JEROME B. SIMANDLE, Chief District Judge.
Plaintiffs Michael and Ashley Leese, and their minor children, as well as Jay and Raquel Winkler, bring this suit against Defendant Lockheed Martin for violations of federal and state environmental laws, as well as common law torts. Plaintiffs allege that Defendant is discharging toxic substances from its facility in Moorestown, N.J., and contaminating Plaintiffs' properties, which sit across the street from the facility. Plaintiffs seek injunctive relief ordering Defendant to remediate their properties to state and federal standards and monetary damages for the diminution of property value and physical injuries to the Leese children.
This matter is before the Court on Defendant's motion for partial summary judgment as to the common law torts, Counts V-VIII. [Docket Item 87.] Defendant argues it is entitled to partial summary judgment because Plaintiffs have failed to produce competent evidence of injury. Specifically, Plaintiffs failed to produce an expert report to prove medical causation (for personal injuries allegedly sustained by the Leese children) and failed to prove a loss in property value. The key questions for the Court are (1) whether Plaintiffs have produced evidence sufficient to show medical causation, (2) whether an expert is needed to testify as to property value diminution, and (3) if so, whether Plaintiffs' realtor witnesses may be qualified as experts at this late date or if Plaintiffs may be permitted to submit an expert report from a new appraiser.
For the reasons explained below, the Court will grant the motion in part and defer adjudication in part. Evidence of both bodily injury and the quantum of diminished property value is lacking; summary judgment will be granted as to Plaintiffs' personal injury claim, but Plaintiffs will be granted 30 days to furnish a new expert report on the value of their properties since it is presently apparent that evidence exists to find that Defendant's discharge of toxic chemicals has caused harm to Plaintiffs' properties, and, in fairness, Plaintiffs should have the opportunity to submit expert opinion evidence of the amount of such harm.
Defendant Lockheed Martin owns a research, development, and manufacturing facility on Borton Landing Road in Moorestown, N.J. (Statement of Undisputed Material Facts ("SMF") [Docket Item 88] ¶ 1.) Defendant acquired the facility in 1995 when it merged with Martin Marietta Corporation, which had owned the facility since 1993. (
Plaintiffs Michael and Ashley Leese bought a property in a residential development on the opposite side of Borton Landing Road, at 5 Victoria Court, in 2003. (SMF ¶¶ 2, 4.) Plaintiffs Jay and Raquel Winkler bought the adjacent residential property, at 7 Victoria Court, the same year. (SMF ¶ 3.) Plaintiffs have admitted that at the time they signed Agreements of Sale for their respective properties, they were aware the groundwater under their properties contained trichloroethylene ("TCE"), a volatile organic compound ("VOC") frequently used in metal cleaning operations.
Shortly after the Leeses moved to 5 Victoria Court, their first child, A.L., was born.
The Leeses' second child, I.L., was diagnosed with the flu at two weeks old, after appearing lethargic and unresponsive. (
None of the doctors ever made any statements or raised questions linking the children's ailments to TCE or tetrachloroethylene (also known as perchloroethylene or "PCE," a VOC often used in dry-cleaning and metal-cleaning products and for textile processing (Pl. Ex. 10 [Docket Item 97-13] at 1)), in part because Mr. and Mrs. Leese never mentioned possible "chemical exposure[,] because prior to 2008, they had no knowledge that PCE was in their groundwater and soil." (CSF ¶ 62;
Defendant and the New Jersey Department of Environment Protection ("NJDEP") had been working together since the 1990s to monitor the soil, groundwater and air for contaminants on and near the facility.
Defendant conducted additional testing of the Leeses' properties in January and April 2009. (SMF ¶ 9.) The Leeses commissioned their own environmental testing in December 2008 and November/December 2012. (
In May 2012, the Leeses moved to a different house in Moorestown. (CSF ¶ 97.) They rented the property at 5 Victoria Court to a couple pursuant to a nine-month lease. (
The Leeses filed the original Complaint in state court in July 2011, and Defendant removed the action to this Court. [Docket Item 1.] The Leeses filed a Second Amended Complaint ("SAC"), adding the Winklers as Plaintiffs. [Docket Item 30.] The SAC brings claims under the Spill Compensation and Control Act, N.J.S.A. § 58:10-23.11,
During an October 2012 discovery conference before Magistrate Judge Ann Marie Donio, Plaintiffs' counsel Julie A. LaVan, Esq., acknowledged that in order to prove Plaintiffs' case, they would have to provide expert testimony. (Def. Ex. 21 [Docket Item 87-24] at 10:12-18.) Plaintiffs still contend that expert testimony is required on the questions of whether gas vapor intrusion was caused by Lockheed Martin and, if so, whether it caused damage to Plaintiffs. (CSF ¶¶ 101-102.)
Judge Donio entered an Amended Scheduling Order on April 8, 2013, stating
[Docket Item 77.]
Plaintiffs concede that they "have decided `not to put forth a medical or property valuation expert for [Defendant] to rebut.'" (CSF ¶ 107, quoting a letter from Plaintiff's counsel Alaina A. Gregorio, Esq., to Judge Donio [Docket Item 87-31] at 2.) On April 30, 2013, Plaintiffs timely served upon Defendant one expert report by professional geologist David B. Farrington.
(
(
(
(
Mr. Farrington has no medical training. (Farrington c.v. [Docket Item 87-30] at 1.) He did not examine the Leese children. He offered no opinions about the cause of the Leese children's ailments.
Plaintiffs state that "Ms. Coleman and Krisanda, of Weichert Realtors, will attest to housing market trends in Moorestown and general matters pertaining to Plaintiffs' properties, as disclosed through Plaintiffs Supplemental Discovery Responses Dated January 4, 2013." (CSF ¶ 108.) In the supplemental response, Plaintiffs indicated that Ms. Coleman would testify "about the value of the Leese and Winkler Properties; the renter value versus sale value of the properties; and housing market trends in Moorestown, New Jersey." (Pl. Ex. 18 [Docket Item 97-21] at 14 ¶ 6.) Ms. Krisanda would testify about essentially the same topics. (
In opposition to the present motion, Plaintiffs offer one page of deposition testimony from each of the realtors. Ms. Krisanda testified that she never tried to estimate the value of the property
In response to a question asking if "the house has zero sale value," Ms. Coleman testified: "Like they say in real estate, there's a buyer for everything, and good luck finding a buyer for that one." (Coleman Dep. [Pl. Ex. 20, Docket Item 97-23] at 183:8-13.) She added: "if the Leeses asked me to list that house for sale, I'd say no, thank you." (
Defendant, in reply, supplements the record with more deposition testimony from the realtors. Ms. Coleman, when asked if she had "an opinion of what the value of the Leese property is," replied, "I do not." (Coleman Dep. [Reply Ex. 10] at 240:4-7.) She testified she had not undertaken, nor had she been asked, to appraise the property. (
Ms. Krisanda, likewise, testified that she did not recall ever expressing an opinion about the value of the Leese property after the testing was done in 2008 and that she didn't "know anything about the chemicals." (Krisanda Dep. [Reply Ex. 11] at 192:10-23.) She testified that in 2005, she valued the Leeses' property in a deal that ultimately was not consummated. (
At oral argument, Plaintiffs' counsel referenced for the first time a Burlington County tax assessment of the Leeses' property which showed a recent reduction in the assessment from $533,600 to $285,000. (Leese Supplement [Docket Item 105] at 103.) Three days after oral argument, Plaintiffs submitted a "tax appraisal package" of documents as a supplement to the record.
(Leese Supplement at 108.) The revised assessment of the property, at $285,000, did not contain any opinion or explanation for the reduction by the assessor. (
A court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if, based on the evidence in the record, a reasonable jury could return a verdict for the non-moving party.
Fed. R. Civ. P. 56(c) further provides that parties asserting that a fact is genuinely disputed, or cannot be, "must support the assertion" by citing to the record or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Affidavits or declarations in support of or opposition to a motion for summary judgment "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). If a party "fails to properly support an assertion of fact or fails to properly address another party's assertion of fact," the Court may grant summary judgment, if the motion and supporting papers show the movant is entitled to it, or issue other appropriate orders, including affording a party an opportunity to properly support an assertion of fact. Fed. R. Civ. P. 56(e).
Defendant argues that Plaintiffs cannot sustain their claims for personal injury without expert testimony. (Def. Br. at 17-18.) Plaintiffs have the burden to establish, among other things, actual injury and causation (including, in a toxic tort case, general and specific causation
(
Plaintiffs respond that New Jersey law does not require expert testimony to prove causation, citing cases using permissive, rather than mandatory, language to that effect. (Pl. Opp'n at 15.) Plaintiffs suggest they can prove causation "if all the primary facts can be accurately and intelligibly described to the jury, and if they . . . are as capable of comprehending the primary facts and of drawing correct conclusions as are witnesses possessed of special . . . training, experience, or observation." (
As a general proposition, expert testimony is required to demonstrate causation in toxic tort cases.
The Court need not reach the question of whether expert testimony is required to prove causation as a per se rule in all toxic tort cases. In this case, Plaintiffs have failed to make a showing sufficient to establish causation of bodily injury. Evidence that VOCs, in some quantity, can have harmful effects, and that the Leese children suffered ailments and were, or may have been, exposed to some unspecified quantity of TCE and PCE, is an insufficient basis for a reasonable jury to infer causation.
The record contains no support for Mr. Farrington's qualifications as a medical expert, making the admissibility of his "medical" opinions doubtful. And Mr. Farrington makes no attempt to state that the ailments of the Leese children, whom he did not examine, were likely caused by TCE and/or PCE. Beyond that, expert testimony on causation "must be couched in terms of reasonable medical probability; opinions as to possibility are inadmissible."
Therefore, to the extent Plaintiffs' common law claims rest upon proving Defendant's causation of bodily injury to the Leese children, summary judgment is entered in favor of Defendant. A jury will not be able to rely upon conjecture or speculation, but only upon admissible evidence adduced from competent witnesses. Here, from the admissible evidence, and drawing all reasonable inferences in favor of the Plaintiffs, there is no genuine issue of material fact that would permit a jury to find that these compounds were the likely cause of the children's ailments.
Defendant likewise argues that claims for loss of property value cannot survive summary judgment without expert testimony "opining that (a) each of Plaintiffs' properties has suffered a loss in value; and (b) the loss in value resulted from the presence of trace amounts of TCE or PCE at the property." (Def. Mot. Br. at 22-23.) Defendant asserts the record contains no evidence that either property "suffered a loss in value" or that the loss was caused by the VOCs. (
Plaintiffs, again, assert that expert testimony is unnecessary if the facts can be accurately and intelligibly described to the jury and the jury is capable of comprehending the facts and of drawing correct conclusions. (Pl. Opp'n at 20, citing
Plaintiffs suggest that the testimony of Ms. Coleman and Ms. Krisanda allows a jury to infer that "it will be virtually impossible to sell" Plaintiffs' homes because of contamination: Krisanda's recommendation that a buyer not purchase a home known to have contamination and Coleman's testimony that she would refuse to sell the house for the Leeses. (
(
Plaintiffs maintain that the realtors were properly disclosed as lay witnesses to Defendant in the supplemental discovery responses. (
In reply, Defendant reasserts that "expert testimony is generally needed to determine the market value of real property." (Reply at 12, quoting
At oral argument, Ms. LaVan, Plaintiffs' counsel, suggested that the a jury could infer that the value of the properties was zero, because the properties were "worth nothing" to the Plaintiffs, subjectively. Setting aside the questionable nature of that assertion, arguments made by counsel do not constitute evidence capable of defeating summary judgment. Plaintiffs also have submitted to the Court a Burlington County tax assessment on their property, showing that a tax assessor recently lowered the assessment of the Leese property from $533,600 to $285,000.
Defendants are correct that the current record does not raise a genuine issue of material fact as to a diminution of property value caused by contamination, because the admissible evidence supplied by Plaintiffs does not permit a reasonable jury to infer a valuation, let alone causation. Despite Plaintiffs' assertions, the record does not contain any opinions — expert or otherwise — about the current value of the properties, nor any opinion linking a decrease in value to the contamination as opposed to other market factors. Both realtors unequivocally stated that they have not formed an opinion as to the value of the Plaintiffs' properties. There simply is no record evidence as to the current values of the properties. The passages of depositions cited by Plaintiffs reveal only that Ms. Krisanda advised a buyer not to buy a wholly different property because of contamination, and Ms. Coleman did not consider it worth her time to list the Leese property for the Plaintiffs, not that she was asked. Even Coleman, however, acknowledges that "there's a buyer for everything," indicating at least some value in the properties, and contradicting Plaintiffs' position that the properties are valueless. (Coleman Dep. [Pl. Ex. 20] at 183:11-12.) Plaintiffs have never placed their properties on the market since the environmental testing began in 2008, and have not produced any expert testimony or any other evidence from which a jury could infer that the VOCs caused a diminution of property value.
A reasonable jury could not infer from this existing record that the properties have diminished in value because of the contamination. Therefore, unless Plaintiffs are permitted to supplement the record, discussed below, partial summary judgment will be entered in favor of Defendant.
To be clear, the Court is not holding that expert opinion testimony is always required to establish a loss of property value from contamination. For example, if these properties had been marketed and sold in arm's length transactions in the open market to buyers who were aware of all material facts of the alleged contamination, those facts, rather than opinion testimony, could be found to establish the current market values, and the buyers could testify as to the degrees, if any, to which the alleged contamination depressed the prices. In contrast, the realtor witnesses presently have no particular knowledge of these properties, the current values, or the degrees to which those values were depressed from the market value of comparable noncontaminated properties in the local real estate market. In this case, however, no one, not even the realtors, has expressed an admissible opinion on the value of the Plaintiffs' properties.
Two questions remain: whether Plaintiffs may qualify their realtor witnesses as experts at this time, and whether Plaintiffs may be given additional time to retain a new appraiser, qualify the appraiser as an expert and supplement the record with a new expert report on the value of the properties.
Defendant opposes qualifying the two realtors as experts. (Def. Reply at 15 n.8.) Defendant contends that neither realtor is qualified to render an opinion on the effect of alleged contamination and neither has formulated such an opinion. (
The Court agrees with Defendant that Ms. Coleman and Ms. Krisanda may not be qualified as experts at this point, and therefore their opinions regarding diminished property values are inadmissible and will not be considered. Both witnesses have been subjected to two rounds of depositions, and that testimony revealed that neither has the necessary experience or specialized knowledge to opine about the diminution of value to contaminated properties.
Defendant urges the Court not to allow Plaintiffs to submit any other untimely expert report. (Def. Supp. Br. [Docket Item 106].) Defendant argues convincingly that Plaintiff cannot satisfy the requirements of Fed. R. Civ. P. 56(d), which typically is employed when a nonmovant shows "it cannot present facts essential to justify its opposition" and needs additional time. Fed. R. Civ. P. 56(d). The Court agrees that Plaintiffs have not even attempted to invoke Rule 56(d) or explain their lack of diligence in producing an expert valuation. Defendant further argues that the tax assessment is not "new evidence" to support Plaintiffs' claims and not enough grounds to permit a late expert report that Plaintiffs voluntarily declined to produce. (Def. Supp. Br. at 7.) The Court agrees that the tax assessment itself is not new evidence and is not part of the record.
The Court, however, will permit Plaintiffs one final chance to support their assertion of fact that the properties have lost value because of contamination. Rule 56(e)(1), Fed. R. Civ. P., provides that "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact[.]" The 2010 Advisory Committee Notes to subdivision (e) state that
FEDERAL CIVIL JUDICIAL PROCEDURE & RULES 258 (Thomson Reuters, 2013 Revised Ed.);
The Court will grant Plaintiffs 30 days in which to supplement the record with an expert report that expresses an opinion as to whether the presence of TCE and/or PCE has caused a diminution in the value of their properties and an opinion quantifying the loss in property value, using reliable methodology and for which the expert is competent.
The Court's discretion to permit Plaintiffs to supplement the record on summary judgment in this case pursuant to Rule 56(e)(1) is warranted in this case for four reasons. First, the present motion is for partial summary judgment only, meaning that litigation between these parties will continue regardless of the motion's outcome. The parties currently are planning to conduct additional expert discovery, pending the resolution of this motion. In light of the fact that the parties likely face many additional months of litigation addressing the other remaining issues, another 30 days for Plaintiffs to submit an expert report will not lead to undue delay the resolution of this matter. Second, based on the material presently before the Court, it is highly probable that Plaintiffs could create a genuine issue of material fact as to the loss of property value with an admissible expert report. Plaintiffs' assertion of diminished property value is not fanciful or mere speculation. Plaintiffs have supplied the Court — albeit, to date, not in admissible form — with documents consistent with the contention that the Leeses, at least, have suffered a loss related to conditions emanating from Lockheed Martin's property across the street, as reflected in their reduced tax assessment allegedly due to the contamination. The testimony by the realtor witnesses further gives the impression that contaminated properties carry a stigma that affects their value. Common sense likewise instructs that residential properties that contain potentially harmful chemicals would be less desirable, and thus, less valuable, than noncontaminated properties in the eyes of a prospective buyer or tenant — although the burden remains on Plaintiffs to prove that intuition with admissible evidence. While none of the material described above is evidence sufficient to defeat summary judgment, it is enough to convince the Court that granting summary judgment at this time would foreclose a possibly substantial and meritorious claim. Third, an expert opinion on property value will not inject a new or surprising issue or claim into the case, thereby prejudicing Defendant.
Plaintiffs' lack of diligence ought to have its consequences, however, because Plaintiffs did not retain a suitable expert or serve a report in the time required by the earlier scheduling orders in this case and prior to the start of the summary judgment motion practice. Therefore, to minimize prejudice to Defendant, who has already deposed the Plaintiffs' two realtor witnesses twice, the Court will require Plaintiffs, at their own expense, to furnish their expert for deposition by Defendant and to pay their expert's reasonable fee for up to four hours of such deposition; Defendant is responsible for reimbursing the expert's fee beyond four hours of deposition testimony, for up to three additional hours; and the total time for this deposition is limited to one day of not more than seven hours unless counsel otherwise agree.
The Court therefore defers decision, pursuant to Rule 56(e)(1), upon Defendant's motion for partial summary judgment as it pertains to the injury of lost property value, pending Plaintiffs' submission of a new expert report. In the event Plaintiffs fail to supplement the record by submitting such report within thirty (30) days of the entry of this Order, the Court will grant partial summary judgment for Defendant upon the lost property value damages claims of these Plaintiffs.
If Plaintiffs timely submit such an expert's report, Defendant will have the opportunity to rebut same within thirty (30) days thereafter with their own expert's report accompanied by a curriculum vitae.
Defendant is entitled to partial summary judgment to the extent Plaintiffs allege bodily injury to the Leese children. Plaintiffs' request to qualify Ms. Coleman and Ms. Krisanda as expert witnesses is denied. Defendant's motion, as it pertains to Plaintiffs' diminished property value, is temporarily deferred, and Plaintiffs will be granted 30 days in which to furnish the Court, and opposing counsel, with an expert report expressing an opinion and quantum of diminished property value for each residential property, as well as causation thereof. The reimbursement of the expert's fee for the first four hours of a deposition is shifted to Plaintiffs. If no such expert's report is timely submitted, the Court will enter partial summary judgment for Defendant upon Plaintiffs' claims for damages for diminished property value. An accompanying Order will be entered.
Although Plaintiffs appear to concede that PCE was "below the NJDEP Screening Level," elsewhere Plaintiffs argue that "following December 2008 sampling at the Leese Property, analytical results yielded" a concentration of PCE above the applicable screening level. (Pl. Resp. to SMF ¶ 11.)
The Third Circuit did not obviate the requirement that a plaintiff produce evidence that chemical exposure in fact caused injuries, however. Nor did the Third Circuit hold that expert testimony is not needed when the link from low levels of exposure to relatively common symptoms may be proved without an expert.
