Appellate Division Rejects Effort To Narrow Newark Bay Complex Litigation

April 24, 2012 | No Comments
Posted by Paul H. Schneider

The Appellate Division of New Jersey Superior Court has rejected an effort to substantially narrow the scope of the on-going litigation concerning contamination in the Newark Bay Complex, consisting of the lower Passaic River, Newark Bay and the lower reaches of the Hackensack River, the Arthur Kill, and the Kill Van Kull.  The Department of Environmental Protection (DEP) sued Occidental Chemical Corporation and eight others for discharging toxic chemicals from a chemical manufacturing plant located at Lister Avenue in Newark.  DEP claims that the defendant companies are responsible for the discharge of a particularly potent form of DDT that caused substantial environmental and economic damage to the Newark Bay Complex.  Two of the defendants, Maxus Energy Corporation and Tierra Solutions, Inc., filed third party complaints against approximately 300 public and private entities, alleging that these third party defendants had contributed to the contamination.  Maxus and Tierra seek contribution from the third party defendants under both the New Jersey Spill Compensation and Control Act and the Joint Tortfeasors Contribution Law.  Several of the third party defendants moved to dismiss the claims asserted by Maxus and Tierra alleging, among other things, that Maxus and Tierra failed to establish common liability with regard to the allegations contained in DEP’s complaint.

When a trial court in Essex County refused to dismiss the third party complaint, the Appellate Division exercised its discretion and agreed to review that interlocutory decision.  On April 24, 2012 the Appellate Division affirmed the trial court’s decision.  Essentially, the appeals court determined that because this complicated litigation is still in its relatively early stages, in which pretrial discovery has not yet been completed, the motions to dismiss the case are premature.  As a result, this large multi-party litigation will continue.

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