The Appellate Division’s recent unpublished decision in Meyer v. Constantinou (April 16, 2021; Dkt. No. A-1793-18) affirmed the exclusion of an environmental expert report as a net opinion for ignoring key facts without sufficient reason. The decision also affirmed the trial court’s finding that dry cleaners are not abnormally dangerous and therefore not subject to strict liability.
The case involved a disputed source of solvent contamination. Specifically, a gas station/auto repair shop discovered PCE contamination in the soil near a leaking waste oil tank. PCE is a solvent used for dry-cleaning, auto repair, and many other things. The gas station’s LSRP attributed the PCE to the dry-cleaning facility located approximately six feet from the waste oil tank excavation. The gas station initiated an action against the dry cleaner on various theories of liability relating to the PCE contamination, amazingly failed to establish liability at trial, and appealed.
Expert Opinions Must Be Supported by Facts
One reason the gas station lost at trial is that its expert report was excluded as net opinion. Expert testimony is inadmissible if it is founded on speculation rather than factual evidence or data. The gas station’s expert report concluded that the dry-cleaner spilled the PCE based on a map showing the highest PCE concentrations near the dry-cleaner and decreasing concentrations towards the gas station. However, the PCE concentrations were more randomly distributed and the LSRP had to inexplicably ignore some samples to make that argument. The expert report also stated that the gas station did not use solvents and, therefore, the PCE must have come from the dry cleaners. That opinion ignored the fact that receipts produced in discovery established that the auto shop used spray cans of solvents. Failure to account for facts does not render an opinion inadmissible, so long as sufficient reasons are set forth to logically support the opinion. Here, the logical support was missing. The remaining conclusions in the report were merely assumptions regarding dry cleaning operations, wholly unsupported by facts or data. Accordingly, the report was excluded, dooming the gas station’s case.
In addition to reminding litigants that expert reports must be grounded in facts, the case also illustrates the risk of retaining your LSRP as a litigation expert. Credibility issues arise when experts defend their own questionable decisions. In this case, the LSRP ignored DEP’s repeated demands to conduct a preliminary assessment which could have helped eliminate the gas station as a potential source of contamination. The expert’s inability to address that and other aspects of the remediation supported the judge’s determination that the expert lacked credibility. An independent expert would have avoided that issue, and likely would have also taken a more critical eye to the LSRP’s prior data collection.
Dry Cleaning Is Not Abnormally Dangerous
The decision also affirmed the trial court’s determination that dry-cleaning is not abnormally dangerous. The harm caused by abnormally dangerous activities is subject to strict liability, which is liability arising without regard to fault. The gas station owners argued that dry-cleaning is abnormally dangerous, and therefore the business owner was personally liable for PCE contamination. The Appellate Division disagreed. In evaluating the six factors used to determine whether an activity is abnormally dangerous, the Court found that dry cleaning is common, useful, and appropriately placed in a strip mall. Somewhat confusingly, the last three factors (high degree of risk, likelihood of great harm, and inability to eliminate risk with reasonable care) were conflated into a finding that the likelihood of harm “was not great” because of precautions taken regarding PCE. By linking the application of strict liability to the particular manner in which the dry cleaner operated, the Court left the door open to fact development regarding future strict liability claims against dry cleaners.