SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5521-17T3

JOANN WEAN,

Plaintiff-Appellant,

v.

U.S. HOME CORPORATION,

d/b/a LENNAR CORPORATION,

Defendant/Third-Party 

Plaintiff-Respondent,

and

GREENBRIAR FALLS ASSOCIATION,

TAYLOR MANAGEMENT COMPANY,

INC., TOWNE & COUNTRY

MANAGEMENT CORPORATION, 

and INTEGRA MANAGEMENT 

CORPORATION,

Defendants, 

v.

ALCOA CONCRETE CONSTRUCTION

CO., INC., DUFEK & MIGLIARO 

PLUMBING, INC., MENSER HEATING 

& AIR CONDITIONING, INC., and

NOT FOR PUBLICATION WITHOUT THE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.
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A-5521-17T3

STROBER ORGANIZATION, INC.,

Third-Party Defendants.

Argued December 10, 2019 – Decided March 6, 2020

Before Judges Accurso, Gilson and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. L-1825-14.

Frank J. Kontely, III, argued the cause for appellant 

(Hogland Longo Moran Dunst & Doukas, attorneys; 

Frank John Kontely, III and Jason R. Gosnell, of 

counsel and on the briefs).

William J. O'Kane, Jr., argued the cause for respondent 

(Archer & Greiner PC, attorneys; William J. O'Kane, 

Jr., on the brief).

PER CURIAM

In this negligent construction matter, plaintiff Joann Wean appeals the 

Law Division's order dismissing her claims against defendant, U.S. Home 

Corporation d/b/a Lennar, on summary judgment. Plaintiff sued defendant, 

alleging she sustained personal injuries and property damage when water 

infiltration caused mold to develop in the townhouse that defendant built and 
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sold to her.1 Plaintiff claims the motion judge erroneously concluded her 

construction expert failed to causally relate the presence of mold in her home to 

moisture and water infiltration caused by defendant's negligence. In the 

alternative, plaintiff argues the judge failed to conduct a hearing pursuant 

to N.J.R.E. 104(a) to permit her expert to testify about the methodologies

supporting his opinion. Plaintiff also appeals another judge's earlier decision 

striking plaintiff's jury demand under the terms of the parties' purchase 

agreement. We affirm the motion judge's decision on summary judgment, 

thereby rendering moot plaintiff's jury waiver claim. 

I.

Viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. 

Co. of Am., 142 N.J. 520, 540 (1995), the pertinent facts are as follows.

Plaintiff purchased her townhouse in late December 2006. Prior to closing 

title, plaintiff noticed a leak in the basement, which caused water damage in two 

rooms. Defendant purportedly repaired the leak and plaintiff closed title. 

Within days of the closing, plaintiff discovered a second leak in the basement; 

defendant attempted to make repairs; but plaintiff noticed a third leak the 

1

 Plaintiff's complaint also named her development's homeowners association 

and management companies, all of which were dismissed on summary judgment 

and are not parties to this appeal.
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following day. Defendant retained a waterproofing company to repair the third 

leak, but five days later, plaintiff discovered a fourth leak. Defendant allegedly 

remediated that leak but six months later, plaintiff noticed a fifth leak in the 

basement. Defendant again attempted to make repairs. 

A few weeks before plaintiff discovered the fifth leak, her dishwasher 

leaked, causing water seepage "into the kitchen's wood floors and sub floor and 

. . . into a section of the finished basement." Plaintiff had the affected areas 

repaired. Shortly thereafter in July 2007, plaintiff retained Steve Levy, a mold 

specialist, to inspect and test the remediated areas. Levy's tests indicated the 

fungal ecology was within the normal range except for "the surface sample taken 

along the basement sill base plate." That sample contained an unidentifiable 

"light growth of a colorless spore type." 

It is undisputed there was no evidence of elevated mold levels in plaintiff's 

home when plaintiff's "rapidly progressive pulmonary deterioration" began in 

October 2011. Plaintiff had been diagnosed with interstitial lung disease (ILD) 

in 2002, but her expert in mold-related illnesses ruled out ILD as the cause of 

plaintiff's illness. Notably, plaintiff smoked cigarettes for more than forty years 

until 2011. 
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In July 2012, Levy detected a species of mold in plaintiff's HVAC room, 

which was located in the basement. The following month, plaintiff engaged a 

contractor to remediate the mold. The foreman was deposed and testified that

during demolition of the basement, he observed mold on eighty to ninety percent 

of the interior drywall. Remediation did not include changes to the building 

envelope, basement windows, walls or slabs. It is undisputed that the building 

envelope at plaintiff's townhouse never leaked or contributed to the presence of 

any mold in her residence after August 2012. 

According to Levy's August 28, 2012 mold report, the basement area had 

returned to a "normal indoor fungal ecology." The parties disputed the source 

of the mold, but agreed that by this time plaintiff's HVAC unit had also leaked. 

When deposed, Levy confirmed he tested plaintiff's basement "on numerous 

occasions after August 28th, 2012, over the course of several years." The results 

of those tests yielded "normal fungal ecology" with "no recurring issues with 

respect to moisture problems in the basement contributing towards mold 

growth." 

During discovery, plaintiff's construction expert, Herbert Cannon, AIA, 

issued two reports. In his first report, Cannon concluded: "The initial water 

intrusion, at multiple locations, was a direct result of faulty construction by 
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[defendant] of the roof, exterior walls, and basement[,] which directly caused 

the growth of mold." In his second report, Cannon elaborated:

Taking into account the timeline and the list of 

documents, there is no question that leaks and moisture 

infiltrations occurred at various locations and at various 

times and that the attempted repeated repairs of 

[defendant], the [a]ssociation and the [m]anagement 

[c]ompanies failed to mitigate the problems. The 

repeated leaks and moisture infiltrations directly caused 

the repeated infestation of mold that resulted in the 

medical problems of [plaintiff].

When deposed, however, Cannon could not opine "that any specific water 

infiltration event contributed to any specific mold growth in [plaintiff]'s house ," 

stating he had not seen "any documentation to that effect." Cannon repeated 

that response when specifically questioned about plaintiff's basement, attic, and 

roof. Cannon also conceded he could not opine "that any construction defect 

[he] found within [plaintiff's] residence caused any specific mold growth within 

her home." Cannon elaborated:

Again, not being an industrial hygienist, and I didn't 

read anything with a cause and effect, I know that there 

was water intrusion, attic and basement, and I know that 

there was mold found in the house, the best I can do is 

– you know, from my experience there's a cause and 

effect there, but saying this specifically caused this 

mold on this day or in this area, I can't say.
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Cannon also acknowledged "mold is everywhere," engaging in the 

following colloquy with defendant's counsel:

QUESTION: So you could have a water event occur 

and it not produce any mold at all, correct?

ANSWER: That is correct.

QUESTION: And by the same token you could have 

mold without any water event, correct?

ANSWER: Yes, if you have a high humidity area . . . 

then you could get mold.

QUESTION: And you could also have inactive mold 

without a water event, correct?

ANSWER: Yes. Well, the inactive mold is there all 

the time, so that's without a water event. 

. . . .

QUESTION: Okay. And with respect to the 

photographs you saw of [plaintiff's] attic, you don't 

know whether any mold in that attic was active or 

inactive, correct?

ANSWER: No. In fact, all the photographs of the 

attic that I've seen, I really didn't see anything that 

even remotely looked like mold, but they're so 

complicated, you know, and shadows, I don' really 

know what was going on up there. 

Following the close of discovery, defendant moved for summary 

judgment, arguing plaintiff failed to demonstrate a "prima facie case of 

construction defect causing water infiltration that produced the mold" in 
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plaintiff's townhouse. To support its argument, defendant cited Cannon's 

deposition testimony, claiming the expert admitted he could not conclude there 

was "a cause and effect between any of those construction defects that he 

allege[d] in this case, and the water infiltration producing mold in this case." 

Plaintiff countered she was relying upon the collective opinions of Cannon, 

Levy, and her two medical experts to prove causation based upon a "cumulative 

theory of exposures." To support her theory, plaintiff cited the "factual 

observations of water infiltration in the home on [eleven] occasions, five in the 

basement, six in the attic" as observed by her family members and workers. 

Plaintiff did not, however, file a sworn statement by Cannon, clarifying his 

deposition testimony.

Following argument, the judge reserved decision and later issued the order 

under review accompanied by an oral decision. Noting defendant's motion was 

not based upon net opinion rendered by Cannon, but rather focused on plaintiff's 

failure to satisfy the proximate cause element of her negligence claim, the judge 

concluded "plaintiff failed to provide any credible evidence of a nexus between 
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[defendant]'s alleged construction defects and the presence of mold in the 

subject unit."2 This appeal followed.

II.

We review a trial court's grant of summary judgment de novo. Cypress 

Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 414 (2016). 

Employing 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), we review 

the record to determine whether there are material factual disputes and, if not, 

whether the undisputed facts viewed in the light most favorable to plaintiff 

nonetheless entitle defendant to judgment as a matter of law, Brill, 142 N.J. at

540; R. 4:46-2(c). 

The elements of a negligence cause of action are well-settled. "To sustain 

a cause of action for negligence, a plaintiff must establish four elements: '(1) a 

duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual 

damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cnty.

of Essex, 196 N.J. 569, 584 (2008)). A plaintiff bears the burden of proving 

negligence, which is never presumed. Khan v. Singh, 200 N.J. 82, 91 (2009). 

2

 The motion judge did not reach the issue of medical causation.
10 A-5521-17T3

"[T]he issue of a defendant's liability will not be presented to the jury 

simply because there is some evidence of negligence." Reynolds v. Gonzalez, 

172 N.J. 266, 284 (2002). Rather, "'[t]here must be evidence or reasonable 

inferences therefrom showing a proximate causal relation between defendant's 

negligence' . . . and the resulting injury." Ibid. (quoting Germann v. Matriss, 55 

N.J. 193, 205 (1970)). The Court has defined "proximate cause" as "any cause 

which in the natural and continuous sequence, unbroken by an efficient 

intervening cause, produces the result complained of and without which the 

result would not have occurred." Townsend, 221 N.J. at 51 (citation omitted). 

Although the motion judge cited that proximate cause definition here, 

plaintiff argues the judge utilized the wrong standard in finding she failed to 

prove causation. She contends the judge incorrectly required her to prove a 

"single cause" of her injury or harm when Cannon's reports demonstrate "various 

construction defects . . . were substantial factors in causing the mold in 

[plaintiff]'s home." Plaintiff's arguments are unavailing. 

We have long recognized the standard for proximate cause depends upon 

the nature of the tortious conduct, distinguishing routine tort actions from those 

that involve concurrent causes of harm. See Camp v. Jiffy Lube No. 114, 309 

N.J. Super. 305, 309 (App. Div. 1998). The routine tort case "requires proof 
11 A-5521-17T3

that the result complained of probably would not have occurred 'but for' the 

negligent conduct of the defendant." Ibid. (citations omitted). When concurrent 

causes of harm are alleged, "the law requires consideration of the 'substantial 

factor' test." Ibid. "The 'but for' standard concentrates on one cause that sets 

the other causes in motion, while the 'substantial factor' test recognizes that a 

tortfeasor will be held answerable if its negligent conduct was a substantial 

factor in bringing about the injuries, even where there are other intervening 

causes which were foreseeable or were normal incidents of the risk created." Id.

at 309-310 (citation and internal quotation marks omitted). The concurrent acts 

"need not, of themselves, be capable of producing the injury; it is enough if they 

are a 'substantial factor' in bringing it about." Conklin v. Hannoch Weisman, 

145 N.J. 395, 419-20 (1996) (citation omitted). 

This is not a "complex case" in which defendant's alleged "negligent 

conduct combine[d] with other causes that led to" plaintiff's claimed damages. 

Model Jury Charges (Civil), 6.12, "Proximate Cause – Claim That Concurrent 

Causes of Harm Were Present" (approved May 1998) (citing Camp, 309 N.J. 

Super. at 309). Plaintiff has not alleged defendant's conduct combined with 

other causes to bring about her harm. Rather, she contends "the sum of the 

moisture intrusions from the sum of [defendant's] construction defects caused 
12 A-5521-17T3

the mold in [her] home[,]" and, as such, "the various construction defects set 

forth in [Cannon's] reports were substantial factors in causing the mold in [her] 

home." 

To support her argument, plaintiff cites toxic tort cases involving asbestos 

exposure. Those cases, however, focus on the plaintiff's medical causation, i.e., 

whether the defendant's defective product was a substantial factor in causing the 

plaintiff's injuries. See, e.g., Grassis v. Johns-Manville Corp., 248 N.J. Super. 

446, 457 (App. Div. 1991) (permitting the plaintiff, who alleged asbestos 

exposure caused his cancer to demonstrate the "defendant's conduct or defective 

product was a proximate cause of the condition, i.e., a substantial factor in 

bringing the condition about"); Sholtis v. Am. Cyanamid Co., 238 N.J. Super. 

8, 26 (App. Div. 1989) (observing asbestos cases are approached "differently, 

primarily because asbestosis and resulting cancers are recognized as being the 

products of cumulative exposure"). 

Conversely, here the dispositive issue on summary judgment was not 

medical causation, i.e., whether mold caused plaintiff's injuries, but whether 

defendant's alleged defective construction caused water infiltration, which 

caused the presence of mold in plaintiff's residence. When deposed, plaintiff's 

construction expert, Cannon, testified he could not link any construction defects 
13 A-5521-17T3

or any water infiltration with the presence of mold in plaintiff's townhouse. We 

therefore discern no basis to disturb the motion judge's conclusion that plaintiff

failed to "demonstrat[e] that any of the alleged construction defects by

[defendant] proximately caused the mold."

III.

We next consider plaintiff's argument that the motion judge "disregarded 

[her] invitation to hold a Rule 104(a) hearing to determine the admissibility of 

Mr. Cannon's testimony."3 The decision whether to hold a Rule 104 hearing is 

within the sound discretion of the trial court. Kemp v. State, 174 N.J. 412, 432 

(2002). In Kemp, the trial court granted summary judgment – without 

conducting a hearing – finding the opinion of the plaintiffs' expert was not 

sufficiently reliable under N.J.R.E. 702. Id. at 415, 423. The Supreme Court 

reversed, finding plain error in the trial court's refusal to conduct a hearing to 

determine the testimony's reliability. Id. at 432.

Kemp followed Rubanick v. Witco Chemical Corp., 125 N.J. 421, 593 

(1991). In Rubanick, the Court stated that when a trial court is "faced with a not 

3

 Plaintiff has not cited the place in the record where her request for a hearing 

was made, and the motion judge's decision does not reflect that request. Because 

defendant does not challenge plaintiff's representation, we consider plaintiff's 

argument on the merits.
14 A-5521-17T3

yet generally accepted theory of causation," the court should conduct a "hearing 

to assess the soundness of the proffered methodology and the qualifications of 

the expert." Id. at 454. A "[p]laintiff's burden is to demonstrate that the 

methodology used by [the expert] . . . is consistent with sound scientific 

principles and methodologies accepted in the medical and scientific 

communities." Kemp, 174 N.J. at 431; see also In re Accutane Litigation, 234 

N.J. 340, 381 (2018). 

Unlike the defendants in Accutane, Kemp and Rubanick, here, defendant 

neither challenged the reliability of Cannon's conclusions under N.J.R.E. 702, 

nor otherwise contended his opinion was inadmissible. See also Fairfax Fin.

Holdings Ltd. v. S.A.C. Capital Mgmt., LLC, 450 N.J. Super. 1, 100 n.50 (App.

Div. 2017) (observing that "ordinarily the best practice would be for a trial judge

to permit the examination of the scope of an expert's opinion – when its

admissibility is challenged – at a pretrial N.J.R.E. 104(a) hearing"). As the

motion judge correctly recognized, defendant did not contend Cannon's opinion

was net. Instead, defendant claimed Cannon failed to demonstrate any of 

defendant's alleged construction defects proximately caused the water 

infiltration in plaintiff's unit that, in turn, caused mold that, in turn, caused 

plaintiff's injury. Because plaintiff does not contend Cannon's link in the 
15 A-5521-17T3

proximate causation chain involved a unique causation theory, the concerns that 

prompted the Court in Kemp and Rubanick to remand for a hearing are not 

present here.

We also recognize a hearing would have been appropriate if the grounds 

for Cannon's opinion "were not sufficiently explained and the 'reasons and 

foundations for them inadequately and perhaps confusingly explicated.'" Kemp, 

174 at 429 (citation omitted). In that regard, a Rule 104 hearing may have 

permitted Cannon "to identify the factual basis for his conclusion." Id. at 427. 

Notably, however, plaintiff did not file a sworn statement from Cannon 

explaining the deficiencies in his deposition testimony in response to defendant's 

motion. And before us, plaintiff has not identified any facts Cannon would 

explain at a hearing. See Shelcusky v. Garjulio, 172 N.J. 185, 201-02 (2002) 

(noting the utility of an affidavit "where the contradiction is reasonably 

explained, where an affidavit does not contradict patently and sharply the earlier 

deposition testimony, or where confusion or lack of clarity existed at the time 

of the deposition questioning and the affidavit reasonably clarifies the affiant's 

earlier statement").

Instead, quoting Kemp, 174 N.J. at 427, plaintiff asserts Cannon should 

be permitted "to opine as to his conclusions and methodologies so that the trial 
16 A-5521-17T3

court could determine whether his testimony was 'based on scientifically sound 

reasoning or unsubstantiated personal beliefs.'" That request seeks to explain 

methodologies that are not in issue. Because plaintiff did not identify any facts 

that would come to light in a hearing, or otherwise explain the contradiction 

between Cannon's unsworn reports and deposition testimony, we conclude a 

hearing was not necessary. 

To the extent not addressed, plaintiff's remaining arguments lack 

sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

Affirmed.