N.J. court affirms dismissal of asbestos case

By Nathan Bass | Dec 28, 2012

TRENTON, N.J. (Legal Newsline) - A New Jersey court has affirmed the trial court's decision to dismiss a case with prejudice "as a consequence of plaintiff's pervasive lies" during the discovery process.

Judges Carmen Messano, Joseph L. Yannotti, and John C. Kennedy issued the per curiam opinion Dec. 11 for the Superior Court of New Jersey, Appellate Division.

Plaintiff Michael Gaskill filed a complaint in the Law Division of the Superior Court of New Jersey, Middlesex County, on March 6, 2008, alleging that he developed mesothelioma while doing automobile repair in "local auto body shops" and while working with his grandfather, beginning in the 1980's.

He named 13 defendants who were alleged to have marketed asbestos-containing products for the automobile industry which he claimed he had used or was exposed to while doing the auto repair work.

Gaskill stated in initial interrogatories that he had regularly worked with neighborhood mechanics "repairing and replacing brakes and clutches" between 1981 and 1991. Gaskill was born in 1975.

He stated that he "believe[d] he worked with and around" brakes, clutches, and gaskets that were manufactured and sold by the various defendants and that he was exposed to asbestos during this period.

In depositions, he 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.'"

Evidence was presented during the discovery process that revealed that plaintiff had worked for TLB construction on "many occasions" and that Gaskill had contacted employees of the company "over twenty-five times both before and after their depositions in November 2008."

Prior to this evidence being presented, Gaskill had "denied speaking about the lawsuit with anyone other than his lawyers and family," according to the opinion.

One witness, Michael Massaro, stated in an affidavit that he had worked with Gaskill at Hahnel and Sons Construction for "four or five years in the mid-1990s" and that he and Gaskill had at times "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," the opinion states.

Massaro also indicated in a statement that Gaskill began calling him in December 2008 in an effort to get Massaro to testify that he knew Gaskill had 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.'"

In later depositions, Gaskill admitted to lying about some of the aforementioned facts as well as others.

In December 2009, defendants filed a joint motion to dismiss Gaskill's complaint on the ground that he had perpetrated a fraud on the court. They asked the complaint be dismissed "with prejudice" so that Gaskill would be barred from bringing suit against them again.

"At this point, the truth is a question mark, and this Court does not know how to now undo the web of lies and half-truths from the truth," wrote Judge Ann G. McCormick in dismissing the complaint with prejudice.

Gaskill appealed claiming that McCormick erred "based on specious allegations of witness tampering and plaintiff's failure to disclose inconsequential evidence."

The Appellate Court confirmed McCormick's decision "essentially for the reasons expressed ... in her thorough opinions from the bench."

"In this case, plaintiff's deliberate concealment and outright lies during the discovery process richly warrant imposition of the ultimate sanction of dismissal of his complaint with prejudice.

"Further, plaintiff has engaged in a pattern and practice of bad faith and lack of candor as well as submitting falsified material to the Court. His deceptions commenced with his first discovery responses and continued to the eve of trial. Hence, this factor favors dismissal with prejudice.

"It is naive to suggest, as plaintiff has in his brief, that he has admitted his lies and will not lie again. His deceptions and lies pierce the heart of his cause of action. Consequently, Judge McCormick properly exercised her discretion in dismissing plaintiff's complaint with prejudice."

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