LEESE et al v. MARTIN et al
Filing
107
OPINION. Signed by Chief Judge Jerome B. Simandle on 9/30/2013. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MICHAEL LEESE, et al.,
Plaintiffs,
HON. JEROME B. SIMANDLE
Civil No. 11-5091 (JBS/AMD)
v.
OPINION
LOCKHEED MARTIN,
Defendant.
APPEARANCES:
Julie A. LaVan, Esq.
Alaina A. Gregorio, Esq.
Andrew Chigounis, Esq.
LAVAN LAW
11 East Main Street, 2d Floor
Moorestown, NJ 08057
Attorneys for Plaintiffs
Robert L. Ebby, Esq.
Robert A. Wiygul, Esq.
Steven T. Miano, Esq.
HANGLEY ARONCHICK SEGAL & PUDLIN
One Logan Square, 27th Floor
Philadelphia, PA 19103
Attorneys for Defendant
SIMANDLE, Chief Judge:
I. Introduction
Plaintiffs Michael and Ashley Leese, and their minor
children, as well as Jay and Raquel Winkler, bring this suit
against Defendant Lockheed Martin for violations of federal and
state environmental laws, as well as common law torts. Plaintiffs
allege that Defendant is discharging toxic substances from its
facility in Moorestown, N.J., and contaminating Plaintiffs’
properties, which sit across the street from the facility.
Plaintiffs seek injunctive relief ordering Defendant to remediate
their properties to state and federal standards and monetary
damages for the diminution of property value and physical
injuries to the Leese children.
This matter is before the Court on Defendant’s motion for
partial summary judgment as to the common law torts, Counts VVIII. [Docket Item 87.] Defendant argues it is entitled to
partial summary judgment because Plaintiffs have failed to
produce competent evidence of injury. Specifically, Plaintiffs
failed to produce an expert report to prove medical causation
(for personal injuries allegedly sustained by the Leese children)
and failed to prove a loss in property value. The key questions
for the Court are (1) whether Plaintiffs have produced evidence
sufficient to show medical causation, (2) whether an expert is
needed to testify as to property value diminution, and (3) if so,
whether Plaintiffs’ realtor witnesses may be qualified as experts
at this late date or if Plaintiffs may be permitted to submit an
expert report from a new appraiser.
For the reasons explained below, the Court will grant the
motion in part and defer adjudication in part. Evidence of both
bodily injury and the quantum of diminished property value is
lacking; summary judgment will be granted as to Plaintiffs’
personal injury claim, but Plaintiffs will be granted 30 days to
2
furnish a new expert report on the value of their properties
since it is presently apparent that evidence exists to find that
Defendant’s discharge of toxic chemicals has caused harm to
Plaintiffs’ properties, and, in fairness, Plaintiffs should have
the opportunity to submit expert opinion evidence of the amount
of such harm.
II. Background
A. Facts
Defendant Lockheed Martin owns a research, development, and
manufacturing facility on Borton Landing Road in Moorestown, N.J.
(Statement of Undisputed Material Facts (“SMF”) [Docket Item 88]
¶ 1.)
Defendant acquired the facility in 1995 when it merged
with Martin Marietta Corporation, which had owned the facility
since 1993. (Id.; Counter Statements of Undisputed Material Fact
(“CSF”) [Docket Item 97-1] ¶¶ 2-3.)
Plaintiffs Michael and Ashley Leese bought a property in a
residential development on the opposite side of Borton Landing
Road, at 5 Victoria Court, in 2003. (SMF ¶¶ 2, 4.) Plaintiffs Jay
and Raquel Winkler bought the adjacent residential property, at 7
Victoria Court, the same year. (SMF ¶ 3.) Plaintiffs have
admitted that at the time they signed Agreements of Sale for
their respective properties, they were aware the groundwater
under their properties contained trichloroethylene (“TCE”), a
volatile organic compound (“VOC”) frequently used in metal
3
cleaning operations.1 (Pl.’s Resp. to Def.’s Requests for
Admission [Docket Item 87-7] ¶¶ 6-7; Pl. Ex. 9 [Docket Item 9712] at 1; see also Def. Ex. 2 at 12 [Docket Item 87-5] & Def. Ex.
3 at 15 [Docket Item 87-6] (Agreements of Sale disclosing TCE
ground water contamination in the “southeastern quarter of the
Wexford at Moorestown site,” the portion of the residential
development where Plaintiffs own property).)
Shortly after the Leeses moved to 5 Victoria Court, their
first child, A.L., was born.2 (CSF ¶ 54.) According to the
Leeses, A.L. “refus[ed] to eat and consume necessary nutrition”
as an infant.3 (Leese Decl. ¶ 6.) A.L. was in the lower tenth
percentile for height and weight among children her age. (Id. ¶
7.) The Leeses consulted a nutritionist, who found that A.L.
“presents adequately nourished” and indicated no food allergies
or intolerances. (Def. Reply Ex. 8.) The nutritionist opined
“[i]t appears that she has some behavior issues related to
1
Plaintiffs admitted in their response to Defendant’s
request for admissions that they “were aware no later than [the
date of purchase], that the groundwater at [their address at]
Victoria Court, Moorestown, New Jersey, contained TCE.” (Def. Ex.
4 ¶¶ 6-7.) Now, however, Plaintiffs claim in their response to
the SMF that while they might have been aware of contamination in
certain lots in the development, they were not aware of
contamination of groundwater on their lots, specifically.(Pl.
Resp. to SMF [Docket Item 97-1] ¶ 5.)
2
The minor children are identified by their initials.
3
All of the facts related to the alleged ailments of the
Leese children are drawn from the Declaration of Michael and
Ashley Leese, Docket Item 98, unless otherwise noted.
4
eating,” and recommended the Leeses avoid certain behaviors
“catering to her.” (Id.) The Leeses stated that “nothing changed”
related to her eating habits after the consultation. (Leese Decl.
¶ 10.) They assert that A.L. “developed speech issues” and
remains “one of the smallest girls in her class” and “works at a
much slower pace than her peers.” (Id. ¶ 12.)
The Leeses’ second child, I.L., was diagnosed with the flu
at two weeks old, after appearing lethargic and unresponsive.
(Id. ¶ 14.) I.L. also had issues feeding and “suffered from
clogged tear ducts, swollen eyes, and discoloration, as well as
rashes on her face and body.” (Id. ¶ 15.) The Leeses assert that
I.L. remains in the tenth percentile for height and weight and
has trouble concentrating in school. (Id. ¶¶ 18-19.) The Leeses’
third child, A.K.L., and was “small and thin”4 and “developed
speech issues.” (Id. ¶¶ 21-23.) A.K.L. was screened for autism,
but was not found to be autistic; rather, he was “developmentally
delayed.” (Id. ¶ 25.)
None of the doctors ever made any statements or raised
questions linking the children’s ailments to TCE or
tetrachloroethylene (also known as perchloroethylene or “PCE,” a
4
According to deposition testimony of Ashley Leese, A.K.L.
and I.L. each were at least eight pounds at birth, and A.L. was
seven pounds, 14 ounces. (Def. Reply Ex. 7.) These birth weights
are in fact “normal” as Mrs. Leese conceded at her deposition.
(A. Leese Dep. 17:11-19:4, 106:10-16, 133:19-20, 255:7-256:8 (Ex.
D-8).)
5
VOC often used in dry-cleaning and metal-cleaning products and
for textile processing (Pl. Ex. 10 [Docket Item 97-13] at 1)), in
part because Mr. and Mrs. Leese never mentioned possible
“chemical exposure[,] because prior to 2008, they had no
knowledge that PCE was in their groundwater and soil.” (CSF ¶ 62;
see also id. ¶¶ 72, 86.) In any event, as of 2013, there is still
no medical opinion that raises a question, let alone states, that
any medical or developmental condition of any Leese child is
likely related to exposure to TCE or PCE. Plaintiffs concede this
absence of any medical professional’s opinion. (Pl. Br. at 20.)
Defendant and the New Jersey Department of Environment
Protection (“NJDEP”) had been working together since the 1990s to
monitor the soil, groundwater and air for contaminants on and
near the facility.5 In December 2008, the NJDEP requested that
Defendant conduct precautionary soil vapor testing at various
nearby properties, including those owned by Plaintiffs. (SMF ¶
6.) The testing did not reveal TCE at the Leeses’ property, but
detected the presence of PCE. (SMF ¶ 8; Pl. Resp. to SMF ¶ 8.)
The concentration of PCE was below the NJDEP screening level.6
5
Whether Defendant caused the contamination on Plaintiffs’
properties is a disputed fact, but the answer is not dispositive
to this motion, in which the Court assumes Defendant was the
source of contamination.
6
Screening levels set by the NJDEP dictate when certain
concentrations of compounds require additional testing. (Def. Br.
at 7.) The screening levels do not necessarily indicate levels at
which compounds become hazardous to health.
6
(SMF ¶ 8; Pl. Resp. to SMF ¶ 8.) PCE also was detected at the
Winklers’ property at levels below the NJDEP screening level,
leading the Department to conclude that “the vapor intrusion
pathway was not complete at the time of sampling” and that no
additional monitoring of the Winklers’ home was warranted at that
time. (Def. Ex. 7 [Docket Item 87-10] at 1.)
Defendant conducted additional testing of the Leeses’
properties in January and April 2009. (SMF ¶ 9.) The Leeses
commissioned their own environmental testing in December 2008 and
November/December 2012. (Id. ¶ 10.) The results of all the
testing have been compiled by Defendants in Exhibit 15 [Docket
Item 87-18], and reveal the occasional presence of TCE and PCE.7
More than half of the samples tested in 2008, 2009 and 2012
(approximately 31 of 55 samples), yielded a “not detected” result
for either TCE or PCE, according to Defendants’ compilation.
(Def. Ex. 15.) One 2008 test at the Leese property indicated a
Although Plaintiffs appear to concede that PCE was “below
the NJDEP Screening Level,” elsewhere Plaintiffs argue that
“following December 2008 sampling at the Leese Property,
analytical results yielded” a concentration of PCE above the
applicable screening level. (Pl. Resp. to SMF ¶ 11.)
7
Plaintiffs state that “Defendant has not provided a true
and correct compilation of the results of all of the testing for
TCE and PCE . . . . In fact, the compilation contains errors
pertaining to the appropriate current NJDEP screening level for
the compounds TCE and PCE.” (Pl. Resp. to SMF ¶ 11.) Plaintiff
does not mention, and therefore does not expressly object to, the
accuracy of the reported test results in the exhibit for TCE and
PCE levels.
7
concentration of PCE at 6.5 parts per billion by volume (“ppbv”),
which exceeded the applicable screening level at the time of 5
ppbv. (Def. Ex. 5.) However, in March 2013, the NJDEP updated its
Vapor Intrusion Screening Levels, which last had been changed in
March 2007, based on “risk-based information included in the
United States Environmental Protection Agency (USEPA) Regions 3,
6, and 9 November 2012 Regional Screening Levels Table for
Chemical Contaminants at Superfund Sites . . . .” (Def. Ex. 11
[Docket Item 87-14] at 1.) These new screening levels adjusted
upward the concentrations of TCE and PCE that warranted
additional testing. (Def. Ex. 10 [Docket Item 87-13].) Plaintiffs
concede that none of the test results collected at either of
their properties ever found TCE or PCE in concentrations that
exceeded the 2013 screening levels for those compounds, although
Plaintiffs point to the above result of 6.5 ppbv for PCE to show
that the concentration of PCE at one time exceeded the thenapplicable screening level. (Pl. Resp. to SMF ¶ 11.) Defendants
call that one sample “anomalous,” and argue that “indoor air
sampling performed at the Leeses’ property in December 2008
(conducted by Plaintiffs) and April 2009 . . . either detected no
PCE whatsoever or detected a trace amount well below even the old
screening level.” (Def. Br. at 7 n.6.)
In May 2012, the Leeses moved to a different house in
Moorestown. (CSF ¶ 97.) They rented the property at 5 Victoria
8
Court to a couple pursuant to a nine-month lease. (Id. ¶ 98) As
of the filing of this motion, the Winklers still lived at 7
Victoria Court. (Id. ¶ 99.)
B. Procedural history
The Leeses filed the original Complaint in state court in
July 2011, and Defendant removed the action to this Court.
[Docket Item 1.] The Leeses filed a Second Amended Complaint
(“SAC”), adding the Winklers as Plaintiffs. [Docket Item 30.] The
SAC brings claims under the Spill Compensation and Control Act,
N.J.S.A. § 58:10-23.11, et seq., the Water Pollution Control Act,
N.J.S.A. § 58:10A-1, et seq., the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901, et seq., and the Comprehensive
Environmental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. § 9601, et seq. The counts at issue in this
motion are brought under common law for private nuisance (Count
V), trespass (Count VI), strict liability (Count VII), and
negligence (Count VIII). These counts seek “actual damages” for
“loss of property value” on behalf of the Leeses and Winklers and
actual damages for “bodily injuries” to the Leese children. (SAC
at 15-20 ¶¶ (a)-(d); CSF ¶ 96.)
Plaintiffs have admitted that
TCE and PCE are the only substances on which their claims are
based and that the Leese children are the only plaintiffs
asserting personal injury claims. (Def. Ex. 4 at ¶¶ 1-2; Pl.
Resp. to SMF ¶¶ 13-14.)
9
C. Expert testimony
During an October 2012 discovery conference before
Magistrate Judge Ann Marie Donio, Plaintiffs’ counsel Julie A.
LaVan, Esq., acknowledged that in order to prove Plaintiffs’
case, they would have to provide expert testimony. (Def. Ex. 21
[Docket Item 87-24] at 10:12-18.) Plaintiffs still contend that
expert testimony is required on the questions of whether gas
vapor intrusion was caused by Lockheed Martin and, if so, whether
it caused damage to Plaintiffs. (CSF ¶¶ 101-102.)
Judge Donio entered an Amended Scheduling Order on April 8,
2013, stating
All expert reports and expert disclosures pursuant to
Fed. R. Civ. P. 26(a)(2) on behalf of plaintiffs shall be
served upon counsel for defendant not later than April
30, 2013. . . . No expert opinion testimony shall be
admitted at trial with respect to any witness for whom
this procedure has not been timely followed.
[Docket Item 77.]
Plaintiffs concede that they “have decided ‘not to put forth
a medical or property valuation expert for [Defendant] to
rebut.’” (CSF ¶ 107, quoting a letter from Plaintiff’s counsel
Alaina A. Gregorio, Esq., to Judge Donio [Docket Item 87-31] at
2.) On April 30, 2013, Plaintiffs timely served upon Defendant
one expert report by professional geologist David B. Farrington.8
8
Plaintiffs also submitted two letters from an engineer, but
admit that “these letter reports are inclusive of data ‘relied on
by Plaintiffs’ expert Dave Farrington’ only.” (CSF ¶ 112.)
Plaintiffs state that they “did not intend to characterize the
10
(Def. Ex. 24 [Docket Item 87-27]; CSF ¶ 109.) In the report, Mr.
Farrington opines that TCE, PCE, and other VOCs migrated from
Defendant’s property to groundwater beneath the development,
including the Plaintiffs’ properties. (Id. at 8.) Farrington
offers other opinions about the presence of TCE and PCE. (Id. at
8-9.) In the report, Farrington makes only four statements about
the hazardous nature of the compounds:
Human
exposure
to
PCE
affects
developmental,
neurological, and respiratory systems. PCE is reasonably
anticipated to be a human carcinogen. (Agency for Toxic
Substances and Disease Registry -- attached)
(Id. at 7.)
Human exposure to TCE affects developmental and
neurological systems. TCE is reasonably anticipated to be
a human carcinogen. (Agency for Toxic Substances and
Disease Registry -- attached)
(Id.)
The United States Environmental Protection Agency (EPA)
characterizes TCE as carcinogenic to humans and as a
human non-cancer health hazard.
(Id.)
Based on information from the Agency for Toxic Substances
and Disease Registry, exposure to PCE and/or TCE can
affect developmental, neurological, and/or respiratory
systems in humans.
letter reports . . . as expert reports” and “confirm that the
report from Mr. Farrington is Plaintiffs’ only expert report.”
(Pl. Resp. to SMF ¶ 18.) Plaintiffs offer the testimony of
realtors Nancy Coleman and Dana Krisanda, about property
valuation, as lay testimony. (CSF ¶ 106.)
11
(Id. at 9.)
Mr. Farrington has no medical training. (Farrington c.v.
[Docket Item 87-30] at 1.) He did not examine the Leese children.
He offered no opinions about the cause of the Leese children’s
ailments.
D. Property valuation testimony & documentation
Plaintiffs state that “Ms. Coleman and Krisanda, of Weichert
Realtors, will attest to housing market trends in Moorestown and
general matters pertaining to Plaintiffs’ properties, as
disclosed through Plaintiffs Supplemental Discovery Responses
Dated January 4, 2013.” (CSF ¶ 108.) In the supplemental
response, Plaintiffs indicated that Ms. Coleman would testify
“about the value of the Leese and Winkler Properties; the renter
value versus sale value of the properties; and housing market
trends in Moorestown, New Jersey.” (Pl. Ex. 18 [Docket Item 9721] at 14 ¶ 6.) Ms. Krisanda would testify about essentially the
same topics. (Id. at 14 ¶ 5.)
In opposition to the present motion, Plaintiffs offer one
page of deposition testimony from each of the realtors. Ms.
Krisanda testified that she never tried to estimate the value of
the property9 “with the contamination” and admitted that she
9
It is not clear from the excerpt to which property Ms.
Krisanda refers. Defendant, however, provides a longer excerpt
which reveals that Ms. Krisanda was discussing a completely
different property on Park Avenue in Moorestown. (Reply. Ex. 11
at 82:4-86:18.)
12
would not have known how to do that. (Krisanda Dep [Pl. Ex. 19,
Docket Item 97-22] at 86:5-11.) She added, on the value of the
property: “as I told my buyer, you can’t buy this with
contamination, and he knows that. He’s a builder and he knows
what he’s doing. But, I mean, I guess it would be zero, because I
would say, don’t buy it.” (Id. at 86:11-18.) This statement,
however, concerned a property on Park Avenue in Moorestown, N.J.,
not either one of the Plaintiffs’ properties. (Reply Ex. 11 at
82:4-86:18.) Underground gas and oil tanks had ruptured and
leaked, and that property required site remediation. (Id. at
84:1-11.)
In response to a question asking if “the house has zero sale
value,” Ms. Coleman testified: “Like they say in real estate,
there’s a buyer for everything, and good luck finding a buyer for
that one.” (Coleman Dep. [Pl. Ex. 20, Docket Item 97-23] at
183:8-13.) She added: “if the Leeses asked me to list that house
for sale, I’d say no, thank you.” (Id. at 183:17-19.) When asked
“you wouldn’t list it even?”, she replied: “I would not. I
wouldn’t waste my time.” (Id. at 183:20-22.)
Defendant, in reply, supplements the record with more
deposition testimony from the realtors. Ms. Coleman, when asked
if she had “an opinion of what the value of the Leese property
is,” replied, “I do not.” (Coleman Dep. [Reply Ex. 10] at 240:47.) She testified she had not undertaken, nor had she been asked,
13
to appraise the property. (Id. at 242:13-23.) She testified she
did not know which chemicals allegedly contaminated the property
or at what levels those chemicals were detected. (Id. at 319:1024.) She testified that even if she knew the specific levels of
chemicals detected, she did not feel qualified to render an
opinion about the effect on the property of those chemicals. (Id.
at 337:13-20.)
Ms. Krisanda, likewise, testified that she did not recall
ever expressing an opinion about the value of the Leese property
after the testing was done in 2008 and that she didn’t “know
anything about the chemicals.” (Krisanda Dep. [Reply Ex. 11] at
192:10-23.) She testified that in 2005, she valued the Leeses’
property in a deal that ultimately was not consummated. (Id. at
192:1-9; Reply Ex. 12 at 279:10-281:4.) She did not know whether
the value of the Leeses’ property had been diminished. (Reply Ex.
11 at 192:19-193:1.) She further testified she had never
attempted to appraise the Winklers’ property. (Id. 196:16-19.)
She testified that it was fair to say she was not in a position
to render an informed opinion about the value of either of the
Plaintiffs’ properties. (Reply Ex. 12 at 226:14-20.) Ms. Krisanda
has never endeavored to estimate the value of a property with
chemical contamination (Reply Ex. 11 at 191:15-20), and she was
aware of no methods that could be used to determine the value of
a contaminated property. (Id. at 87:17-22.)
14
At oral argument, Plaintiffs’ counsel referenced for the
first time a Burlington County tax assessment of the Leeses’
property which showed a recent reduction in the assessment from
$533,600 to $285,000. (Leese Supplement [Docket Item 105] at
103.) Three days after oral argument, Plaintiffs submitted a “tax
appraisal package” of documents as a supplement to the record.10
According to the documents, the Leeses appealed their assessment
of $533,600. On the petition of appeal form, in lieu of listing
comparable properties, Mr. Leese wrote:
No real comparables as my house at 5 Victoria Ct,
Moorsetown, NJ is unsaleable as it is contaminated with
carcinogenic (cancer causing) chemicals in the soil,
underneath the house, and vapors inside the house. These
carcinogenic chemicals are coming from Lockheed Martin.
We have multiple soil and vapor testing results, which
confirm the presence of these chemicals. Complete
remediation is needed. We currently have a lawsuit
against Lockheed Martin. Real estate value is ZERO.
(Leese Supplement at 108.) The revised assessment of the
property, at $285,000, did not contain any opinion or explanation
for the reduction by the assessor. (Id. at 103.)
III. Standard of review
A court shall grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
10
Plaintiffs did not mark the assessment as an exhibit at
oral argument or move to supplement the summary judgment record.
Nor did Plaintiffs’ counsel submit a Rule 56(d) affidavit or
declaration requesting the Court delay decision on the partial
summary judgment motion in order to consider the supplemental
material. The supplemental documents were submitted without an
accompanying affidavit.
15
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” if, based on the evidence in the
record, a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A fact is “material” if it might affect the outcome
of the suit. Id. The court will view evidence in the light most
favorable to the non-moving party and “all justifiable inferences
are to be drawn in [that party’s] favor.” Hunt v. Cromartie, 526
U.S. 541, 552 (1999). Fed. R. Civ. P. 56 “mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
Fed. R. Civ. P. 56(c) further provides that parties
asserting that a fact is genuinely disputed, or cannot be, “must
support the assertion” by citing to the record or by “showing
that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Affidavits or
declarations in support of or opposition to a motion for summary
judgment “must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
16
declarant is competent to testify on the matters stated.” Fed. R.
Civ. P. 56(c)(4). If a party “fails to properly support an
assertion of fact or fails to properly address another party’s
assertion of fact,” the Court may grant summary judgment, if the
motion and supporting papers show the movant is entitled to it,
or issue other appropriate orders, including affording a party an
opportunity to properly support an assertion of fact. Fed. R.
Civ. P. 56(e).
VI. Discussion
A. Bodily injury claims
Defendant argues that Plaintiffs cannot sustain their claims
for personal injury without expert testimony. (Def. Br. at 1718.) Plaintiffs have the burden to establish, among other things,
actual injury and causation (including, in a toxic tort case,
general and specific causation11), and Defendants contend that
New Jersey “requires expert testimony to establish the medical
nexus between the [alleged] exposure and plaintiff’s condition.”
(Id., citing Steele v. Aramark Corp., No. 09-4340, 2012 WL
4103875, at *9 (D.N.J. Sept. 17, 2012), aff’d in part, rev’d
11
General causation concerns whether the compounds in
question are capable of causing disease, whereas specific
causation concerns whether the compounds actually caused a
disease to the plaintiffs. Magistrini v. One Hour Martinizing Dry
Cleaning, 180 F. Supp. 2d 584, 590 (D.N.J. 2002); see also Leake
v. United States, 843 F. Supp. 2d 554, 558 (E.D. Pa. 2011)
(citing In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 752 (3d
Cir. 1994)).
17
in part, --- F. App’x ---, Nos. 12-3942 & 12-4009, 2013 WL
4083268 (3d Cir. July 18, 2013)12.) Defendant dismisses the
expert testimony of Mr. Farrington as “plainly insufficient to
carry Plaintiffs’ burden,” because even if he were qualified to
offer such an opinion, which Defendant contests,
the fact that exposure to TCE or PCE can, . . . at
certain concentration levels, affect certain systems
does not in any way show (1) that Plaintiffs were
exposed to any particular levels of TCE or PCE; (2)
that the particular levels to which Plaintiffs were
exposed . . . can cause such effects; (3) that
12
After briefing in this matter was complete, the Third
Circuit reversed in part and affirmed in part the district court
opinion in Steele and remanded for further proceedings. Steele,
2013 WL 4083268, at *6. The Third Circuit held that it was error
for the district court to apply the “Sholtis test” of medical
causation, referring to Sholtis v. Am. Cyanamid Co., 238 N.J.
Super. 8, 31 (1989), which requires “‘(1) factual proof of the
plaintiff’s frequent, regular and proximate exposure to a
defendant’s products; and (2) medical and/or scientific proof of
a nexus between the exposure and the plaintiff’s condition.’” Id.
at *3 (quoting a restatement of the Sholtis test in James v.
Bessemer Processing Co., Inc., 155 N.J. 279, 304 (1998)). In
Sholtis, the key question was how the plaintiffs, who sought to
recover for damages caused by cumulative exposure to asbestos
manufactured by many different defendants, could prove causation
from exposure to any single defendant’s products. Steele, 2013 WL
4083268, at *4. By contrast, in Steele, no “complicated causation
problems” existed because the case did “not involve apportioning
causation between many defendants who manufactured many different
products . . . .” Id. at *4. The Steele plaintiff produced a
medical expert whose testimony satisfied the second prong of the
test -- a nexus between exposure and the condition. Id. at *3.
The Third Circuit concluded that if “toluene caused [plaintiff]
Steele’s injury there is no difficulty in assigning causation” to
the single defendant. Id. at *4.
The Third Circuit did not obviate the requirement that a
plaintiff produce evidence that chemical exposure in fact caused
injuries, however. Nor did the Third Circuit hold that expert
testimony is not needed when the link from low levels of exposure
to relatively common symptoms may be proved without an expert.
18
Plaintiffs have experienced specific health issues that
could potentially be caused by exposure to such levels;
or (4) that any such health issues were, in fact,
caused by Plaintiffs’ exposure to TCE or PCE.
(Id. at 21-22.)
Plaintiffs respond that New Jersey law does not require
expert testimony to prove causation, citing cases using
permissive, rather than mandatory, language to that effect. (Pl.
Opp’n at 15.) Plaintiffs suggest they can prove causation “if all
the primary facts can be accurately and intelligibly described to
the jury, and if they . . . are as capable of comprehending the
primary facts and of drawing correct conclusions as are witnesses
possessed of special . . . training, experience, or observation.”
(Id. at 16, quoting Wilburn v. Maritrans GP, 139 F.3d 350, 360
(3d Cir. 1998).) Plaintiffs argue that New Jersey courts have
“found the causation requirement satisfied where there was
evidence of prolonged exposure over a period of years with
regular, daily interaction with the harmful product or chemical.”
(Id., quoting Steele, 2012 WL 4103875, at *9).) Accordingly,
Plaintiffs assert that the Leese children spent nine years at 5
Victoria Court with exposure “to PCE and TCE on a daily basis . .
. .” (Id. at 16-17.) “The evidence establishing the Leese
children’s daily exposure to PCE and TCE, coupled with Mr.
Farrington’s expert testimony on vapor intrusion and like
matters, is more than sufficient for a lay jury to infer the
element occurred.” (Id. at 17.) Additionally, Plaintiffs attach
19
two exhibits of information from the EPA’s website on TCE and PCE
stating that exposure “can result in severe acute and chronic
effects.” (Id. at 18; Pl. Exs. 9 & 10 [Docket Items 97-12 and 9713].) Plaintiffs next point to the Leese declaration as
establishing the ailments suffered by the children. (Pl. Opp’n at
19-20.) Plaintiffs conclude that “[t]he EPA, a federal agency has
provided reliable, scientifically sound evidence regarding the
effects of exposure to PCE and TCE, and when coupled with the
[Leese] testimony . . . along with the medical records of their
children, the evidence is sufficient for a lay jury to infer
general and specific causation.” (Id. at 20.)
As a general proposition, expert testimony is required to
demonstrate causation in toxic tort cases. See Sanders v.
Rosenberg, No. 06-1406, 2008 WL 1732980, at *3 (D.N.J. Apr. 10,
2008) (“in cases concerning toxic torts such as mold exposure,
testimony of an expert is required, in particular with regard to
causation”) (citing Heller v. Shaw Indus., Inc., 167 F.3d 146,
153 (3d Cir. 1999)); Phillips v. Gelpke, 190 N.J. 580, 591 (2007)
(citing Rubanick v. Witco Chem. Corp., 225 N.J. Super. 485, 488,
498 (Law Div. 1988), rev’d on other grounds, 242 N.J. Super. 36
(App. Div. 1990), mod. on other grounds, 125 N.J. 421 (1991), for
the proposition that “expert testimony [is] required to explain
causation in toxic tort wrongful death action[s]”); Sholtis v.
Am. Cyanamid Co., 238 N.J. Super. 8, 29 n.16 (App. Div. 1989)
20
(“Expert proof would usually be required to establish, even
inferentially, that the exposures caused or exacerbated
plaintiffs’ eventual injuries.”); accord Steele, 2013 WL 4083268,
at *4 (opining that medical expert testimony linking chemical
exposure to actual injuries would be sufficient to show
causation, when the source of the chemical exposure was not in
doubt). Toxic tort plaintiffs, alleging bodily injury, proceed at
their peril without expert medical testimony.
The Court need not reach the question of whether expert
testimony is required to prove causation as a per se rule in all
toxic tort cases. In this case, Plaintiffs have failed to make a
showing sufficient to establish causation of bodily injury.
Evidence that VOCs, in some quantity, can have harmful effects,
and that the Leese children suffered ailments and were, or may
have been, exposed to some unspecified quantity of TCE and PCE,
is an insufficient basis for a reasonable jury to infer
causation. See Sanders, 2008 WL 1732980, at *6 n.3 (“the fact
that ‘mold exposure could cause’ plaintiffs medical ailments is
not evidence that the specific mold exposure did actually cause
plaintiffs their specific medical ailments”). The inferential
leap from exposure to VOCs at levels below the current screening
levels to the ailments alleged -- lack of appetite, lethargy,
neurological and behavioral issues -- is hardly automatic. The
specific cause of the Leese children’s ailments “does not fall
21
within the common knowledge of the reasonable juror.” Estate of
Burnett ex rel. Kelly v. Water’s Edge Convalescent Ctr., No. A4980-06T2, 2008 WL 2841155, at *12 (N.J. Super. Ct. App. Div.
July 25, 2008) (holding that the cause of bruising and skin tears
was beyond the common knowledge of the reasonable juror and
granting summary judgment because no expert testimony was
presented on causation). Expert medical testimony was necessary
and not supplied by Plaintiffs.
The record contains no support for Mr. Farrington’s
qualifications as a medical expert, making the admissibility of
his “medical” opinions doubtful. And Mr. Farrington makes no
attempt to state that the ailments of the Leese children, whom he
did not examine, were likely caused by TCE and/or PCE. Beyond
that, expert testimony on causation “must be couched in terms of
reasonable medical probability; opinions as to possibility are
inadmissible.” Eckert v. Rumsey Park Assocs., 294 N.J. Super. 46,
50 (App. Div. 1996). “If an expert’s testimony does not set forth
that the causal connection rises to the level of a reasonable
medical probability a court may find that the conclusion is
merely a net opinion.” Galvin v. Mizuho Med. Corp., No. A-645006T3, 2008 WL 4791023 (N.J. Super. Ct. App. Div. Nov. 5, 2008)
(citing Eckert, 294 N.J. Super. at 51, and Buckelew v. Grossbard,
87 N.J. 512, 524 (1981)). Here, there is no record evidence as to
(1) the reasonable medical probability that the Leese children’s
22
alleged injuries were caused by TCE and/or PCE; (2) the specific
levels of exposure the children had to TCE or PCE; (3) the level
of TCE or PCE on the property when the Leese children were
infants, i.e., before December 2008; (4) whether exposure to that
specific concentration of TCE/PCE is potentially harmful, and (5)
no opinion evidence that the compounds were, to a reasonable
medical probability, the cause of bodily injury.
Therefore, to the extent Plaintiffs’ common law claims rest
upon proving Defendant’s causation of bodily injury to the Leese
children, summary judgment is entered in favor of Defendant. A
jury will not be able to rely upon conjecture or speculation, but
only upon admissible evidence adduced from competent witnesses.
Here, from the admissible evidence, and drawing all reasonable
inferences in favor of the Plaintiffs, there is no genuine issue
of material fact that would permit a jury to find that these
compounds were the likely cause of the children’s ailments.
B. Loss of property value claims
i. Evidence in the record
Defendant likewise argues that claims for loss of property
value cannot survive summary judgment without expert testimony
“opining that (a) each of Plaintiffs’ properties has suffered a
loss in value; and (b) the loss in value resulted from the
presence of trace amounts of TCE or PCE at the property.” (Def.
Mot. Br. at 22-23.) Defendant asserts the record contains no
23
evidence that either property “suffered a loss in value” or that
the loss was caused by the VOCs. (Id. at 24.) In support,
Defendant cites Player v. Motiva Enters., LLC, 240 F. App’x 513,
522 (3d Cir. 2007), as standing for the fact that summary
judgment is appropriate when a proffered valuation expert is
excluded, leaving no proof of loss of property value. (Id. at
23.) Defendant contends that an “opinion as to a decrease in
value cannot be a mere surmise that because property is
contaminated, it logically follows that the value of the property
is decreased.” (Id., quoting N.J. Transit Corp. v. Mecca & Son
Trucking Co., No. A-5643-03T3, 2005 WL 2364811, at *3 (N.J.
Super. Ct. App. Div. Sept. 29, 2005)13.) Defendant also cites
United States v. Yeich, 74 F.R.D. 561, 562 (E.D. Pa. 1977), which
stated that “facts set forth in affidavits must come within the
competency of the individual,” and held that a defendant could
not compute the value of property in an affidavit without
evidence that the defendant was qualified to offer such evidence.
(Id.)
Plaintiffs, again, assert that expert testimony is
unnecessary if the facts can be accurately and intelligibly
described to the jury and the jury is capable of comprehending
13
This quotation from N.J. Transit Corp., an unpublished
opinion, is, in turn, a quotation of Finkelstein v. Dep’t of
Transp., 656 So. 2d 921, 924-25 (Fla. 1995).) The quotation came
in the context of the Appellate Division explaining that expert
opinion testimony must be supported by evidence.
24
the facts and of drawing correct conclusions. (Pl. Opp’n at 20,
citing Wilburn, 139 F.3d at 360.) Plaintiffs argue that Player
does not require an expert, per se, but that the Third Circuit
there found the record devoid of any evidence that would allow a
jury to find that the plaintiffs suffered a loss of property
value. (Id. at 20-21.)
Plaintiffs suggest that the testimony of Ms. Coleman and Ms.
Krisanda allows a jury to infer that “it will be virtually
impossible to sell” Plaintiffs’ homes because of contamination:
Krisanda’s recommendation that a buyer not purchase a home known
to have contamination and Coleman’s testimony that she would
refuse to sell the house for the Leeses. (Id. at 21.) Plaintiffs
add:
Ms. Krisanda and Ms. Coleman have testified in
depositions and will testify at trial as to their
personal knowledge, and will provide their opinions with
respect to the housing market in Moorestown, New Jersey.
More specifically, Krisanda’s and Coleman’s respective
testimonies are based on their perception regarding the
ability and willingness to sell the Leese and Winkler
properties.
(Id. at 22.)
Plaintiffs maintain that the realtors were properly
disclosed as lay witnesses to Defendant in the supplemental
discovery responses. (Id. at 22-23.) However, Plaintiffs offer
that “in the event Defendant believes these women should be
designated as expert witnesses Plaintiffs should be permitted to
do so as no prejudice will result to the Defendant.” (Id. at 23.)
25
Plaintiffs point out that Defendant was aware of the testimony of
the realtors and conducted two depositions each of Ms. Coleman
and Ms. Krisanda. (Id.) Plaintiffs state they have consented to a
60-day extension for Defendant to produce expert reports in
rebuttal. (Id.)
In reply, Defendant reasserts that “expert testimony is
generally needed to determine the market value of real property.”
(Reply at 12, quoting Torres v. Schripps, Inc., 342 N.J. Super.
419, 430 (App. Div. 2001).) Defendant faults Plaintiffs for not
citing any “exception to this rule.” (Id.) The fact that
Plaintiffs rely solely on lay testimony, Defendant suggests, is
fatal to loss-of-value claims. (Id. at 13.) Defendant also argues
that the proffered testimony from Ms. Coleman and Ms. Krisanda
“would not be lay testimony” because Plaintiffs “do not and
cannot allege that Krisanda or Coleman have personally tried to
sell Plaintiffs’ property. Indeed, neither the Leese property nor
the Winkler property has ever been put on the market at any point
after the environmental testing at issue.” (Id.) Defendants
suggest that an opinion on the value of property based on
specialized experience and analysis of comparative sales is
“quintessentially expert testimony.” (Id.)
At oral argument, Ms. LaVan, Plaintiffs’ counsel, suggested
that the a jury could infer that the value of the properties was
zero, because the properties were “worth nothing” to the
26
Plaintiffs, subjectively. Setting aside the questionable nature
of that assertion, arguments made by counsel do not constitute
evidence capable of defeating summary judgment. Plaintiffs also
have submitted to the Court a Burlington County tax assessment on
their property, showing that a tax assessor recently lowered the
assessment of the Leese property from $533,600 to $285,000.14 Ms.
LaVan admitted at oral argument that the Leeses were not in
possession of a written opinion from the tax assessor stating the
reasons for the reduction, although Ms. LaVan asserted that the
appeal was taken for environmental reasons. Significantly,
however, Ms. LaVan did not move to enter the tax assessment, or
any documents related to the appeal, into evidence. Ms. LaVan
eventually did submit the documents to the Court [Docket Item
105], but without an affidavit attesting to their validity and
without an accompanying motion. Therefore, the supplemental
materials are not evidence. See In re Mezvinksy, 265 B.R. 681,
693 n.19 (Bankr. E.D. Pa. 2001) (“Documents attached to a summary
judgment brief, absent affidavit support attesting to their
validity, are not evidence.”)(citing Berk v. Ascott Inv. Corp.,
759 F. Supp. 245, 249 (E.D. Pa. 1991)).
Defendants are correct that the current record does not
raise a genuine issue of material fact as to a diminution of
14
No similar documentation was provided for the Winkler
property.
27
property value caused by contamination, because the admissible
evidence supplied by Plaintiffs does not permit a reasonable jury
to infer a valuation, let alone causation. Despite Plaintiffs’
assertions, the record does not contain any opinions -- expert or
otherwise -- about the current value of the properties, nor any
opinion linking a decrease in value to the contamination as
opposed to other market factors. Both realtors unequivocally
stated that they have not formed an opinion as to the value of
the Plaintiffs’ properties. There simply is no record evidence as
to the current values of the properties. The passages of
depositions cited by Plaintiffs reveal only that Ms. Krisanda
advised a buyer not to buy a wholly different property because of
contamination, and Ms. Coleman did not consider it worth her time
to list the Leese property for the Plaintiffs, not that she was
asked. Even Coleman, however, acknowledges that “there’s a buyer
for everything,” indicating at least some value in the
properties, and contradicting Plaintiffs’ position that the
properties are valueless. (Coleman Dep. [Pl. Ex. 20] at 183:1112.) Plaintiffs have never placed their properties on the market
since the environmental testing began in 2008, and have not
produced any expert testimony or any other evidence from which a
jury could infer that the VOCs caused a diminution of property
value.
A reasonable jury could not infer from this existing record
28
that the properties have diminished in value because of the
contamination. Therefore, unless Plaintiffs are permitted to
supplement the record, discussed below, partial summary judgment
will be entered in favor of Defendant.
To be clear, the Court is not holding that expert opinion
testimony is always required to establish a loss of property
value from contamination. For example, if these properties had
been marketed and sold in arm’s length transactions in the open
market to buyers who were aware of all material facts of the
alleged contamination, those facts, rather than opinion
testimony, could be found to establish the current market values,
and the buyers could testify as to the degrees, if any, to which
the alleged contamination depressed the prices. In contrast, the
realtor witnesses presently have no particular knowledge of these
properties, the current values, or the degrees to which those
values were depressed from the market value of comparable noncontaminated properties in the local real estate market. In this
case, however, no one, not even the realtors, has expressed an
admissible opinion on the value of the Plaintiffs’ properties.15
15
Any testimony from lay witnesses about the value of the
properties would not be admissible under Fed. R. Evid. 701, as
opinions are not based on the witnesses’ perception or personal
knowledge; neither has attempted to market either of the
properties since the environmental testing began. Absent an
actual or attempted transaction, the effect of contamination on
the properties and the market value of homes in the area would
appear to be within the “specialized knowledge within the scope
of Rule 702,” which addresses expert witnesses. Fed. R. Evid.
29
ii. Qualifying a new expert
Two questions remain: whether Plaintiffs may qualify their
realtor witnesses as experts at this time, and whether Plaintiffs
may be given additional time to retain a new appraiser, qualify
the appraiser as an expert and supplement the record with a new
expert report on the value of the properties.
Defendant opposes qualifying the two realtors as experts.
(Def. Reply at 15 n.8.) Defendant contends that neither realtor
is qualified to render an opinion on the effect of alleged
contamination and neither has formulated such an opinion. (Id.)
The Court agrees with Defendant that Ms. Coleman and Ms.
Krisanda may not be qualified as experts at this point, and
therefore their opinions regarding diminished property values are
inadmissible and will not be considered. Both witnesses have been
subjected to two rounds of depositions, and that testimony
revealed that neither has the necessary experience or specialized
knowledge to opine about the diminution of value to contaminated
properties.16 There is no good cause to permit Plaintiffs a third
701(c).
16
It would be one thing to permit Plaintiffs to qualify
these realtors as experts late, if the realtors’ testimony, on
its face, established the injury element and Plaintiffs simply
had neglected to qualify the witnesses as experts. It would not
be unfair to permit these realtors to formalize belated opinions
that they had reached, based upon a reliable methodology and for
which they were competent, into an expert report that could
comply with Rule 26(a)(2) and gain admissibility as expert
opinion testimony under Fed. R. Evid. 703, if these realtors had,
30
chance with these witnesses. Plaintiffs’ request to qualify Ms.
Coleman and Ms. Krisanda will be denied.
Defendant urges the Court not to allow Plaintiffs to submit
any other untimely expert report. (Def. Supp. Br. [Docket Item
106].) Defendant argues convincingly that Plaintiff cannot
satisfy the requirements of Fed. R. Civ. P. 56(d), which
typically is employed when a nonmovant shows “it cannot present
facts essential to justify its opposition” and needs additional
time. Fed. R. Civ. P. 56(d). The Court agrees that Plaintiffs
have not even attempted to invoke Rule 56(d) or explain their
lack of diligence in producing an expert valuation. Defendant
further argues that the tax assessment is not “new evidence” to
support Plaintiffs’ claims and not enough grounds to permit a
late expert report that Plaintiffs voluntarily declined to
produce. (Def. Supp. Br. at 7.) The Court agrees that the tax
assessment itself is not new evidence and is not part of the
record.
The Court, however, will permit Plaintiffs one final chance
to support their assertion of fact that the properties have lost
value because of contamination. Rule 56(e)(1), Fed. R. Civ. P.,
provides that “[i]f a party fails to properly support an
for example, formulated otherwise admissible expert opinions
about the loss in value of the property attributable to the
alleged contamination. But such is not the case here, where the
witnesses have expressed no opinions to formalize.
31
assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may: (1)
give an opportunity to properly support or address the fact[.]”
The 2010 Advisory Committee Notes to subdivision (e) state that
summary judgment cannot be granted by default even if
there is a complete failure to respond to the motion,
much less when an attempted response fails to comply with
Rule 56(c) requirements. Nor should it be denied by
default even if the movant completely fails to reply to
a nonmovant’s response. Before deciding on other possible
action, subdivision (e)(1) recognizes that a court may
afford an opportunity to properly support or address the
fact. In many circumstances this opportunity will be the
court’s preferred first step.
FEDERAL CIVIL JUDICIAL PROCEDURE & RULES 258 (Thomson Reuters, 2013
Revised Ed.); see also Mulrooney v. Corp. Serv. Co., No. 12-163,
2013 WL 1246769, at *16 (D. Del. Mar. 27, 2013) (invoking Rule
56(e)(1) and granting the plaintiff “another opportunity to
properly support his factual assertions” and citing other
district court opinions ordering the same). Moreover, the Third
Circuit has indicated that a motion to supplement the summary
judgment record may be granted when the new material is not
merely cumulative of evidence already in the record and if the
new material creates a new question of material fact that may
impact the ruling on the pending motion for summary judgment.
Accord Edwards v. Pa. Tpk. Comm’n, 80 F. App’x 261, 265 (3d Cir.
2003) (affirming the district court’s denial of the plaintiff’s
motion to supplement the summary judgment record because the
evidence “was merely corroborative of evidence already on the
32
record and would not have altered the decision of the district
court”); Jackson v. Ivens, No. 01-555, 2010 WL 2802279, at *1 (D.
Del. July 13, 2010) (denying a motion to supplement the record
for the same reasons).
The Court will grant Plaintiffs 30 days in which to
supplement the record with an expert report that expresses an
opinion as to whether the presence of TCE and/or PCE has caused a
diminution in the value of their properties and an opinion
quantifying the loss in property value, using reliable
methodology and for which the expert is competent.17 See Fed. R.
Civ. P. (a)(2); Fed. R. Evid. 703. Any expert must have suitable
qualifications through education, training or experience in the
specialized field of evaluation of residential property impacted
by environmental pollution, and the expert must employ a reliable
methodology in expressing an opinion that fits the circumstances
of the properties in this case.
The Court’s discretion to permit Plaintiffs to supplement
the record on summary judgment in this case pursuant to Rule
56(e)(1) is warranted in this case for four reasons. First, the
present motion is for partial summary judgment only, meaning that
litigation between these parties will continue regardless of the
motion’s outcome. The parties currently are planning to conduct
17
Additional extensions of time will not be granted to
Plaintiffs.
33
additional expert discovery, pending the resolution of this
motion. In light of the fact that the parties likely face many
additional months of litigation addressing the other remaining
issues, another 30 days for Plaintiffs to submit an expert report
will not lead to undue delay the resolution of this matter.
Second, based on the material presently before the Court, it is
highly probable that Plaintiffs could create a genuine issue of
material fact as to the loss of property value with an admissible
expert report. Plaintiffs’ assertion of diminished property value
is not fanciful or mere speculation. Plaintiffs have supplied the
Court -- albeit, to date, not in admissible form -- with
documents consistent with the contention that the Leeses, at
least, have suffered a loss related to conditions emanating from
Lockheed Martin’s property across the street, as reflected in
their reduced tax assessment allegedly due to the contamination.
The testimony by the realtor witnesses further gives the
impression that contaminated properties carry a stigma that
affects their value. Common sense likewise instructs that
residential properties that contain potentially harmful chemicals
would be less desirable, and thus, less valuable, than noncontaminated properties in the eyes of a prospective buyer or
tenant -- although the burden remains on Plaintiffs to prove that
intuition with admissible evidence. While none of the material
described above is evidence sufficient to defeat summary
34
judgment, it is enough to convince the Court that granting
summary judgment at this time would foreclose a possibly
substantial and meritorious claim. Third, an expert opinion on
property value will not inject a new or surprising issue or claim
into the case, thereby prejudicing Defendant.18 Fourth, Defendant
has not proffered an expert of its own to defend Plaintiffs’
diminished property value claim, so Defendant will not be
prejudiced by having an expert revisit the same subject; indeed,
if Plaintiffs serve a timely expert’s report, Defendant will have
a full opportunity to retain its own expert if it chooses to do
so.
Plaintiffs’ lack of diligence ought to have its
consequences, however, because Plaintiffs did not retain a
suitable expert or serve a report in the time required by the
earlier scheduling orders in this case and prior to the start of
the summary judgment motion practice. Therefore, to minimize
prejudice to Defendant, who has already deposed the Plaintiffs’
two realtor witnesses twice, the Court will require Plaintiffs,
18
Plaintiffs have not requested the opportunity to submit
an expert report on medical causation. Therefore, the opportunity
to supplement the record will be granted only as to the
diminution of property value. Furthermore, with respect to
medical causation, there is a distinct and palpable lack of
evidence linking any medical condition to the trace levels of
chemicals that are sometimes detected. It would be futile to
further enlarge the opportunity for expert testimony supporting
medical causation when the present record is so bereft of a
basis.
35
at their own expense, to furnish their expert for deposition by
Defendant and to pay their expert’s reasonable fee for up to four
hours of such deposition; Defendant is responsible for
reimbursing the expert’s fee beyond four hours of deposition
testimony, for up to three additional hours; and the total time
for this deposition is limited to one day of not more than seven
hours unless counsel otherwise agree.
The Court therefore defers decision, pursuant to Rule
56(e)(1), upon Defendant’s motion for partial summary judgment as
it pertains to the injury of lost property value, pending
Plaintiffs’ submission of a new expert report. In the event
Plaintiffs fail to supplement the record by submitting such
report within thirty (30) days of the entry of this Order, the
Court will grant partial summary judgment for Defendant upon the
lost property value damages claims of these Plaintiffs.
If Plaintiffs timely submit such an expert’s report,
Defendant will have the opportunity to rebut same within thirty
(30) days thereafter with their own expert’s report accompanied
by a curriculum vitae.
V. Conclusion
Defendant is entitled to partial summary judgment to the
extent Plaintiffs allege bodily injury to the Leese children.
Plaintiffs’ request to qualify Ms. Coleman and Ms. Krisanda as
expert witnesses is denied. Defendant’s motion, as it pertains to
36
Plaintiffs’ diminished property value, is temporarily deferred,
and Plaintiffs will be granted 30 days in which to furnish the
Court, and opposing counsel, with an expert report expressing an
opinion and quantum of diminished property value for each
residential property, as well as causation thereof. The
reimbursement of the expert’s fee for the first four hours of a
deposition is shifted to Plaintiffs. If no such expert’s report
is timely submitted, the Court will enter partial summary
judgment for Defendant upon Plaintiffs’ claims for damages for
diminished property value. An accompanying Order will be entered.
September 30, 2013
Date
s/ Jerome B. Simandle
Jerome B. Simandle
Chief U.S. District Judge
37
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