The Importance of Avoiding Clear Opinions in Environmental Cleanup Disputes – Environment

The unpublished decision of the Appeal Division in Meyer v. Constantinou, decided earlier this year, asserted the exclusion of an environmental expert’s testimony as “clean opinion” for ignoring key facts and data without proper reasoning and justification.

Understanding the admissibility of an expert opinion in New Jersey courts

Rule 703 of the New Jersey Rules of Evidence provides that an expert must base his opinion on facts or data presented at or before trial. The corollary of Rule 703 is the “clear opinion” rule, which requires an expert to explain why and how an event occurred rather than simply providing a conclusion or “clear opinion”. See Townsend v. rock, 221 NJ 36, 53-54 (2015); Polzo v. Cnty. from Essex, 196 NJ 569, 583 (2008); State c. Townsend, 186 NJ 473, 494 (2006). An expert’s opinion becomes inadmissible as a “clear opinion” if it is based on speculation, unquantified possibilities or if it does not make the connection between the incident and the resulting damage.

Federal courts use an official standard known as “Daubert factors” as a means of determining whether or not expert testimony should be admissible at trial. In New Jersey, the Daubert factors are used as “a useful guide – but not necessary or definitive -” that courts should take into account in determining whether the expert’s opinion is admissible or not. In Accutane litigation, 234 NJ 340 (2018). The admission or exclusion of evidence, as well as the determination of the credibility of an expert, is ultimately within the good discretion of the court of first instance.

The (In) Action of Expert in Environmental Depollution

The notice in Meyer v. Constantinou, n ° A-1793-18, 2021 WL 1499851 (NJ Super. Ct. App. Div. April 16, 2021), although unpublished, highlights the problems that arise when an expert offers an unsupported or clear opinion . in an environmental clean-up conflict.

In Meyer, a service station / auto repair shop discovered PCE contamination in the soil of their property while repairing chemicals that had leaked from their underground storage tanks. The gas station then took legal action against a dry cleaning facility located in a nearby shopping center. At trial, the gas station expert argued that the PCE contamination had migrated down from the dry cleaner onto the gas station property. The court ruled that the service station had failed to establish liability and ruled in favor of the defendants, in part because the service station’s expert had provided an inadmissible “clear opinion” due to his inability to substantiate or sufficiently explain its methodology.

Missing Samples and Hypotheses – When Facts and Figures Don’t Add Up

On appeal, the Appeal Division upheld the view of the trial court that the gas station expert had rendered an inadmissible “clean opinion”. The court noted that the expert relied on a number of unsubstantiated “facts” regarding the ownership of the gas station to support his opinion on causation. For example, the expert assumed that the PCE came from the dry cleaners nearby because the gas station / car shop did not use chlorinated solvents in their operations. Yet a preliminary assessment of the contaminated property was never carried out, the previous contents of the waste oil tank and the use of the tank by the former owners of the gas station were never confirmed, and the expert never validated the auto store’s claim that he never used PCE. Likewise, the expert did not provide sufficient objective data, such as the degree of slope and an assessment of the exact relative topographies of the two properties, to support his theory that rainwater carried PCE downhill. dry cleaners up to the gas station. The basis of the expert’s opinion on this point was limited to a single visual observation.

The expert also relied on his opinion of causation on soil samples taken from the two properties, but the sampling data did not support his main reason that the PCE came from the dry cleaners. That is, the expert felt that his isopleth map (a map that uses lines or colors to indicate areas with similar meteorological characteristics) supported the view that PCE concentrations were decreasing with increasing frequency. as they approached the gas station, explaining that the declining PCE gradients matched the topography. However, the expert did not take into account the results of the sampling from the excavation of the waste oil tank located only a few feet from the car workshop building, which detected a significant amount of PCE, and he recognized that if he had included the additional sample in his analysis, the isopleth map he drew would have been completely different.

Finally, the expert made statements about the dry cleaning operations which turned out to be unfounded, and he admitted that he did not know how or when a spill or a spill occurred at this facility. The expert also assumed that the dry cleaners had obtained a new dry cleaning machine when the PCE contamination was discovered on the auto shop property, and found that the new equipment had replaced the old machine due to PCE releases. Yet the facts revealed that the dry cleaning machine had in fact been replaced many years ago. after PCE was first detected at gas station / auto repair property. The expert had never inspected the dry cleaning equipment and had never visited the dry cleaners except as a customer. Thus, the Appeal Division concluded that the expert’s opinion regarding the dry cleaning operations was speculative at best.

Ultimately, the Appeal Division upheld the trial court’s ruling that the expert’s opinion was an inadmissible “clear opinion” and upheld the trial court’s judgment in favor of the defendants.

The importance of a good expert

Meyer is an important reminder that environmental consultants employed as experts in New Jersey courts must be able to apply their expertise to all relevant evidence and be able to justify the reliability of their methodology. In the absence of the clarity that derives from the data, evidence and appropriate methods that inform the conclusions, it is likely that an expert opinion will be excluded as a clear opinion.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

About Sally Dominguez

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