Dorrell v. Woodruff Energy, Inc.: A Cautionary Tale for LSRPs and Environmental Experts on Testifying Beyond their Limits of Expertise
The New Jersey Appellate Division recently decided the case of Dorrell v. Woodruff Energy, Inc. (Docket No. A-3144-17, Decided March 11, 2021), squarely addressing one of the most critical issues an environmental litigation attorney must face at trial: the limits of expert testimony.
Dorrell involves a property owner who previously owned property that was utilized as both a general store and a gasoline service station. Gasoline was dispensed from curbside pumps and kerosene was dispensed from inside the store. In preparing to sell the property, the property owner first learned of petroleum contamination in the soil and groundwater, and of a previously unknown abandoned underground storage tank (UST). She brought claims for private contribution under the New Jersey Spill Compensation and Control Act (the “Spill Act”) against a fuel delivery company that formerly delivered fuel oil to an above-ground storage tank (AST) on the property and against a petroleum company that previously owned several USTs on the property and supplied gasoline for the curbside pumps.
After a bench trial, the trial judge rendered a judgment finding that the fuel delivery company was not responsible but that the petroleum company defendant was a “responsible party” under the Spill Act and required it to investigate and remediate the petroleum contamination. The various parties appealed on multiple grounds. One of the grounds of appeal by the petroleum company defendant was that Plaintiff’s expert was improperly permitted to testify on areas where he was not qualified and that the court incorrectly relied on the expert’s net opinion in rendering its verdict.
On appeal, the Appellate court focused, in large part, on the expert opinion testimony from the trial – in particular, the testimony of Plaintiff’s expert, who was a New Jersey Licensed Site Remediation Professional (LSRP). The Appeals court noted that the New Jersey statute governing the work of LSRPs, particularly N.J.S.A. 58:10C-16(c), recognizes that an LSRP may be required to rely on other professionals to perform tasks he or she is not qualified to perform. (“A [LSRP] shall not provide professional services outside the areas of professional competency, unless the [LSRP] has relied upon the technical assistance of another professional whom the [LSRP] has reasonably determined to be qualified by education, training, and experience.”) Qualification as an LSRP is not a blanket invitation to render expert opinion and testimony beyond that professional’s area of professional competency. In the Dorrell case, that meant Plaintiff’s LSRP could not testify on the identification of specific petroleum contaminants and upon proximate cause opinions – but was improperly permitted to do so.
The Appellate Division also noted that, under the “net opinion rule,” the court record requires that the facts and methodology an expert uses to render their opinions are reliable. In Dorrell, the Plaintiff’s LSRP-expert, in opining that gasoline contamination on the property was attributable to the petroleum company defendant, incorrectly utilized only circumstantial evidence, such as the presence of certain chemicals, historic use of the site, and proximity of an underground storage tank. The LSRP referred to no scientific sources or evidence to demonstrate that his methodology was reliable, or was generally accepted within the field of environmental assessment and investigation, in order to establish that his expert testimony was not merely a net opinion.
Based upon these evidentiary failures, the Appellate Division determined that it was appropriate to remand the case for an evidentiary (Rule 104) hearing to determine the admissibility of Plaintiff’s expert LSRP’s opinions, both based on his qualifications and on the reliability of his methodology. Plaintiff bears the burden of establishing the admissibility of her own expert’s opinions. The petroleum company defendant would have the opportunity to offer its own expert during the Rule 104 hearing in response to the questions of the LSRP’s qualifications and methods. If the trial court on remand determines, after the Rule 104 hearing, that Plaintiff’s LSRP-expert was not qualified to identify the petroleum contaminants or opine about causation, or determines that his methodology was unreliable, then the judgment against the petroleum company defendant must be vacated.
This court decision highlights the importance of environmental attorneys and their experts, early on in the expert discovery phase of a case, of road-mapping the areas of expert opinion needed for trial in order to meet their evidentiary and statutory burdens to prove their claims or defenses. That road-mapping must include ensuring that the expert(s) identified to present testimony in a particular subject area (1) are sufficiently qualified in that particular area; and (2) that the opinions rendered are based upon scientific sources and reliable methodology generally accepted in the environmental science field. Qualification as an LSRP under New Jersey statute alone does not automatically meet these two requirements. As such, part of the pre-trial analysis may require acknowledging that one environmental expert is not sufficiently qualified to testify in all areas of need and that multiple experts will be needed to ensure proper qualification at trial and survival against the net opinion rule.
If you have any questions about this alert or would like to speak to an environmental attorney, please contact the author, Laura A. Siclari, or any of the other members of MARC Law’s Environmental Group.