After 18 months, a mountain of paperwork has been generated in the Stevens Institute of Technology's complicated lawsuit against the non-profit waterfront group the Fund for a Better Waterfront. The defamation suit concerns the FBW's comments about the blasting of rock containing naturally occurring asbestos at one of Stevens' construction sites in early 2002.
Charles Fisher, the attorney for Stevens, argued that FBW leaders Ron Hine and Aaron Lewit allegedly made repeated false and malicious statements about the asbestos issue in an attempt to impede the school's development plans on the waterfront. Fisher believes the case should head to a jury.
Hine and Lewit claim that the Stevens' suit is an attempt to stymie public comment, and they asked Thursday for the judge to dismiss the case via summary judgment.
The statements from FBW that have drawn Stevens' ire were in the form of letters to the editor, a letter to Mayor David Roberts, and postings on FBW's website. Stevens says this fueled public hysteria and caused them to spend unnecessary money defending their plans.
Of the 10 statements that were allegedly defamatory, the judge said that only portions of three of them are worthy of going before a jury.
In the beginning of March and April of 2002, Stevens blasted 35,000 tons of the green-veined serpentine rock that makes up Castle Point on Hoboken's central waterfront.
It is uncontested that the rock contains some level of naturally occurring asbestos. In early April, FBW officials alleged that there was a safety hazard due to asbestos, and that Stevens was not taking the precautionary steps necessary to protect the site and the surrounding neighborhood.
"There is no safe level [of asbestos] exposure," said Hine's lawyer Edward Lloyd of the Columbia Environmental Law Clinic repeatedly before Judge Kenny. He added that it is perfectly appropriate for a member of the public or a civic group to petition elected officials over such a public issue.
But Stevens contended that precautions were taken and that there was no health threat at the site. "The evidence is overwhelming that Mr. Hine knew from the beginning there was no health hazard," said Fisher. "He created a false hazard for the purpose of defeating Stevens' [development] plans."
The type of asbestos occurring in the rock did not pose a threat, experts later agreed.
During oral arguments, Kenny went statement by statement, often word by word, to determine whether Stevens could be capable of proving to a jury by "clear and convincing evidence" that the statements made by Hine and Lewit are verifiably false and were made with malice.
Kenny said that requirements for moving forward to a jury trail in a defamation suit are stringent.
"Your client sued individuals and an organization for their comments on a public controversy," said Kenny to the Stevens attorney. "Your burden is high."
Some summary judgment
Judge Kenny's ruling Tuesday was not a slam dunk for either side.
The good news for the FBW was that of the 10 statements in the complaint, only portions of three survived summary judgment. The other seven were dismissed.
The three statements that weren't dismissed were Hine's claims that "no precautions or monitoring" occurred at the site before April 8, 2002; that "nearly every day, significant amounts of chrysotile (white asbestos)" had been detected at the site; and that Stevens dumped "hazardous material in the Meadowlands illegally." (See sidebar.) Stevens contends that all three of the statements can be proven false, and that Hine knew they were false when he said them.
Hine's attorneys claim that the statements were either true or believed by Hine to be true, or were opinion, which is not defamation.
Another favorable rule for the FBW was that the judge determined that the Hine's statements that the blasting was a "health hazard" and "posed a serious health crisis" were not "actionable in terms of defamation" because they were Hine's opinion and based on the information that he had at the time.
Fisher said the judge's ruling to dismiss Hine's statements about the site being a "health hazard" can be appealed and that possibility of an appeal is "under consideration."
Hine's attorney, Renee Steinhagen, who is the executive director of the New Jersey Appleseed Public Interest Law Center, said that this is an important ruling because the judge supported the right of a member of the public to petition public officials, in this case the mayor, about a perceived health hazard.
"These statements are really the heart of the lawsuit," said Steinhagen.
Lewit added that he believes that the suit is a "transparent attempt" to tie up the FBW's resources and stop the organization from objecting to a controversial garage project that was recently approved for the site. According to Lewit, the FBW plans to appeal those approvals.
In fact, the city, at one time, also complained about Stevens. Stevens was, according to the city, attempting to build its 700-car garage when it only had permission from the city for a science center to be built on that site. At that time, construction was temporarily halted, and Stevens had to go before the city's Planning Board to get the approvals. It was partially because the FBW kept an eye on that site and raised concerns that the city was prompted into action.
But the asbestos concerns are what are under debate in the defamation suit.
Thursday's hearing wasn't necessarily bad news for Stevens' case. For one thing, it's now likely that the case will be heading to a jury trail. Most defamation claims never make it all the way to a jury.
"The judge ruled that many of the statements are capable of being defamatory and should be shown to a jury," said Fisher. "Stevens will present experts who will establish that there was no health hazard, and that the defendants' statements were knowingly false."
According to Fisher, their experts will confirm that Stevens met or exceeded all established safety standards for excavation of serpentine rock, and that no health threat was ever posed to the Hoboken community.
On all but three occasions, the suit states, air monitoring of the construction site found less asbestos than acceptable levels for elementary school children re-entering a school building after asbestos has been removed or abated.
Kenny has not yet heard arguments on the issue of whether Stevens Institute was financially damaged by any of these statements. The university is seeking $1 million in damages in addition to legal fees and punitive damages.