                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-13-2007

Player v. Motiva Entr
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1663




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                                                NOT PRECEDENTIAL

    IN THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                 _______________

                     No: 06-1663
                   _______________

 JEFF PLAYER; CHERYL PLAYER; CHESTER J. BESARA;
SUSAN BURCAW; LEWIS BURCAW; DONALD BURTON;
     JACKIE BURTON; BRIAN L. CHORZELEWSKI;
        THOMAS CLAUSS; MARGARET CLAUSS;
  TERRI CONCANNON; JOHN FLOLO; THOMAS HAAS;
         JEFF JOHNSON; CYNTHIA JOHNSONN;
   SUSAN KAMMERHOFF; MICHAEL KAMMERHOFF;
    HARRY KLEMOWITZ; ELIZABETH KLEMOWITZ;
     PHILLIP KRAJEWSKI; COLLEEN KRAJEWSKI;
MARK LEASON; MICHELLE LEASON; DARLEEN LITTON;
    JAMES LITTON; DAVID LODI; JOSEPH MINNER;
       JANICE MONAHAN; SAMUEL PALMUCCI;
     KATHLEEN PALMUCCI; DANIEL RODRIGUEZ;
       MARTHA RODRIGUEZ; TOM SANKIEWICZ;
        TINA SANKIEWICZ; CALVIN SIMMONS;
       NORMA SIMMONS; THOMAS SLONAKER;
      ROSEANNE SLONAKER; BILL STEPHENSON;
     DOROTHY STEPHENSON; BARBARA TANNER;
JOHN WALLACE; MARIA WALLACE; PAT WOLFENDEN;
                 DAVID WOLFENDEN

                              v.

       MOTIVA ENTERPRISES, LLC, a successor
               in interest to Star Enterprises;
        JANE DOES 1-50; JOHN DOES 1-50, all
          fictitious names for person or entities
         whose identities are presently unknown


          Jeff Player, Cheryl Player, Chester J. Besara;
         Susan Burcaw, Lewis Burcaw, Donald Burton,
       Jackie Burton, Brian L. Chorzelewski, John Flolo,
      Thomas Clauss, Margaret Clauss, Terri Concannon,
                     Thomas Haas, Jeff Johnson, Cynthia Johnson,
              Susan Kammerhoff, Michael Kammerhoff, Harry Klemowitz
                  Elizabeth Klemowitz, Philip Krajewski, David Lodi,
                  Colleen Krajewski, Mark Leason, Michelle Leason,
                  Joseph Minner, Janice Monahan, Samuel Palmucci,
               Kathleen Palmucci, Daniel Rodriguez, Martha Rodriguez,
                 Tom Sankiewicz, Tina Sankiewicz, Calvin Simmons,
                Norma Simmons, Thomas Slonaker, Roseanne Slonaker,
                Bill Stephenson, Dorothy Stephenson, Barbara Tanner,
                   John Wallace, Maria Wallace, Pat Wolfenden and
                                  David Wolfenden,

                                               Appellants
                                _______________

                  On Appeal from the United States District Court
                          for the District of New Jersey
                              (D.C. No. 02-cv-03216)
                   District Judge: Honorable Robert B. Kugler
                                _______________

                    Submitted Under Third Circuit LAR 34.1(a)
                                  May 7, 2007

           Before: RENDELL, JORDAN, HARDIMAN, Circuit Judges.

                               (Filed: July 13, 2007)
                                _______________

                           OPINION OF THE COURT
                               _______________




JORDAN, Circuit Judge.

                                         2
       Plaintiffs, Jeff and Cheryl Player and several of their neighbors, appeal the

decision of the United States District Court for the District of New Jersey granting a

Daubert motion to exclude their damages expert, Daniel McDonald, and granting

summary judgment in favor of Defendant Motiva Enterprises, LLC (“Motiva”). Plaintiffs

argue that the District Court abused its discretion in finding that McDonald was not

qualified and that his methodology was unreliable. They also contend that the District

Court erred by not conducting a hearing before ruling on the Daubert motion.

Alternatively, Plaintiffs argue that, even if McDonald’s testimony was properly excluded,

there was still sufficient evidence in the record to establish that they were injured by

Motiva, and, thus, the District Court should not have granted Motiva’s motion for

summary judgment on Plaintiffs’ negligence claim. Lastly, Plaintiffs assert that the

District Court erred in dismissing their claim under the New Jersey Environmental Rights

Act (“ERA”). For the following reasons, we will affirm the decision of the District Court.

                                              I.

       Plaintiffs are the current and former owners of residential properties located in

Gloucester Township, New Jersey. Plaintiffs assert numerous claims against Motiva, all

relating to their central allegation that, in or about April 2000, Motiva was responsible for

the discharge of hazardous substances from a gasoline service station into the soil and

groundwater near Plaintiffs’ properties. The District Court provided an extensive review

of the undisputed facts in this case, see Player v. Motiva Enters. LLC, No. Civ. 02-3216,

2006 WL 166452, at *1-3 (D.N.J. Jan. 20, 2006). Because we write only for the parties

                                              3
and because the appeal challenges only the District Court’s legal conclusions, we limit

our discussion of the facts to those necessary to address the parties’ arguments, after

providing some basic background information.

       Plaintiffs own twenty-seven parcels of residential property in Gloucester

Township.1 Only one of those properties, 583 Berlin Cross Keys Road, is connected to

the municipal water supply. That property is owned by John and Maria Wallace, who

admitted that their drinking water was not affected by the leak at Motiva’s gasoline

station. The other twenty-six properties all draw their drinking water from potable wells

connected to the Kirkwood-Cohansey Aquifer, and, unlike the Wallaces, the owners of

those properties claim that Motiva has contaminated their drinking water.

       Pursuant to a directive issued by the New Jersey Department of Environmental

Protection (“NJDEP”), Motiva tested Plaintiffs’ wells for volatile organic compounds

(“VOCs”) associated with gasoline. According to the District Court’s review of those test

results, eighteen of the properties showed no signs of contamination, and although VOCs

were detected in the wells of the other eight properties, the detected amounts were within

the permissible range for potability set by the NJDEP’s Ground Water Quality Standard

(“GWQS”). Plaintiffs do not argue that the District Court’s discussion of the test data

was inaccurate.

                                             II.


       1
       Two of the original plaintiffs were voluntarily dismissed from the case; one has
passed away.

                                             4
       The District Court granted summary judgment in favor of Motiva with respect to

all of Plaintiffs’ claims. On appeal, however, Plaintiffs challenge only the District

Court’s decisions with respect to the exclusion of expert testimony and the granting of

summary judgment against them on their negligence claim and their New Jersey

Environmental Rights Act (“ERA”) claim. Following is a summary of the reasoning of

the District Court as to each of those rulings.

                                              A.

       The District Court granted Motiva’s Daubert motion to exclude the testimony of

McDonald on two alternative grounds. First, the District Court found that McDonald was

not qualified to opine on the value of Plaintiffs’ properties. Although McDonald had

been a licensed appraiser in New Jersey for twenty-two years, the District Court

determined that McDonald was not qualified to offer an opinion in this case because he

had no particular experience in appraising property that had been devalued by

contamination or the stigma of contamination.

       Second, the District Court found that McDonald’s report was based on unreliable

methodology. The Court explained that McDonald divided Plaintiffs’ properties into two

groups: those that had detected levels of VOCs in their potable wells and those that did

not. McDonald concluded that the properties with no contaminants detected in their

drinking water suffered a thirty-five percent loss in market value, and that the properties

with any amount of detected contamination lost sixty-six percent of their market value.

The District Court discussed each calculation individually and concluded that both were

                                              5
the product of unreliable methodology.

       In his report, McDonald explained that, for the properties with no detected

contamination, damages were based on the stigma that normally attaches to property near

a contamination site. To quantify that stigma, McDonald compared Plaintiffs’ properties

with properties located near a contamination site in Dover Township, New Jersey.

McDonald determined that the contamination site in Dover Township was in the final

stage of recovery, but the properties near that site were still suffering from a thirteen

percent loss in value. He then concluded that, because Plaintiffs’ properties were in an

earlier stage of recovery, the loss in value must be two to three times greater than that of

the Dover properties, or about thirty-five percent.

       The District Court found that McDonald’s conclusion was based on a “highly

misleading analogy.” The Court pointed out that, unlike this case, the ground water

contamination in Dover Township caused a relatively large number of children to develop

cancer. Moreover, McDonald admitted that he selected the Dover Township site because

the data was readily available, not because it was a comparable site. The District Court

thus held that the severity of the contamination and the resulting illnesses in Dover

Township made it inappropriate to compare that site with Plaintiffs’ properties, “where

there were few detections of contaminants and no reported physiological effects.” (Dist.

Ct. Op. at 23.)

       For the properties that had detected levels of VOCs in their potable wells,

McDonald determined that there was a sixty-six percent loss in value because, in addition

                                              6
to stigma, there would also be a loss in value due to the lack of financing options

available to potential buyers. According to his report, McDonald sent a survey to thirteen

lenders. McDonald claimed that the six lenders who responded said they would not

approve a loan to purchase Plaintiffs’ properties, or they would require substantial

conditions on such a loan. As a result, McDonald concluded that, “it can be assumed that

a purchaser with private financing or cash would be the only potential buyer.” (Appx. at

A245.) Based on the three years of data that McDonald reviewed, the only two homes in

the same area as Plaintiffs’ properties that were purchased in cash were sold for

$39,205.00 and $47,000.00. McDonald then reasoned that, “since the properties in

question are superior to the two recent cash purchases, it would be conservative to say

that a discount of 66% is supported for houses that have on site contamination.” (Appx.

at A246.)

       The District Court concluded that the initial premise relied upon by McDonald –

that any potential buyer would have to pay cash – was not well-founded. It was based on

an e-mailed survey2 that received responses from only six lenders, one of which refused

to comment and another of which said it would loan to a buyer under certain


       2
         The word “survey” actually gives McDonald’s work a greater air of scientific
validity than is warranted. He sent an e-mail to a handful of lenders and asked a question
fashioned, it seems, to get the negative answer his clients hoped for. He told the lenders
he was valuing property and had to “consider a number of detrimental conditions. One ...
is the difficulty of getting financing for a contaminated site ... .” (Appx. at A245.) If you
load the question (e.g., positing contamination) and then tell someone you expect an
outcome (e.g., difficulty in getting financing), being told that may indeed be the outcome
hardly seems a fair confirmation of a neutral hypothesis.

                                              7
circumstances. Furthermore, the District Court explained, of the four lenders that said

they were unwilling to extend a loan, at least one of them appeared to have misunderstood

McDonald’s survey question. That lender apparently thought McDonald was referring to

property with contamination so severe that it was not in compliance with state

environmental requirements. The District Court concluded that “the reliability of the

66% figure is entirely invalidated by the overemphasis placed on the four responses to the

email hypothetical, the misleading implication in the email hypothetical, suggesting a

much greater contamination of the property than actually present, and the unclear

calculations and assumptions underlying McDonald’s arrival at 66%.” (Dist. Ct. Op. at

24.)

                                             B.

       The District Court granted summary judgment in favor of Motiva on Plaintiffs’

negligence claim because Plaintiffs failed to present evidence showing that their property

had been damaged. Plaintiffs’ primary proof of damages, McDonald’s expert report, had

been excluded by the District Court, but Plaintiffs pointed to other evidence that they

claimed established property damage. Specifically, Plaintiffs submitted contracts, some

un-executed, for the sale of several of Plaintiffs’ properties. The District Court found the

contracts to be unpersuasive, because Plaintiffs simply left it “to the Court’s imagination

to ascertain how [the] contracts demonstrate a loss in value.” (Dist. Ct. Op. at 31.)

Plaintiffs also presented the sworn testimony of Maria Wallace, who claimed that a man

offered to buy her home and another property together for her asking price of

                                             8
$500,000.00, but reneged after she told him about the leak at the Motiva gasoline station.

The District Court noted, however, that Ms. Wallace was never given an offer in writing

and had no evidence of the man’s motive for withdrawing his offer, other than her own

testimony. As a result, the Court concluded that, even when construed in the light most

favorable to Plaintiffs, the evidence presented was not enough for a reasonable juror to

conclude that Ms. Wallace’s property lost value.

                                             C.

       The District Court also granted summary judgment in favor of Motiva on

Plaintiffs’ claim under the ERA. The ERA provides that “[a]ny person may commence a

civil action in a court of competent jurisdiction against any other person alleged to be in

violation of any statute, regulation or ordinance which is designed to prevent or minimize

pollution, impairment or destruction of the environment.” N.J. Stat. Ann. § 2A:35A-4.

Plaintiffs used the private right of action provided by the ERA to try to enforce the New

Jersey Spill Compensation and Control Act (“Spill Act”). Specifically, Plaintiffs alleged

that Motiva violated the ERA because the leak from Motiva’s gasoline station constituted

a discharge within the meaning of the Spill Act, and, therefore, Motiva was liable for all

cleanup and removal costs.

       The District Court dismissed Plaintiffs’ ERA claim for two reasons. First, the

Court held that Plaintiffs’ claim was preempted by the NJDEP’s enforcement of the Spill

Act. The Court explained that, when the NJDEP takes action pursuant to the Spill Act, a

private claim under the ERA is preempted unless the NJDEP “has failed or neglected to

                                              9
act in the best interest of the citizenry or has arbitrarily, capriciously or unreasonably

acted.” Superior Air Prods. Co. v. NL Indus., Inc., 522 A.2d 1025, 1033 (N.J. Super. Ct.

App. Div. 1987). The District Court concluded that the record indicated “consistent and

pervasive NJDEP oversight of the remediation process,” and that, as a result, Plaintiffs’

private ERA action was not permitted.

       Alternatively, the District Court held that Plaintiffs failed to comply with the

notice provision of the ERA, which states that:

       No action may be commenced pursuant to this act unless the person seeking
       to commence such suit shall, at least 30 days prior to the commencement
       thereof, direct a written notice of such intention by certified mail, to the
       Attorney General, the Department of Environmental Protection, the
       governing body of the municipality in which the alleged conduct has, or is
       likely to occur, and to the intended defendant.

N.J. Stat. Ann. § 2A:35A-11. Plaintiffs did not argue that they provided the required

notice, but rather that Motiva was estopped from raising the issue because it had not done

so earlier in the case. The District Court rejected that argument. It found that, because

the ERA’s notice provision was intended to provide the Attorney General and the NJDEP

with the opportunity to intervene and was not meant merely to protect defendants, Motiva

was allowed to raise the issue for the first time at the summary judgment stage.

                                              III.

       As earlier noted, Plaintiffs appeal the order of the District Court granting Motiva’s

motion to exclude the testimony of Daniel McDonald and granting Motiva’s motion for

summary judgment. The District Court had subject matter jurisdiction over this case


                                              10
pursuant to 28 U.S.C. § 1332. We have jurisdiction to review the District Court’s order

pursuant to 28 U.S.C. § 1291.

                                              A.

       Under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), we review the

District Court’s decision to exclude proposed expert testimony for an abuse of discretion.

Citizens Fin. Group, Inc. v. Citizens Nat’l Bank of Evans City, 383 F.3d 110, 118 (3d Cir.

2004). Regarding the admissibility of expert testimony, Federal Rule of Evidence 702

provides that:

       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or
       education, may testify thereto in the form of an opinion or otherwise, if (1)
       the testimony is based upon sufficient facts or data, (2) the testimony is the
       product of reliable principles and methods, and (3) the witness has applied
       the principles and methods reliably to the facts of the case.

Because we conclude that the District Court did not abuse its discretion in holding that

McDonald’s methodology was unreliable, we do not address the District Court’s

alternative finding that McDonald was not qualified.

       McDonald’s report states that he used the Detrimental Condition Model (“DCM”)

to determine that the group of Plaintiffs whose properties had no signs of contamination

suffered a loss of thirty-five percent of the market value of their homes. According to

McDonald, the DCM illustrates how the market value of property is affected by a

detrimental event, such as environmental contamination, and by the subsequent stages of

recovery. Essentially, as interpreted by McDonald, the DCM model suggests that

                                              11
property experiences a drastic drop in market value immediately after a detrimental event

occurs and that it regains value during four stages of recovery.

       In order to place a specific numeric value on the damages that Plaintiffs incurred,

McDonald analyzed the sales of homes in an area of Dover Township, New Jersey that

had also experienced ground water contamination. He found that, even though the Dover

Township contamination site was in the final stage of recovery, homes were still selling at

a discount of thirteen percent below market value. McDonald then used the following

approach to calculate the loss in value for Plaintiffs’ properties:

       The subject area is in stage D of recovery, which is the beginning of the
       remediation process. Based on the acceptance of the Detrimental Condition
       Model as a viable process for valuing Detrimental Conditions to Real
       Estate, by the appraisal community, and the Subcommittee on Housing and
       Community Opportunity of the House Committee on Financial Services, it
       would be logical to assume that the discount to the properties which are the
       subject of this report, would be 2 to 3 times that of properties in the final
       stage of recovery. In this case a discount of 35% would be considered
       reasonable for properties that are affected by the ground water
       contamination and or the stigma that has resulted from the ground water
       contamination.

(Appx. at A244.) Thus, McDonald assumed that because Plaintiffs’ properties were near

a contamination site in the early stages of recovery they would have a loss in value two to

three times greater than that of property near a contamination site in the final stage of

recovery. We agree with the District Court that such guess work is not a reliable method.

See Kannankeril v. Terminix Int’l, Inc., 128 F.3d 802, 806 (3d Cir. 1997) (“In order for

the expert testimony to be ‘reliable,’ we have required that the testimony be based on the

‘methods and procedures of science,’ rather than on ‘subjective belief or unsupported

                                              12
speculation.’”).

       Plaintiffs point out that the District Court never held that the DCM itself was

unreliable. That is correct, but inapposite. As McDonald recognized in his report and

Plaintiffs reiterate in their briefing, the DCM is a model that suggests a general

relationship between the recovery process and property value. It has not been shown to

be a reliable method for determining the loss in value due to contamination. McDonald

arrived at a loss figure by comparing Plaintiffs’ properties with properties near a

contamination site in Dover Township and then assuming additional loss. It is that

calculation-by-assumption method which the District Court found to be unreliable. The

District Court certainly had the discretion to exclude “opinion evidence that is connected

to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S.

136, 146 (1997).

       Plaintiffs argue that McDonald’s use of the Dover Township contamination site as

a comparison was not unreliable. Specifically, Plaintiffs claim that there was no evidence

to indicate that the stigma associated with the Dover site was significantly greater than the

perception of Plaintiff’s residential area. However, the problem recognized by the

District Court was that McDonald also had no evidence indicating that the contamination

in Dover Township was similar to the contamination at issue in this case. As the District

Court pointed out, McDonald said that he selected the Dover site because he did not know

of any other cases “where the data was as readily available.” (Dist. Ct. Op. at 22.) In

fact, he knew nothing about the type or degree of contamination in Dover Township, and

                                             13
his report mentions nothing about the degree to which Plaintiff’s properties were

contaminated. Moreover, the little that McDonald apparently did know about the two

sites indicated that they were not comparable. For example, McDonald acknowledged

that the contamination in Dover Township caused children to develop cancer, whereas

there was no such effect noted in this case. In short, there was no basis for saying that the

Dover contamination site is similar to the properties involved in this litigation. As a

result, it was within the District Court’s discretion to exclude McDonald’s testimony. Cf.

Gen. Elec. Co., 522 U.S. at 144-45 (holding that the animal studies relied upon by the

expert were so dissimilar to the facts of the case that the district court did not abuse its

discretion by excluding the expert’s testimony).

       Plaintiffs do not argue that the survey McDonald conducted was a reliable method

for determining that only cash purchasers would be able to buy contaminated property.

Instead, Plaintiffs attempt to downplay that portion of McDonald’s analysis, claiming that

it was “a small part” of his valuation. However, McDonald determined that the

contaminated properties had a loss in value nearly double that of the properties that had

no signs of contamination. The only reason he gave for that difference in value was the

lack of financing options available to buyers interested in purchasing contaminated

property. Thus, it was clearly not “a small part” of his valuation.

       Plaintiffs also argue that, even if McDonald’s methodology was flawed, his

ultimate calculation “is logical and supportable simply as a matter of common sense.”

Common sense is enough to dispose of that argument. Rule 702 permits opinions that are

                                              14
the “product of reliable principles and methods.” Notwithstanding Plaintiffs’ affinity for

their expert’s conclusions, they were obligated to demonstrate that those conclusions met

the requirements of the rule. They failed in that obligation.

       Plaintiffs’ last ditch effort is to argue that the case should be remanded because, at

a minimum, they were entitled to a hearing on the admissibility of McDonald’s testimony.

However, on this record it was within the District Court’s discretion to decide the motion

without a hearing. See Oddi v. Ford Motor Co., 234 F.3d 136, 154 (3d Cir. 2000)

(holding that an in limine hearing was not required when the proponent of the excluded

testimony failed to show how such a hearing would have aided the court’s decision).

                                             B.

       Plaintiffs argue that, even if we determine McDonald’s testimony was properly

excluded, the District Court erred in granting summary judgment for Motiva on Plaintiffs’

negligence claim because there was still sufficient evidence in the record to establish that

their properties lost value. Specifically, Plaintiffs point to Exhibits N through R, which

they submitted to the District Court in opposition to Motiva’s motion for summary

judgment. We exercise plenary review over the District Court’s grant of summary

judgment, and we apply the same well-known test for the propriety of summary

judgment, Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007), namely, whether “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact” and

whether “the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

                                             15
56(c). We “must view the facts in the light most favorable to the nonmoving party and

draw all inferences in that party’s favor.” Andreoli, 482 F.3d at 647. After reviewing the

exhibits cited by Plaintiffs, we agree with the District Court that, based on those exhibits

alone, no reasonable juror could conclude that Plaintiffs’ properties lost value.

       Exhibit N is an un-executed contract for the sale of Dorothy Mitchell’s property.

Exhibit P is a contract for the sale of John Flolo’s property, which was later cancelled for

a reason that is not clear from the record. Exhibit Q consists of a listing agreement for

David and Diane Lodi’s home, stating that the listing price is $169,900.00, and a

subsequent contract for the sale of that home for $104,000.00. Exhibit R consists of two

documents: a settlement statement indicating that Thomas and Tina Stankiewicz

purchased a home for $105,500.00 in February 1989, and another settlement statement

indicating that the Stankiewiczs sold that home in August 2000 for $114,900.00.

       Plaintiffs fail to show how any of those documents demonstrate that their

properties lost value following the gasoline station leak.3 And, if a jury were to consider


       3
       Plaintiffs argue, in a single paragraph, that the documents are evidence of
property damage. That paragraph reads as follows:

       Although since the release there have been very few actual sales of the
       subject property, evidence of sales which were impacted was presented to
       the District Court. A. 824-879. For example, Plaintiff David Lodi listed his
       home ... for sale in April 2001, prior to notification of the Motiva release,
       with the multiple listing service for $169,000.00. A. 861-74. It sold for
       $104,000.00. Id. This is evidence of damage which need not, as a matter of
       law, require expert testimony. Cf. New Jersey Sports & Exposition
       Authority v. Cariddi, 84 N.J. 102, 104-105 (1980).


                                             16
those documents without any context, which is how Plaintiffs have presented them, the

jury would have to rely on assumptions and speculation to conclude that Plaintiffs have

proven an injury. For example, a jury would have to assume that the contract in Exhibit P

was cancelled because the property had lost value. But, there is no evidence suggesting

that that was the reason. Similarly, for Exhibit Q, a jury would have to determine

whether the property sold for less than its listing price because it lost value or because of

any number of other possible reasons, such as the listing price having been set too high or

the owners having been eager to sell. Plaintiffs have not adduced any evidence that

would assist a jury in sorting out such possibilities. Thus, we find that no reasonable jury

could conclude, based on the evidence presented, that Plaintiff’s properties were

damaged.

       Plaintiffs also claim that Exhibit O, the deposition testimony of Maria Wallace,

demonstrates that her home declined in value by $150,000.00. Ms. Wallace testified that

she was trying to sell her home and her father-in-law’s home together. According to Ms.

Wallace, a man offered to pay the listing price of $500,000.00 for both properties, but

when she told him about the gasoline leak nearby, he decided that he only wanted to buy

her father-in-law’s property because it was farther away from the contamination site. Ms.

Wallace refused to sell just the one property, so the man retracted his offer.

Subsequently, another buyer offered to purchase both properties for $350,000.00, without



(Appellant’s Br. at 25.)

                                             17
even asking what the listing price was. Ms. Wallace told the buyer about the

contamination, but he did not revoke or reduce his offer.

       As with Plaintiffs’ other exhibits, Ms. Wallace’s deposition testimony does not

demonstrate that her home declined in value. Plaintiffs’ theory appears to be that the

difference between the offer made by the first potential buyer and the offer made by the

second represents a loss in value. Leaving aside other problems with that proof, it is

inadequate because Plaintiffs fail to acknowledge that Ms. Wallace sold two properties

together. Their theory requires a jury to determine how much, if any, of the $150,000.00

difference in the two offers was due to a loss in value in Ms. Wallace’s home. Plaintiffs

do not point to any evidence that would enable a jury to make such a determination.

Therefore, we hold that no reasonable jury could conclude, based on Ms. Wallace’s

testimony, that her property declined in value.

       In sum, we agree with the District Court that Plaintiffs have not identified any

evidence that would allow a jury to find that Plaintiffs suffered an injury following

Motiva’s allegedly negligent behavior. The District Court therefore properly granted

Motiva’s motion for summary judgment.4


       4
        Plaintiffs argue that the District Court erred by granting summary judgment in
favor of Motiva without addressing their claim that Motiva’s negligence caused them to
suffer a loss of quality of life. However, in response to Motiva’s motion for summary
judgment, Plaintiffs did not mention their claim for lost quality of life. We have held that,
where the party opposing a motion for summary judgment bears the ultimate burden of
proof, the moving party may discharge its initial burden of showing that there is no
genuine issue of material fact by “‘showing’ – that is, pointing out to the district court –
that there is an absence of evidence to support the nonmoving party’s case.” UPMC

                                             18
                                             C.

       Plaintiffs contend that the District Court erred by permitting Motiva to raise the

issue of Plaintiffs’ noncompliance with the ERA’s notice provision for the first time in its

motion for summary judgment. Whether Plaintiffs’ compliance with the ERA’s notice

provision is a mandatory precondition or one that could have been waived is a question of

law, and, accordingly, we exercise plenary review. See Knight v. Int’l Longshoremen’s

Ass’n, 457 F.3d 331, 340 (3d Cir. 2006) (appellate review over questions of law is

plenary). Plaintiffs also argue that the District Court erred by holding that their ERA

claim was preempted by the NJDEP’s enforcement of the Spill Act. Because we

conclude that compliance with the ERA’s notice provision is mandatory, we do not

address the issue of preemption.

       The notice provision of the ERA states that “[n]o action may be commenced

pursuant to this act unless the person seeking to commence such suit” provides at least 30

days notice to the Attorney General, the NJDEP, the municipality in which the relevant

conduct occurred, and the intended defendant. N.J. Stat. Ann. § 2A:35A-11. There is no


Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). If the moving party
has satisfied its initial burden, the nonmoving party must, in their opposition to the
motion, identify evidence of record that creates a genuine issue of material fact. Childers
v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988). The nonmoving party cannot later argue,
on appeal, that there is evidence in the record that creates a genuine issue of material fact,
if that evidence was not pointed out to the district court at the time of the motion for
summary judgment. Id. at 694. Assuming there is such a claim to be made, Plaintiffs
never argued to the District Court that there was a genuine issue of material fact regarding
their claim for lost quality of life. Consequently, they cannot now argue that the District
Court erred by failing to consider it.

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New Jersey precedent addressing the issue of whether the ERA’s notice provision is a

mandatory precondition to a lawsuit or a requirement that can be waived at the discretion

of the trial court. Therefore, we must predict how the New Jersey Supreme Court would

rule if faced with the issue. Covington v. Continental Gen. Tire, Inc., 381 F.3d 216, 218

(3d Cir. 2004). “In carrying out that task, we must consider relevant state precedents,

analogous decisions, considered dicta, scholarly works, and any other reliable data

tending convincingly to show how the highest court in the state would decide the issue at

hand.” Id. (quoting Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1046 (3d Cir.

1993)). Here, a decision by the United States Supreme Court on an analogous issue

provides a reliable basis for our decision.

        In Hallstrom v. Tillamook County, 493 U.S. 20 (1989), the Supreme Court

considered the effect of the notice provision in the Resource Conservation and Recovery

Act of 1976 (“RCRA”). When that case was decided, RCRA’s notice provision provided

that:

        No action may be commenced under paragraph (a)(1) of this section - (1)
        prior to sixty days after the plaintiffs has given notice of the violation (A) to
        the Administrator [of the EPA]; (B) to the State in which the alleged
        violation occurs; and (C) to any alleged violator of such permit, standard,
        regulation, condition, requirement, or order.

Id. at 25-26; see also 42 U.S.C. § 6972(b)(1) (1982). The Court interpreted the language

“no action may be commenced” to mean that compliance with the notice provision was a

mandatory condition precedent to commencing a private suit under RCRA, and that a

district court could not disregard that requirement. Hallstrom, 493 U.S. at 26, 31. As a

                                               20
result, the Supreme Court held that the plaintiffs’ failure to comply with the notice

provision required dismissal of the action, even though the case had been litigated for

nearly four years and there had been a determination on the merits. Id. at 32.

       Because the ERA contains the same “no action may be commenced” language as

RCRA,5 we find the Supreme Court’s reasoning in Hallstrom to be particularly

persuasive. Plaintiffs provide no reason why we should not apply that reasoning in this

case. Therefore, we conclude that the notice provision of the ERA is a mandatory

condition precedent to bringing a private cause of action under the ERA, and, since the

District Court could not have held that requirement waived, it did not err by allowing

Motiva to raise it for the first time at the summary judgment stage.

                                            IV.

       For the foregoing reasons, we will affirm the decision of the District Court.




       5
        The District Court wrongly stated that the ERA lacks the “no action may be
commenced” language of RCRA. (Dist. Ct. Op. at 40.) The notice provision of the ERA
that was in effect when Plaintiffs filed their complaint in 2002 in fact did contain the “no
action may be commenced” language. N.J. Stat. Ann. § 2A:35A-11 (2001).

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