The case centered on comments FBW Executive Director Ron Hine and President Aaron Lewit made at public meetings and through the press about the blasting of rock at one of Stevens' construction sites in early 2002. The rock contained naturally occurring asbestos.
From the beginning, lawyers from the FBW said Stevens was using its lawsuit as a strategy to "shut down and silence" a civic organization that had been critical of Stevens' development plans. FBW also had complained to City Hall about Stevens' garage construction, which seemed to be above the boundaries of what had been allowed by the city's Planning Board. City Hall agreed and temporarily ordered Stevens to stop the construction. But the lawsuit was only concerned with Stevens' comments on the rock blasting. Stevens' attorneys claimed that Hine and Lewit knowingly made "false statements" that created a "false health issue," and that they did it "with malice."
While the judge dismissed the final count, he worded his ruling in such a way that opens the door for appeal, said Stevens attorney Charles Fisher for the Princeton firm of Windels, Marx, Lane & Mittendorf.
In fact, Judge Fred Theemling's decision stated that it was possible that a jury could be made to conclude that the FBW "mounted a deliberate attack against Stevens in an attempt to force the Institute to devote a portion of its land to the proposed waterfront park."
In the beginning
In 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. No one disputes that the rock contains some level of naturally occurring asbestos. In early April, FBW officials alleged that Stevens was not taking the proper precautionary steps to protect the site and the surrounding neighborhood.
But Stevens contended that precautions were taken and that there was no health threat at the site. They added that Hine and the FBW "concocted" a false hazard for the purpose of defeating Stevens' development plans.
In January of 2003, Stevens filed the defamation suit and prima facie tort against the FBW and its leadership. The defamation portion of the suit was based on 10 statements about the asbestos issued by FBW in the form of letters to the editor, a letter to Mayor David Roberts, and postings on FBW's website.
FBW's attorneys defended the group, saying that a public discussion about the possible dangers of asbestos was perfectly acceptable and a form of criticism.
"There is no safe level [of asbestos] exposure," said Hine's lawyer Edward Lloyd of the Columbia Environmental Law Clinic repeatedly before State Superior Court Judge Camille Kenny during one of the hearings. 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 the Stevens attorney claimed the school was injured by the statements. In the suit, they claimed that Hine and Lewitt's comments forced Stevens to relocate rocks at a cost of $1 million to the school.
Defamation thrown out months ago
The heart of Stevens' case was the defamation counts. According to the law, to prove defamation, the school had to show that the statements were false and had been made with a "reckless disregard for the truth." The comments also had to be made with malice, and to have caused some damage or injury to Stevens. In July of last year, Judge Kenny dismissed all 10 counts of the alleged defamatory statements. She said that Stevens could not be capable of proving to a jury by "clear and convincing evidence" that the statements made by Hine and Lewit were verifiably false and were made with malice.
For the other three, the judge ruled that there was not evidence that Stevens was damaged by the statements, which is a requirement in a defamation suit.
But that's not the end
But even though the meat of the case had been thrown out, the Judge Kenny did give Stevens another chance. The judge allowed them to pursue the final count of the complaint, a catch-all action called a prima facie tort, which is a legal term for "intentional and malicious action that causes harm."
But on Wednesday, Theemling dismissed the final count. He ruled that because Kenny ruled that there was no defamation, a plaintiff cannot fall back on the very general prima facie tort.
Claiming they were 'SLAPPed'
Renee Steinhagen, the Executive Director of New Jersey Appleseed Public Interest Law Center, who is the Fund's other co-counsel in this case, has said that the Stevens' lawsuit was a strategy tool the quiet the FBW. Steinhagen described the lawsuit Thursday as "SLAPP" suit. SLAPP is an acronym for Strategic Lawsuit against Public Participation.
"Why would a large institution like Stevens, acting as a developer, choose to attack this whistle blower?" said Steinhagen. "Their idea was that they could use their ample resources to chill Ron [Hine] to make sure he doesn't get up and raise these issues again."
Stevens contends that SLAPP suits don't even exist in New Jersey, and regardless, their case "is not frivolous" and Hine and Lewit's comments were made with malice in order to injure Stevens.
Time and money
Steinhagen also said that the lawyers and law students put in hundreds of hours in research and work, and FBW's leadership spent many hours dealing with case.
"Stevens has been relentless in its efforts to tie up FBW in litigation, a common tactic in these cases," Steinhagen said
She said Stevens' attorneys went through all of FBW's Board minutes, IRS reports, letters, e-mails and other documents "with a fine-tooth comb."
Most of the legal work was performed pro bono by FBW's attorneys. If they had charged an hourly rate, they said, the FBW's legal fees would have run more than $700,000 to defend the case, a price tag that would put most non-profits out of business.
Steinhagen said that she and the Fund's other lawyers took the case because this is an important free speech issue.
Now that the case has been dismissed, said Steinhagen, they are considering suing Stevens for malicious prosecution to try to recoup legal fees.
Stevens will appeal
Stevens' attorney Fisher said that while the judge dismissed the prima facie tort, this isn't the end of this case. "The defendant acted with malice when they lied about there being a health scare," Fisher said Thursday. "Their actions were completely egregious."
He added, "We are extremely confident that an appeal is not only going be successful reviving the prima facie tort, but also in reviving the defamation counts. Since [the dismissal of the defamation counts], we've said that Judge Kenny erred in her understanding of the analysis."
The judge speaks
Even though Theemling dismissed the final count out the suit, he did leave the door open for appeal. "This Court believes that," he wrote, "based on the facts presented in the papers and at oral argument, a jury considering such facts in a light most favorable to the plaintiff could find that the defendants have mounted a deliberate attack against Stevens in an attempt to force the Institute to devote a portion of its land to the proposed waterfront park."
Theemling even added that a high court could even be persuaded "to expand the scope of prima facie tort to include factual situations in which other torts, brought on the same facts, fail."
"In such a case," he added, "a jury could find, as this Court believes it could find here, that while the actions of a defendant were legal in and of themselves, their combined effect, considered along with a finding of an intent to harm without economic or social justification, is cognizable at law as a valid tort claim, regardless of any further conduct."
But because Judge Kenny threw out the defamation counts, he said, "this Court is bound by the law as it stands." Fisher said, "Judge Theemling essentially invited us to appeal the decision."
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