NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3144-17
SANDRA DORRELL and SANDRA DORRELL t/a OLD ALLOWAY MERCHANDISE,
Plaintiffs-Appellants/ Cross-Respondents,
v.
WOODRUFF ENERGY, INC.,
Defendant-Respondent,
and
GULF OIL LIMITED PARTNERSHIP and CHEVRON U.S.A.,
Defendants-Respondents/ Cross-Appellants,
HARLEYSVILLE GROUP, INC., HARLEYSVILLE INSURANCE COMPANY, and FARMERS MUTUAL FIRE INSURANCE CO. OF SALEM COUNTY,
Defendants. ____________________________
Argued January 27, 2020 – Decided March 11, 2021
Before Judges Messano, Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-0343-11.
Louis Giansante argued the cause for appellants/cross- respondents (Giansante & Associates, LLC, attorneys; Louis Giansante, of counsel and on the briefs).
Matthew S. Slowinski argued the cause for respondent/cross-appellant Chevron U.S.A. Inc. as successor to Gulf Oil Limited Partnership (Slowinski Atkins, LLP, attorneys; Matthew S. Slowinski, on the briefs).
Mitchell H. Kizner argued the cause for respondent Woodruff Energy, Inc. (Flaster Greenberg, PC, attorneys; Mitchell H. Kizner, on the brief).
Cristina Stummer argued the cause for amicus curiae The Fuel Merchants Association of New Jersey (Saul Ewing Arnstein & Lehr LLP, attorneys; M. Paige Berry, Cristina Stummer and Ryan L. DiClemente, of counsel and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
A-3144-17 2 This case, which returns to us after our remand and a bench trial, involves
claims for private contribution under the New Jersey Spill Compensation and
Control Act (Spill Act or Act), N.J.S.A. 58:10-23.11 to -23.11z.1 Plaintiff
Sandra Dorrell once operated a general store on a property she has owned since
1984 in Alloway Township. In preparing to sell her property, she learned that
petroleum products had contaminated the soil and groundwater. It was
undisputed that kerosene or fuel oil was present. However, according to one
plaintiff's expert, gasoline was present, too. Dorrell claimed defendants
Woodruff Energy, Inc. and Chevron U.S.A. Inc. (improperly named Chevron
Corp.) were persons "in any way responsible for [the] . . . hazardous substance"
found on her property and were "strictly liable, jointly and several ly, without
regard to fault, for all cleanup and removal costs." N.J.S.A. 58:10-23.11g(c)(1).
Woodruff regularly delivered fuel oil to a 1000-gallon above-ground
storage tank (AST) in the store's dirt-floored basement. Sometime in the 1990s,
gallons of oil spilled onto the dirt floor. Despite clean-up efforts, oil evidently
seeped into the ground. The court found that Woodruff did not own or control
the tank, nor did Woodruff over-fill the tank as Dorrell alleged. The spill
1 We previously reversed the trial's court grant of summary judgment dismissal on statute of limitations grounds. Dorrell v. Woodruff Energy, No. A-3585-13 (App. Div. Sep. 30, 2015). A-3144-17 3 evidently resulted from a tank rupture. And there was an insufficient nexus
between Woodruff and the spill to find that Woodruff was a person "in any way
responsible" for the oil in the ground.
In appealing the no-cause verdict on her claim against Woodruff, Dorrell
contends the court misapplied the Spill Act by requiring her to show Woodruff
was at fault for the tank spill. She contends that Woodruff, by delivering the
fuel oil that spilled, was a party in any way responsible for the contamination.
With the support of amicus, Fuel Merchants Association, Woodruff argues that
its sale was not sufficient to trigger responsibility under the Spill Act. We agree,
and affirm the court's verdict dismissing Dorrell's claims against Woodruff.
Woodruff was not the only firm that delivered petroleum products to
Dorrell's property. For many years, long before Dorrell owned the general store,
the store sold gasoline from curbside pumps, and kerosene from inside the store.
Dorrell alleged that Chevron's predecessor, Gulf Oil Corp., delivered gasoline
to three underground storage tanks (USTs), including a 1000-gallon tank that
Gulf installed in the late 1950s and then abandoned, and two older 550 -gallon
tanks that were removed. Dorrell alleged that Gulf also delivered kerosene to
A-3144-17 4 the AST that later failed.2 After the 1950s, Gulf ceased its deliveries, and
Woodruff took its place. Gasoline sales evidently stopped altogether in the early
1960s after the store's previous owner died.
The trial court held that neither Chevron nor Woodruff were liable for any
fuel oil or kerosene contamination. However, the court held that Chevron was
likely the owner and responsible party for the 1000-gallon UST, and it likely
once contained gasoline, which it discharged into the ground. Therefore, the
court held that Chevron was liable under the Spill Act to investigate the tank,
and if it confirmed that the tank once contained gasoline, then Chevron would
be "responsible . . . for discharges and to remediate, if necessary under the
applicable regulations, the gasoline contamination" on and off the site. But, if
Chevron could demonstrate, after a remedial investigation, that the tank did not
contain gasoline, its "responsibility would end." After the trial judge retired,
another judge denied Chevron's motion for a judgment notwithstanding the
verdict, or a new trial.
Chevron cross-appeals on several grounds. It contends there was no
competent evidence of gasoline in the ground or groundwater; and the court
2 Thus, two 1000-gallon tanks are involved in this case: an AST in the basement that was removed in the 1990s; and a UST extant beneath the sidewalk. A-3144-17 5 relied on the net opinion of an expert unqualified to identify petroleum
contaminants, or to opine about causation of contamination. Chevron also
contends it is not liable because it does not own the 1000-gallon UST. We are
constrained to agree that the trial court never found Hopkins qualified to render
the opinions he offered at trial, nor did he demonstrate that his methodology was
reliable. We therefore remand for a finding on the admissibility of his opinion.
I.
It is unchallenged on appeal that Dorrell's property is contaminated with
fuel oil or kerosene from the failure of the basement AST. Experts for Dorrell,
Woodruff, and Chevron all chemically analyzed samples drawn from soil
borings and wells near the tank, and north of it, in the direction that groundwater
flowed. A hydrocarbon fingerprinting expert for Dorrell, Bruce Torkelson,
identified the contaminant as a "weathered m[iddle] distillate" which was "19
[years old] plus or minus two years." Torkelson said it was probably kerosene,
but fuel oil was also a middle distillate; gasoline was not. Woodruff's expert in
contaminant identification and age dating, William Silverstein, P.E., agreed with
Torkelson's opinion that the soil and water samples contained kerosene.
Chevron's sole witness, Dr. Joseph Lifrieri, was qualified as an expert in
geological environmental engineering, fingerprinting, and age dating. Dr.
A-3144-17 6 Lifrieri concluded the samples showed a "fuel oil, diesel-type of contamination"
of the site.
It is also undisputed on appeal that Dorrell owned the 1000-gallon AST
that leaked petroleum product onto the ground. After Dorrell and her late
husband purchased the property, they installed an oil-fed furnace (replacing a
coal-fed one) and utilized the pre-existing 1000-gallon tank for the fuel oil,
which they purchased from Woodruff. In the mid-1990s, Dorrell installed a new
275-gallon fuel-oil AST. Woodruff was not responsible for maintaining either
tank.3
The genuine factual controversy on appeal pertains to the court's finding
that Dorrell's property was also contaminated with gasoline from the 1000-
gallon UST. The trial court relied on Dorrell's sole expert witness on gasoline
contamination — Craig Hopkins, a licensed site remediation professional who
holds a bachelor's degree in Earth Sciences.
3 A significant part of trial testimony pertained to Dorrell's claim that contamination also came from Woodruff's overfilling the 275-gallon tank that she installed to replace the old tank in the late 1990s. Woodruff denied the over- fill allegation, and presented evidence that it never employed the two persons Dorrell identified by name as being involved in the alleged overfill and its cleanup. A Woodruff witness testified instead that Dorrell called Woodruff for help after she discovered a pool of oil in her basement, which emanated from a failure of the 1000-gallon tank. On appeal, Dorrell does not challenge the court's fact-finding that the basement spill resulted from the rupture and not an overfill. A-3144-17 7 Unlike the other experts who testified, Hopkins was not qualified to
identify petroleum products based on chromatographic studies or hydrocarbon
fingerprinting. He held a degree in earth science. He was a licensed site
remediation professional (LSRP). See N.J.S.A. 58:10C-1 to -29. He had been
involved in as many as 1000 site investigations, most involving petroleum
hydrocarbons. However, he had never testified as an expert.
He admitted he was not an expert in age dating. He also admitted that he
"sent out samples to determine the type of contaminant" because that was not
his "expertise." He relied on laboratories to identify contaminants. He also
stated he had never testified about the cause of a release.
Dorrell's counsel offered Hopkins "as an expert in subsurface
investigation, particularly of petroleum hydrocarbons." Counsel explained that
would include identifying contaminants and their source. He asserted that
LSRPs typically determine whether contamination originated on or off site.
The court qualified Hopkins as an expert in investigating subsurface
conditions. But, responding to Chevron's motion in limine, the court held
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." Also, absent "more foundation," the court withheld
A-3144-17 8 qualifying him as an expert on proximate cause, although the court left open the
possibility he could be qualified later. But, the court did not expressly revisit
the issue of Hopkins's qualifications to opine about causation.
Nonetheless, over Chevron's objection, the court permitted Hopkins to
opine, based on what amounted to circumstantial evidence, that gasoline was
present on the site, gasoline contamination was caused by discharges from the
UST, and the UST was installed by Gulf.
In reaching his opinion, Hopkins relied in part on his understanding of
how the prior owners used the property, and where they located gasoline
dispensers, pumps, and USTs. Hopkins based that understanding in part on
documents and contracts between Gulf and the prior owner, which Dorrell found
in the store's basement; on multiple historic maps; and on his surveys of the
present site, including technology to locate USTs. He also relied on his
interpretation of chemical analyses of samples from wells and soil-borings,
although none of those analyses included opinions that the samples contained
gasoline.4
4 The historic maps were "Sanborn maps." The Sanborn Map Company prepared detailed maps of municipalities for use by fire insurers. As gasoline USTs would be a hazard of interest to fire insurers, Sanborn usually noted them on its maps. One witness testified the same was not true of fuel oil USTs. A-3144-17 9 The site is located on the northwest corner of West Main Street, runni ng
east-west, and Greenwich Street, running north-south. Hopkins stated that the
old general store sold gasoline from two curbside dispensers in front of the store,
along West Main Street. Two underground tanks were once located on the same
side of the property, near the dispensers. An old lease between Gulf and the
prior owner referred to two 550-gallon USTs and pumps. Sales receipts referred
to Gulf's delivery of two brands of gasoline. Hopkins concluded the two 550-
gallon USTs and pumps were later removed, as his survey could not locate them,
but they were not removed at the same time. There was also no sign of the
above-ground dispensers, which Dorrell said did not exist when she purchased
the property.
But, Hopkins's survey located a 1000-gallon UST under the sidewalk
along Greenwich Street, on the east side of the property. He also located
underground piping connecting the tank to the house, as opposed to the area of
the old dispensers. Yet, Hopkins ultimately opined that the large UST stored
gasoline. He relied in part on a 1958 contract in which Gulf agreed to install
and lease to the prior owner a 1080-gallon UST. That was around the same time
that a document referred to one of the 550-gallon tanks as "leaky." He concluded
that the referenced 1080-gallon tank must be the 1000-gallon tank he located
A-3144-17 10 along Greenwich Street. A 1955 agreement between Gulf and the store's prior
operator included a hand-written notation, "1 - 1000 gal Tank - installed 1958"
among the list of equipment that Gulf loaned and installed on the premises. 5
Chevron's expert, Lifrieri, opined that the piping indicated that the tank
did not store gasoline; rather, it stored a petroleum product that was either used
or sold inside the store. Besides, Lifrieri stated, if the tank were intended for
gasoline, it would have been located much closer to the dispensers on West Main
Street. Noting that a relatively new 1080-gallon tank retained significant value,
Lifrieri suggested that Gulf installed its 1080-gallon UST close to the
dispensers, and then removed it after the store ceased gasoline sales in the early
1960s.
Evidently, a 1959 Sanborn map did not indicate there was a 1000-gallon
tank along Greenwich Street. At trial, Hopkins acknowledged that he explained
5 The 1955 agreement between Gulf and the store's prior owner governed the retail sale of petroleum products and loaned and installed certain identified equipment, included "2 - 550 Gal. Tanks." The form was pre-printed and included type-written inserts dating it and identifying the leased equipment. The court ruled that the handwritten words, "One Leaking Tank Taken out" with an arrow pointing to the type-written entry "2- 550 Gal. Tanks" was inadmissible hearsay, and not admissible for the truth of the matter asserted; but the experts could rely on it. However, the court found as fact that a 1000-gallon tank was installed in 1958. Around 1958, the store turned from selling two brands of Gulf gasoline to one, resulting in the need for just one gasoline storage tank. A-3144-17 11 the omission in a pre-trial report by noting that Sanborn maps did not show
private fuel oil tanks. In other words, Hopkins had previously inferred that the
1000-gallon UST was a fuel oil tank, not a gasoline tank. 6
Although the court had previously barred Hopkins from identifying the
particular petroleum product found on site, the court allowed him to opine that
gasoline was found in soil and water samples just north of the Greenwich Street
UST. Hopkins asserted that a forensic lab analysis of the sort performed on the
samples near the AST and north of the building — where the experts identified
the particular type of petroleum product based on analysis of chromatograms
and other methodologies — was unnecessary when analyzing what he called
"dissolved phase samples" — by which he meant, petroleum products that had
dissolved in groundwater. Instead, Hopkins stated he could base his opinion on
the constituent chemicals found in the samples, such as total lead and four other
chemicals — benzene, toluene, ethyl benzene and xylene — known collectively
6 The 1959 Sanborn map is not in the record before us. Therefore, we cannot ascertain if it included the 1080-gallon gasoline tank that Gulf evidently installed in 1958. And, neither party presented documentary evidence regarding the installation of the Greenwich Street UST. Particularly because the tank is located under the public sidewalk, public records conceivably may have referenced the tank's installation. A-3144-17 12 as BTEX. He said the four chemicals are "markers in a volatile run that's being
done when you're targeting gasoline."
Chevron's counsel objected that Hopkins was not qualified to identify
gasoline, and that BTEX is found in "all petroleum hydrocarbons." In particular,
Lifrieri testified that fuel oil also contains BTEX.7 Notwithstanding the court's
earlier ruling, the court allowed Hopkins to offer his opinion, stating "I can reject
it later if it turns out I shouldn't have it in evidence."
Based on the contamination near the 1000-gallon UST, Hopkins opined
"there . . . was a release of petroleum hydrocarbons. There were some signatures
in the analysis that could indicate fuel oil, could indicate[] gasoline, could
indicate kerosene. The total lead indicated that it was likely that there was a
leaded gasoline release." He stated that based on "all the results, the soil, the
field readings, the soil results, the groundwater results, [and] the groundwater
flow direction . . . that the source of the release is from . . . either one or both of
the tanks that were present in the southeast corner of the property." He opined
the release occurred sometime between the 1920s and the 1970s.
7 He explained that gasoline would present differently from fuel oil in a chromatogram. However, no one analyzed chromatograms of the samples taken close to the 1000-gallon UST. A-3144-17 13 Hopkins contended that lead concentrations increased "as you go across
the site." The highest lead readings were found in test wells in the northern end
of the property, beyond the north side of the building, but Hopkins asserted that
the groundwater generally flowed in the direction of that well. 8 He also noted
that a test well near the northwest corner of the 1000-gallon UST had elevated
concentrations of volatile, tentatively identified compounds (TICs), total
alkanes, and total lead. Hopkins stated that his conclusion was also supported
by field readings he took near the UST. The results of his soil borings and field
tests led him to rule out "a near surface release," such as from the dispensers.
Hopkins acknowledged that samples from the test well along the curb on
West Main Street, near where gasoline was once dispensed, did not indicate
elevated levels of lead. That finding, he opined, indicated that the contamination
on the site did not come from off-site sources to the south. 9 Samples from soil
borings near the old 550-gallon tanks were also below regulatory standards or
8 However, the forensic lab that fingerprinted a sample from that test well opined that the contaminant was weathered diesel fuel, not gasoline. 9 Samples from another test well about forty feet to the west and near the southern property line had lead readings almost as high as those near the 1000 - gallon UST. A-3144-17 14 non-detectable. Over objection, Hopkins asserted that contaminated soil may
have been removed along with the tanks, which would explain the low readings.
Hopkins also conceded that he did not "actually know" what was stored in
the Greenwich Street UST; he never inspected the tank and had no evidence of
any holes or leaks. He also conceded that "total lead" is a common metal found
in soil and groundwater; "organic lead" by contrast is the type of lead found in
old leaded gasoline; yet, Hopkins did not test for organic lead. Hopkins asked
a forensic lab to search for multiple components of leaded gasoline when testing
samples from the north side of the building — which turned out to be negative
for gasoline — but did not request such testing of the samples near the alleged
gasoline tank.10 Hopkins also acknowledged that soil borings next to the test
10 In particular, an expert for plaintiff, Alan Jeffrey, Ph.D., testified in a de bene esse deposition introduced at trial that someone searching for leaded gasoline would test for six compounds found in "certain leaded gasolines" — tetramethyl lead (TML), trimethylethyl lead (TMEL), dimethyldiethyl lead (DMDEL), methyltriethyl lead (MTEL), tetraethyl lead (TEL), and methylcyclopentadienyl manganese tricarbonyl (MMK). In particular, TEL was used as an anti-knock agent in leaded gasoline before 1960. Jeffrey testified that Pace tested for the six chemicals in the samples from the AST and from a well on the north of the property and concluded no gasoline was present. He was not asked to perform similar tests of samples taken closest to the Greenwich Street UST. The trial court ultimately barred Jeffrey's ultimate identification that the petroleum product in the samples he analyzed was weathered diesel— because he provided insufficient explanation. However, the court did not bar Jeffrey's general comments on the chemicals identified with leaded gasoline. A-3144-17 15 well near the northwest corner of the Greenwich Street UST showed no lead or
BTEX levels above regulatory standards.
Woodruff's and Chevron's counsel repeatedly objected to Hopkins's
qualifications to opine as to the cause of the contamination. Dorrell's counsel
responded that Dorrell was not obliged to prove that the gasoline "came from
the tank versus the appurtenances" so long as he opined that it came from the
"closed system" including the tank, the pump, the dispenser, or human spills.
Defense counsel insisted that Hopkins was not qualified to render even that
opinion. The court allowed Hopkins to offer his opinion, stating he would
"figure out" later if Hopkins had "the qualification to be able to say it's Gulf."
II.
Over four separate days, the trial judge orally reviewed the testimony and
provided his findings of fact and conclusions of law on the record. The court
found that a 1955 agreement between Gulf and the old store operator, established
that Gulf owned the two 550-gallon tanks; they did not become part of the real
estate; and the operator was obliged to maintain them. A handwritten addendum
indicated a "leaky tank" was removed, and a 1,000-gallon tank installed in its
place in 1958. The court found that the second 550-gallon tank was also
removed, but the date was uncertain.
A-3144-17 16 Based on the various sales documents, the court found that the two 550-
gallon tanks stored two different brands of gasoline, not kerosene or fuel oil.
Nonetheless, the court noted that Gulf delivered large quantities of kerosene in
1949. And in 1960, Woodruff delivered hundreds of gallons of kerosene and
hundreds of gallons of a single brand of gasoline — leading the court to conclude
that at that time, two tanks must have been in use to store those products.
The court was unable to reconcile the discrepancy between the references
to a 1,000-gallon tank and a 1,080-gallon tank in the Gulf documents. The court
acknowledged the possibility there were two separate tanks installed on the
premises around the same time.
The court reviewed the testimony from Lifrieri and Torkelson, noting they
found fuel oil or kerosene, but neither one found evidence of gasoline in the
samples they analyzed. The court found that "a very significant finding in the
case as it relates to Gulf's exposure." The court found there was insufficient
evidence in the record to connect defendants with fuel oil or kerosene
contamination.
Regarding fuel oil, the court did not hold Gulf liable, as there was nothing
in the record to show it owned fuel oil tanks on the site. The court also declined
A-3144-17 17 to find Woodruff liable. The court concluded there was no nexus between
Woodruff's filling of the tank and the discharge from the tank leak.
As for kerosene, the court acknowledged that Gulf and then Woodruff,
delivered kerosene to the site before Dorrell bought it. The court found it
reasonably likely the kerosene was delivered to the AST in the basement.
However, there was simply no evidence "that necessarily links Gulf or Woodruff
to the discharge, to the contamination" that was found "in the ground." 11
The court then turned to gasoline. The court analogized the task of
determining the nature and source of the contamination to a differential medical
diagnosis. The court observed, "we just don't know what was stored" in the
Greenwich Street tank; and no one tested its contents. The court acknowledged
evidence tending to show that the tank was not used for gasoline, including that
pipes from the tank led to the house. However, the court concluded that "if that
tank was used for gasoline," then Gulf likely owned it based on the gasoline
sales, and retained ownership to the present day.
11 The court also found no connection between defendants and coal contamination. Two experts had mentioned coal as a source of the lead found in the samples. However, plaintiff had not advanced that theory of liability, and thus provided no evidence upon which a court could rely. A-3144-17 18 Having established ownership, the court turned to the question of
contamination. It examined the chemical analyses of the samples taken from
various soil borings and test wells. The court concluded, as did Hopkins (and
only Hopkins), that gasoline contamination was present, and the contamination
demonstrated that the Greenwich Street tank contained gasoline. Although the
court noted that no one had excluded off-site sources, he relied on the following
findings: the soil boring samples just north of the Greenwich Street UST showed
the presence of ethylbenzene, xylene (total), total TIC Volatile and total alkanes,
although only the ethylbenzene level exceeded regulatory standards; samples
from the test well about twenty feet north of the UST had xylene, total TICs and
total alkanes above standards; and test well samples near the northwest corner
of the UST included levels of TICs, alkanes and lead above standards. 12 The
court found that the presence of lead meant the presence of gasoline, stating
"look, lead gasoline, got lead being shown." The court added, "persuasive on
[the court's] differential diagnosis is the fact of gasoline that was stored on this
site and the fact that somebody owned a tank that that lead would have been
stored in that's other than Ms. Dorrell."
12 The court cited Silverstein's testimony for the proposition that the total TICs and lead from this well's samples indicated potential leaking from the UST. A-3144-17 19 The court acknowledged that at the well at the north end of the property,
far from the UST, there were also high levels of lead, benzene and TICs. The
court stated, "TIC's are . . . relevant to gasoline." 13 The court recognized that
"lead isn't exclusive to gasoline"; "there's potential for it to be in the ground";
and it could come from paint or coal ashes (coal was used at the site).
Nonetheless, the court concluded that Gulf, more likely than not, "owns
the existing thousand UST that is next to Greenwich Street . . . [and] it would
have contained gasoline . . . ." The court acknowledged there remained some
uncertainty. But, it concluded, "I've got readings that demonstrate probable
contamination of gasoline on the site," and, "we've got readings that are
attributable to gasoline that raised the concern that it is from, on the differential
diagnosis scale, from, the most likely source, the tank that was storing it." "I'm
satisfied . . . that I can find that there's [a] reasonable probability on the proofs
13 Only Hopkins associated TIC levels with gasoline. However, by definition, TICs would appear to exclude a pollutant like gasoline, which can be detected by chemical analysis. Regulations define "TIC" to mean "a non-targeted compound detected in a sample . . . which has been tentatively identified using a mass spectral library search." N.J.A.C. 7:26E-1.8. A "non-targeted compound" is "a compound detected in a sample using a specific analytical method that is not a targeted compound . . . ." Ibid. By contrast, a "targeted compound" is "a hazardous substance, hazardous waste, or pollutant for which a specific analytical method is designed and/or used to detect that potential contaminant both qualitatively and quantitatively." Ibid. A-3144-17 20 that Gulf is a responsible party for the gasoline contamination" and can order
them to "conduct further studies to further develop the extent of th[e]
contamination, but also to further develop whether, in fact, that is or [is] not
their tank." The court held that Gulf is "deemed the responsible party . . . to the
extent that now they have to conduct further remedial investigation to further
develop the record as to what's in that tank" and "until such time as they're able
to demonstrate that [the] UST is not a gasoline storage facility, if that occurs,
then their responsibility would end."
As the trial judge retired shortly after rendering his decision, a different
judge considered and denied Chevron's motion for judgment notwithstanding
the verdict or, alternatively, a new trial. Chevron argued that the trial court erred
in relying on Hopkins's opinion, because it had not qualified him to identify the
contaminant at the scene, and reserved on whether Hopkins was qualified to
opine about causation, but never rendered a final decision. Chevron also argued
that Hopkins offered a net opinion about the contents of the Greenwich Street
UST, because he never examined it.
The motion court disagreed. The motion court held that Hopkins properly
relied on the laboratories' results, and, "as an LSRP, [was] qualified to testify as
to both his charting the laboratory results and the NJDEP standards." Although
A-3144-17 21 the motion court reiterated that Hopkins "is not qualified to analyze samples," it
found that Hopkins, "[a]s an LSRP . . . with . . . experience investigating sites
with petroleum hydrocarbons" was qualified to testify that BTEX was a
"signature of gasoline." The motion court also rejected Chevron's argument that
Hopkins offered a net opinion about gasoline contamination. The motion court
reasoned that Hopkins "relied on the analytic results that he received" from the
laboratories, "[h]e did horizontal and cross-sectional mapping," and "he created
visual summaries of his investigation." The motion court held that Hopkins's
opinion was "based on his investigation, including review of the history of the
site, the contracts between Gulf and [the store], his field screenings, and the
laboratory results."
The motion court also upheld the trial court's finding of gasoline
contamination, noting it was "based on the historic use of the area," the
"contracts for the USTs" between Gulf and the store, "the gasoline delivery
records, and the groundwater analytical results summarized on" a trial court
exhibit. The motion court noted that the exhibit listed levels of benzene, xylene,
total TIC Volatile, and alkanes. The motion court asserted that "[a]ll of the
experts agreed that BTEX . . . are considered to be a signature of gasoline."
A-3144-17 22 The motion court also found the court reasonably found Chevron, as the
successor to Gulf, owned the tank, and it was thus appropriate to order it to
participate in further investigation of the site with plaintiff.
Dorrell's appeal, and Chevron's cross-appeal followed. We consider them
in turn.
III.
Dorrell contends the court imposed on her a higher burden of proof than
the Spill Act and case law requires. Rather than ascertain if there was a nexus
between defendants and the contamination, she asserts the court required her to
prove defendants were at fault for the damage. Dorrell's appeal turns entirely
on interpreting the Court's language in New Jersey Department of
Environmental Protection v. Dimant, 212 N.J. 153 (2012).
In Dimant, the New Jersey Department of Environmental Protection
(DEP) filed an enforcement action against a dry cleaner and others under the
Spill Act. By the time of trial, the dry cleaner was the only direct defendant that
remained. In a bench trial, the court found "DEP failed to prove by a
preponderance of the evidence that any discharge by [the dry cleaner] caused
the groundwater contamination in issue." Id. at 159. This failure thus precluded
A-3144-17 23 DEP from compelling contribution from defendant for investigation and cleanup
costs. Ibid.
The Supreme Court affirmed the trial court's ruling, but slightly modified
and clarified the standard a plaintiff must satisfy in a Spill Act claim for
contribution. The Court held that in order to hold a defendant responsible, "[a]
reasonable nexus or connection must be demonstrated by a preponderance of the
evidence." Dimant, 212 N.J. at 182. "[A] plaintiff need not 'trace the cause of
the response costs' to each defendant in a multi-defendant case involving a
contaminated site . . ." Ibid. (quoting N.J. Tpk. Auth. v. PPG Indus., Inc., 197
F.3d 96, 105 n.9 (3d Cir. 1999)). However, a plaintiff must do more than
"simply prove that a defendant produced a hazardous substance and that the
substance was found at the contaminated site and 'ask the trier of fact to supply
the link.'" Ibid. (quoting N.J. Tpk. Auth., 197 F.3d at 105 n.9). The Court
reaffirmed this view in Magic Petroleum Corp. v. Exxon Mobil Corp., 218 N.J.
390, 408 (2014), where it noted Dimant found "that to recover costs from [a]
responsible party, [a plaintiff] must show [a] reasonable nexus between
discharge, discharger and contamination at the damaged site."
N.J.S.A. 58:10-23.11g(c)(1) provides that
any person who has discharged a hazardous substance, or is in any way responsible for any hazardous
A-3144-17 24 substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred. Such person shall also be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs incurred by the department or a local unit . . . .
The operative language in plaintiff's appeal thus concerns "any person who . . .
is in any way responsible for any hazardous substance . . . ." N.J.S.A. 58:10-
23.11g(c)(1). We have previously recognized the phrase "in any way
responsible" is to be "broadly construed to encompass either ownership or
control over the property at the time of the damaging discharge, or control over
the hazardous substance that caused the contamination." N.J. Sch. Dev. Auth.
v. Marcantuone, 428 N.J. Super. 546, 559 (App. Div. 2012) (citing Dimant, 212
N.J. at 177-78).
The trial court did not impose a higher burden of proof on plaintiff than
Dimant demands. Rather, the court held there was an insufficient connection or
nexus between defendants, and a discharge and contamination at the site. The
court cited Dimant as not requiring negligence, or fault, but instead that a
plaintiff must "demonstrate that there's a connection, a link, a nexus, between
the discharge, the ultimate injury that it's caused." The court stated that the
nexus could arise from "ownership"; actions "causing the leak, whether that's
A-3144-17 25 negligence or not"; or some other "conduct, . . . [or] act that provides . . . the
link" required.
Applying the proper analytical framework, the court committed no error
in finding Woodruff not liable for the fuel oil leak in plaintiff's basement.
Dorrell effectively asks this court to find that mere delivery of oil, that is at some
later point in time discharged from a tank, is sufficient to establish liability. We
decline to do so where Woodruff did not own the tank, and where the record
fails to establish a contractual responsibility to maintain or inspect the tank.
We also note that plaintiff failed to establish the state of the tank in the
basement that leaked the fuel oil. In Dimant, the Court cited favorably to
Atlantic City Mun. Utils. Auth. v. Hunt, 210 N.J. Super. 76, 96 (App. Div. 1986),
for the proposition that "placement of waste into non-leaking containers does
not constitute 'a discharge.'" 212 N.J. at 161-62. Although the parties agree the
AST in the basement leaked fuel oil, the trial judge questioned why no
investigation was made of the tank to determine the source of the leak. Instead,
the tank was replaced without investigation. In order to hold Woodruff liable
for delivering fuel, plaintiff was thus obliged to establish when and why the tank
leaked oil. If the tank had a small leak leading to oil leaking over time, Woodruff
may have been on notice there was an issue if it was delivering more oil than
A-3144-17 26 the tank's capacity in order to fill it up. Or, the tank may have had a burst seam
leading to the leak occurring over the course of a few hours. Failure to establish
why the leak occurred doomed plaintiff's claim.
IV.
We turn next to Chevron's cross-appeal of the trial court's order that it
perform a remedial investigation on the site. Chevron challenges the court's
finding that gasoline from the Greenwich Street 1000-gallon UST contaminated
the site. Chevron contends the court erred in admitting Hopkins's o pinion.
Chevron argues Hopkins was not qualified to determine that gasoline
contaminated the site, or that Gulf caused it; and his opinion was, in any event,
a net opinion. Chevron also asserts that it does not own the 1000-gallon tank.
Finally, it argues that if it is required to undertake a remedial investigation,
Woodruff and Dorrell should be required to share in investigation costs as well.
As a threshold matter, we briefly address Chevron's argument that it does
not own the Greenwich Street 1000-gallon UST. Even assuming Gulf installed
and loaned the tank to the prior store owner, Chevron relies on Sgro v. Getty
Petroleum Corp., 854 F. Supp. 1164 (D.N.J. 1994) for the proposition that it was
an abandoned fixture that became part of the realty. Chevron contends that
A-3144-17 27 absent proof the alleged gasoline discharge occurred while it owned the tank,
there would be an insufficient nexus between it and the discharge under Dimant.
We are unpersuaded. Chevron misplaces reliance on a rule of law that
vindicates the rights of a subsequent property owner or tenant to a presumably
valuable fixture that a prior owner abandoned, where the property owner has
notice of the fixture and assumes it is part of the property. As one treatise
explains, "[T]he only policy justification for forfeiture [is] the protection of
subsequent parties who have taken rightful possession of the property and
should be free from interruption by a tenant who returns to remove trade fixtures
at a later date." 8 Michael Allan Wolf, Powell on Real Property § 57.06[b]
(2021).
By contrast, this case involves saddling a subsequent property owner with
a fixture that is a burden to the land, about which the subsequent owner had no
notice. A tenant who abandons chattels on leased property is liable under the
common law for the costs of removal, and "any other damages caused by the
abandonment." Restatement (Second) of Property: Landlord & Tenant, § 12.3,
cmt. l (Am. Law. Inst. 1977).
However, we need not decide the scope of Dorrell's rights under the
common law. A party who abandons a container used for storing potential
A-3144-17 28 pollutants — whether it is an old drum of oil abandoned on the side of the road
or an underground tank left in place — remains a person "in any way
responsible" for discharges from the property it abandoned. N.J.S.A. 58:10-
23.11g(c)(1).
We are also unpersuaded that equity demands that Woodruff and Dorrell
share in the remedial investigation, if one occurs. The trial court found Chevron
liable for a remedial investigation because it found it more likely than not that
gasoline was discharged into the ground from the tank that Gulf and Chevron
owned. We recognize that a court may, in exercising its equitable authority,
require that multiple potentially responsible parties bear the cost of an
investigation where the source of contamination is unclear. Matejek v. Watson,
449 N.J. Super. 179, 181 (App. Div. 2017). However, there was no evidence
that Woodruff was responsible for a gasoline discharge, even though it delivered
gasoline to the site from 1959 to the early 1960s. Also, Dorrell's alleged failure
to discover the tank when she bought the property in 1984 is not a compelling
basis to require her to defray Chevron's cost of investigating a discharge from
Gulf and Chevron's tank.
We turn to the more significant issue on the cross-appeal: the admissibility
of Hopkins's expert opinion. Because Dorrell offered Hopkins's expert opinion,
A-3144-17 29 she was obliged to establish its admissibility. See State v. Hyman, 451 N.J.
Super. 429, 441 (App. Div. 2017) (stating "the proponent of opinion evidence
bears the burden to establish its admissibility"). N.J.R.E. 702 and 703 frame the
analysis for admitting expert testimony. Townsend v. Pierre, 221 N.J. 36, 53
(2015).
N.J.R.E. 702 states that "[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."
In other words, to satisfy N.J.R.E. 702, expert testimony must satisfy three
requirements: "(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." State
v. Kelly, 97 N.J. 178, 208 (1984); see also Townsend, 221 N.J. at 53.
Regarding the third factor, "an expert 'must be "suitably qualified and
possessed of sufficient specialized knowledge to be able to express [an expert
opinion] and to explain the basis of that opinion."'" Agha v. Feiner, 198 N.J.
50, 62 (2009) (alteration in original) (quoting State v. Moore, 122 N.J. 420, 458-
A-3144-17 30 59 (1991) (further citation omitted)). Once qualified, an expert witness can only
offer opinion testimony within the bounds allowed by the trial judge . See State
v. Locascio, 425 N.J. Super. 474, 490-91 (App. Div. 2012) (finding the trial
court erred in allowing a witness qualified to testify as a pathologist to also
testify as an expert in accident reconstruction).
N.J.R.E. 703 addresses the foundation of the expert's opinion. It must "be
grounded in facts or data derived from (1) the expert's personal observations, or
(2) evidence admitted at the trial, or (3) data relied upon by the expert which is
not necessarily admissible in evidence but which is the type of data normally
relied upon by experts." Townsend, 221 N.J. at 53 (internal quotation marks
and further citations omitted). As a corollary of N.J.R.E. 703, the "net opinion
rule" "mandates that experts 'be able to identify the factual bases for their
conclusions, explain their methodology, and demonstrate that both the factual
bases and the methodology are reliable.'" Id. at 55 (quoting Landrigan v.
Celotex Corp., 127 N.J. 404, 417 (1992)).
To meet the reliability requirement in the case of scientific expert opinion,
the proponent must "demonstrate that the expert's opinion or theory was
generally accepted within the scientific community." Kemp ex rel. Wright v.
A-3144-17 31 State, 174 N.J. 412, 424 (2002).14 A court must "distinguish scientifically sound
reasoning from that of the self-validating expert, who uses scientific
terminology to present unsubstantiated personal beliefs." Landrigan, 127 N.J.
at 414.
We generally review decisions to admit expert opinion testimony, like
other evidentiary decisions, under an abuse of discretion standard. Townsend,
221 N.J. at 53. That discretion extends to the decision whether the expert
possesses the necessary qualifications. Ryan v. Renny, 203 N.J. 37, 50 (2010).
"[A]n abuse of discretion 'arises when a decision is "made without a rational
explanation, inexplicability departed from established policies, or rested on an
14 Our court applied a more relaxed standard focused on the underlying methodology in cases involving novel theories of causation in toxic tort cases. Kemp, 174 N.J. at 424-25 (stating that "a theory of causation that had not yet reached general acceptance in the scientific community 'may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field'") (quoting Rubanick v. Witco Chem. Corp., 125 N.J. 421, 449 (1991)). After trial in this case, the Court in In re Accutane Litigation, 234 N.J. 340 (2018), adopted, for scientific expert testimony in civil cases, aspects of the test in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court's approach "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." Accutane, 234 N.J. at 399-400. The trial court should exclude expert testimony as unreliable " [w]hen 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." Id. at 400. A-3144-17 32 impermissible basis."'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting Flagg v.
Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (further citation omitted)). In
particular, an appellate court owes no deference to an evidentiary ruling if the
trial court failed to apply the correct standard for admissibility. State v. Darby,
174 N.J. 509, 518 (2002) (reviewing de novo admissibility of other crimes and
wrongs evidence where trial court failed to apply standard for admissibility);
Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012) (stating an appellate
court reviews de novo a trial court evidentiary ruling where the court failed to
apply the correct test). We also will find an abuse of discretion in the case of a
clear error of judgment, or a manifest injustice. Rodriguez v. Wal-Mart Stores,
Inc., 237 N.J. 36, 57 (2019).
However, not all evidentiary rulings are subject to the abuse-of-discretion
standard of review. "Whether expert testimony is sufficiently reliable to be
admissible under N.J.R.E. 702 is a legal question" that an appellate court
reviews de novo. State v. J.L.G., 234 N.J. 265, 301 (2018); see also State v.
Harvey, 151 N.J. 117, 167-68 (1997) (stating that an appellate court "reviewing
a decision on the admission of scientific evidence . . . should scrutinize the
record and independently review the relevant authorities, including judicial
opinions and scientific literature").
A-3144-17 33 We apply these principles first to the issue of Hopkins's qualification to
opine that the contaminant found was gasoline. The motion court recognized
that Hopkins was not qualified to "analyze" samples. But, the trial court's initial
ruling went further. The trial court held that Hopkins was not qualified to
"identify" the hydrocarbons, and instead relied on other experts to do so. The
court's decision was justified.
However, Dorrell's counsel later elicited Hopkins's opinion, identifying
the contaminant as gasoline. Chevron objected that the opinion was outside the
scope of his qualifications the court previously determined. The court allowed
the testimony subject to what amounted to its reconsideration of its previous
decision. But, the court never returned to Hopkins's qualifications.
As we noted, essential to the admissibility of an expert's opinion under
N.J.R.E. 702 is proof that the expert has the qualifications to offer it. We are
constrained to conclude that the trial court 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.
We recognize that Hopkins grounded his opinion in part on what we view
as circumstantial evidence. He found samples with elevated readings of various
contaminants near the 1000-gallon Greenwich Street tank. He considered the
A-3144-17 34 historic use of the site for gasoline storage and sales. However, an essential
element of his opinion that the contaminant was gasoline rested on Hopkins's
analysis of various chemicals, including lead and BTEX, which he opined were
"signatures" or "markers" of gasoline. Notably, Hopkins did not testify during
his voir dire that he had the training or experience to distinguish between various
petroleum products and to identify gasoline among them, based on the kind of
data he utilized. During trial, he admitted that various other chemicals are
closely associated with leaded gasoline; he obtained tests of those for samples
taken from other locations on the property; but he did not obtain those tests for
the samples he asserted contained gasoline. He also admitted that specific forms
of lead were associated with gasoline, but he relied on total lead readings as the
foundation of his opinion.
Nor are we convinced that, as an LSRP, Hopkins necessarily was qualified
to identify gasoline. The motion court held that "[a]s an LSRP and with his
experience investigating sites with petroleum hydrocarbons," Hopkins was
qualified to testify that BTEX was a "signature of gasoline" and his "charting
the laboratory results." 15
15 The motion court's conclusion that "[a]ll of the experts agreed that BTEX . . . are considered to be a signature of gasoline" is unsupported by the record, if the
A-3144-17 35 We are unconvinced. A discharger or a person in any way responsible for
a discharge is required to hire an LSRP to perform remediation. N.J.S.A.
58:10B-1.3. Remediation may encompass a remedial investigation that includes
identifying the nature of contamination. N.J.S.A. 58:10C-2 (defining
"remediation" and "remedial investigation"). However, the statute recognizes
that an LSRP may be required to rely on other professionals to perform tasks he
or she is not qualified to perform. "A licensed site remediation professional
shall not provide professional services outside the areas of professional
competency, unless the licensed site remediation professional has relied upon
the technical assistance of another professional whom the licensed site
remediation professional has reasonably determined to be qualified by
education, training, and experience." N.J.S.A. 58:10C-16(c). Thus,
qualification as an LSRP does not necessarily imply qualification to identify
specific petroleum contaminants based on the data Hopkins utilized.
The trial court also never decided that Hopkins was qualified to offer an
opinion about causation. At the beginning of trial, the court stated it was "not
court meant by "signature" that BTEX was uniquely found in gasoline. Lifrieri testified that BTEX is found in fuel oil, as well. Furthermore, as noted , the laboratories never reported the presence of gasoline. They reported the presence of various other chemicals. The issue is whether Hopkins was qualified to infer that gasoline was present based on that chemical array. A-3144-17 36 prepared . . . without more foundation, without more specifics, to be able to say
[Hopkins was] qualified . . . to give what I'll call proximate cause opinions."
The court did not foreclose Dorrell from making such a showing. But, the court
did not expressly revisit the issue.
Even assuming Hopkins was a qualified witness, the record does not
disclose that the facts and methods he used to identify gasoline, and attribute it
to Gulf, were reliable. As noted, the "net opinion rule" required Hopkins to
"demonstrate that both the factual bases and the methodology [of his opinion]
were reliable." Townsend, 221 N.J. at 53 (quoting Landrigan, 127 N.J. at 417).
The record contains no such demonstration. Hopkins certainly described the
basis for his opinion, including the presence of certain chemicals, the proximity
of the 1000-gallon UST, and the historic use of the site. However, Hopkins
referred to no scientific sources or evidence to demonstrate that his methodology
was reliable; or that it was generally accepted within the field of environmental
assessment and investigation.
Rather, the evidence at trial disclosed other reliable methods of
identifying gasoline and determining its source, which Hopkins chose not to use.
Hopkins conceded that to determine whether leaded gasoline was present, one
would test for several chemicals; yet, he did not order those tests for the samples
A-3144-17 37 taken near the 1000-gallon UST. The other experts identified particular
petroleum products through the use of chromatograms and other sophisticated
technologies. Those methods were applied to samples from the basement and
the test well north of the building; but, not applied to samples near the 1000-
gallon UST, or where gasoline was sold. 16 Hopkins also never inspected the
1000-gallon UST, to determine if it was corroded or cracked; nor did he try to
sample and test the tank's contents.
We conclude it is appropriate to remand for an 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. We recognize that Dorrell
bore the burden to establish the admissibility of Hopkins's opinion, but the issue
was joined and the court never returned to the issue so as to put Dorrell to the
test. Furthermore, during trial, Chevron did not object to Hopkins's opinion on
the ground it was a net opinion. 17 The argument was raised in a post-trial
16 Dorrell excuses Hopkins's decision not to utilize those tests on the samples taken near the 1000-gallon UST, because the samples were dissolved in the groundwater, as opposed to "product" that floated atop the groundwater. However, Hopkins presented no evidence of the reliability of that methodology. 17 We recognize that Chevron's counsel made a passing reference to "net opinion" in oral argument on the motion for involuntary dismissal after Dorrell rested. However, Chevron did not expressly challenge the reliability of Hopkins's methodology. A-3144-17 38 motion. Neither party requested an N.J.R.E. 104 hearing to ascertain the
reliability of Hopkins's methodology. "[T]he sounder practice is to afford the
proponent of the expert's opinion an opportunity to prove its admissib ility at a
Rule 104 hearing." Kemp, 174 N.J. at 432-33.
At the hearing, Hopkins shall have the opportunity to demonstrate his
qualifications and the reliability of the methodology he used. Chevron shall be
entitled to offer its own expert in response to these questions. The trial court
shall assure the hearing is limited to the issues of Hopkins's qualifications at the
time he testified at trial and the reliability of the methodology, as it existed at
the time of trial, supporting the opinions concerning the identification of
gasoline and its source on the property that he offered at trial, and does not
transform into a re-trial. Whether pre-hearing exchanges are warranted is left
to the trial court's discretion.
If the court on remand determines that Hopkins was not qualified to
identify the contaminant as gasoline or opine about causation, or that his
methodology was not reliable, then the judgment of the trial court with respect
to Chevron shall be vacated. However, if the court determines that Hopkins was
qualified to identify gasoline as a contaminant, and the factual bases and
methodology he used were reliable, then the order shall be enforced.
A-3144-17 39 Affirmed on the appeal. Remanded on the cross-appeal. We do not retain
jurisdiction.
A-3144-17 40