FREDA L. WOLFSON, District Judge.
Plaintiffs
The following relevant facts are not in dispute, unless otherwise noted. Defendant operates the Duhernal Lake Dam,
In late August 2011, Hurricane Irene hit New Jersey, causing flooding to low-lying areas adjacent to rivers and streams throughout much of the State, including Old Bridge. Plaintiffs were all residents of that township, and they lived adjacent to, and immediately downstream from, Duhernal Lake and the dam. There is no dispute that Plaintiffs' personal properties were damaged as a result of an overflow of flood waters from Duhernal Lake. Plaintiffs unequivocally testified that the flooding to their homes occurred between 9:00 a.m. and 10:00 a.m. on August 28, 2011. Defendants' Statement of Undisputed Material Facts, ¶ 5 (citing to various Plaintiffs' Depositions).
Plaintiff's Second Amended Complaint initially asserted six causes of action. By the parties' stipulations, the Court, in its April Order, dismissed five out of the six claims with prejudice. See Order dated April 15, 2016, ¶ 1. The only remaining claim subject to the instant motion is a negligence claim in Count Four. However, the parties agreed to limit the scope of that claim, which was reflected in the April Order, as follows: "All negligence claims in Count Four of the Second Amended [Complaint] are dismissed in their entirety with prejudice by agreement of the parties except for the currently alleged claim that DuPont/Duhernal failed to activate its Emergency Action Plan (EAP) in connection with Hurricane Irene in a timely manner and provide EAP notice to the Old Bridge Office of Emergency Management in accordance with the expert opinion of Eric Ditchey, P.E. (`EAP-Related Claim')." Id. at ¶ 2. In addition, notwithstanding the various types of monetary relief they seek in their Second Amended Complaint, Plaintiffs have limited their damages to personal property damages only. Defendant also asserted third-party claims against Spotswood for contribution and indemnification.
In the instant matter, Defendant moves for summary judgment on the negligence claim. Spotswood also moves for summary judgment on Defendants' third-party claims.
Summary judgment is appropriate "if 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 that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ .P. 56(c). A factual dispute is genuine only if there is "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party," and it is material only if it has the ability to "affect the outcome of the suit under governing law." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence `is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial." Id. at 331. On the other hand, if the burden of persuasion at trial would be on the nonmoving party, the party moving for summary judgment may satisfy Rule 56's burden of production by either (1) "submit[ting] affirmative evidence that negates an essential element of the nonmoving party's claim" or (2) demonstrating "that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." Id. Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324; see also Matsushita, 475 U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be "no genuine issue as to any material fact," however, if a party fails "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992).
To make a prima facie case of common law negligence in New Jersey, a plaintiff must establish four elements: (1) a duty of care owed to plaintiff by defendant, (2) a breach of that duty by defendant, (3) causation, and (4) actual damages. Brunson v. Affinity Fed. Cred. Union, 199 N.J. 381, 400 (2009). Ordinarily, the plaintiff bears the burden of proving each of these elements. Id. "The mere showing of an incident causing the injury sued upon is not alone sufficient to authorize the finding of an incident of negligence." Long v. Landy, 35 N.J. 44, 54 (1961). "An inference [of negligence] can be drawn only from proved facts and cannot be based upon a foundation of pure conjecture, speculation, surmise or guess." Id. Indeed, an expert's opinion may be used to prove elements of negligence, particularly if the subject matter of the alleged negligent act is technical or beyond the kin of the factfinder. See Fed. R. Evid. 702; Johnson v. Marberry, 549 Fed. Appx. 73, 74-75 (3d Cir. 2013); see, e.g., Jerista v. Murray, 185 N.J. 175, 194 (2005); Scully v. Fitzgerald, 179 N.J. 114, 128-29 (2004).
On the single remaining EAP-Related Claim, Plaintiffs' only support for the liability and proximate cause elements of negligence is the expert report of Ditchey. I will briefly summarize that report. Ditchey based his review on eight documents: (1) Duhernal Lake Dam's EAP; (2) Deposition of James Poltricktzky; (3) Deposition of Scott Parkstrom
Based on his review, Ditchey made various findings in his six-page report. First, he opined that the EAP at issue was not updated annually as required by NJDEP guidelines for developing an EAP. See Ditchey's Report at p. 3. Ditchey also observed that Defendant was behind 6 years in performing inspections and did not commence certain repairs and maintenance analyses. Id. at p. 4. Ditchey also discussed Defendant's failure to properly activate the EAP following an unrelated earthquake occurrence in August 2011, prior to Hurricane Irene. Ditchey opines that particular failure to implement the EAP is "another example of a lack of training and understanding of the operations personnel regarding the meaning and the intent of the contents in the EAP." Id. at p. 5. Finally, according to Ditchey, the water level on August 28, 2011 at Duhernal Lake met the criteria for a Dam Warning Condition, but the operators over several shifts did not activate the EAP. Ditchey further opined that activation of the EAP would have likely provided the downstream-residents, such as Plaintiffs, timely notification of the flooding. Id. at p. 6. It is Ditchey's expert opinion that "the notification of the flooding potential would have given these residents time to react, allow them time to prepare for the flooding, move valuables from lower levels to upper levels, and likely reduce the amount of damage to personal property." Id.
To defeat summary judgment, Ditchey's Report is being utilized by Plaintiffs as evidence to establish causation and breach of Defendant's standard of care, which are essential to make out a prima facie case for negligence. On its motion, Defendant argues Ditchey's expert opinions should not be admitted because they are baseless and unreliable. At the outset, I first decide which part of Ditchey's Report is relevant to the EAP-Related negligence claim. While Ditchey made various conclusions, upon my inspection, only one aspect of his report is directly related to that claim. As I have summarized above, Ditchey concluded that Defendant failed to inspect the dam and make certain repairs. He also blamed Defendant for failing to update the EAP according to NJDEP's guidelines. However, those opinions do not have any bearing on Plaintiffs' negligence claim. To be clear, Plaintiffs' sole claim here is whether Defendant acted negligently in failing to implement the EAP and contact the OBT-OEM when a Dam Warning Condition occurred. As Ditchey made clear, the EAP — that existed at the time Hurricane Irene hit New Jersey — instructed that in the event the water level reaches 3 feet over the spillway of the lake, Defendant was required to provide notification to various townships. In that specific context, the issue whether Defendant should have updated the existing EAP, or performed inspections/repair to the dam, do not have any bearing on Defendant's liability vis-à-vis the EAP-Related negligence claim. Nor do Ditchey's comments regarding Defendant's previous failure to activate the EAP during an unrelated earthquake event establishes causation for the particular negligent conduct raised here.
Indeed, the only portion of Ditchey's expert that speaks to causation or Defendant's breach of the standard of care, is his opinion that Defendant should have activated the EAP since a Dam Warning Condition existed. In Ditchey's view, Defendant's failure to do so proximately caused Plaintiffs' damages, and Ditchey's so testified at his deposition:
Ditchey's Dep., T73:3-11.
Id. at T81:4-8. Accordingly, I will turn to that portion of Ditchey's Report and determine whether those opinions are admissible for consideration on this motion for summary judgment.
The Supreme Court set forth the standard for admitting expert opinions in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Daubert made trial courts the gatekeepers for determining the admissibility of expert opinions and explained that, in order for an "opinion" to be admissible as "`scientific knowledge,' an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation —i.e., `good grounds,' based on what is known." Daubert, 509 U.S. at 590. Federal Rule of Evidence 702 governs the admissibility of expert opinions and it has three components: (1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge; and (3) the expert's testimony must assist the trier of fact. Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008).
For the second requirement, "`an expert's testimony is admissible so long as the process or technique the expert used in formulating the opinion is reliable.'" Id. (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-42 (3d Cir. 1994)). In evaluating whether a particular methodology is reliable, a trial court should consider several factors: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. United States v. Downing, 753 F.2d 1224 (3d Cir. 1985); Pineda, 520 F.3d at 247-48.
Here, Defendant argues that Ditchey's opinion regarding Defendant's failure to activate the EAP during Hurricane Irene is unreliable.
Next, while Ditchey is critical of Defendant for its failure to implement the EAP, the expert does not provide a timeline or chronology of the events that occurred prior to the flooding of Plaintiffs' residences. Significantly, the report does not set forth any factual bases for Ditchey's opinion that Defendant should have activated the EAP well in advance of the flooding. In that connection, the Report is silent as to when the water level reached three feet over the spillway, which would have triggered a Dam Warning Condition.
Ditchey's deposition testimony underscores the deficiency of his opinions in this regard. Ditchey admitted that he did not review any documents relating to the events that occurred between August 20, 2011 and August 29, 2011, other than what was listed in his report. Ditchey's Dep., T25:20-25. Significantly, Ditchey did not review any of Plaintiffs' deposition testimony, and therefore, the expert was unaware when Plaintiffs' homes flooded. Id. at T26:16-22. This is critical because Ditchey essentially admitted that he had no knowledge that Plaintiffs' homes flooded between 9:00 a.m. to 10:00 a.m. on Sunday, August 28, 2011. Ditchey also did not review any of the Duhernal operator log entries during the relevant period before and after the flood at issue. Id. at T26:1-5. In that respect, while Ditchey opined that, based on the operators' testimony, at some point in time flooding at the Duhernal site reached five feet, he was not aware when the flood water reached that level — whether it was before or after Plaintiffs' homes flooded. See id. at T75:14-T76:5. On this point, Ditchey testified:
Id. at T75:3-T76:16. Based on Ditchey's own testimony, he lacks the proper factual foundation to render his opinion on causation.
Even setting aside that reliability issue, Ditchey testified that his conclusions were not rendered with the requisite degree of certainty. See In re Paoli R.R. Yard Pcb Litig., 35 F.3d 717, 751 (3d Cir. 1994)(upholding grant of summary judgment for defendants where plaintiffs' expert could not testify on causation "with a reasonable degree of certainty"); Heller v. Shaw Indus., Inc., 167 F.3d 146, 150 (3d Cir. 1999); Johnson v. Smithkline Beecham Corp., 55 F.Supp.3d 603, 613 (E.D. Pa. 2014); Hurley v. Thompson, No. 13-1502, 2016 U.S. Dist. LEXIS 87527, at *50 (M.D. Pa. Jun. 29, 2016).
Id. at T82:8-T83:21; T108:25-T109:7 (emphasis added).
Based on the foregoing, I find that Ditchey's Report, his opinions and conclusions do not meet the reliability requirement of Daubert because they were not based on adequate factual foundation, but rather they rested on improper assumptions. Moreover, the opinions provided by Ditchey do not meet the requisite degree of certainty. Accordingly, Plaintiff's expert report is excluded. See Sharpe v. Robbins, No. 07-1897, 2009 U.S. Dist. LEXIS 52792, at *4 ("An expert's opinion, however, must be supported by the factual evidence and not based solely on the expert's conclusions."); Marvel v. Del. Cnty., No. 07-5054, 2009 U.S. Dist. LEXIS 46755, at *17 (E.D. Pa. June 2, 2009), aff'd, 397 Fed. Appx. 785 (3d Cir. 2010) ("An expert report that merely offers conclusory opinions, without explicit factual foundation, is insufficient to defeat a motion for summary judgment.") (quotation and citation omitted); Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 311 (2d Cir. 2008) ("An expert's opinions that are without factual basis and are based on speculation or conjecture are similarly inappropriate material for consideration on a motion for summary judgment."); Zeller v. J.C. Penney Co., No. 05-2546, 2008 U.S. Dist. LEXIS 25993, at *7 n.13 (D.N.J. Mar. 31, 2008) (noting that "an expert's bare conclusions are not admissible under" the Federal Rules of Evidence); Edison Wetlands Ass'n, Inc. v. Akzo Nobel Chems., Inc., No. 08-419, 2009 U.S. Dist. LEXIS 119281, at *2 (D.N.J. Dec. 22, 2009) (holding that "the expert must have good grounds for his or her belief" and that courts "need not admit bare conclusions or mere assumptions proffered under the guise of expert opinions") (quotations and citations omitted); Hurd v. Yaeger, No. 06-1927, 2009 U.S. Dist. LEXIS 72032, at *4 (M.D. Pa. Aug. 13, 2009) (holding that "an expert's testimony must be accompanied by a sufficient factual foundation before it can be submitted to the jury")(quotation omitted).
Having excluded Plaintiffs' expert report and the expert's conclusions — the only evidence upon which Plaintiffs rely to establish causation
Because I have dismissed Plaintiffs' claims against Defendant. Third-party Spotswood's motion for summary judgment on Defendant's third-party claims of contribution and indemnification is likewise
For the foregoing reasons, both Defendant's and Spotswood's motions for summary judgment are
