Recently, the New Jersey Appellate Division, in Dorrell v. Woodruff Energy, Inc.,[1] vacated a 2018 judgment against Chevron U.S.A., Inc. (“Chevron”) that had found Chevron liable for gasoline contamination. More specifically, the Appellate Division found that plaintiff’s expert was not qualified to determine that the subject property was contaminated with gasoline because his methodology was flawed and wholly unsupported by any scientific resource.
Background
Plaintiff Sandra Dorrell filed a second amended complaint in 2016 in which she claimed that Chevron was liable for private contributions under the New Jersey Compensation and Control Act (the “Spill Act”),[2] for gasoline contamination in the soil and groundwater on property she purchased in 1984.
During trial, plaintiff called an expert witness, who the trial court qualified as an expert in subsurface investigations involving hydrocarbon contamination, but found he was not qualified to distinguish one type of petroleum product from another. The expert concluded that the soil and groundwater had been contaminated with petroleum products attributable to Chevron and judgment was entered against Chevron. Chevron appealed the judgment and the case was remanded to the trial court in order to conduct an N.J.R.E. 104 hearing to determine the admissibility of the expert’s testimony at trial. The Appellate Division specifically focused its remand order on the reliability of the methodology employed by the expert to support his opinion that gasoline was a contaminant found at the property.[3] The Appellate Division noted that the In re Accutane Litigation[4] case had adopted aspects of the Daubert v. Merrell Dow Pharmaceuticals, Inc.[5] test, requiring that the proponent apply a scientifically recognized methodology similar to how others in the expert’s field practice the methodology.[6] The trial court conducted a two-day hearing and found that the expert had been properly qualified and had used a reliable methodology as the basis for his opinion concerning causation. Chevron appealed again.
The Appellate Division’s 2024 Decision
On appeal, Chevron argued the lower court “misapprehended [the] remand order and erred by focusing on whether [the expert] 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.’”[7] Applying an abuse of discretion standard, the Appellate Division reversed. The Appellate Division focused on the reliability of the expert’s methodology. The plaintiff bore the burden of proving that there was gasoline contamination and the Appellate Division found that the record lacked evidence supporting the reliability of the methodology, including the fact that the expert failed to “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.”[8] The Court went on to note that there were several reliable tests and investigative techniques the expert could have used, but he failed to employ any of them.[9] Consequently, the judgment against Chevron was vacated.
The Appellate Division’s decision reiterates the requirement that an expert must clearly identify the methodology utilized to come to an opinion, including the expert’s ability to identify the scientific sources he or she relied upon. For those litigating complex environmental cases, this serves as an important reminder that failing to establish the reliability of an expert’s methodology could be fatal to your case.
[1] Dorrell v. Woodruff Energy Inc., No. A-2636-21, 2024 WL 5251650 (N.J. Super. Ct. App. Div. Dec. 31, 2024). (“Dorrell”).
[2] N.J.S.A. 58:10-23.11 to -23.11z.
[3] Dorrell v. Woodruff Energy, Inc.,2021 WL 922446 (N.J. Sup. Ct., App. Div., Mar. 11, 2021). (“Dorrell II”).
[4] 234 N.J. 340 (2018).
[5] 509 U.S. 579 (1993).
[6] Dorrell II at *11, n.14.
[7] Dorrell, No. A-2636-21, 2024 WL 5251650, at *12.
[8] Id. at 16.
[9] Id. at 18.