Slowinski Atkins, LLP Prevails on Appeal and Obtains Vacatur of Judgment for Chevron U.S.A. Inc. in Long Fought Spill Act Case.
After 14 years of litigation, Slowinski Atkins, LLP successfully defended Chevron U.S.A. Inc. (“Chevron”) against allegations that it contaminated property in Alloway Township, New Jersey with gasoline, kerosene and fuel oil. On December 31, 2024 the New Jersey Appellate Division vacated a 2018 judgment entered against Chevron, as successor to Gulf Oil Corporation, after a trial finding it not liable for kerosene or fuel oil but liable for gasoline contamination at a former general store that operated as a service station from 1920 to the early 1960s.
In the 55-page opinion, the Appellate Division addresses complex issues regarding the admissibility of expert testimony in environmental cases with multiple sources of contamination from different petroleum products. After a trial, a prior appeal and remand for a Rule 104 hearing and a subsequent appeal, the court held that plaintiff’s expert, a Licensed Site Remediation Professional (“LSRP”) was qualified to offer an opinion regarding the petroleum contamination at the property but plaintiff failed to meet her burden of demonstrating that the expert’s methodology in reaching an opinion on gasoline was scientifically reliable under In re Accutane, 234 N.J. 340 (2018) and the Daubert factors. This is the first Appellate Division opinion addressing the admissibility of expert testimony in a Spill Act case under the 2018 In re Accutane decision.
Plaintiff purchased the property in 1984 and when she sought to sell it decades later it was discovered that the soil and groundwater was contaminated, allegedly with gasoline, kerosene and fuel oil. Plaintiff filed suit in 2011 seeking contribution under the New Jersey Spill Compensation and Control Act (“Spill Act”), a statute holding any person “in any way responsible” for a discharge strictly liable without regard to fault. Plaintiff claimed that Chevron and Woodruff Energy, Inc. (“Woodruff”) were responsible for the contamination. Until the early 1960s the property operated as a general store selling Gulf brand gasoline and kerosene and later plaintiff stored heating oil supplied by Woodruff in two aboveground storage tanks (“ASTs”) located in the basement. In the 1990s, one of the ASTs in the basement ruptured causing fuel oil to seep into the ground. Based on further investigation, it was discovered that underground storage tanks (“USTs”) were located outside the building including two former 550-gallon tanks and a 1,000-gallon UST beneath the sidewalk adjacent to the store.
The case was first dismissed based on the statute of limitations but in 2015 that decision was reversed and remanded. Dorrell v. Woodruff Energy, Inc. 2015 WL 5837562 (N.J. Sup. Ct., App. Div. Sept. 30, 2015). The case then proceeded to trial. In a six-hour oral ruling after the trial, Woodruff was found not responsible for gasoline, kerosene or fuel contamination, holding that Woodruff merely supplied product to a storage tank it did not own, and thus there was no basis for holding it “in any way responsible” for the discharge. In more complex evidentiary rulings, Chevron was found not responsible for kerosene or fuel oil, however the trial court found Chevron responsible for the discharge of gasoline from the 1,000-gallon UST beneath the sidewalk. Plaintiff appealed as to Woodruff, and Chevron cross-appealed on the liability finding on gasoline. On March 11, 2021, the Appellate Division affirmed as to Woodruff but reversed and remanded for a Rule 104 hearing on the gasoline question, holding that it had not been demonstrated that plaintiff’s expert LSRP, Craig Hopkins (“Hopkins”), was qualified to offer an opinion on gasoline or that his methodology in doing so was scientifically reliable. Dorrell v. Woodruff Energy, Inc. 2021 WL 922446 (N.J. Sup. Ct., App. Div., Mar. 11, 2021).
After a two-day Rule 104 hearing, the remand court held that Hopkins was qualified and that his opinion that there was gasoline contamination at the site was based on a well-founded methodology, having relied upon the results of certified laboratories, the site history, business records from the store operation, field screening data, and the chemical constituents in the soil and groundwater including benzene, toluene, ethylbenzene and xylene (commonly referred to as “BTEX”) and cyclohexane and total lead as markers for gasoline. The remand court also found that Hopkins relied upon the geology of the site such as groundwater flow direction, and the New Jersey Department of Environmental Protection (“NJDEP”) technical regulations, the Administrative Requirements for Remediation of Contaminated Sites, the Field Sampling Manual and other NJDEP guidance and protocols.
The Appellate Division reversed and held that the remand court abused its discretion when it concluded that plaintiff sustained her burden of demonstrating the reliability of Hopkins’s methodology. The court carefully scrutinized Hopkins’s methodology under In re Accutane and the Daubert factors. Noting that Hopkins’s opinion was based largely on a methodology using the relative volume percentage of chemical constituents in gasoline versus other petroleum products, the court set forth a number of fatal flaws in the methodology.
First, the court noted that Hopkins relied on the premise that BTEX, cyclohexane, and total lead are present in higher concentrations in gasoline than other petroleum products but he failed to identify any publications, texts or scientific journals to support this conclusion, instead testifying that “various literature” supported the claim.
Second, Hopkins testified that certain Tentatively Identified Compounds (“TICs”) and the alkane composition of the contaminants were indicative of gasoline, but again provided no source or scientific support for his analysis.
Third, the court noted that Hopkins’s opinion was based on the premise that a contaminant’s composition and its “relative volume” of specific chemicals could be accurately derived or calculated from the samples he collected, which was critical to his relative-composition methodology, but he could not identify any specific document that validated that method. In fact, Hopkins testified that he did not calculate the relative volume percentage of BTEX in any samples from the property.
Furthermore, the court held that the evidence actually undermined the reliability of Hopkins’s methodology. For example, the evidence established that BTEX chemicals degrade over time and at different rates and that different chemicals travel through soil and groundwater at different rates, but Hopkins’s opinion failed to account for these factors and whether his methodology would be reliable under such conditions. Further, the evidence showed that “total lead” is found in non-gasoline petroleum sources whereas organic lead is found in gasoline, but Hopkins failed to test for organic lead around the 1,000-gallon UST. In addition, the evidence showed that the BTEX, cyclohexane and lead contaminants were not uniformly distributed across the property but Hopkins’s failed to explain why or how they were not uniformly distributed if they shared the same source.
The flawed methodology was compounded by several factors, including that Hopkins never excavated or tested the UST that was allegedly the source of gasoline contamination and failed to use other reliable methods including corrosion experts, groundwater modeling or tracer compounds and, most telling, his failure to use hydrocarbon fingerprinting and chromatography analysis due to his professed reasoning that contaminant fingerprinting cannot be performed on samples dissolved in water.
In sum, the court found that Hopkins’s methodology was wholly unsupported by any scientifically-based authority in the record. The court cited In re Accutane in concluding that:
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,” “subject to peer review and publication,” has a “known or potential error rate,” or was generally accepted “in the scientific community.”
The Appellate Division therefore vacated the judgment entered against Chevron on gasoline. The Dorrel decisions offer many lessons and guidance for avoiding pitfalls in complex environmental cases. It is critical to establish the reliability of your expert’s methodology and this can be difficult in multi-source sites. The methodology needs to be supported with scientific literature and not the “ipse dixit” of the expert. The testimony of LSRPs and other environmental experts on the type of contaminant product could be barred (even if qualified) if they are relying only on their field and site investigation conducted in accordance with NJDEP regulations and other guidance. It is not uncommon for experts to offer opinions as to the nature of the contaminant based on field investigations, the constituents in soil and groundwater samples, and their olfactory and visual observations. This is not enough, and it can be costly. In Dorrell, the plaintiff had pursued the claim for 14 years and after a trial, a remand hearing and three trips to the Appellate Division, the claim was dismissed.
Matthew S. Slowinski was the trial and appellate counsel in Dorrell. He has been representing companies and individuals in litigation and trials for more than 35 years. In 1993 he was co-trial counsel in Bahrle v. Exxon Corp., 145 N.J. 144 (1996) in successfully defending Texaco Inc. and conducted the cross-examination of Dr. Clifford Owens resulting in the exclusion of his testimony in that case due to his failure to present a sound, adequately founded scientific methodology. Bahrle v. Exxon Corp., 279 N.J. Super. 5, 32-34 (App. Div. 1995).