Sandra Dorrel v. Woodruff Energey, Inc.

• Court: New Jersey Superior Court Appellate Division
• Decided: December 31, 2024
• Docket: A-2636-21
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2636-21

SANDRA DORRELL and SANDRA DORRELL t/a OLD ALLOWAY MERCHANDISE,

Plaintiffs-Respondents,

v.

WOODRUFF ENERGY INC., HARLEYSVILLE GROUP, INC., HARLEYSVILLE INSURANCE COMPANY and FARMERS MUTUAL FIRE INSURANCE CO. OF SALEM COUNTY,

Defendants,

and

CHEVRON U.S.A. INC. as successor to GULF OIL CORPORATION,

Defendant-Appellant. _______________________________

Argued September 28, 2023 – Decided December 31, 2024 Before Judges Vernoia, Gummer and Walcott- Henderson.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-0343-11.

Matthew S. Slowinski argued the cause for appellant (Slowinski Atkins, LLP, attorneys; Matthew S. Slowinski, on the briefs).

Louis Giansante argued the cause for respondents Sandra Dorrell and Sandra Dorrell t/a Old Alloway Merchandise (Giansante & Associates, LLC, attorneys; Louis Giansante, of counsel and on the brief).

The opinion of the court was delivered by

VERNOIA, J.A.D.

The matter arises out of plaintiff Sandra Dorrell's claim that Chevron

U.S.A., Inc. (Chevron), as successor to Gulf Oil Corporation (Gulf), is liable for

private contributions under the New Jersey Compensation and Control Act (the

Spill Act), N.J.S.A. 58:10-23.11 to -23.11z, for gasoline contamination in the

soil and groundwater on property she purchased in 1984. In our prior opinion

on Chevron's cross-appeal from the judgment entered after a bench trial, we

remanded for the court to conduct a N.J.R.E. 104 hearing to determine the

admissibility at the trial of the testimony of one of plaintiff's experts, Craig

Hopkins, a licensed site remediation professional (LSRP), who had been

qualified at trial as an expert in subservice investigations, particularly of

A-2636-21 2 petroleum hydrocarbons. 1 Dorrell v. Woodruff Energy, Inc. (Dorrell II), No.

A-3144-17 (App. Div. Mar. 11, 2021). Chevron appeals from an April 5, 2022

decision and order, entered following a two-day hearing by the remand court,

finding Hopkins had been properly qualified at the time of trial to offer an

opinion gasoline is a contaminant on the property and had used a reliable

methodology as the basis for that opinion as well as his opinion concerning the

causation. We reverse.

I.

To provide context for our discussion of the parties' arguments, we

summarize the facts pertinent to our disposition of the issues presented on

appeal. We first address our decision in Dorrell II remanding the issues of

Hopkins's qualifications and methodology to the trial court. We then summarize

the evidence presented to the remand court and its decision.

Our Decision To Remand To The Trial Court

1 The long history of this matter also includes a prior appeal from an order dismissing plaintiff's complaint on statute-of-limitations grounds. We reversed the order and remanded for further proceedings. Dorrell v. Woodruff Energy, Inc. (Dorrell I), No. A-3585-13 (App. Div. Sept. 30, 2015). The disposition of that appeal has no bearing on the issues presented here.

A-2636-21 3 Plaintiff purchased the property in 1984. Years before the purchase, and

until the early 1960's, a general store located on the property had sold gasoline,

as well as kerosene. Decades later, as plaintiff prepared to sell the property, it

was discovered that the property's soil and groundwater were contaminated with

petroleum products. Two potential sources of the contamination were

identified: the first was a pair of aboveground fuel-oil tanks located within, and

adjacent to, the general store; and the second was a 1,000 gallon underground

storage tank (UST) located beneath a sidewalk adjacent to the store and 550

gallon USTs that evidence showed had been replaced by a 1,000 gallon UST in

the late 1950s. The USTs had been used to hold gasoline that was sold from the

store's gasoline dispensers. One of the aboveground tanks, which was located

in the store's basement, had ruptured in the 1990s, causing fuel oil to seep into

the ground. The second aboveground tank, which had a 275-gallon capacity,

had been overfilled, causing another spill of fuel oil onto the ground. 2

In 2011, plaintiff filed a complaint, which was later amended, alleging

that Woodruff Energy, Inc. had contaminated the property by overfilling the

2 The evidence showed that when Dorrell purchased the property, a 1,000 gallon aboveground tank was in place and was used to supply fuel oil to a furnace. In the mid-1990s, Dorrell installed the 275-gallon aboveground fuel oil tank for that same purpose. A-2636-21 4 275-gallon aboveground fuel oil tank and that Gulf, now Chevron, had

contaminated the property with gasoline from the 1,000-gallon UST. Against

each defendant, plaintiff asserted claims for breach of contract, negligence,

nuisance, and trespass. Plaintiff sought compensatory and punitive damages and

an order directing that defendants indemnify her from any future claims and

suits related to the soil and groundwater contamination and requiring defendants

to pay for all testing and cleanup under the Spill Act.3

In orders dated November 22, 2013, and February 28, 2014, the court

granted summary judgment in favor of Woodruff and Chevron, finding

plaintiff's causes of action barred by the six-year statute of limitations, N.J.S.A.

2A:14-1. Dorrell I, slip op. at 2. As noted, we reversed the court's orders and

remanded for further proceedings on plaintiff's complaint. Id. at 2, 6-7.

Plaintiff filed a second amended complaint in 2016, reframing her

common-law claims as statutory causes of action under the Spill Act. At the

bench trial on that complaint, plaintiff testified and called as an expert Craig

Hopkins, an LSRP with a Bachelor of Science degree in earth science. The court

qualified Hopkins as an expert in subsurface investigations involving

3 Plaintiff also asserted breach-of-contract and bad faith denial-of-coverage claims against various insurance companies. The disposition of those claims is not at issue on this appeal. A-2636-21 5 hydrocarbon contamination but found he was not qualified to distinguish one

type of petroleum product from another. Based on his physical examination of

the site, a review of its history, and a consideration of relevant topographical

conditions, and analysis of various test results, Hopkins concluded the soil and

soil groundwater had been contaminated with petroleum products. Over

Chevron's objection, Hopkins also testified that based on the combined presence

of hydrocarbons and lead in the local groundwater, the source of contamination

was likely leaded gasoline from the 1,000-gallon UST and Chevron was

responsible for the discharge.

Plaintiff also presented at the trial the de bene esse depositions of Bruce

Torkelson of Torkelson Geochemistry, a professional in environmental forensic

science with a Master of Arts degree in geoscience, and Alan Jeffrey of Pace

Analytical, an analyst with a Doctor of Philosophy degree in organic

geochemistry and oceanography. Based on tests he had conducted, Torkelson

concluded that samples from plaintiff's property were most likely contaminated

by kerosene or jet fuel. Based on Pace Analytical's testing, Jeffrey concluded

that samples from the site contained weathered diesel or fuel oil, although the

court would later exclude portions of Jeffrey's testimony. Neither Torkelson nor

A-2636-21 6 Jeffrey testified they had found chemical evidence of gasoline contamination at

the property.

In a decision following the bench trial, the court found Woodruff not liable

and dismissed all claims against it. The court found Chevron not liable for any

fuel oil or kerosene contamination. However, the court found sufficient

evidence of gasoline contamination attributable to Chevron to order further

investigation of the property and, if appropriate, remediation of gasoline

contamination at Chevron's expense.

Chevron moved for a judgment notwithstanding the verdict or, in the

alternative, a new trial. Chevron argued: Hopkins was not qualified to identify

gasoline contamination; there was no competent evidence the UST had leaked

gasoline; and Chevron should not have been assigned sole responsibility for the

UST. In an October 2, 2018 order, the trial court denied Chevron's motion,

finding Chevron had not demonstrated a miscarriage of justice by clear and

convincing evidence such that it was entitled to either a judgment

notwithstanding the verdict or a new trial.

Plaintiff appealed from the no-cause verdict against Woodruff, and

Chevron cross-appealed from the verdict and denial of its post-trial motions.

Chevron argued the court had erred by holding it responsible for investigation

A-2636-21 7 and remediation because there was no competent evidence of gasoline

contamination in the soil or groundwater and the trial court "relied on the net

opinion of an expert[, Hopkins,] unqualified to identify petroleum contaminants,

or to opine about causation of contamination." Dorrell II, slip op. at 5-6. We

affirmed the verdict in Woodruff's favor. Id. at 26-27, 40.

We determined that the "genuine factual controversy" on Chevron's cross-

appeal "pertain[ed] to the court's finding that . . . the property was contaminated

with gasoline from the 1,000 gallon UST." Id. at 7. We observed the trial court

had relied on plaintiff's "sole expert on gasoline contamination," Hopkins, as the

basis for its conclusion the property had been contaminated with gasoline from

the UST. Ibid.

We noted that Hopkins had not been qualified by the court "to identify

petroleum products based on chromatographic studies or hydrocarbon

footprinting," and although he was an LSRP, held a degree in earth science, and

had been involved in as many as 1,000 site investigations, he had never testified

as an expert. Id. at 8. We further observed Hopkins had admitted he was not an

expert in age dating and had sent out samples to a laboratory for it to determine

the type of contaminants present because "that was not his 'expertise.'" Id. at 8.

A-2636-21 8 As we explained, in response to Chevron's in limine motion "[t]he [trial]

court [had] qualified Hopkins as an expert in investigating subservice

conditions" but also determined "Hopkins was not qualified to identify a specific

contaminant because he 'indicated that he can't identify the specific contaminant

. . . [and] has to send that out for testing.'" Ibid. (alterations in original). We

explained that the court had "also withheld qualifying [Hopkins] as an expert on

proximate cause, although the court [had] left open the possibility he could be

qualified later." Id. at 8-9. As it turned out, "the [trial] court did not expressly

revisit the issue of Hopkins's qualifications to opine about causation." Id. at 9.

We also observed that at trial and over Cheron's objection, "the court had

permitted Hopkins to opine, based on what amount[ed] to circumstantial

evidence, that gasoline was present at the site, gasoline contamination was

caused by discharges from the UST, and the UST was installed by Gulf." Ibid.

We noted that in reaching his opinion, Hopkins had relied on his knowledge of

the prior owner's use of the property; the locations of gasoline, pumps, and

USTs; documents and contracts between the Gulf and the prior owners; historic

maps; and his surveys of the property in its present condition; and "the

interpretation of chemical analyses of samples from wells and soil-borings,

A-2636-21 9 although none of those analyses included opinions that the samples contained

gasoline." Ibid.

We further explained that although the trial court had "barred Hopkins

from identifying the particular petroleum product found on site, [it] allowed him

to opine that gasoline was found in soil and water samples." Id. at 12. We noted

Hopkins had testified that a forensic lab analysis based on a review of

chromatograms and other methodologies was unnecessary to identify particular

petroleum products "when analyzing what he called 'dissolved phase samples' –

by which he meant, petroleum products that had dissolved in groundwater."

Ibid. Hopkins had testified he could base his opinion that gasoline was present

in a sample on the constituent chemicals found in the sample, explaining that

the presence of "total lead and four other chemicals – benzene, toluene, ethyl

benzene and xylene – known collectively as BTEX" are "markers in a volatile

run that's being done when you're targeting gasoline." Id. at 12-13.

Hopkins had also testified that based on contamination found near the

UST, "there . . . was a release of petroleum hydrocarbons," id. at 13, that bore

"signatures . . . indicat[ing] fuel oil, could indicate[] gasoline, [and] could

indicate kerosense," ibid. at 13 (second alteration added), and that "[t]he total

lead indicated it was likely there was a leaded gasoline release," ibid. Hopkins

A-2636-21 10 then "opined the release occurred sometime between the 1920s and 1970s" from

the UST or the two prior 550-gallon USTs that had been on the property that

were removed when the 1,000-gallon UST was installed in 1958.

We further observed that Hopkins had conceded: he did not know what

was stored in the UST; he never inspected the UST and had no evidence it had

any holes or leaks; "total lead' is a common metal found in soil and

groundwater"; "organic lead" is found in old leaded gasoline, but he never tested

for it; and he asked a forensic lab to search for multiple components of leaded

gasoline when testing samples from the property but had not asked for that

testing for the samples taken from near the UST. Id. at 15. Hopkins also

testified that soil borings near the UST showed no lead or BTEX levels above

regulatory standards. Id. at 15-16.

As we noted in Dorrell II, Chevron's counsel repeatedly objected to

Hopkins's qualifications to render an opinion as to the cause of the

contamination. Id. at 16. The court overruled the objections, explaining that it

would "'figure out' later if Hopkins has 'the qualifications to be able to say it's

Gulf" that caused the contamination. Ibid.

We further summarized the trial court's finding that there was gasoline

contamination at the property and its reliance on Hopkins's testimony that the

A-2636-21 11 UST had contained gasoline. Id. at 20. The trial court also relied on soil borings

from various locations at property showing the presence of certain chemicals,

and the found the presence of lead in some of the samples established that lead

gasoline had been present at the site. The court found Gulf more than likely

owned the UST and that "'it would have contained gasoline.'" Ibid. And the

court concluded "Gulf is a responsible party for the gasoline contamination" and

ordered Chevron to conduct tests to determine the nature and extent of the

contamination and whether in fact the UST is Chevron's tank. Id. at 21. The

trial court further explained Chevron was the responsible party for the gasoline

contamination until it is demonstrated the UST "is not a gasoline storage

facility" and, "if that occurs, then [Chevron's] responsibility ends." Ibid.

In our decision on Chevron's cross-appeal from the trial court's decision

and order, we rejected Chevron's argument that it did not own and was not

responsible for the UST or, in the alternative, that plaintiff and Woodruff should

share in any investigative or cleanup costs associated with the contamination of

the property. Id. at 27-28. However, we concluded the court had "abused its

discretion by admitting Hopkins's opinion that the contaminant in the soil and

water at the site was gasoline, absent a finding he was qualified to give it." Id.

at 34.

A-2636-21 12 We found Hopkins's reliance on the identification of chemical

"signatures" and "markers" to be particularly problematic because he had not

testified that he had the "training or experience to distinguish between various

petroleum products . . . based on the kind of data he utilized." Id. at 35. We

also expressed skepticism that Hopkins's status as an LSRP necessarily evinced

a "qualification to identify specific petroleum contaminants" using Hopkins's

methodology. Id. at 36. We further found the trial court had erred in allowing

Hopkins to testify regarding causation without making an explicit finding that

he was properly qualified to do so. Id. at 36-37.

We explained that "[e]ven assuming Hopkins was a qualified witness, the

record d[id] not disclose that the facts and methods he used to identify gasoline,

and attribute it to Gulf, were reliable," and his opinion may have been an

inadmissible net opinion. Id. at 37. More particularly, we critiqued the omission

of "scientific sources or evidence [demonstrating] that his methodology was

reliable; or that it was generally accepted within the field." Ibid. Rather, we

observed that "the evidence at trial disclosed other reliable methods of

identifying gasoline and determining its sources," including testing for other

signature chemicals, using specialized technology like chromatograms, and

A-2636-21 13 testing the underground tank itself, each of which Hopkins had either used

elsewhere on the property or had not used at all. Id. at 37-38.

We determined it necessary to remand for a N.J.R.E. 104 hearing "to

determine the admissibility of Hopkins's opinions, both based on his

qualifications and the reliability of his methodology." Id. at 38-39. We

explained that if the trial court found Hopkins qualified and his methodology

reliable, the judgment against Chevron should be enforced as written; if not, it

should be vacated. Ibid.

The Remand Hearing

The remand court conducted a two-day hearing during which plaintiff

presented Hopkins as a witness and Chevron presented Dr. Joseph Lifrieri, who

testified in part that he holds a doctorate degree in geo-environmental

engineering and works as an environmental-forensics expert. The remand

record also includes documentary evidence.

Hopkins testified concerning his qualifications, explaining that in 1991 he

had obtained a bachelor's degree in earth science and environment and later had

been first licensed by the New Jersey Department of Environmental Protection

(NJDEP) as a subsurface evaluator and then as an LSRP. He explained he had

participated in a minimum of 1,000 site investigations, of which roughly eighty

A-2636-21 14 percent involved petroleum releases, and he had attended professional education

seminars and conferences, and the classes required to maintain his LSRP license.

He further detailed the various employment positions he has held, including

positions involving field sampling, performing simple testing, and supervising

contaminated-site investigations.

Hopkins also identified what he described as sources of directives and

guidance issued by the NJDEP to LSRPs, including the Technical Requirements

for Site Remediation (N.J.A.C. 7:26E), the "actuarials" or "administrative

requirements," and assorted situation-specific "technical guidance documents,"

including the "Field Sampling Procedures Manual." He explained that the

NJDEP materials provide investigative methods that are reliable and that he had

applied those methods, "mainly the technical requirements," in his investigation

of plaintiff's property.

Asked about his qualifications to differentiate various petroleum

products, Hopkins explained that, although some petroleum contamination

could be handled by "subsurface evaluators," others could be handled only by

LSRPs, who were more thoroughly vetted by, and integrated with, NJDEP. He

testified contamination from an "unregulated" tank containing, for example,

A-2636-21 15 heating oil, could be handled by an evaluator, whereas substances like gasoline

required an evaluation by a LSRP.

Hopkins provided an overview of his initial investigation of the soil in the

property's basement, where the aboveground fuel-oil storage tank had been

located and had ruptured. He described the process of taking and analyzing soil

samples that he testified was governed by a "field sampling procedures manual

and . . . certain guidance documents." He explained that, based on

"[e]xperience" and "knowing what [contaminants] smell like," he could discern

whether a soil sample contained a petroleum contaminant based on smell alone

and, "[i]f it's a new, fresh sample, you can tell if it's gasoline or fuel oil ."

According to Hopkins, based on his initial analysis of the soil in the

basement, which he found showed deep contamination that could not be

attributed to the shallow fuel oil spill from the aboveground fuel oil tank, and

documentary evidence showing the presence of gasoline dispensers and

deliveries to the property in the past, he expanded his investigation . A

subsequent geophysical survey showed that "there was an existing approximate

1,000 gallon underground tank still present" on the property that Hopkins

concluded was "likely" a gasoline tank.

A-2636-21 16 Hopkins also discussed the results of his sampling at the site, the chemical

analysis of which was conducted by outside labs. He described "slotted screen

interval" groundwater testing, a procedure which he asserted "create[d] usable

data," explaining it was "authorized under DEP's technical regulations," and was

"appropriate" for this type of investigation. He also explained that petroleum

products can be detected in groundwater through the presence of: "measurable

product" resulting from the separation of petroleum that floats on the surface of

a sample; "sheen," a colorful manifestation which may be present even when

petroleum is dissolved; or, as with soil sampling, an "odor." Hopkins further

explained that the testing of "dissolved phase" samples, in which a petroleum

product has been completely integrated in the groundwater, was governed by

relevant DEP regulations and procedures and was a key component of LSRP site

investigations.

Concerning the laboratory testing of the dissolved phase samples, Hopkins

testified he had "done laboratory work" in the past and "was familiar with the

procedures," but he did not offer any information concerning the testing

methodology. He explained that he had relied on laboratory reports showing the

presence and concentration of certain compounds during his investigation of the

contamination at plaintiff's property.

A-2636-21 17 He differentiated such testing from less common "fingerprinting" analysis

using a chromatogram, which would sometimes be performed, but he testified

was not required here to determine if gasoline was present. Hopkins testified

that while he was not trained to perform such testing, he could read a

chromatogram. Plaintiff introduced into evidence text from a NJDEP field

sampling manual, stating laboratory data was "not 100 percent accurate but

currently represents the best estimate of the true concentration of a contaminant"

in a sample and thus required "comparison of field and laboratory data" to

"provide some guidance on the validity of the field data."

Hopkins also testified about "weathering," a process by which the

properties of a sample change as it ages through "absorption," "evaporation," or

"biodegration." He explained that a weathered gasoline sample could be

distinguished visually as "darker" than a fresh sample and that based on his

visual inspection of a sample of measurable product recovered from the

property, it did not appear "extremely weathered."

Hopkins explained that NJDEP regulations in effect at the time he began

his investigation at plaintiff's property directed that testing for leaded gasoline

in soil or groundwater was to be conducted by sampling for "volatile organic

compounds plus the toluene identified compounds and then total lead ." He

A-2636-21 18 testified that "at some point" the regulations changed such that soil testing

included tests for "1,2-dibromoethane and 1,2-dichloroethene" whereas ground

water testing "removed total lead" from its testing battery. Hopkins also

testified that when he performed groundwater testing on the property in 2016,

he included tests for 1,2-dibromoethane, 1,2-dichloroethene, and total lead. He

explained lead testing was done "[b]ecause there was information that showed

that there had been historic gasoline tanks when it would have been leaded gas."

Hopkins testified there were "sampling protocols" that supported lead

testing "when looking for gasoline [in] dissolved phase groundwater samples,"

but he did not identify those protocols or their provenance. Hopkins also tested

for lead in the soil because it was required and it could be "a piece of the puzzle,

when it comes to putting together an investigation" and "could indicate or give

you information that there was a leaded gas release."

Hopkins testified concerning two groundwater samples from plaintiff's

property he had sent for laboratory testing: a "product sample" taken on the

north side of the property, away from the UST, and a "sheen sample" taken from

the store's basement. Hopkins did not testify about the results for the first

sample, which had been tested by Pace Analytical. However, Hopkins testified

that Torkelson had tested the sheen sample and concluded "it was a midrange

A-2636-21 19 distillate, potentially fuel oil or kerosene." He explained that, for two sampling

wells closer to the UST, groundwater testing could not be conducted because

there was no product recoverable.

Hopkins also explained the related concepts of "groundwater contouring"

and "hydraulic gradient," both of which showed the relative height of

groundwater at different locations that helped determine the direction and speed

of groundwater movement. He explained the information is relevant because

the gradient is one of the factors that dictates the way in which a "plume" of

contaminant spreads or migrates away from its source. According to Hopkins,

the general practice is to compare "site specific data" with large-scale

topography, including "the closest water bodies," to "get a general idea" of

"which way the shallow groundwater is going to flow." He viewed this

combined technique as "reliable" and consistent with the practice of other

LSRPs.

Hopkins testified he had performed gradation testing at plaintiff's property

and the methods he had used were derived from the NJDEP field sampling

procedure manuals. He had also "looked at the property in relation to the

topography of the site and the surrounding elevation changes," a process which,

he testified, was based on "general information" in the sampling manuals,

A-2636-21 20 although his recollection on the topic was "not that detailed." According to

Hopkins, his review of that information enabled him to ascertain the direction

of groundwater flow.

Hopkins also explained the manner in which he had conducted the

investigation at plaintiff's property. Hopkins testified he had begun the

investigation in 2011 by examining the basement, the site of the known fuel-oil

spill, noting sampling conducted there revealed both "shallow contamination

right below the floor," followed by "a clean zone," followed by a second layer

of contamination which, Hopkins believed, indicated a potential second source

of contamination.

Hopkins explained his use of "a photoionization detector" (PID), "one of

the field screening tools" used in his testing regimen, which he testified "gives

you a relative read out of the concentration of the type of [sic] contaminants that

you're targeting." He explained that the PID, combined with a "visual"

examination and consideration of "odors," constituted "basically the tools you

use for field screening."

Hopkins further explained that in 2016, he conducted the next phase of

testing, beginning with a "geophysical survey" to determine if there were any

other unknown storage tanks that were, or had been, located on the property as

A-2636-21 21 other documentation had suggested might be the case. Without detailing the

methodology supporting the survey, Hopkins explained that the survey "showed

that there was an anomaly indicative of" a UST that was "approximately 1,000

gallons in size." He explained that at "about that same time" he had become

aware of a photograph showing gasoline dispensers had been on the property

and documents reflecting the presence and removal of two 550-gallon tanks

belonging to Gulf, in addition to the installation of a 1,000-gallon tank.

Hopkins further explained that based on that information, he had selected

the locations on the property to investigate next "to find out if there had been a

separate release of gasoline and at the same time doing further evaluation of the

fuel oil." He testified that he had installed three testing wells around the

suspected UST, and groundwater samples from each were "screened . . . with

PID, odor, visual" and "showed field indications of petroleum release ."

According to Hopkins, two of the three wells showed "readings" of

contamination at a depth consistent with the estimated base of the 1,000-gallon

UST. Hopkins testified that "if there was going to be a release from that tank,

you would have expected it where we started to see field readings." Referring

to chemical analyses performed by outside labs, Hopkins testified that soil

samples taken at the same sites "didn't show any concentrations that exceeded

A-2636-21 22 the New Jersey remediation standards" but cautioned that "a lot of times with

historic odor releases [sic], you can get significant field indications of a release

and . . . it doesn't show up as targeted compounds that have lab results that are

over the soil remediation standards."

Hopkins also testified concerning the results of groundwater samples

collected at the site and tested by outside labs. Based on his review of the results

of those tests, field screenings, and historical data, Hopkins reasoned "that

there's evidence here that shows that there was a gasoline release." He explained

that the lab's detection of "cyclohexane was one of the keys" found in one well

close to the UST. Plaintiff's counsel asked whether cyclohexane would be "more

plentiful in gasoline versus heating oil," but the court sustained Chevron's

objection to that question based on a lack of foundation.

In response to questions posed by the court, Hopkins testified that the

"main" chemicals that were usually more present in gasoline than in fuel oils

were "BTEX," a group composed of benzene, toluene, ethylbenzene, and

xylenes. He testified that he knew about BTEX from "various literature," but

he could not "cite one in particular" and explained it was "an accepted rule or

fact" among LSRPs that he knew. Hopkins did not know if NJDEP publications

or regulations shed light on the question, but he believed that "many

A-2636-21 23 documents," like "text books" and "[m]anufacturers' breakdowns" would reflect

the same information. He was, however, unaware of any publication setting a

threshold for BTEX concentration that supported a benchmark for

differentiating gasoline from fuel oil or other petroleum products in a sample.

When plaintiff's counsel asked Hopkins if there were any "other chemicals

that may be more plentiful in gasoline than fuel oil," defense counsel objected.

The court overruled the objection, saying: "I'm going to allow sort of like the

inverted foundation to be done. . . . He can say what he believes and then the

basis for that." Defense counsel raised similar objections as Hopkins discussed

different chemicals, and the court overruled them.

Hopkins testified that xylene and ethylbenzene present in the soil samples

taken close to the 1,000-gallon UST. Xylene was also present in the water

sample from the same location, but benzene was not detected in that sample.

Hopkins explained that, of the BTEX chemicals, "benzene is . . . the most

degradable. And the xylenes tend to stick around the longest." "Total lead,"

which Hopkins testified was used in pre-1980s gasoline, but not in fuel oils, was

also present "pretty much across the site."

Hopkins also testified that chemicals in the "total volatile" or "tentatively

identified compounds" (TICs) family were also present in "elevated

A-2636-21 24 concentrations." He explained that the heavier of the "semi-volatile"

compounds were not usually present in gasoline but would be present in fuel

oils, meaning the TIC profile would be different for each contaminant . He did

not, however, testify as to whether heavier or lighter TICs were present. He

later testified that samples taken near the UST contained "alkanes," apparently

a type of TIC, but the sample collected near the known fuel-oil spill did not. He

testified that alkanes were "known constituents of gasoline," contributing to his

conclusion that gasoline contamination was likely. During his testimony,

Hopkins also emphasized that a sample taken "up gradient" of the UST

contained only "219 parts per billion" of alkanes, whereas one "down gradient"

contained "409,000 parts per billion."

Hopkins testified that he had compared the water samples collected from

one sampling site, "which [he] knew from the forensics . . . was fuel oil," with

samples from a site closer to the UST. He observed that the xylene concentration

was four-to-five times higher in the latter samples, suggesting to him that

gasoline was the contaminant. Nonetheless, Hopkins testified that, in his view,

additional investigation was required on the site. Based on his field screenings

and the lab analyses, Hopkins's testified there were "multiple contaminates at

A-2636-21 25 the site," but "the investigation is not done because . . . the extent of the

contamination is not delineated."

On cross-examination, Hopkins agreed that BTEX chemicals were found

in fuel oil as well as gasoline and that he was unaware of any specific studies

distinguishing dispersed BTEX from different contaminants. He also testified

that the process of distinguishing petroleum contaminants based on BTEX had

no formalized testing standards or, as far as he was aware, a known error rate.

He agreed that BTEX degraded over time, meaning that older samples would

have lower BTEX levels than fresh samples of the same substance. Hopkins

further acknowledged he was unaware of any way to differentiate between a

fresh sample which was low in BTEX naturally and an aged sample which was

low in BTEX due to degradation. In any event, Hopkins testified he did not

calculate the relative "volume percentage" of any BTEX found on the property .

He further agreed that the specific BTEX components found in the basement of

the general store where the fuel oil had failed were the same ones found

elsewhere on the property.

Hopkins also testified his soil boring conducted near the putative UST did

not show PID evidence of contamination until depths of at least ten feet , which

was at or below the level of groundwater, which had been impacted by fuel oil

A-2636-21 26 contamination. He also agreed that the PID test would not "necessarily" identify

a contaminant and could not "tell you we have gasoline, fuel oil," or another

contaminant.

Hopkins further acknowledged that, as an LSRP, he often relied on other

specialized professionals to assist in his investigations, and identification of a

contaminant based on a sample of the product itself was not within his expertise.

He explained, however, that he was "more versed in looking at dissolve[-]phase

contamination and determining what kind of release it was." He conceded that

he could not identify a "specific document" that discussed the foundation of

what defense counsel called the "dissolve[-]phase theory of looking at the

constituents and then reaching a conclusion about the type of petroleum

product."

Hopkins also testified that NJDEP guidelines called for testing for certain

chemicals—2-methylnapthalene and naphthalene—in the event that initial tests

showed extractable petroleum hydrocarbons (EPH) in excess of twenty-five

percent. Here, however, he tested for EPHs only in the basement samples and

could not recall whether 2-methylnapthalene and naphthalene testing had been

performed. Conversely, he testified laboratory testing had been conducted for

1,2-dibromoethane and 1,2-dichloromethane, also called "lead scavengers," that

A-2636-21 27 NJDEP identifies as markers for leaded gasoline, and the test results were

negative for each. Hopkins also agreed the presence of "total lead" could have

been present in the absence of a gasoline discharge because leaded gasoline

would contain certain types of "organic leads," but he had not conducted an

organic-lead test for the basement sample and none of the other samples taken

from the property had been tested for organic lead.

Hopkins also testified the UST had not been tested for "tightness" or leaks,

its contents had not been examined, and no expert had looked at it to determine

if it had any signs of corrosion. Hopkins also had not performed calculations to

determine ground-water velocity, a necessary datum to model contaminant

movement.

As noted, Chevron presented Dr. Lifrieri as its witness, who first

explained his educational background, including his bachelor's degree in

geology and civil engineering, his master's degree in geotechnical engineering,

and his doctoral degree in geo-environmental engineering, "which includes,

hydrogeology, landfill engineering, [and] pollution." He was a "licensed

engineer" in New Jersey and has "over [twenty-three] professional engineering

licenses in various states," "four professional geology licenses in four States,"

and "a national certification as a . . . professional geologist." He also has held

A-2636-21 28 certifications in the following areas related to unregulated underground storage

tanks: installation; testing; closing; subsurface evaluation; and corrosion

evaluation. He is not an LSRP qualified to deal with regulated tanks, but he has

supervised and taught LSRPs in the past.

Dr. Lifrieri has taught various geology and environment college courses,

worked for fifty-two years in the environmental and geotechnical departments

of engineering firms, and has been involved many remediation projects and

obtained NJDEP validation of remediation at "a lot" of contaminated sites. For

the ten-years prior to the N.J.R.E. 104 hearing, Dr. Lifrieri exclusively focused

his work on "environmental forensics"; that is, "determining the case and source

of contamination at sites," and investigating "cause and origin . . . to determine

what the pollutant is, where it's coming from, where it's going."

He testified that gasoline, fuel oil, and other petroleum products share

many of the same component chemicals because "gasoline and fuel oil come

from the same parent[:] crude oil," and he confirmed that the BTEX chemicals,

as well as "cyclohexanes," "alkanes," and "methylcyclohexanes," would be

present in both gasoline and fuel oil, citing a 1987 NJDEP study to that effect.4

4 The court admitted the study report in evidence, and testimony about it, over plaintiff's objection but ruled the report and testimony could and would be used only as relevant to a determination of Hopkins's qualifications and methodology. A-2636-21 29 He also testified "the standard operating procedure for the profession" when

differentiating between petroleum products was to "review chromatographs to

determine . . . what types of material [are] in the sample." He explained that the

chromatography process involved vaporizing the sample and that "gasoline

products typically elute, which is the same as vaporize, at lower time intervals,

meaning lower temperatures," whereas the constituents of fuel oil "elute at a

higher time interval."

He further explained that chromatographs are calibrated before use and

that the methods of reading their results are subject to standardization and

scientific study. Lifrieri opined that chromatography was "the only technique

that you can use that will give you a definitive type of material" when

differentiating between petroleum products and that, without a chromatograph,

one could not identify a petroleum product when multiple sources are possible.

He identified texts relied upon in the field that likewise identified "the need for

using chromatograms to get a definitive evaluation of the material that exists in

a sample." Lifrieri disagreed with Hopkins's and Torkelson's testimony about

the feasibility of performing chromatography on the samples taken at the site .

He asserted that chromatography could be performed both on "sheen" water

samples and soil samples.

A-2636-21 30 Lifrieri also explained that to identify the source and disbursement of

contamination across a site, a geologist must review "groundwater . . . flow,"

the existence of any "impervious layers" that would cause "a modification to the

natural flow," and "the dispersion properties of the soil." Lifrieri testified that

based on that data, accepted methodology allowed for the development of an

equation to predict the distribution of a contaminant spill. He noted Hopkins

had not performed that analysis and he disapproved of Hopkins's failure to

sample "the intervening space between the bottom of the [underground] tank and

the top of the groundwater table" for the purpose of determining whether

contaminants from the UST had reached the groundwater.

Lifrieri also commented on Hopkins's reliance on the presence of total

lead, explaining that NJDEP had changed its regulations in 2012 to eliminate

the mandate to test for lead in groundwater. In Lifrieri's opinion, based on

NJDEP's contemporaneous publications, the change in the regulations reflected

NJDEP's belief there was "little evidence that lead from leaded gasoline can be

analyzed for and found in groundwater," and NJDEP instead advised that lead

scavengers were better markers for determining the presence of leaded gasoline.

Lifrieri also testified about Hopkins's failure to test the UST, identifying

several ways in which the tank could have been tested for leakage. He testified

A-2636-21 31 that as an engineer, if he thought the UST was the source of pollution, testing

the tank would have been the first thing to do, including testing a sample of the

tank's contents to determine the contaminant at issue. Lifrieri noted that

Hopkins had not performed any tests of the UST.

At the conclusion of the hearing, the court reserved decision and invited

the parties to submit briefs in lieu of closing arguments accompanied by excerpts

from transcripts of the prior bench trial.

In a written opinion and order, the court determined that at the time of

trial Hopkins was an expert "qualified to render opinions regarding

identification of a contaminant at a property, as well as the source of that

contamination." The court also found Hopkins's methodologies "were reliable"

and "of a type reasonably relied upon by experts in the field of licensed site

remediation professionals."

The court based its findings on its review of Hopkins's qualifications,

including his LSRP licensure and experience investigating over 1,000 sites for

contamination, of which eighty percent had involved petroleum contamination.

The court also accepted Hopkins's testimony that "the methodologies" he had

"employed . . . were those utilized consistently by LSRPs." The court further

found that "[c]onsistent with the [NJDEP] Field Manual, [Hopkins] [had]

A-2636-21 32 performed soil borings, installed [a] test well, and used field screening

techniques[, all of] which [we]re methodologies specifically directed by the

NJDEP's regulations, manuals and other guidance." The court explained that

Hopkins had utilized olfactory, "observations, visual and a photoionization

detector (techniques specifically provided for in the [NJDEP] Field Manual)."5

The court also found that when Hopkins located a "release deeper than the

fuel oil spill," NJDEP regulations "directed" him to examine documentary and

similar evidence to develop an explanation for the release, and that required an

investigation, which, the court found, Hopkins had performed and had pointed

to the 1,000-gallon UST. The court further explained "Hopkins [had] identified

the location of the 1,000-gallon [UST] . . . resulting from a geophysical study"

he had performed.

The court also found that Hopkins had "continued his investigation,

consistent with the methodologies" promulgated by the NJDEP, by testing

dissolved phase groundwater—a practice "specifically identified in the Tech

Regulations and testified to by Mr. Hopkins as a reliable methodology employed

by LSRPs." The court similarly recognized the performance of gas

5 The court used the term "all factor," which we read in context to have been intended to be "olfactory." A-2636-21 33 chromatography as consistent with NJDEP rules, as was the assessment of

groundwater flow and its implications for the way in which contaminant s

dispersed.

The court recognized that the soil samples contained BTEX chemicals, as

well as "elevated lead," and found that Hopkins's "consideration" of this

information was "consistent with NJDEP Tech Regulations for leaded gasoline."

It concluded that "[t]he methodology employed by Mr. Hopkins as a certified

LSRP is and was consistent with the NJDEP [requirements]." The court

explained:

Not only are the results of the certified laboratories and groundwater samples (chromatograms) an appropriate methodology to employ to identify gasoline and its source but it is just one tool to be utilized in a greater investigative methodology. As identified by Mr. Hopkins (and not contradicted by defense expert Lifrieri) an LSRP also looks at business records, field screening information, the geography of the site, type of soils and groundwater flow and velocity to identify the contaminant and source of contamination . . . The methodology employed by an LSRP, such as Mr. Hopkins, is, as he testified, supported by the expert consensus in the field. The very existence of the NJDEP Tech Regulations, Administrative Regulations, and Field Manual collectively are a "well-founded methodology."

The court characterized Lifrieri as claiming, "that only the results of

laboratory testing can be utilized to identify the contaminant and therefore [are]

A-2636-21 34 the only scientifically reliable methodology." The court reasoned that Lifrieri's

claim "did little to weaken . . . Hopkins'[s] qualifications or to undercut the

methodology that Mr. Hopkins employed," since "[i]f taken to its logical

conclusion, [it] would serve to undermine the very existence of the LSRP

licensing program . . . and rest all determinations for contaminated sites solely

on the results of laboratory testing." The court accepted as reliable Hopkins's

"much broader" approach.

Chevron appealed from the court's order, and later moved for summary

disposition on the appeal and for a stay pending appeal. We denied both motions

in July 2022.

II.

Cheron argues the remand court erred by finding Hopkins had been

qualified as an expert at the time of trial to offer an opinion that gasoline, as

opposed to some other petroleum product, was present on plaintiff's property.

Chevron argues the remand court misapprehended our remand order and erred

by focusing on whether Hopkins was generally qualified to investigate spills

rather than on whether he was qualified to "distinguish between petroleum

products based on the chemical constituents in dissolved phase samples."

Chevron argues that at the remand hearing, plaintiff did not present evidence of

A-2636-21 35 any qualifications other than those we had found inadequate in Dorrell II. See

Dorrell II, slip op. at 35-36 (noting the trial judge had found Hopkins qualified

to offer an opinion gasoline was present on the site based solely on his status as

an LSRP).

"The admission or exclusion of expert testimony is committed to the

sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015).

An appellate court generally "must apply an abuse of discretion standard to a

trial court's determination, after a full Rule 104 hearing, to exclude expert

testimony on unreliability grounds." In re Accutane Litig., 234 N.J. 340, 391

(2018). The Court observed that New Jersey has "continued to apply a pure

abuse of discretion standard in civil matters concerning expert testimony." In

re Accutane, 234 N.J. at 391 (citing Townsend, 221 N.J. at 52-53).

Under the abuse-of-discretion standard, a trial court's ruling should be

reversed "only if it 'was so wide off the mark that a manifest denial of justice

resulted.'" Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36, 57 (2019) (quoting

Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)). This deferential

standard applies to the question of whether a witness possesses sufficient

qualifications to testify as an expert. Ryan v. Renny, 203 N.J. 37, 50 (2010).

A-2636-21 36 The admissibility of expert testimony is governed by N.J.R.E. 702, which

provides: "[i]f 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." "The

party offering the expert testimony has the burden of proof to establish its

admissibility." State v. Rosales, 202 N.J. 549, 562 (2010) (citing Hisenaj v.

Kuehner, 194 N.J. 6, 15 (2008)).

Three criteria must be satisfied to permit admission of a putative expert's

opinion testimony:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[In re Accutane, 234 N.J. at 348 (quoting State v. Kelly, 97 N.J. 178, 223 (1984)).]6

We construe these requirements "liberally in light of Rule 702's tilt in favor of

the admissibility of expert testimony." State v. Ghigliotty, 463 N.J. Super. 355,

6 While In re Accutane was decided after the 2017 trial in this case, we have held that its strictures apply retroactively. Lanzo v. Cyprus Amax Minerals Co., 467 N.J. Super. 476, 504 (App. Div. 2021). A-2636-21 37 374 (App. Div. 2020) (quoting State v. Jenewicz, 193 N.J. Super. 440, 454

(2008)).

To satisfy the third criterion – whether the witness has sufficient expertise

to offer the intended testimony – "an expert witness must possess the minimal

technical training and knowledge essential to the expression of a meaningful and

reliable opinion." State v. Frost, 242 N.J. Super. 601, 615 (App. Div. 1990)

(citing Hake v. Manchester Twp., 98 N.J. 302, 314 (1985), and Thompson v.

Merrell Dow Pharm., 229 N.J. Super. 230, 241 (App. Div. 1988)). This may

include licensure in a particular profession "[w]hen the subject matter of the

testimony falls distinctly within the province of [that] profession." Ibid.

"[E]xpertise [also] may be acquired by occupational experience or by scientific

study." Ibid.

The remand record supports the court's determination Hopkins possessed

sufficient expertise to offer an admissible opinion concerning the contaminants

found on the property and their cause. The evidence established that for many

years Hopkins has been an LRSP and, as such, has been charged by virtue of his

licensure with "independently oversee[ing] the cleanup of contaminated sites,

ensuring that the process is conducted effectively and in compliance with New

Jersey statutes and regulations." Magic Petroleum Corp. v. Exxon Mobil Corp.,

A-2636-21 38 218 N.J. 390, 400 n.2 (2014); see also N.J.SA. 58:10C-7 (describing statutory

criteria for LSRP licensure). He also testified about his education, training, and

extensive background in environmental testing and remediation, including

"decades" of professional experience, and his evaluation of at least 1,000

thousand contamination sites, of which roughly eighty percent had involved

petroleum releases. He further explained that in those cases, he was required to

determine the identity of the contaminants present.

Hopkins also testified that distinguishing one petroleum product from

another necessarily fell within the ambit of an LSRP's responsibility because of

the regulatory framework underlying DEP's evaluation and cleanup

requirements. He explained that certain petroleum contamination—for

example, from heating oil spills—could be dealt with by a less qualified

evaluator, while others required the involvement of an LSRP. He also explained

that although he is not experienced in performing laboratory testing on

contaminant samples, he is familiar with the procedures and is experienced in

reading and interpreting the resulting constituent compound reports .

In our view, the record supports the court's conclusion that Hopkins had

beyond the "minimal technical training and knowledge" to opine on the identity

of the contaminants and their sources. Frost, 242 N.J. Super. at 615. We reject

A-2636-21 39 Chevron's effort to frame the issue differently; it asserts an analysis of Hopkins's

qualifications required a determination only as to whether he was qualified to

distinguish between the petroleum products on the property "based on the

chemical constituents in dissolved phase samples." Framing the issue in that

narrow manner misdirects the proper focus from whether Hopkins was qualified

to offer an opinion on the presence of gasoline at the site and its cause to whether

his opinion is credible or based on a reliable methodology.

We also reject Chevron's contention that at the remand hearing "Hopkins

simply reiterated his qualifications as an LSRP" that we found inadequate in

Dorrell II. Slip op. at 35-36. To be sure, the remand court was presented with

evidence concerning Hopkins's qualifications that was duplicative of the trial

evidence, but our remand in Dorrell II was premised in no small part on the trial

court's failure to issue clear rulings on Hopkins's qualifications. Id. at 34, 36-

37. That is, we remanded in part for the court in the first instance to make

appropriate findings concerning Hopkins's qualifications under N.J.R.E. 702.

Additionally, in Dorrell II we noted LSRP licensure did not "necessarily" render

him "qualified to identify gasoline," but the remand court appropriately

considered evidence in addition to Hopkins's licensure to support its

qualifications determination.

A-2636-21 40 For the reasons we have stated, the record supports the court's

determination Hopkins was qualified to testify as an expert about the presence

of gasoline and the cause of its presence at plaintiff's property. And, as we

explain, having determined the court did not err in finding Hopkins qualified,

we separately consider whether his opinion testimony was properly admitted

based on the record presented.

In sum, the record does not support Chevron's claim that the remand court

abused its discretion by determining that Hopkins was qualified at the time of

trial to offer an expert opinion as to the contaminants found at plaintiff's property

and their causation. See In re Accutane, 234 N.J. at 391. To the contrary, the

court's findings and determination are amply supported by the record and the

applicable legal principles.

We next consider Chevron's claim the court abused its discretion by

admitting Hopkins's trial testimony identifying gasoline as a contaminant at

plaintiff's property. Chevron contends plaintiff failed to present evidence at the

remand hearing establishing Hopkin's testimony was grounded in a

scientifically-reliable methodology and his conclusion did not otherwise follow

the facts.

A-2636-21 41 Prior to addressing Chevron's claim, we note that our remand order was

precisely focused on the reliability of the methodology employed by Hopkins to

support his opinion that gasoline was a contaminant found at the property.

Dorrell II, slip op. at 38-39. We explained that the trial record did "not disclose

that the facts and methods [Hopkins's] used to identify gasoline, and attribute it

to Gulf, were reliable." Id. at 37. We further observed that at trial Hopkins

"described the basis for his opinion" gasoline was present, "including the

presence of certain chemicals, the proximity of the 1,000 gallon UST, and the

historic use of the site," but we determined that "Hopkins referred to no

scientific sources or evidence demonstrating that his methodology was reliable;

or that it was generally accepted within the field of environmental assessment

and investigation." Ibid.

We focused on the reliability of Hopkins's methodology because there is

otherwise no dispute there is contamination by a petroleum product on the

property and there had been fuel-oil spills at the property as well as the sale of

gasoline and the presence of USTs for gasoline on the property. Thus, to

demonstrate that Chevron is liable under the Spill Act, plaintiff bore the burden

of proving not only that there was a petroleum-based contamination on the

property, but more particularly that there was gasoline contamination because

A-2636-21 42 plaintiff does not claim that Chevron is responsible for any extant fuel-oil

contamination. See Dorrell II, slip op. at 7 (noting "[t]he genuine factual issue

on appeal pertains to the [trial] court's finding that [plaintiff's] property was also

contaminated with gasoline from the 1,000-gallon UST").

We "apply an abuse of discretion standard to the trial court's

determination, after a full Rule 104 hearing, to [admit] or exclude expert

testimony based on unreliability grounds." In re Accutane, 234 N.J. at 391. In

determining the admissibility of scientific expert testimony in a civil case, trial

court's must utilize a "methodology-based test for reliability" similar to the

standard set forth by the United States Supreme Court in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Id. at 397.

Under the standard, the Court's

view of proper gatekeeping in a methodology-based approach to reliability for expert scientific testimony requires the proponent to demonstrate that the expert applies his or her scientifically recognized methodology in the way that others in the field practice the methodology. When a proponent does not demonstrate the soundness of a methodology, both in terms of its approach to reasoning and to its use of data, from the perspective of others within the relevant scientific community, the gatekeeper should exclude the proposed expert testimony on the basis that it is unreliable.

[Id. at 399-400.]

A-2636-21 43 In its application of the standard, a trial court we must consider "whether an

expert's reasoning or methodology underlying the testimony is scientifically valid"

and "whether that reasoning or methodology properly can be applied to facts in

issue." Id. at 397 (citing Daubert, 509 U.S. at 591, 594-95; Rubanick v. Witco

Chem. Corp., 125 N.J. 421, 449 (1991)). The party advancing expert testimony must

show that the proffered witness "applies his or her scientifically recognized

methodology in the way that others in the field practice the methodology." Id. at

399-400.

To aid in the reliability analysis, the Court has provided several

"pertinent" but "not dispositive or exhaustive" factors to be evaluated:

1) Whether the scientific theory can be, or at any time has been, tested;

2) Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form of peer review but is not a "sine qua non";

3) Whether there is any known or potential rate of error and whether there exist any standards for maintaining or controlling the technique's operation; and

4) Whether there does exist a general acceptance in the scientific community about the scientific theory.

[Id. at 389 (citing Daubert, 509 U.S. at 594).]

A-2636-21 44 We have recognized the importance of an expert's ability to identify the

sources upon which he or she relies. In Suanez v. Egeland, 353 N.J. Super. 191,

200 (App. Div. 2002), an expert was asked whether "any scientific literature . .

. would support his opinion" but "responded with only general and vague

references to various articles." He listed journals but could not identify the

individual titles or authors of studies supporting his conclusions. Ibid. Further,

he "did not identify any scholarly literature which show[ed] the reliability of his

purported expert opinion." Ibid. We concluded that the witness's "reliance upon

unidentified articles by unidentified authors in various international journals did

not provide any discernable foundation in scholarly literature for his opinion."

Id. at 201.

More recently, and following the Court's decision in In re Accutane, we

considered in Lanzo v. Cyprus Amax Minerals Co., 467 N.J. Super. 476, 508-

13 (App. Div. 2021), the testimony of an expert witness who similarly failed to

explain the scientific basis underlying his opinions. The witness identified an

article, quoted from it, and "asserted that it supported his opinion, but he did not

identify or explain any scientific evidence that formed the basis for the

statement." Id. at 509. Another article the witness cited "did not report the

results of a scientific study and was not peer-reviewed." Id. at 510. An

A-2636-21 45 Environmental Protection Agency document upon which the witness purported

to rely "provided no details of any studies underlying its assessment, and [the

witness] did not discuss any." Ibid.

We determined the court had not "perform[ed] its required gatekeeping

function and [had] mistakenly exercised its discretion," by permitting the

witness to testify because the witness's opinion had "not been tested" in that

there were "no studies" supported it, the theory on which the opinion was based

had not "been subject to peer review and publication," and there was no showing

the "theory was generally accepted in the scientific community." Id. at 511.

Here, Hopkins's methodology consisted of "identifying gasoline based on the

chemical array in dissolved samples . . . premised on the greater percentage of

benzene, toluene, ethylbenzene and xylene ('BTEX') in gasoline relative to other

petroleum products." But the record lacks evidence supporting the reliability of that

methodology. Indeed, Hopkins could not cite to a single scientific resource, article,

journal, publication, test, or study supporting the reliability of that methodology, and

he acknowledged he was unaware if there is any known error rate for the

methodology he employed. For those reasons alone, plaintiff failed to carry her

burden of establishing the reliability of Hopkins's methodology under the In re

Accutane standard. 234 N.J. at 389; see also Lanzo, 467 N.J. Super. at 509-11.

A-2636-21 46 More particularly, as part of his methodology, Hopkins relied on the

premise that cyclohexane, BTEX, and "total" lead are present in higher

concentrations in gasoline than in other petroleum products. Hopkins asserted

that cyclohexane is a "key" marker for gasoline but provided no source for that

assertion and was unable to testify whether it was more plentiful in gasoline than

in fuel oil or other contaminants. Similarly, Hopkins testified that BTEX was

the "main" group of chemicals he had found in various samples and upon which

he relied in support for his opinion there was gasoline contamination, but he

could not identify any publications, texts, or scientific literature that supported

his conclusion, instead offering nothing more than a conclusory assertion that

"various literature" supported the claim. That is not enough. Lanzo, 467 N.J.

Super. 510.

Hopkins also testified that gasoline would contain more BTEX than other

petroleum products, but he could not testify as to how much BTEX would be

found in either gasoline or fuel oil and he could not identify any formal,

scientifically vetted standards permitting a conclusion about a contaminant

substance based on BTEX. Hopkins also opined about purported differences in

the TIC and alkane composition of fuel oil and gasoline but provided no source

or scientific supporting his analysis or characterization.

A-2636-21 47 Hopkins's opinion concerning the presence of gasoline was also based on

the premise that a contaminant's composition can be accurately derived from the

samplings he performed and the testing he ordered. Although he referred to

NJDEP materials to support the premise, and they called for the use of dissolved

phase testing, Hopkins could not identify a "specific document" that described

or validated the practice of testing such dissolved samples by looking at the

constituents and then reaching a conclusion about the type of petroleum product

present based on them. Stated differently, he could not and did not offer any

scientific data establishing it is possible to calculate the relative volume of

specific chemicals in a pollutant from a diffuse environmental sample, a

calculation that is critical to the relative-composition methodology on which he

relied. See Dorrell II, slip op. at 35 (explaining "an essential element of

[Hopkins's] opinion that the contaminate was gasoline rested on [his] analysis

of various chemicals"). In sum, Hopkins's effort to establish the reliability of

his methodology fails for the same reasons we reversed the admission of the

expert's testimony in Lanzo; Hopkins's was unable to identify a single

recognized study or other established basis in science supporting the

methodology and its various and critical components. 467 N.J. at 509-11.

A-2636-21 48 Not only did Hopkins fail to establish the reliability of his methodology

under the In re Accutane standard, the evidence otherwise undermined the

reliability of the methodology. More particularly, the evidence established

Hopkins had failed to consider that: BTEX chemicals degrade over time, but at

different (unspecified) rates; and constituent chemicals might travel through soil

or groundwater at different rates. Hopkins did not testify as to what, if any,

methodology he had employed to compensate for the multiple, potentially

overlapping sources of contamination, and whether his methodology was

reliable under such conditions.

Hopkins also testified that a specific kind of lead—organic lead—was

contained in gasoline, but he had tested for organic lead only in the samples

taken from the basement where the fuel spill occurred. He did not test for

organic lead around the 1,000-gallon UST or elsewhere on the property, instead

testing in those other locations for only "total lead," which Hopkins

acknowledged is found in a number of non-gasoline petroleum sources.

Additionally, according to Lifrieri's unrefuted testimony, based in part on

NJDEP's 2012 publications accompanying its change in sampling protocols to

eliminate total lead testing, there is "little evidence that lead from leaded

gasoline can be analyzed for and found in groundwater."

A-2636-21 49 Further, Hopkins testified he did not calculate the relative "volume

percentage" of BTEX in any sample from the property. Thus, even if he had

been aware of a numerical threshold distinguishing gasoline from fuel oil based

on BTEX volume percentage, and dissolved phase testing could theoretically be

used to calculate the relative amount of BTEX in an original contaminant, he

did not use that methodology here. Thus, although Hopkins's data shows the

environmental concentration of BTEX in the samples, he offered no

scientifically established methodology permitting a determination based on that

data that the contaminant was gasoline rather than some other BTEX-containing

petroleum product. The same analysis and issues undermine the reliability of

his analysis of cyclohexane. Similarly, Hopkins explained that "total lead" can

be attributed to any number of sources and was found "pretty much across the

site." And, although the evidence established that "lead scavengers"

demonstrate the presence of leaded gasoline, Hopkins did not test for "lead

scavengers" at all.

Another issue undermining the reliability of Hopkins's methodology

pertains to the distribution of chemicals and the asserted source of

contamination. Hopkins did not explain why or how the chemicals found are

not distributed uniformly over the property if the BTEX, cyclohexane, and lead

A-2636-21 50 contamination were derived from gasoline contamination from the single place

he had identified as their source – the location of the 1,000-gallon UST. For

example, in groundwater testing, the highest benzene and lead levels were found

at testing-well TW-8, on the north end of the property; the highest toluene,

ethylbenzene, and xylene levels were found at testing-well TW-10, on the

eastern border of the property; the highest cyclohexane level was found at

testing well TW-4, closest to the tank. It is unclear from the record how, if the

chemicals shared a source, they would have dispersed unevenly and, if that

source was the UST, why the highest concentrations of all chemicals were not

closest to it.

This unexplained ambiguity is compounded by the dearth of testing of the

tank itself. The tank was not excavated or tested for tightness, and no samples

were taken from its interior. Hopkins also offered no testimony concerning the

reliability of the methodology he had utilized during the geophysical survey to

support his conclusion there was a 1,000-gallon UST located on the property.

Moreover, although Hopkins's opinion is premised on the relative volume of

certain chemicals which he testified would be present in different petroleum

products, he did not calculate—or even estimate—the relative volume of those

chemicals in the samples he had obtained.

A-2636-21 51 The record also includes evidence there were several available and

reliable tests and investigative techniques Hopkins failed to employ. More

particularly, Hopkins failed to: "retain corrosion experts" to gauge the

likelihood of a leak in the 1,000-gallon tank; test the tank for tightness or use

"tracer compounds" to discover leakage; determine "ground water velocity" or

"groundwater modeling" to identify the origin and trajectory of contaminants.

Moreover, Hopkins's professed reason for relying on his methodology instead

of hydrocarbon fingerprinting/chromatography—that "hydrocarbon

fingerprinting cannot be performed on samples dissolved in water"—is wholly

unsupported by any scientifically-based authority in the record. Hopkins's

failure to apply widely accepted methods of testing further undermines the

reliability of his methodology. Cf. Bahrle v. Exxon Corp., 279 N.J. 5, 33-34

(App. Div. 1995) (explaining expert opinion properly barred where there was no

evidence expert's methodology had been used by others and where otherwise

reliable methodology was not used), aff'd, 145 N.J. 144 (1996).

The inadequacies of the proofs supporting the reliability of Hopkins's

methodology are largely those we identified in Dorrell II. We took issue with

the fact that "Hopkins referred to no scientific sources or evidence to

demonstrate that his methodology was reliable; or that it was generally accepted

A-2636-21 52 within the field" as a way to draw his conclusions from the data. Slip op. at 37.

The lack of such evidence was confirmed before the remand court. We had also

observed that "other reliable methods of identifying gasoline and determining

its source," like testing for organic lead and lead scavengers, examining the

1,000-gallon tank, or performing chromatograms, 7 existed, but the remand

record simply confirms that "Hopkins chose not to use" them. Id. at 37.

Based on those circumstances and evidence, we are persuaded plaintiff

did not demonstrate that Hopkins's methodology was sufficiently reliable under

the In re Accutane standard to support his opinion that gasoline was a

contaminant present on the plaintiff's property. 234 N.J. at 349, 397. In short,

the remand record is bereft of any evidence the essential element and critical

theory underlying Hopkins's methodology—that dissolved phase testing of

groundwater could reliably distinguish one petroleum product from another —

has been "tested," was "subject to peer review and publication," has a "known

or potential error rate," or was generally accepted "in the scientific community."

Id. at 389. As in Suanez, 353 N.J. Super at 200, and Lanzo, 467 N.J. Super at

7 Referring to Torkelson's testimony from the initial trial, plaintiff contends that chromatograms cannot be performed when a contaminant is fully dissolved in water. Defendant's expert disagreed. It is unnecessary to resolve the dispute because the impracticability of one accepted method of testing would not render reliable an otherwise unreliable methodology. A-2636-21 53 509-12, Hopkins supported the scientific validity of this methodology by vague

references to unidentified literature, but he could not identify any studies or

other scientific support establishing the reliability of his methodology. As our

Supreme Court warned in In re Accutane, an opinion which is "connected to

existing data only by the ipse dixit of the expert" does not satisfy the

requirements of our evidentiary rules, 234 N.J. at 385, and that is what Hopkins's

offered here.

We are not persuaded by the remand's court's reliance on the various NJDEP

publications and guidance because, in our view, the fact that Hopkins may have

followed required protocols and followed recommended procedures in collecting the

samples, engaging in other investigative methods, and testing the samples does not

establish that the methodology on which his opinion gasoline is present rests, formed

as a result of those actions, is scientifically reliable. And, for the reasons we have

explained, plaintiff simply, but fatally, failed to present sufficient evidence the

methodology satisfied the standard for reliability under the In re Accutane standard

after having been provided the opportunity to do so in our opinion in Dorrell II. Slip.

op. at 39.

A court abuses its discretion "when a decision is made without a rational

explanation, inexplicably departed from established policies, or rested on an

A-2636-21 54 impermissible basis." Kornbleuth v. Westover, 241 N.J. 289, 302 (2020). Here,

for the reasons we have explained, we conclude the court abused its discretion

by concluding plaintiff had sustained her burden of establishing the reliability

of Hopkins's methodology. A proper application of the In re Accutane standard

to the facts does not support the court's determination.

As we explained in Dorrell II, if the remand court had found Hopkins's

methodology was unreliable, it should have vacated the judgment against Chevron.

Slip. op. at 39. Having concluded that the remand court abused its discretion by

finding Hopkin's testimony there was gasoline contamination at the property was

based on a reliable methodology, we therefore reverse the remand court's order and

remand for vacatur of the judgment against Chevron.8 See ibid.

Reversed and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.

8 Given our disposition of the reliability issue, it is unnecessary to address Chevron's argument that Hopkins's testimony constituted an inadmissible net opinion. A-2636-21 55