Mary Pat Gallagher All Articles

New Jersey Law Journal
September 21, 2011

The Supreme Court has agreed to decide if a state law widely used to pursue polluters for cleanup costs creates strict liability for all damages arising from the contamination, whether or not a causal link to the original leak can be shown.

The Spill Compensation and Control Act, enacted in 1976, says that a person who discharges a hazardous substance is "strictly liable, jointly and severally, without regard to fault," for all cleanup and removal costs. It is analogous to the federal Comprehensive Environmental Response Compensation and Liability Act but has been interpreted more liberally by New Jersey courts.

On appeal is Department of Environmental Protection v. Dimant, A-2-11, a precedential ruling that requires proof of a nexus between the use or discharge of a hazardous substance and the contamination.

The DEP sued two Bound Brook laundromat/dry cleaners in 2004 to recover the cost of cleaning up nearby wells used for residential drinking water. The wells were contaminated with perchloroethylene (PCE), which is used for dry cleaning and automotive work, and two other chemicals that result from the breakdown of PCE: trichloroethylene (TCE) and dichloroethylene (DCE).

One dry cleaner settled, leaving Sue's Clothes Hanger and its owners as the defendants, though they asserted third-party claims against the people who sold them the business.

In the late 1980s, DEP investigators had found PCE leaking out of a pipe behind the building, as well as TCE.

After a bench trial, Somerset County Superior Court Judge William Dâ??Annunzio found it was not the defendants' brief use of PCE in 1987 and 1988 that caused the contamination but that of their predecessors, who did dry cleaning on the site going back to the 1950s.

Appellate Division Judges Anthony Parrillo, Joseph Yannotti and Marianne Espinosa affirmed, saying the DEP failed to meet its burden of demonstrating the defendants "had some connection to the damages" caused by the contamination or had added to existing contamination.

The DEP's petition for certification urged the Court to hear the case because if left standing, the appellate court's narrow causation standard "would eviscerate the 'polluter pays' principle" that motivated passage of the Spill Act.

And if polluters don't pay, the DEP would have to use tax dollars, which, given budget constraints, would mean many sites remaining contaminated, said the brief by Deputy Attorney General Mark Oshinskie.

The brief mentions that since the appeals court opinion, numerous defendants in similar actions "in which liability had seemed clear" have told the DEP they are unwilling to settle.

Deputy Attorney General Richard Engel estimates that about 30 pending cases could be impacted by Dimant.

"We never had a problem with the idea that there has to be some proximate cause between the discharge and the harm," says Engel.

But Dimant seems "to take it a step further" and require showing "a perfect connection of the exact molecule that was discharged."

The defendants' lawyer, George Hardin of Hardin, Kundla, McKeon & Poletto in Springfield, calls the lower court opinions "a proper application of existing environmental law" and suggests that the DEP "may be exaggerating [their] import ... in order to gain the Supreme Court's attention."

Marc Gaffrey, of Hoagland, Longo, Moran, Dunst & Doukas in New Brunswick, who represents the third-party defendants, says, "It's not enough to say X Company could be a source. You've got to really do your homework and find out what is the probable source of the contamination."

Gaffrey says gas stations, machine operations and other dry cleaners in the area could have been the source, but the state stopped looking once it found Sue's.

Which Medmal Experts Are Allowed?

Also on the agenda is yet another case in which the Court will ponder what kind of doctor can testify against another doctor in a medical malpractice suit.

In Buck v. Henry , A-10-10, decided on Aug. 22, the Court required doctors answering malpractice complaints to specify their area of specialization so plaintiffs can figure out who to go to for an affidavit of merit.

The new appeal, Nicholas v. Mynster , A-6/7-11, added on Sept. 9, tests whether an expert may testify against a physician certified by the American Board of Medical Specialties if the expert is not certified in the same specialty but practices "similar" medicine.

Last December, Atlantic County Superior Court Judge Joseph Kane denied a defense motion to bar the plaintiff's expert because he was not board certified in either emergency medicine or family medicine as were the two defendant doctors.

The plaintiff, Edward Nicholas, went to a hospital emergency room with carbon monoxide poisoning in April 2005.

Christopher Mynster, certified in emergency medicine, placed him on oxygen, prescribed medication and admitted him. Rehka Sehgal, certified in family medicine, diagnosed him and sent him to the intensive care unit and had the oxygen and medication continued.

Nicholas sued the doctors in March 2007, alleging that their failure to order appropriate tests to determine the extent and degree of his injury and properly treat it left him with a seizure disorder and brain damage.

His would-be expert is Dr. Lindell Weaver, head of the hyperbaric unit at LDS hospital in Salt Lake City, which treats gas-poisoning patients. He is board certified in internal medicine, critical care medicine and pulmonary disease.

In trying to block Weaver's testimony, the defendants relied on the Appellate Division decision in Buck , which upheld dismissal of a malpractice claim because the plaintiff's expert did not share the defendant's specialty, though both were certified in emergency medicine.

Kane held that Weaver was a specialist in the course of treatment recommended by both Mynster and Sehgal. His not being certified in the same areas went to credibility not admissibility, as did his statement that he did not know what a family physician would do with a patient like Nicholas, said Kane.

The Court granted the defendants' motion for appeal after the Appellate Division refused.

Nicholas' attorney, Brian Fritz of Saltz Mongeluzzi Barrett & Bendesky in Marlton, was unable to comment by press time.

Sehgal's lawyer, William Theroux of Buckley & Theroux in Princeton, could not be reached.

Timothy O'Brien, of Crammer Bishop Marczyk & O'Brien in Absecon, who represents Mynster, did not return a call.