple bags, and employees

who were loading bags into the machine, sometimes set bags on the

floor, causing condensation to accumulate. He did not know whether

the water was coming from the ice machine on the day of the

incident.

Brian Hagman, ShopRite's maintenance chief, testified he

cleaned liquid off the floor within ten feet of the ice machine

six or seven times since the incident, but he never saw liquid

4 A-4307-14T1
coming directly from the machine, and he was unaware of any leakage

from the machine prior to the incident.

Philip Proteau, a refrigeration mechanic employed by Arctic

Glacier, testified he serviced the ice machine on October 9, 2009,

the day after the incident. He cleaned a clogged condenser and

replaced a slow-turning condenser fan motor. Dust and dirt could

accumulate on the condenser coils, block the air flow, and cause

the fan motor to burn out and turn more slowly, which could result

in the condenser overheating and shutting off and the ice beginning

to melt. However, the Leer ice machine was "a self-sealed unit"

that had a twelve-inch well below the doors to hold any melted

water, and that "doesn't allow any water to escape unless the

floor plug is not in the bottom of the box" or is installed

incorrectly. When he serviced the machine, he did not note any

problem with the floor plug, the door hinges, or the door gaskets,

or any evidence of leaking.

Plaintiff retained an expert, George H. Meinschein, who

drafted a January 9, 2013 report. On October 21, 2013, the trial

court barred the report as net opinion. On June 23, 2014, the

court granted summary judgment in favor of Wakefern, A&J, and

Arctic Glacier. Plaintiff sought reconsideration of both orders,

which the court denied on December 19 and 22, 2014. On July 13,

2015, the court denied plaintiff's motion to vacate those orders.

5 A-4307-14T1
Meanwhile, on April 22, 2015, another judge entered a judgment in

favor of Leer, confirming a February 26, 2015 no-cause arbitration

award. Plaintiff appeals all those orders.

II.

We first address the trial court's exclusion of Meinschein's

expert report. "When, as in this case, a trial court is

'confronted with an evidence determination precedent to ruling on

a summary judgment motion,' it 'squarely must address the evidence

decision first.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015)

(citation omitted). "Appellate review of the trial court's

decisions proceeds in the same sequence, with the evidentiary

issue resolved first, followed by the summary judgment

determination of the trial court." Ibid.

"The admission or exclusion of expert testimony is committed

to the sound discretion of the trial court. As a discovery

determination, a trial court's grant or denial of a motion to

strike expert testimony is entitled to deference on appellate

review." Id. at 52 (citation omitted). Accordingly, we review a

trial court's decision whether to admit expert testimony under an

abuse of discretion standard. Id. at 53. We must hew to that

standard of review.

"The net opinion rule is a 'corollary of'" N.J.R.E. 703,

"'which forbids the admission into evidence of an expert's

6 A-4307-14T1
conclusions that are not supported by factual evidence or other

data.'" Id. at 53-54 (citation omitted). Thus, "an expert's bare

opinion that has no support in factual evidence or similar data

is a mere net opinion which is not admissible and may not be

considered." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.

344, 372 (2011).

Moreover, the net opinion "rule requires that an expert '"give

the why and wherefore" that supports the opinion, "rather than a

mere conclusion."'" Townsend, supra, 221 N.J. at 54 (citation

omitted). The rule "mandates that experts 'be able to identify

the factual bases for their conclusions, explain their

methodology, and demonstrate that both the factual bases and the

methodology are reliable.'" Id. at 55 (citation omitted). Under

the rule, "a trial court must ensure that an expert is not

permitted to express speculative opinions or personal views that

are unfounded in the record." Ibid.

Meinschein's January 9, 2013 four-page report listed the

materials he reviewed and gave a brief description of the accident.

The report then described Meinschein's physical examination of the

ice machine on February 9, 2012, which found no defect in the

machine. In the brief "Discussion & Analysis" section that

followed, the report summarized the deposition testimony of three

7 A-4307-14T1
individuals. On the key issue of whether water leaked from the

ice machine, he cited the deposition testimony of

Robert J. Scott, the night manager of the
Hazlet Shop Rite at the time of Ms.
DiGiovanni's incident, [who] testified that he
had seen water leak from the subject ice
merchandiser on several occasions and that
"the case would leak from the bottom
underneath the doors and then it would pool
around the case itself."3

Meinschein's report then concluded:

1. The history of repeated water leakage
from the subject ice merchandiser
indicates that Wakefern Food Corporation
failed to have the unit properly
serviced.

2. Wakefern Food Corporation's lack of
maintenance and service records for the
subject ice merchandiser is
representative of substandard equipment
maintenance practices.

3. Wakefern Food Corporation's lack of
maintenance and service records for the
subject ice merchandiser contributed to
the unit's degraded condition and
propensity to leak water onto the floor
in front of the unit.

4. Inadequate and substandard equipment
service procedures by Wakefern Food
Corporation were causative factors in the
October 8, 2009 water accumulation on the
floor in front of the subject ice
merchandiser.

3
Meinschein also referenced testimony by Hagman and John Mendola,
Wakefern's merchandizing supervisor, but Meinschein cited only
their testimony about who serviced the ice machine, not about
whether or why the ice machine might have leaked.

8 A-4307-14T1
 5. Inadequate and substandard service
procedures by Wakefern Food Corporation
were causative factors in Ms.
DiGiovanni's October 8, 2009 slip, fall,
and subsequent injuries.

Meinschein did not allege any design or manufacturing defects or

negligence by anyone other than Wakefern.

The trial court properly found Meinschein's report was a net

opinion. The only fact the report mentioned supporting that water

leaked from the ice machine was plaintiff's version of the incident

and Scott's testimony about other occasions. The report then

leapt to conclusions about improper servicing without explaining

why improper servicing caused the machine to leak.

Meinschein's deposition testimony added no support for those

conclusions. He testified his physical inspection found nothing

wrong with the doors or the gaskets sealing the door. He saw no

leak when he inspected the machine, and the doors were shut tight.

He noticed no rust on the machine and did not tilt the machine to

look underneath to examine the drain plug or the floor underneath

the ice machine. Based on his inspection, he found "no evidence

that it had been leaking" or "had ever leaked."

Meinschein testified nothing indicated the water on the floor

at the time of the incident leaked from the ice machine other than

"the testimony of the night manager that said the machine had

9 A-4307-14T1
leaked from time to time." However, Meinschein agreed with Scott

that the handling of ice bags by customers and store employees

could result in water in front of the machine, including at the

time of the incident.

Meinschein testified there were only "two possibilities" of

how water could have come from the ice machine:

Number one is excessive frost buildup prevents
the doors from sealing properly. So then we
can have leakage at the edge of the door. Or
number two, the machine wasn't working
properly and things were starting to melt and
we have water leaking out of the bottom of the
well that the plug wasn't put in properly.

However, Scott testified that he had not seen any water

leaking from the doors, and that the doors had nothing to do with

the leaking. Moreover, Meinschein conceded there was no record

that the plug was installed improperly. Thus, Meinschein had no

factual support that either of these theoretical sources of leakage

had occurred. Meinschein ultimately admitted he did not know if

the machine leaked or why it leaked.

Therefore, Meinschein offered only a "bare opinion" with "no

support in factual evidence or similar data" and no explanation

why the ice machine leaked on this occasion. Thus, we affirm the

trial court's October 21, 2013 order excluding Meinschein's report

and testimony as a net opinion.

10 A-4307-14T1
 After Proteau's May 20, 2014 deposition, Meinschein prepared

a May 29, 2014 supplemental memorandum. Meinschein stated Proteau

"found that the condenser fins were clogged and that the condenser

fan motor had failed." Meinschein added that when he examined the

ice machine on February 9, 2012, he "observed that the condenser

fins were loaded with dust/debris and partially clogged." He

stated:

Clogged condenser fins diminish the
dissipation of heat from the refrigeration
system, which ultimately results in the
inability of the ice merchandiser to maintain
the interior of its cabinet below the freezing
point of water. The ice inside and any frost
buildup on the walls and doors begins to melt,
thereby presenting water droplets that puddle
under the doors at the front of the machine.

He concluded "the October 9, 2009 service provided by Mr. Proteau

is fully consistent with an ice merchandiser that would have leaked

water onto the floor in front of the machine on October 8, 2009."

However, Meinschein never explained how water would have

leaked from the self-sealed, water-tight case. Thus, he failed

to establish "a causal connection between the act or incident

complained of and the injury or damage allegedly resulting

therefrom." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).4

4
Because plaintiff's claim fails even when we consider both
Meinschein's original and supplemental reports, we need not
address plaintiff's claim that Wakefern's motion to exclude the
original report was premature.

11 A-4307-14T1
 Plaintiff moved for reconsideration of the order excluding

Meinschein's net opinion, attaching his supplemental report and

Proteau's testimony. Although the motion to reconsider that non-

final ruling was not untimely, the decision whether to grant

reconsideration is left to the "sound discretion" of the trial

court. Lombardi v. Masso, 207 N.J. 517, 534 (2011) (quoting R.

4:42-2). "[A] trial court's reconsideration decision will be left

undisturbed unless it represents a clear abuse of discretion."

Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super.

378, 382 (App. Div. 2015) (citing Hous. Auth. v. Little, 135 N.J.

274, 283 (1994)). We find no clear abuse of discretion in the

trial court's ruling on the merits of the motion. Thus, we affirm

the court's December 19 and 22, 2014 denial of reconsideration of

its order excluding Meinschein's net opinion, and its July 13,

2015 refusal to vacate that order.

III.

We next address the trial court's orders granting summary

judgment to Wakefern, Arctic Glacier, and A&J. Summary judgment

must be granted if the court determines "that there is no genuine

issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law." R. 4:46-

2(c). The court must "consider whether the competent evidential

materials presented, when viewed in the light most favorable to

12 A-4307-14T1
the non-moving party in consideration of the applicable

evidentiary standard, are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the

non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 523 (1995). "[W]e review the trial court's grant of

summary judgment de novo under the same standard as the trial

court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.

of Pittsburgh, 224 N.J. 189, 199 (2016).

A.

In granting summary judgment to Wakefern, the trial court

stressed Meinschein's report "was barred by the Court as a net

opinion," so "plaintiff has no support [for] his claim by way of

expert opinion to satisfy the burden of proof."5 The court reached

that conclusion even considering "the findings of [Proteau] with

regard to the fan having residue and . . . not being maintained

in the manner it should have been maintained."

5
Plaintiff complains the trial court also mentioned Wakefern's
expert report. Of course, "[i]n considering a request for summary
judgment, the trial court, as is well-settled, 'must accept as
true the evidence supporting [the non-moving party].'" Ames v.
Gopal, 404 N.J. Super. 82, 85 (App. Div. 2008) (quoting Gen. Elec.
Capital Auto Lease v. Violante, 180 N.J. 24, 28 (2004)), certif.
denied, 198 N.J. 316 (2009). However, the trial court relied not
on Wakefern's report but on the absence of any expert testimony
supporting plaintiff's claim. Cf. Strumph v. Schering Corp., 256
N.J. Super. 309 (App. Div. 1992), rev'd, 133 N.J. 33 (1993)
(reversing substantially for the reasons stated in the dissent).

13 A-4307-14T1
 Having excluded Meinschein's expert opinion, the trial court

did not err in granting summary judgment. "[A] negligence cause

of action requires the establishment of four elements: (1) a duty

of care, (2) a breach of that duty, (3) actual and proximate

causation, and (4) damages." Jersey Cent. Power & Light Co. v.

Melcar Util. Co., 212 N.J. 576, 594 (2013). "The plaintiff bears

the burden of establishing those elements, 'by some competent

proof.'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406

(2014) (citations omitted). "Claims involving workplace accidents

commonly fall into the category in which the plaintiff must produce

reliable expert testimony to establish the standard of care and

to explain how the defendant's actions departed from that

standard." Fernandes v. DAR Dev. Corp., 222 N.J. 390, 405 (2015).

Moreover, "[w]hen the proofs involve a defect in a complex

instrumentality, an expert is frequently required to assist the

jury in understanding the mechanical intricacies and weighing

competing theories of causation." Ford Motor Credit Co., LLC v.

Mendola, 427 N.J. Super. 226, 236-38 (App. Div. 2012) (finding

expert testimony is required to explain the proper maintenance of

an automobile). The ice machine was a complex instrumentality.

See Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J. Super.

320, 331-32 (App. Div. 2004) (finding "the locking mechanism of

[a] gurney is sufficiently complex to require expert testimony").

14 A-4307-14T1
 The proper maintenance of the ice machine "'constitutes a

complex process involving assessment of a myriad of factors' that

'is beyond the ken of the average juror.'" See Davis, supra, 219

N.J. at 408 (citation omitted). What duty of care governs

maintenance of an ice machine, how that duty was breached, and

whether improper maintenance would cause the ice machine to leak

"falls outside of the common knowledge of the factfinder and

depends on scientific, technical, or other specialized knowledge

[so] expert testimony [is] required." See Jerista v. Murray, 185

N.J. 175, 199 (2005). Thus, without expert testimony, plaintiff

could not show a duty of care, a breach of that duty, or causation.

Plaintiff, who offered expert testimony, now contends expert

testimony was not required. We recognize that "[w]hen the average

juror can deduce what happened without resort to scientific or

technical knowledge, expert testimony is not mandated" even for

complex instrumentalities. Id. at 200. Thus, in Jerista, where

a supermarket conceded its automatic door closed on and injured a

customer, the jury could infer, "based on common knowledge without

resort to expert testimony," that an automatic door "probably does

not close on an innocent patron causing injury unless the premises'

owner negligently maintained it." Id. at 197.

Here, by contrast, defendants disputed both that the ice

machine had leaked and that negligent maintenance of the condenser

15 A-4307-14T1
and fan would have caused the machine to leak. Further, it was

conceded even by plaintiff's expert that water could have gotten

on the floor by other causes, namely in the handling of ice bags

by customers and store employees. Under those circumstances,

"only with the assistance of expert testimony could the jurors

decide the question." Id. at 200.

Plaintiff next offers several theories why Wakefern could be

liable without expert testimony. She argues Wakefern owed a non-

delegable duty to persons who walked past the ice machine. She

cites cases involving owners, landlords, and licensees of real

property. "An owner of a building has a non-delegable duty to

exercise reasonable care for the safety of tenants and persons

using the premises at his invitation. That the owner contracts

for maintenance of [equipment on its premises] does not relieve

it of that duty[.]" Rosenberg v. Otis Elevator Co., 366 N.J.

Super. 292, 303 (App. Div. 2004) (citation omitted). However,

"[t]hat rationale does not apply in the present case," because

Wakefern does not own the ShopRite building. Kuzmicz v. Ivy Hill

Park Apartments, Inc., 147 N.J. 510, 517 (1997). Rather, the

building was owned by Saker ShopRites, which, under the Workers'

Compensation Act, is immune from suit by plaintiff. Wakefern

merely provided ShopRite stores with Leer ice machines in exchange

for them selling its private ice brand.

16 A-4307-14T1
 Moreover, the ShopRite's entrance passageway adjacent to the

ice machine was not "within the exclusive control of" Wakefern.

Kramer v. R. M. Hollingshead Corp., 5 N.J. 386, 390 (1950)

(distinguishing Cicero v. Nelson Transp. Co., 129 N.J.L. 493

(1943)). Nor was Wakefern a general contractor in "physical

control" of the premises. See Wellenheider v. Rader, 49 N.J. 1,

12 (1967) (distinguishing Schwartz v. Zulka, 70 N.J. Super. 256

(App. Div. 1961), modified on other grounds sub nom. Schwartz v.

N. Jersey Bldg. Contractors Corp., 38 N.J. 9 (1962)). Wakefern

was not a "possessor of land" of the ShopRite's entrance

passageway, as there was no evidence Wakefern occupied or

controlled or intended to control that passageway. Parks v.

Rogers, 178 N.J. 491, 497 n.2 (2003) (quoting Restatement (Second)

of Torts § 328E(a) (1965)); see Restatement (Third) of Torts:

Liability for Physical and Emotional Harm § 49(a) (2012).6

6
In her appellate reply brief, plaintiff argues for the first
time Wakefern was "[o]ne who does an act or carries on an activity
upon land on behalf of the possessor," Restatement (Second) of
Torts § 383 (1965), and thus owed a "duty to warn" plaintiff, La
Russa v. Four Points at Sheraton Hotel, 360 N.J. Super. 156, 163
(App. Div. 2003) (imposing a duty to warn where a delivery person
tracked snow into a hotel, creating a puddle). "'To raise [this]
issue initially in a reply brief is improper.'" State v. Lenihan,
219 N.J. 251, 265 (2014) (citation omitted). "We generally decline
to consider arguments raised for the first time in a reply brief."
Bacon v. N.J. State Dep't of Educ., 443 N.J. Super. 24, 38 (App.
Div. 2015), certif. denied, 224 N.J. 281 (2016).

17 A-4307-14T1
 Plaintiff next cites a "mode of operations" case, Wollerman

v. Grand Union Stores, Inc., 47 N.J. 426, 429 (1966), one of "a

series of decisions arising from personal injuries sustained by

business invitees on the premises of businesses whose operations

involve customer self-service." Prioleau v. Ky. Fried Chicken,

Inc., 223 N.J. 245, 248 (2015). "Under the mode-of-operation

rule, a business invitee who is injured is entitled to an inference

of negligence and is relieved of the obligation to prove that the

business owner had actual or constructive notice of the dangerous

condition that caused the accident." Ibid. However, Saker

ShopRite was the business owner on whose premises plaintiff

slipped. Wakefern did not own the premises, have employees on the

premises, invite customers to the premises, or make sales to those

customers. Cf. Wollerman, supra, 47 N.J. at 429. Accordingly,

plaintiff cannot show duty, breach of duty or causation without

expert testimony. See Townsend, supra, 221 N.J. at 60.

B.

Summary judgment was similarly appropriate as to Arctic

Glacier. Without expert testimony establishing a duty to

plaintiff, breach of duty, and causation, plaintiff could not

establish negligence by Arctic Glacier. Not only was Meinschein's

expert report an inadmissible net opinion, but Meinschein did not

18 A-4307-14T1
even purport to offer an opinion of negligence by anyone other

than Wakefern.

In addition, the trial court granted summary judgment because

the evidence indicated Arctic Glacier was only "responsible for

repairs on an on-call basis," as there was "no causal connection."

Plaintiff argues the trial court misunderstood Arctic Glacier's

role. We need not address plaintiff's argument, as the absence

of expert testimony justified summary judgment on causation.

C.

For the same reason, summary judgment was also appropriate

in favor of A&J. The exclusion of Meinschein's expert testimony,

and the absence of any expert testimony indicating A&J had a duty,

breached a duty, and caused plaintiff's incident, was itself

sufficient grounds for summary judgment.

In addition, the trial court ruled A&J "did not service[,]

maintain or repair the ice unit in question" and "had no ongoing

responsibility" to do so. Plaintiff argues this contravenes

Scott's testimony. Again, given the lack of expert testimony to

show A&J was negligent, we need not resolve plaintiff's argument.

Plaintiff also argues A&J failed to provide full discovery,

specifically the documents A&J's Sigmund Gremboeic reviewed before

testifying A&J did not service the ice machine. "A motion for

summary judgment is not premature merely because discovery has not

19 A-4307-14T1
been completed, unless plaintiff is able to '"demonstrate with

some degree of particularity the likelihood that further discovery

will supply the missing elements of the cause of action."'"

Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015) (citation

omitted). Absent expert testimony, plaintiff cannot show

discovery of the documents would "alter the outcome." Young v.

Hobart W. Grp., 385 N.J. Super. 448, 469 (App. Div. 2005).

Accordingly, we affirm the trial court's June 23, 2014 grant

of summary judgment to Wakefern, Arctic Glacier, and A&J, its

denial of reconsideration on December 19 and 22, 2014, and its

July 13, 2015 refusal to vacate summary judgment.

IV.

Finally, plaintiff argues, "in the event the [c]ourt reverses

summary judgment granted to Wakefern, Arctic Glacier and A&J, it

should likewise reverse [the April 22, 2015] judgment granted

pursuant to R. 4:21A-6 to Leer" confirming the arbitration award

that Leer was not at fault. Plaintiff's argument fails because

we affirm those grants of summary judgment.

In any event, plaintiff did not seek a trial de novo to

challenge the arbitration award or oppose Leer's motion to confirm

the award. See R. 4:21A-6. "Once the award is confirmed and a

judgment is entered, an appeal from the award or any interlocutory

order is barred." Grey v. Trump Castle Assocs., L.P., 367 N.J.

20 A-4307-14T1
Super. 443, 449 (App. Div. 2004). Reversal of summary judgment

against other defendants would not revive plaintiff's action

against Leer. Cf. Mettinger v. Globe Slicing Mach. Co., 153 N.J.

371, 389 (1998) (addressing contribution between defendants).

Affirmed.

21 A-4307-14T1