The Importance Of Avoiding Net Opinions In Environmental Cleanup Disputes

• Published date: 11 November 2021
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Oil, Gas & Electricity
• Law Firm: Riker Danzig Scherer Hyland & Perretti
• Author: Holli B. Packer

The Appellate Division's unpublished decision in Meyer v. Constantinou, decided earlier this year, affirmed the exclusion of the testimony of an environmental expert as a "net opinion" for disregarding key facts and data without appropriate reasoning and justification.

Understanding the Admissibility of an Expert's Opinion in New Jersey Courts

Rule 703 of the New Jersey Rules of Evidence provides that an expert must base his or her opinion on facts or data presented at or before trial. The corollary to Rule 703 is the "net opinion" rule, which requires an expert to explain why and how an event took place rather than merely provide a conclusion or "net opinion." See Townsend v. Pierre, 221 N.J. 36, 53-54 (2015); Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); State v. Townsend, 186 N.J. 473, 494 (2006). An expert's opinion becomes inadmissible as a "net opinion" if it is based on speculation, unquantified possibilities, or fails to make the connection between the incident and the resulting damages.

Federal courts use a formalized standard known as the "Daubert factors" as a means to determine whether or not expert testimony should be admissible at trial. In New Jersey, the Daubert factors are used as a "helpful - but not necessary or definitive - guide" for courts to consider when determining whether or not the expert opinion is admissible. In re Accutane Litigation, 234 N.J. 340 (2018). The admission or exclusion of evidence, as well as the determination of an expert's credibility, ultimately lies in the sound discretion of the trial court.

Expert's (In)Action in Environmental Cleanup

The opinion in Meyer v. Constantinou, No. A-1793-18, 2021 WL 1499851 (N.J. Super. Ct. App. Div. Apr. 16, 2021), while unpublished, sheds light on the problems that arise when an expert offers an unsupported, or net, opinion in an environmental cleanup dispute.

In Meyer, a gas station/auto repair shop discovered PCE contamination in the soil on its property when it was remediating chemicals that had leaked from its underground storage tanks. The gas station then initiated legal action against a dry cleaning facility located at a nearby shopping center. At trial, the gas station's expert contended that the PCE contamination migrated downhill from the dry cleaner onto the gas station property. The court held the gas station failed to establish liability and ruled in favor of the defendants, in part because the gas station's expert provided an inadmissible "net opinion" due...