Filed: Jul. 13, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 7-13-2007 Player v. Motiva Entr Precedential or Non-Precedential: Non-Precedential Docket No. 06-1663 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Player v. Motiva Entr" (2007). 2007 Decisions. Paper 772. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/772 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 7-13-2007 Player v. Motiva Entr Precedential or Non-Precedential: Non-Precedential Docket No. 06-1663 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Player v. Motiva Entr" (2007). 2007 Decisions. Paper 772. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/772 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-13-2007
Player v. Motiva Entr
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1663
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Player v. Motiva Entr" (2007). 2007 Decisions. Paper 772.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/772
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No: 06-1663
_______________
JEFF PLAYER; CHERYL PLAYER; CHESTER J. BESARA;
SUSAN BURCAW; LEWIS BURCAW; DONALD BURTON;
JACKIE BURTON; BRIAN L. CHORZELEWSKI;
THOMAS CLAUSS; MARGARET CLAUSS;
TERRI CONCANNON; JOHN FLOLO; THOMAS HAAS;
JEFF JOHNSON; CYNTHIA JOHNSONN;
SUSAN KAMMERHOFF; MICHAEL KAMMERHOFF;
HARRY KLEMOWITZ; ELIZABETH KLEMOWITZ;
PHILLIP KRAJEWSKI; COLLEEN KRAJEWSKI;
MARK LEASON; MICHELLE LEASON; DARLEEN LITTON;
JAMES LITTON; DAVID LODI; JOSEPH MINNER;
JANICE MONAHAN; SAMUEL PALMUCCI;
KATHLEEN PALMUCCI; DANIEL RODRIGUEZ;
MARTHA RODRIGUEZ; TOM SANKIEWICZ;
TINA SANKIEWICZ; CALVIN SIMMONS;
NORMA SIMMONS; THOMAS SLONAKER;
ROSEANNE SLONAKER; BILL STEPHENSON;
DOROTHY STEPHENSON; BARBARA TANNER;
JOHN WALLACE; MARIA WALLACE; PAT WOLFENDEN;
DAVID WOLFENDEN
v.
MOTIVA ENTERPRISES, LLC, a successor
in interest to Star Enterprises;
JANE DOES 1-50; JOHN DOES 1-50, all
fictitious names for person or entities
whose identities are presently unknown
Jeff Player, Cheryl Player, Chester J. Besara;
Susan Burcaw, Lewis Burcaw, Donald Burton,
Jackie Burton, Brian L. Chorzelewski, John Flolo,
Thomas Clauss, Margaret Clauss, Terri Concannon,
Thomas Haas, Jeff Johnson, Cynthia Johnson,
Susan Kammerhoff, Michael Kammerhoff, Harry Klemowitz
Elizabeth Klemowitz, Philip Krajewski, David Lodi,
Colleen Krajewski, Mark Leason, Michelle Leason,
Joseph Minner, Janice Monahan, Samuel Palmucci,
Kathleen Palmucci, Daniel Rodriguez, Martha Rodriguez,
Tom Sankiewicz, Tina Sankiewicz, Calvin Simmons,
Norma Simmons, Thomas Slonaker, Roseanne Slonaker,
Bill Stephenson, Dorothy Stephenson, Barbara Tanner,
John Wallace, Maria Wallace, Pat Wolfenden and
David Wolfenden,
Appellants
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 02-cv-03216)
District Judge: Honorable Robert B. Kugler
_______________
Submitted Under Third Circuit LAR 34.1(a)
May 7, 2007
Before: RENDELL, JORDAN, HARDIMAN, Circuit Judges.
(Filed: July 13, 2007)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
2
Plaintiffs, Jeff and Cheryl Player and several of their neighbors, appeal the
decision of the United States District Court for the District of New Jersey granting a
Daubert motion to exclude their damages expert, Daniel McDonald, and granting
summary judgment in favor of Defendant Motiva Enterprises, LLC (“Motiva”). Plaintiffs
argue that the District Court abused its discretion in finding that McDonald was not
qualified and that his methodology was unreliable. They also contend that the District
Court erred by not conducting a hearing before ruling on the Daubert motion.
Alternatively, Plaintiffs argue that, even if McDonald’s testimony was properly excluded,
there was still sufficient evidence in the record to establish that they were injured by
Motiva, and, thus, the District Court should not have granted Motiva’s motion for
summary judgment on Plaintiffs’ negligence claim. Lastly, Plaintiffs assert that the
District Court erred in dismissing their claim under the New Jersey Environmental Rights
Act (“ERA”). For the following reasons, we will affirm the decision of the District Court.
I.
Plaintiffs are the current and former owners of residential properties located in
Gloucester Township, New Jersey. Plaintiffs assert numerous claims against Motiva, all
relating to their central allegation that, in or about April 2000, Motiva was responsible for
the discharge of hazardous substances from a gasoline service station into the soil and
groundwater near Plaintiffs’ properties. The District Court provided an extensive review
of the undisputed facts in this case, see Player v. Motiva Enters. LLC, No. Civ. 02-3216,
2006 WL 166452, at *1-3 (D.N.J. Jan. 20, 2006). Because we write only for the parties
3
and because the appeal challenges only the District Court’s legal conclusions, we limit
our discussion of the facts to those necessary to address the parties’ arguments, after
providing some basic background information.
Plaintiffs own twenty-seven parcels of residential property in Gloucester
Township.1 Only one of those properties, 583 Berlin Cross Keys Road, is connected to
the municipal water supply. That property is owned by John and Maria Wallace, who
admitted that their drinking water was not affected by the leak at Motiva’s gasoline
station. The other twenty-six properties all draw their drinking water from potable wells
connected to the Kirkwood-Cohansey Aquifer, and, unlike the Wallaces, the owners of
those properties claim that Motiva has contaminated their drinking water.
Pursuant to a directive issued by the New Jersey Department of Environmental
Protection (“NJDEP”), Motiva tested Plaintiffs’ wells for volatile organic compounds
(“VOCs”) associated with gasoline. According to the District Court’s review of those test
results, eighteen of the properties showed no signs of contamination, and although VOCs
were detected in the wells of the other eight properties, the detected amounts were within
the permissible range for potability set by the NJDEP’s Ground Water Quality Standard
(“GWQS”). Plaintiffs do not argue that the District Court’s discussion of the test data
was inaccurate.
II.
1
Two of the original plaintiffs were voluntarily dismissed from the case; one has
passed away.
4
The District Court granted summary judgment in favor of Motiva with respect to
all of Plaintiffs’ claims. On appeal, however, Plaintiffs challenge only the District
Court’s decisions with respect to the exclusion of expert testimony and the granting of
summary judgment against them on their negligence claim and their New Jersey
Environmental Rights Act (“ERA”) claim. Following is a summary of the reasoning of
the District Court as to each of those rulings.
A.
The District Court granted Motiva’s Daubert motion to exclude the testimony of
McDonald on two alternative grounds. First, the District Court found that McDonald was
not qualified to opine on the value of Plaintiffs’ properties. Although McDonald had
been a licensed appraiser in New Jersey for twenty-two years, the District Court
determined that McDonald was not qualified to offer an opinion in this case because he
had no particular experience in appraising property that had been devalued by
contamination or the stigma of contamination.
Second, the District Court found that McDonald’s report was based on unreliable
methodology. The Court explained that McDonald divided Plaintiffs’ properties into two
groups: those that had detected levels of VOCs in their potable wells and those that did
not. McDonald concluded that the properties with no contaminants detected in their
drinking water suffered a thirty-five percent loss in market value, and that the properties
with any amount of detected contamination lost sixty-six percent of their market value.
The District Court discussed each calculation individually and concluded that both were
5
the product of unreliable methodology.
In his report, McDonald explained that, for the properties with no detected
contamination, damages were based on the stigma that normally attaches to property near
a contamination site. To quantify that stigma, McDonald compared Plaintiffs’ properties
with properties located near a contamination site in Dover Township, New Jersey.
McDonald determined that the contamination site in Dover Township was in the final
stage of recovery, but the properties near that site were still suffering from a thirteen
percent loss in value. He then concluded that, because Plaintiffs’ properties were in an
earlier stage of recovery, the loss in value must be two to three times greater than that of
the Dover properties, or about thirty-five percent.
The District Court found that McDonald’s conclusion was based on a “highly
misleading analogy.” The Court pointed out that, unlike this case, the ground water
contamination in Dover Township caused a relatively large number of children to develop
cancer. Moreover, McDonald admitted that he selected the Dover Township site because
the data was readily available, not because it was a comparable site. The District Court
thus held that the severity of the contamination and the resulting illnesses in Dover
Township made it inappropriate to compare that site with Plaintiffs’ properties, “where
there were few detections of contaminants and no reported physiological effects.” (Dist.
Ct. Op. at 23.)
For the properties that had detected levels of VOCs in their potable wells,
McDonald determined that there was a sixty-six percent loss in value because, in addition
6
to stigma, there would also be a loss in value due to the lack of financing options
available to potential buyers. According to his report, McDonald sent a survey to thirteen
lenders. McDonald claimed that the six lenders who responded said they would not
approve a loan to purchase Plaintiffs’ properties, or they would require substantial
conditions on such a loan. As a result, McDonald concluded that, “it can be assumed that
a purchaser with private financing or cash would be the only potential buyer.” (Appx. at
A245.) Based on the three years of data that McDonald reviewed, the only two homes in
the same area as Plaintiffs’ properties that were purchased in cash were sold for
$39,205.00 and $47,000.00. McDonald then reasoned that, “since the properties in
question are superior to the two recent cash purchases, it would be conservative to say
that a discount of 66% is supported for houses that have on site contamination.” (Appx.
at A246.)
The District Court concluded that the initial premise relied upon by McDonald –
that any potential buyer would have to pay cash – was not well-founded. It was based on
an e-mailed survey2 that received responses from only six lenders, one of which refused
to comment and another of which said it would loan to a buyer under certain
2
The word “survey” actually gives McDonald’s work a greater air of scientific
validity than is warranted. He sent an e-mail to a handful of lenders and asked a question
fashioned, it seems, to get the negative answer his clients hoped for. He told the lenders
he was valuing property and had to “consider a number of detrimental conditions. One ...
is the difficulty of getting financing for a contaminated site ... .” (Appx. at A245.) If you
load the question (e.g., positing contamination) and then tell someone you expect an
outcome (e.g., difficulty in getting financing), being told that may indeed be the outcome
hardly seems a fair confirmation of a neutral hypothesis.
7
circumstances. Furthermore, the District Court explained, of the four lenders that said
they were unwilling to extend a loan, at least one of them appeared to have misunderstood
McDonald’s survey question. That lender apparently thought McDonald was referring to
property with contamination so severe that it was not in compliance with state
environmental requirements. The District Court concluded that “the reliability of the
66% figure is entirely invalidated by the overemphasis placed on the four responses to the
email hypothetical, the misleading implication in the email hypothetical, suggesting a
much greater contamination of the property than actually present, and the unclear
calculations and assumptions underlying McDonald’s arrival at 66%.” (Dist. Ct. Op. at
24.)
B.
The District Court granted summary judgment in favor of Motiva on Plaintiffs’
negligence claim because Plaintiffs failed to present evidence showing that their property
had been damaged. Plaintiffs’ primary proof of damages, McDonald’s expert report, had
been excluded by the District Court, but Plaintiffs pointed to other evidence that they
claimed established property damage. Specifically, Plaintiffs submitted contracts, some
un-executed, for the sale of several of Plaintiffs’ properties. The District Court found the
contracts to be unpersuasive, because Plaintiffs simply left it “to the Court’s imagination
to ascertain how [the] contracts demonstrate a loss in value.” (Dist. Ct. Op. at 31.)
Plaintiffs also presented the sworn testimony of Maria Wallace, who claimed that a man
offered to buy her home and another property together for her asking price of
8
$500,000.00, but reneged after she told him about the leak at the Motiva gasoline station.
The District Court noted, however, that Ms. Wallace was never given an offer in writing
and had no evidence of the man’s motive for withdrawing his offer, other than her own
testimony. As a result, the Court concluded that, even when construed in the light most
favorable to Plaintiffs, the evidence presented was not enough for a reasonable juror to
conclude that Ms. Wallace’s property lost value.
C.
The District Court also granted summary judgment in favor of Motiva on
Plaintiffs’ claim under the ERA. The ERA provides that “[a]ny person may commence a
civil action in a court of competent jurisdiction against any other person alleged to be in
violation of any statute, regulation or ordinance which is designed to prevent or minimize
pollution, impairment or destruction of the environment.” N.J. Stat. Ann. § 2A:35A-4.
Plaintiffs used the private right of action provided by the ERA to try to enforce the New
Jersey Spill Compensation and Control Act (“Spill Act”). Specifically, Plaintiffs alleged
that Motiva violated the ERA because the leak from Motiva’s gasoline station constituted
a discharge within the meaning of the Spill Act, and, therefore, Motiva was liable for all
cleanup and removal costs.
The District Court dismissed Plaintiffs’ ERA claim for two reasons. First, the
Court held that Plaintiffs’ claim was preempted by the NJDEP’s enforcement of the Spill
Act. The Court explained that, when the NJDEP takes action pursuant to the Spill Act, a
private claim under the ERA is preempted unless the NJDEP “has failed or neglected to
9
act in the best interest of the citizenry or has arbitrarily, capriciously or unreasonably
acted.” Superior Air Prods. Co. v. NL Indus., Inc., 522 A.2d 1025, 1033 (N.J. Super. Ct.
App. Div. 1987). The District Court concluded that the record indicated “consistent and
pervasive NJDEP oversight of the remediation process,” and that, as a result, Plaintiffs’
private ERA action was not permitted.
Alternatively, the District Court held that Plaintiffs failed to comply with the
notice provision of the ERA, which states that:
No action may be commenced pursuant to this act unless the person seeking
to commence such suit shall, at least 30 days prior to the commencement
thereof, direct a written notice of such intention by certified mail, to the
Attorney General, the Department of Environmental Protection, the
governing body of the municipality in which the alleged conduct has, or is
likely to occur, and to the intended defendant.
N.J. Stat. Ann. § 2A:35A-11. Plaintiffs did not argue that they provided the required
notice, but rather that Motiva was estopped from raising the issue because it had not done
so earlier in the case. The District Court rejected that argument. It found that, because
the ERA’s notice provision was intended to provide the Attorney General and the NJDEP
with the opportunity to intervene and was not meant merely to protect defendants, Motiva
was allowed to raise the issue for the first time at the summary judgment stage.
III.
As earlier noted, Plaintiffs appeal the order of the District Court granting Motiva’s
motion to exclude the testimony of Daniel McDonald and granting Motiva’s motion for
summary judgment. The District Court had subject matter jurisdiction over this case
10
pursuant to 28 U.S.C. § 1332. We have jurisdiction to review the District Court’s order
pursuant to 28 U.S.C. § 1291.
A.
Under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), we review the
District Court’s decision to exclude proposed expert testimony for an abuse of discretion.
Citizens Fin. Group, Inc. v. Citizens Nat’l Bank of Evans City,
383 F.3d 110, 118 (3d Cir.
2004). Regarding the admissibility of expert testimony, Federal Rule of Evidence 702
provides that:
If 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 otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
Because we conclude that the District Court did not abuse its discretion in holding that
McDonald’s methodology was unreliable, we do not address the District Court’s
alternative finding that McDonald was not qualified.
McDonald’s report states that he used the Detrimental Condition Model (“DCM”)
to determine that the group of Plaintiffs whose properties had no signs of contamination
suffered a loss of thirty-five percent of the market value of their homes. According to
McDonald, the DCM illustrates how the market value of property is affected by a
detrimental event, such as environmental contamination, and by the subsequent stages of
recovery. Essentially, as interpreted by McDonald, the DCM model suggests that
11
property experiences a drastic drop in market value immediately after a detrimental event
occurs and that it regains value during four stages of recovery.
In order to place a specific numeric value on the damages that Plaintiffs incurred,
McDonald analyzed the sales of homes in an area of Dover Township, New Jersey that
had also experienced ground water contamination. He found that, even though the Dover
Township contamination site was in the final stage of recovery, homes were still selling at
a discount of thirteen percent below market value. McDonald then used the following
approach to calculate the loss in value for Plaintiffs’ properties:
The subject area is in stage D of recovery, which is the beginning of the
remediation process. Based on the acceptance of the Detrimental Condition
Model as a viable process for valuing Detrimental Conditions to Real
Estate, by the appraisal community, and the Subcommittee on Housing and
Community Opportunity of the House Committee on Financial Services, it
would be logical to assume that the discount to the properties which are the
subject of this report, would be 2 to 3 times that of properties in the final
stage of recovery. In this case a discount of 35% would be considered
reasonable for properties that are affected by the ground water
contamination and or the stigma that has resulted from the ground water
contamination.
(Appx. at A244.) Thus, McDonald assumed that because Plaintiffs’ properties were near
a contamination site in the early stages of recovery they would have a loss in value two to
three times greater than that of property near a contamination site in the final stage of
recovery. We agree with the District Court that such guess work is not a reliable method.
See Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 806 (3d Cir. 1997) (“In order for
the expert testimony to be ‘reliable,’ we have required that the testimony be based on the
‘methods and procedures of science,’ rather than on ‘subjective belief or unsupported
12
speculation.’”).
Plaintiffs point out that the District Court never held that the DCM itself was
unreliable. That is correct, but inapposite. As McDonald recognized in his report and
Plaintiffs reiterate in their briefing, the DCM is a model that suggests a general
relationship between the recovery process and property value. It has not been shown to
be a reliable method for determining the loss in value due to contamination. McDonald
arrived at a loss figure by comparing Plaintiffs’ properties with properties near a
contamination site in Dover Township and then assuming additional loss. It is that
calculation-by-assumption method which the District Court found to be unreliable. The
District Court certainly had the discretion to exclude “opinion evidence that is connected
to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S.
136, 146 (1997).
Plaintiffs argue that McDonald’s use of the Dover Township contamination site as
a comparison was not unreliable. Specifically, Plaintiffs claim that there was no evidence
to indicate that the stigma associated with the Dover site was significantly greater than the
perception of Plaintiff’s residential area. However, the problem recognized by the
District Court was that McDonald also had no evidence indicating that the contamination
in Dover Township was similar to the contamination at issue in this case. As the District
Court pointed out, McDonald said that he selected the Dover site because he did not know
of any other cases “where the data was as readily available.” (Dist. Ct. Op. at 22.) In
fact, he knew nothing about the type or degree of contamination in Dover Township, and
13
his report mentions nothing about the degree to which Plaintiff’s properties were
contaminated. Moreover, the little that McDonald apparently did know about the two
sites indicated that they were not comparable. For example, McDonald acknowledged
that the contamination in Dover Township caused children to develop cancer, whereas
there was no such effect noted in this case. In short, there was no basis for saying that the
Dover contamination site is similar to the properties involved in this litigation. As a
result, it was within the District Court’s discretion to exclude McDonald’s testimony. Cf.
Gen. Elec. Co., 522 U.S. at 144-45 (holding that the animal studies relied upon by the
expert were so dissimilar to the facts of the case that the district court did not abuse its
discretion by excluding the expert’s testimony).
Plaintiffs do not argue that the survey McDonald conducted was a reliable method
for determining that only cash purchasers would be able to buy contaminated property.
Instead, Plaintiffs attempt to downplay that portion of McDonald’s analysis, claiming that
it was “a small part” of his valuation. However, McDonald determined that the
contaminated properties had a loss in value nearly double that of the properties that had
no signs of contamination. The only reason he gave for that difference in value was the
lack of financing options available to buyers interested in purchasing contaminated
property. Thus, it was clearly not “a small part” of his valuation.
Plaintiffs also argue that, even if McDonald’s methodology was flawed, his
ultimate calculation “is logical and supportable simply as a matter of common sense.”
Common sense is enough to dispose of that argument. Rule 702 permits opinions that are
14
the “product of reliable principles and methods.” Notwithstanding Plaintiffs’ affinity for
their expert’s conclusions, they were obligated to demonstrate that those conclusions met
the requirements of the rule. They failed in that obligation.
Plaintiffs’ last ditch effort is to argue that the case should be remanded because, at
a minimum, they were entitled to a hearing on the admissibility of McDonald’s testimony.
However, on this record it was within the District Court’s discretion to decide the motion
without a hearing. See Oddi v. Ford Motor Co., 234 F.3d 136, 154 (3d Cir. 2000)
(holding that an in limine hearing was not required when the proponent of the excluded
testimony failed to show how such a hearing would have aided the court’s decision).
B.
Plaintiffs argue that, even if we determine McDonald’s testimony was properly
excluded, the District Court erred in granting summary judgment for Motiva on Plaintiffs’
negligence claim because there was still sufficient evidence in the record to establish that
their properties lost value. Specifically, Plaintiffs point to Exhibits N through R, which
they submitted to the District Court in opposition to Motiva’s motion for summary
judgment. We exercise plenary review over the District Court’s grant of summary
judgment, and we apply the same well-known test for the propriety of summary
judgment, Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007), namely, whether “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact” and
whether “the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
15
56(c). We “must view the facts in the light most favorable to the nonmoving party and
draw all inferences in that party’s favor.” Andreoli, 482 F.3d at 647. After reviewing the
exhibits cited by Plaintiffs, we agree with the District Court that, based on those exhibits
alone, no reasonable juror could conclude that Plaintiffs’ properties lost value.
Exhibit N is an un-executed contract for the sale of Dorothy Mitchell’s property.
Exhibit P is a contract for the sale of John Flolo’s property, which was later cancelled for
a reason that is not clear from the record. Exhibit Q consists of a listing agreement for
David and Diane Lodi’s home, stating that the listing price is $169,900.00, and a
subsequent contract for the sale of that home for $104,000.00. Exhibit R consists of two
documents: a settlement statement indicating that Thomas and Tina Stankiewicz
purchased a home for $105,500.00 in February 1989, and another settlement statement
indicating that the Stankiewiczs sold that home in August 2000 for $114,900.00.
Plaintiffs fail to show how any of those documents demonstrate that their
properties lost value following the gasoline station leak.3 And, if a jury were to consider
3
Plaintiffs argue, in a single paragraph, that the documents are evidence of
property damage. That paragraph reads as follows:
Although since the release there have been very few actual sales of the
subject property, evidence of sales which were impacted was presented to
the District Court. A. 824-879. For example, Plaintiff David Lodi listed his
home ... for sale in April 2001, prior to notification of the Motiva release,
with the multiple listing service for $169,000.00. A. 861-74. It sold for
$104,000.00. Id. This is evidence of damage which need not, as a matter of
law, require expert testimony. Cf. New Jersey Sports & Exposition
Authority v. Cariddi, 84 N.J. 102, 104-105 (1980).
16
those documents without any context, which is how Plaintiffs have presented them, the
jury would have to rely on assumptions and speculation to conclude that Plaintiffs have
proven an injury. For example, a jury would have to assume that the contract in Exhibit P
was cancelled because the property had lost value. But, there is no evidence suggesting
that that was the reason. Similarly, for Exhibit Q, a jury would have to determine
whether the property sold for less than its listing price because it lost value or because of
any number of other possible reasons, such as the listing price having been set too high or
the owners having been eager to sell. Plaintiffs have not adduced any evidence that
would assist a jury in sorting out such possibilities. Thus, we find that no reasonable jury
could conclude, based on the evidence presented, that Plaintiff’s properties were
damaged.
Plaintiffs also claim that Exhibit O, the deposition testimony of Maria Wallace,
demonstrates that her home declined in value by $150,000.00. Ms. Wallace testified that
she was trying to sell her home and her father-in-law’s home together. According to Ms.
Wallace, a man offered to pay the listing price of $500,000.00 for both properties, but
when she told him about the gasoline leak nearby, he decided that he only wanted to buy
her father-in-law’s property because it was farther away from the contamination site. Ms.
Wallace refused to sell just the one property, so the man retracted his offer.
Subsequently, another buyer offered to purchase both properties for $350,000.00, without
(Appellant’s Br. at 25.)
17
even asking what the listing price was. Ms. Wallace told the buyer about the
contamination, but he did not revoke or reduce his offer.
As with Plaintiffs’ other exhibits, Ms. Wallace’s deposition testimony does not
demonstrate that her home declined in value. Plaintiffs’ theory appears to be that the
difference between the offer made by the first potential buyer and the offer made by the
second represents a loss in value. Leaving aside other problems with that proof, it is
inadequate because Plaintiffs fail to acknowledge that Ms. Wallace sold two properties
together. Their theory requires a jury to determine how much, if any, of the $150,000.00
difference in the two offers was due to a loss in value in Ms. Wallace’s home. Plaintiffs
do not point to any evidence that would enable a jury to make such a determination.
Therefore, we hold that no reasonable jury could conclude, based on Ms. Wallace’s
testimony, that her property declined in value.
In sum, we agree with the District Court that Plaintiffs have not identified any
evidence that would allow a jury to find that Plaintiffs suffered an injury following
Motiva’s allegedly negligent behavior. The District Court therefore properly granted
Motiva’s motion for summary judgment.4
4
Plaintiffs argue that the District Court erred by granting summary judgment in
favor of Motiva without addressing their claim that Motiva’s negligence caused them to
suffer a loss of quality of life. However, in response to Motiva’s motion for summary
judgment, Plaintiffs did not mention their claim for lost quality of life. We have held that,
where the party opposing a motion for summary judgment bears the ultimate burden of
proof, the moving party may discharge its initial burden of showing that there is no
genuine issue of material fact by “‘showing’ – that is, pointing out to the district court –
that there is an absence of evidence to support the nonmoving party’s case.” UPMC
18
C.
Plaintiffs contend that the District Court erred by permitting Motiva to raise the
issue of Plaintiffs’ noncompliance with the ERA’s notice provision for the first time in its
motion for summary judgment. Whether Plaintiffs’ compliance with the ERA’s notice
provision is a mandatory precondition or one that could have been waived is a question of
law, and, accordingly, we exercise plenary review. See Knight v. Int’l Longshoremen’s
Ass’n, 457 F.3d 331, 340 (3d Cir. 2006) (appellate review over questions of law is
plenary). Plaintiffs also argue that the District Court erred by holding that their ERA
claim was preempted by the NJDEP’s enforcement of the Spill Act. Because we
conclude that compliance with the ERA’s notice provision is mandatory, we do not
address the issue of preemption.
The notice provision of the ERA states that “[n]o action may be commenced
pursuant to this act unless the person seeking to commence such suit” provides at least 30
days notice to the Attorney General, the NJDEP, the municipality in which the relevant
conduct occurred, and the intended defendant. N.J. Stat. Ann. § 2A:35A-11. There is no
Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). If the moving party
has satisfied its initial burden, the nonmoving party must, in their opposition to the
motion, identify evidence of record that creates a genuine issue of material fact. Childers
v. Joseph,
842 F.2d 689, 694-95 (3d Cir. 1988). The nonmoving party cannot later argue,
on appeal, that there is evidence in the record that creates a genuine issue of material fact,
if that evidence was not pointed out to the district court at the time of the motion for
summary judgment.
Id. at 694. Assuming there is such a claim to be made, Plaintiffs
never argued to the District Court that there was a genuine issue of material fact regarding
their claim for lost quality of life. Consequently, they cannot now argue that the District
Court erred by failing to consider it.
19
New Jersey precedent addressing the issue of whether the ERA’s notice provision is a
mandatory precondition to a lawsuit or a requirement that can be waived at the discretion
of the trial court. Therefore, we must predict how the New Jersey Supreme Court would
rule if faced with the issue. Covington v. Continental Gen. Tire, Inc., 381 F.3d 216, 218
(3d Cir. 2004). “In carrying out that task, we must consider relevant state precedents,
analogous decisions, considered dicta, scholarly works, and any other reliable data
tending convincingly to show how the highest court in the state would decide the issue at
hand.”
Id. (quoting Packard v. Provident Nat’l Bank,
994 F.2d 1039, 1046 (3d Cir.
1993)). Here, a decision by the United States Supreme Court on an analogous issue
provides a reliable basis for our decision.
In Hallstrom v. Tillamook County, 493 U.S. 20 (1989), the Supreme Court
considered the effect of the notice provision in the Resource Conservation and Recovery
Act of 1976 (“RCRA”). When that case was decided, RCRA’s notice provision provided
that:
No action may be commenced under paragraph (a)(1) of this section - (1)
prior to sixty days after the plaintiffs has given notice of the violation (A) to
the Administrator [of the EPA]; (B) to the State in which the alleged
violation occurs; and (C) to any alleged violator of such permit, standard,
regulation, condition, requirement, or order.
Id. at 25-26; see also 42 U.S.C. § 6972(b)(1) (1982). The Court interpreted the language
“no action may be commenced” to mean that compliance with the notice provision was a
mandatory condition precedent to commencing a private suit under RCRA, and that a
district court could not disregard that requirement.
Hallstrom, 493 U.S. at 26, 31. As a
20
result, the Supreme Court held that the plaintiffs’ failure to comply with the notice
provision required dismissal of the action, even though the case had been litigated for
nearly four years and there had been a determination on the merits. Id. at 32.
Because the ERA contains the same “no action may be commenced” language as
RCRA,5 we find the Supreme Court’s reasoning in Hallstrom to be particularly
persuasive. Plaintiffs provide no reason why we should not apply that reasoning in this
case. Therefore, we conclude that the notice provision of the ERA is a mandatory
condition precedent to bringing a private cause of action under the ERA, and, since the
District Court could not have held that requirement waived, it did not err by allowing
Motiva to raise it for the first time at the summary judgment stage.
IV.
For the foregoing reasons, we will affirm the decision of the District Court.
5
The District Court wrongly stated that the ERA lacks the “no action may be
commenced” language of RCRA. (Dist. Ct. Op. at 40.) The notice provision of the ERA
that was in effect when Plaintiffs filed their complaint in 2002 in fact did contain the “no
action may be commenced” language. N.J. Stat. Ann. § 2A:35A-11 (2001).
21
