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New Jersey Federal Court Rejects Admissibility of Expert Opinions in Claims for Bodily Injury and Diminution of Property Value Due to Environmental Contamination

In a recent set of decisions in the case of Leese, et al. v. Lockheed Martin Corp., Federal District Court Judge Simandle granted summary judgment to the defendant due to the inadequacy of plaintiff’s experts related to the claims of bodily injury and diminution of property value related to environmental conditions.

The plaintiffs, Michael and Ashley Leese and Jay and Raquel Winkler each owned a home directly across the street from a Lockheed Martin research development and manufacturing facility. Plaintiffs purchased their respective homes in 2003 at which point they each already knew the presence of TCE in the groundwater under their respective properties. The Leeses had three children, each of which are claimed to have presented similar abnormalities in that they refused to eat, consume necessary nutrition, and were in the bottom ten percentile for height and weight, and worked at a much slower pace than their peers. None of the doctors who treated the children ever made any statements or raised any questions linking the children’s ailments to exposure to the contaminants, at least partly because the Leeses never mentioned the possibility of chemical exposure. In 2008, the NJDEP required Lockheed to conduct precautionary soil vapor testing at the nearby properties, including the properties of the plaintiffs, which detected the presence of PCE at levels that did not exceed DEP standards, with the exception of one out fifty five samples which read slightly above the then applicable standard. The DEP subsequently revised its standards which rendered even the highest PCE reading on plaintiffs’ properties within acceptable limits.

In support of their claim, plaintiffs submitted an expert report by a professional geologist who provided the opinion that TCE and PCE, as well as other materials, migrated from Lockheed’s plant to the groundwater beneath the plaintiffs’ homes. He further asserted that PCE and TCE affected developmental, neurological and/or respiratory systems, that the US EPA characterizes TCE as carcinogenic to humans, and that exposure to PCE and/or TCE can affect developmental, neurological and/or respiratory systems in humans. This expert, however, had no medical training, did not examine the children, and offered no opinion about the cause of their symptoms. The court granted the motion with respect to the bodily injury claims noting that “toxic tort plaintiffs, alleging bodily injury, proceed at their peril without expert medical testimony.” The court concluded that the plaintiffs had failed to make a showing sufficient to establish causation of bodily injury. Specifically, “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 specified quantity of TCE or PCE, is an insufficient basis for a reasonable jury to infer causation.” Since the record contained no support for the expert’s qualifications as to medical testimony, and because the expert made no attempt to state that the ailments of these children, who he did not examine, were likely caused by TCE and/or PCE, and because the opinion was couched in terms of possibility rather than reasonable medical probability, the opinion was inadmissible as a net opinion.

With regard to plaintiff’s claims for lost property value, plaintiffs initially argued that expert testimony was unnecessary if the facts can accurately and intelligibly describe to the jury the facts that allow them to draw correct conclusions. They asserted that testimony from realtors that had been presented would permit the jury to infer that it would be virtually impossible to sell the plaintiffs’ homes because of the contamination. The court provided the plaintiffs an additional 30 days to supplement the record with an expert’s report that expresses an opinion as to whether the presence of TCE and/or PCE has caused a diminution in the value of the plaintiffs’ properties. The supplemental opinions included two valuation reports, one for the Leese property and one for the Winkler property. The reports concluded that each property is worth $295,000 “as is”, but would be worth $600,000 if cleaned. The “as is” valuation involved three techniques: (1) the value based upon the “cost to cure” in accordance with a “mitigation work plan and budget evaluation” created an environmental contractor who was not presented or qualified as an expert in the case, (2) a “paired sales analysis” in which the expert looked to sales of other stigmatized properties, estimating “if clean” valuations for those properties, and calculating “percentage discount” for environmental stigma to each, (3) a survey of realtors and brokers to ascertain what, if any, would be an appropriate discount of the properties faced with this stigma. The expert then reconciled the three estimates by giving 50 percent weight to the paired sales valuation of $300,000; 40 percent weight to the survey valuation of $360,000 and 10 percent weight to the cost to cure valuation. The concluded that each family had suffered a $305,000 loss since each property is currently worth $295,000, but the “as clean” value is $600,000.

The court rejected the cost to cure technique as it was based upon opinions about remediation costs by an undisclosed and non-testifying expert. The paired sales analysis was rejected as it failed to account for the conditions on the property at the time of the plaintiffs’ purchase, and that the plaintiffs’ admitted knowledge of these conditions when they bought the homes. Since this technique does not purport to measure the damages actually sustained by the plaintiffs, this testimony was also excluded. Finally the reliability survey was excluded since that only one of the seven realtors who offered opinions on the appropriate discount to be applied believed that 20 percent was an appropriate value, yet the expert concluded that the discount should be at least 20 percent. The expert then doubled the discount to 40 percent for “additional marketing time and effort, the difficulty in obtaining financing, and a discount for a cash buyer” without attempting to explain why the realtors’ survey did not account for these factors. Further, these realtors were not informed of the kind or level of contamination involved. Accordingly, the court deemed that this technique similarly to be inadmissible.

With all the experts’ testimony deemed inadmissible, summary judgment was granted to Lockheed as to each of the claims at issue.

For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

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