                                                                 NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 18-2746
                                     ____________

              ACE PALLET CORPORATION; CHESTER MACINTYRE;
             CYNTHIA UNGER; DEAN UNGER; DOREEN MCINTYRE,

                                                   Appellants

                                            v.

   CONSOLIDATED RAIL CORPORATION; NORFOLK SOUTHERN RAILWAY
        COMPANY; CSX TRANSPORTATION CORPORATION, INC.
                          ____________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                               (D.C. No. 1-16-cv-01614)
                     District Judge: Honorable Robert B. Kugler
                                    ____________

                          Submitted April 4, 2019
   Before: CHAGARES and HARDIMAN, Circuit Judges, and GOLDBERG, District
                                  Judge.*

                                  (Filed: April 5, 2019)




      *
        Honorable Mitchell S. Goldberg, District Judge of the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
                                      ____________

                                       OPINION**
                                      ____________

HARDIMAN, Circuit Judge.

       Ace Pallet Corporation and its owners (collectively, Ace Pallet) appeal a summary

judgment in favor of Consolidated Rail Corporation and its corporate parents (Conrail).

Ace Pallet sued Conrail in tort over a chemical spill caused by a train derailment in

Paulsboro, New Jersey. Ace Pallet claimed a total business loss and a loss of value in its

real property. In support of those damages, Ace Pallet proffered two experts, but the

District Court excluded their testimony under Rule 702 of the Federal Rules of Evidence.

Deprived of the ability to prove causation or damages, summary judgment in favor of

Conrail was a foregone conclusion. The dispositive question in this appeal is whether the

District Court abused its discretion when it struck the expert testimony under Rule 702.

                                             I1

       Ace Pallet retained business valuation expert Chad Keeports to evaluate the

economic impact of the train derailment on November 30, 2012. Keeports valued Ace

Pallet’s business at $580,000 as of the day before the derailment. Keeports then assumed

the following to be true: (1) vinyl chloride emanating from the derailed train


       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       1
        The District Court had diversity jurisdiction under 28 U.S.C. § 1332(a)(1) and 28
U.S.C. § 1441. We have jurisdiction under 28 U.S.C. § 1291.
                                             2
contaminated Ace Pallet’s property, equipment, and inventory; (2) the property was

inaccessible for three to four months; (3) customers were unwilling to purchase Ace

Pallet inventory for fear of contamination; and (4) Ace Pallet could not relocate the

business. Based on these assumptions, Keeports opined that the derailment caused a total

loss of Ace Pallet’s business and estimated Ace Pallet’s damages to be $638,993, which

included additional expenses Ace Pallet incurred after the derailment.

       The District Court excluded Keeports’s opinions for want of a sufficient factual

basis. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590–91 (1993). To be

admissible, expert testimony must be “accompanied by a sufficient factual foundation.”

Elcock v. Kmart Corp., 233 F.3d 734, 755 (3d Cir. 2000) (quoting Gumbs v. Int’l

Harvester, Inc., 718 F.2d 88, 98 (3d Cir. 1983)). As the District Court noted, no facts of

record proved that Ace Pallet suffered a total business loss as a result of the train

derailment. This was not, for example, a fire that completely destroyed Ace Pallet’s place

of business; it was a vinyl chloride spill that may or may not have impacted the business

beyond the roughly two-week evacuation period imposed by the authorities. Supported

only by Ace Pallet’s claim “that they cannot operate and that they cannot return to

operations,” App. 123, Keeports’s testimony “was too speculative to be presented to the

jury.” Elcock, 233 F.3d at 755. The District Court did not err when it excluded this

testimony.

       Ace Pallet’s property appraisal expert, Edward Molinari, was also precluded from

testifying after the District Court found his testimony did not “fit” the facts of this case.
                                               3
See Daubert, 509 U.S. at 591. Although Molinari may have accurately appraised Ace

Pallet’s property as of the day before the derailment, he provided no connection between

that appraisal and the property’s sale price three years later. In a too-simplistic analysis

like the one proffered by Keeports, Molinari merely identified the difference in value

between his pre-derailment appraisal and the price for which the property sold three years

later. Molinari was not asked to gauge the effect of the derailment on the value of the real

estate, so he made no attempt to do so. Nor did Molinari seek to quantify the effect of

myriad other factors that might have affected the sale price. Without the “fit” required by

Daubert, and without an analysis of the derailment’s effect on the property value, the

District Court had no choice but to exclude Molinari’s testimony as well.

                                              II

       Without the testimony of Keeports or Molinari, Ace Pallet had no way to prove

damages. And because damages were an essential element of Ace Pallet’s negligence

claim, see Robinson v. Vivirito, 86 A.3d 119, 124 (N.J. 2014), summary judgment was

proper.

       The lack of causation dooms Ace Pallet’s case as well. The effect of vinyl chloride

exposure on a pallet business or industrial property is beyond “an ordinary juror’s

common sense and experience.” Tormenia v. First Inv’rs Realty Co., 251 F.3d 128, 132

(3d Cir. 2000) (noting New Jersey law requires expert testimony “in cases where lay

jurors confront causation issues that are too complex to be understood without the


                                              4
assistance of specialized expert testimony”). Accordingly, the lack of causation provides

independent support for the District Court’s summary judgment.

                                     *      *      *

      Ace Pallet’s experts did not make the grade required by Rule 702, so the District

Court rightly excluded their testimony. The exclusion of that testimony prevented Ace

Pallet from proving causation or damages. Because both were necessary components of

Ace Pallet’s cause of action, we will affirm Conrail’s summary judgment.




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