# Petition for Writ of Certiorari — General Electric Co. v. Knight

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 961

## Text

; Qapeere Court, U.S. |
FILED

FEB 20 1991

OFFICE OF THE CLERK

IN THE
Supreme Court of the United States

OCTOBER TERM, 1990

GENERAL ELECTRIC COMPANY,

NATIONAL RAILROAD PASSENGER CORPORATION,
CITY OF PHILADELPHIA, SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY, MONSANTO COMPANY, and
CONSOLIDATED RAIL CORPORATION,

¥. Petitioners,
MARY ALICE KNIGHT, et al.,
Respondents.

———

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

JOHN G. KESTER *

Of Counsel: JOHN W. VARDAMAN, JR.
HARRY A. SHORT, JR. SARAH H. DUGGIN
STEPHEN M. MCMANUS ROBERT J. SHAUGHNESSY
LIEBERT, SHORT & WILLIAMS & CONNOLLY
HIRSHLAND 839 17th Street, N.W.
1901 Market Street Washington, D.C. 20006
Philadelphia, Pa. 19103 (202) 331-5000

(215) 557-4011 Attorneys for Petitioner
* Counsel of Record General Electric Company

(List of attorneys continued inside cover)

WILSCN - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

RICHARD A, KRAEMER
NANCY H. RESNICK
MARGOLIS, EDELSTEIN,
SCHERLIS, SAROWITZ
& KRAEMER
The Curtis Center
Independence Square West
Philiadelphia, Pa. 19106
(215) 922-1100
Attorneys for Petitioner
National Railrvad
Passenger Corporation

RICHARD J. GOLD
First Deputy C.ty Solicitor
ROBERT A. SUTTON
Chief Assistant City
Solicitor
City Solicitor’s Office
1540 Municipal Services
Building
15th Street and
John F. Kennedy Bivd.
Philadelphia, Pa. 19102
(215) 686-5245
Attorneys for Petitioner
the City of Philadelphia

ROGER F. Cox

JEROME R. RICHTER

PAUL J. GIORDANO

JOHN J. MONSEES
BLANK, ROME, COMISKY

& MCCAULEY

Four Penn Center Plaza
Philadelphia, Pa. 19103
(215) 569-5500

Attorneys for Petitioner
Southeastern Pennsylvania
Transportation Authority

MICHAEL H. MALIN
WHITE AND WILLIAMS
Suite 1800
One Liberty Place
1650 Market Street
Philadelphia, Pa. 19103
(215) 864-7138

Attorneys for Petitioner
Monsanto Company

DAVID RICHMAN
PEPPER, HAMILTON &
SCHEETZ
3000 Twe Logan Square
Philadelphia, Pa. 19103
(215) 981-4000
Attorneys for Petitioner
Consolidated Rail
Corporation

QUESTIONS PRESENTED

1. When plaintiffs claim that various illnesses were
caused by exposure to a chemical, but present no evi-
dence of causation except opinions of experts who can
cite no support in human epidemiological, clinical or toxi-
cological data:

(a) Are those Circuits correct that allow and en-
courage district judges, without collateral trial-type
hearings, .to exclude such opinions under Federal
Rules of Evidence 403, 702 or 703?

(b) Are those Circuits orrect that decline to re-
verse such exclusions unless “manifestly erroneous”?

(c) Are those Circuits correct that hold, under
this Court’s Celotex trilogy, that scientifically un-
supported opinions cannot create a “genuine issue of
material fact” to prevent summary judgment?

2. Does it violate the rule of United Mine Workers v.
Gibbs, 383 U.S. 715 (1966), for a United States Court of
Appeals, reversing a district court, to declare a new state
cause of action because it “predicts” that for “policy”
reasons the state’s courts some day will do so?

3. Under 28 U.S.C. § 1291, as construed in FirsTier
Mortgage Co. v. Investors Mortgage Ins. Co., 111 S. Ct.
648 (1991), must an appeal be taken from a final order,
without regard to a subsequent judgment under Rule
54(b), Fed. R. Civ. P.?

(i)

ii
LIST OF PARTIES

Petitioners in this Court are General Electric Com-
pany, National Railroad Passenger Corporation, the City
of Philadelphia, Southeastern Pennsylvania Transporta-
tion Authority, Monsanto Company, and Consolidated
Rail Corporation.

Respondents are Mary Alice Knight, Andre Williams,
Sr., John Ingran, Sr., Patricia Ingram, Christopher 8.
Brown, Cathlene Brown, Craig Brown, Catherine D.
Brown, Margherita Barbetta, Mary Retta Johnson, e-
leste Brown, Clemmon L. Brown, Cloyd H. Brown, Curtis
Brown, William Reid, Jr., Mabel Brown, Helen V. Nar-
cise, Matthew Cunningham, Bessie Cunningham, George
Albert Burrell, Priscilla Etheridge Burrell, Wallace
Darryl Cummins, K. Louise Jones, Charles W. Stanbach,
Susanna Stanbach, William Butler, Theresa Butler, Allen
K. Simpson, Marvin L. Simpson, Karen R. Simpson,
Donald E. Simpson, and Bryan M. Jackson.

LIST PURSUANT TO RULE 29.1

Petitioner General Electric Company is a publicly held
New York corporation with no parent companies. Its
subsidiaries, other than whoily owned subsidiaries and
subsidiaries whose shares or debt securities are not pub-
licly held, are General Electric Capital Corporation; Gen-
eral Electric Credit Corporation; General Electric Credit
International, N.V.; General Electric Overseas Capital
Corporation; and RCA Corporation.

Petitioner National Railroad Passenger Corporation is
a District of Columbia corporation authorized by the
Rail Passenger Service Act of 1970, 84 Stat. 1328, 45
U.S.C. §§$ 501 et seq. Its capital stock is owned by the
United States. It has no subsidiaries other than wholly
owned subsidiaries.

Petitioner the City of Philadelphia is a Pennsylvania
City of the First Class, pursuant to 53 PENNA. STAT.
§ 101.

iii

Petitioner Southeastern Pennsylvania Transportation
Authority is a Metropolitan Area Transportation Au-
thority created under Article III of the Pennsylvania
Urban Mass Transportation Law, 55 PENNA. STAT.
§ 600.303, by terms of which it is “a separate body cor-
porate and politic’ which shall “exercise the public
powers of the Commonwealth as an agency and instru-
mentality thereof.” It has no subsidiaries.

Petitioner Monsanto Company is a publicly held Dela-
ware corporation with no parent companies. Its sub-
sidiaries, other than wholly owned subsidiaries, are
Invitron Corporation; Southwall Technologies, Inc.; LTX:
and Valid Logics. Monsanto’s wholly owned subsidiary
InnoVen II Corporation owns a_less-than-five-percent
common stock interest in the following publicly held cor-
porations: Dynamic Sciences International; Micro Gen-
eral Corporation; Xylogics, Inc.; and WEITEK Corpora-
tion.

Petitioner Consolidated Rail Corporation is a publicly
held Pennsylvania corporation with no parent companies.
It has no subsidiaries other than wholly owned sub-
sidiaries.

TABLE OF CONTENTS

Page

i Be 8 py | i
ERNIE EERE TENE See yaennD NDS SONORA CUT SO ii
LIST PURSUANT TO RULE BO.21 .............<.....cceesccsves ii
pe Be ig ty 3: eRe ET vii
i, RT AR TROL TEND 1
aS ALES a Ae aan eRe Ble ores 2
STATUTE AND RULES INVOLVED .......WW00000..... 2
EE Sea ee RNS Pr IS RO TORINO oe 2
re I I csi iinccccseticintinisstgaisteaite 3

| ee PEF BREN aD NE REECE 5

C. The Court of Appeals’ Reversal .........020.002..2..2.... 7
REASONS FOR GRANTING THE WRIT ..........0.... 9

I. THE THIRD CIRCUIT’S STANDARDS FOR
REVERSAL OFF EXCLUSION OF OPINION
TESTIMONY CONFLICT WITH DECISIONS
OF THIS COURT AND NINE OTHER CIR-
EIU siceniictiernsapreneussinssiiniciepeliaaeieninonniaminibeensicie 12

A. The Third Circuit’s Reversal of Exclusion of
Unsupported Expert Opinions Conflicts with
Decisions of the First, Second, Fifth, Sixth,
Seventh, Ninth, Tenth, Eleventh, and District
oF See GE ee ee, 14

1. Conflict as to Speculative Opinions........... 14

2. Conflict as to Causation Opinions Con-
trary to Epidemiological Evidence .......... 16

38. Conflict as to Causation Opinions Ex-
trapolating From Animal Experiments... 17

(v)

vi

TABLE OF CONTENTS—Continued

Page

i, Conflict as to Requirement of Generally
ME WI ile ee 18

5. Conflict as to New Procedures Required
fk, EI RCN Met NTS, Were 19

B. The Third Circuit Applied a Standard of Re-
view Different From the One Prescribed by
~ This Court and Applied in Other Circuits... 20

Il. THE THIRD CIRCUIT’S BASIS FOR RE-
VERSING SUMMARY JUDGMENT CON-
FLICTS WITH THIS COURT’S CELOTEX
TRILOGY AND WITH DECISIONS’ IN

SEVEN OTHER CIRCUITS ......................000....... 21
A. Conflict as to Requirement for Probative
Evidence to Support Opinion of Causation... 21
B. Conflict as to Implausible Claims _............... 24
C. Conflict as to Failure to Eliminate Other
AARNet ales Wns ar 24
D. Conflict as to Rule 56(f) ...............00..o 25

III. THE CREATION OF A NEW STATE CAUSE
OF ACTION CONFLICTS WITH PLAIN
HOLDINGS OF OTHER CIRCUITS AND OF
ig NERO IVS cE feo NS RE 26

IV. THE CIRCUITS ARE DIVIDED ON
WHETHER AN APPEAL FROM AN INTER-
LOCUTORY ORDER CAN BE VALIDATED

BY A LATER RULE 54(b) JUDGMENT ....... 27
V. THE ISSUES ARE IMPORTANT .....000000..... 29
APE AIINII EN oo nssnsesnsensesnssovninsesesscssssnsnsnesncnnsnsnsasensassnanscss 30

APPENDIX (Separately Bound)

vii
TABLE OF AUTHORITIES
Cases: Page

In re “Agent Orange” Product Liability Litigation,

611 F. Supp. 1223 (E.D.N.Y. 1985), aff’d, 818

7 § go 2 ) | eee 7, 15,18
In re “Agent Orange” Product Liability Litigation,

611 F. Supp. 1267 (E.D.N.Y. 1985), aff'd, 818

fp NF” ge ae NS 15
In re Air Crash Disaster, 795 F.2d 1230 (5th Cir.

STITT isin: Shnsinicn's he bictshianlinbiegeeelecbantceceihdenichamianad aniebabataamasaitenaiitiatcs 11, 30
Amato v. Syntex Labs., Inc., 917 F.2d 24 (6th Cir.

RARE eg eee gate mevents Ensen ce vee one aenE =m 16
Anderson v. Liberty Lobby, Inc., 477 U.S. 242

RUIN sa ssoacictechn euobcouscecadetaculimensatiedcmaummanammmuanieenta 6, 10, 22
Apostol v. United States, 888 F.2d 595 (1st Cir.

a a a 21
Apponi Vv. Sunshine Biscuits, Inc., 809 F.2d 1210

(6th Cir.), cert. denied, 484 U.S. 820 (1987)... 21
Ball v. Joy Mfg. Co., 1990 U.S. Dist. Lexis 16011

CRS WIN MD rcctiecnetcendcesetncncecetiiarenncnnns 17, 26
Barrel of Fun, Inc. v. State Farm Fire & Cas. Co.,

Tp Fee tee Coe Cor. Boee).................,............. 18, 20

Brock v. Merrell Dow Pharmaceuticals, Inc., 874

F.2d 307, modified, 884 F.2d 166 (5th Cir. 1989),

cert. denied, 110 S. Ct. 1511 (1990) ................. 11, 18, 22
Brock vy. Merrell Dow Pharmaceuticals, Inc., 884

F.2d 167 (5th Cir. 1989), cert. denied, 110 S. Ct.

Ne a aunelaanauanidnnaciens 9, 29
Brown Vv. Chaffee, 612 F.2d 497 (10th Cir. 1979) .. 25
Bubash v. Philadelphia Elec. Co., 717 F. Supp. 297

SE, PU es deeinenen 27
California Architectural Bldg. Prods., Inc. V. Fran-

ciscan Ceramics, Inc., 818 F.2d 1466 (9th Cir.

1987), cert. denied, 484 U.S. 1006 (1988) -......... 24
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) _...... i, 6, 10,
22, 25
Chicago Florsheim Shoe Store Co. v. Cluett, Pea-
body & Co., 826 F.2d 725 (7th Cir. 1987) _.......... 25
Coal Resources, Inc. Vv. Gulf & Western Industries,
Inc., 865 F.2d 761 (6th Cir. 1989) ....................... 15

Coleman v. Parkline Corp., 844 F.2d 863 (D.C. Cir.
BIE "Scnacncbancntanecn EAM ast camel iieaehidaduaieeacadieanitameenn 21

viii
TABLE OF AUTHORITIES—Continued

Daubert v. Merrell Dow Pharmaceuticals, Inc., 727
Bn CI Cr Cs CI, FI ii ecicineeceseencesenree
DeLuca V. Merrell Dow Pharmaceuticals, Inc., 911
me re
Ealy v. Richardson-Merrell, Inc., 897 F.2d 1159
(D.C. Cir.), cert. denied, 111 S, Ct. 370 (1990)...
Edwards v. Aguillard, 482 U.S. 578 (1987) .............
Edwards v. Sears, Roebuck & Co., 512 F.2d 276
NER IPSS ere ers eee en
Erie R.R. v. Tompkins, 304 U.S. 64 (1938) .............
In re Fibreboard Corp., 893 F.2d 706 (5th Cir.
ERE PRT ER ea rere AER Se Pee Rte ee eee
FirsTier Mortgage Co. v. Investors Mortgage Ins.

ete a Se Bt | nme i, 27,

Frye v. United States, 293 Fed. 1013 (D.C. Cir.

TE ccssdiisnliniesindinidentalinacinttiaty aah eipeniesiensansiinendinnaanshicai 11,

General Television Arts, Inc. v. Southern Ry., 725
BP IE UE AIG Ss ciccnctitennainecctncbinianeensanan
Gray V. Udevitz, 656 F.2d 588 (10th Cir. 1981) ....
Habecker v. Copperloy Corp., 893 F.2d 49 (3d Cir.
a
Hasler v. United States, 718 F.2d 202 (6th Cir.
1983), cert. denied, 469 U.S. 817 (1984) .............
Hausman V. Buckley, 299 F.2d 696 (2d Cir.), cert.
denied, 369 U.S. 885 (1962) -.................................
Hines Vv. Consolidated Rail Corp., No. 89-1350 (3d
I aa
Houston v. Texaco, Inc., 371 Pa. Super. 399, 538
A.2d 502, allocatur denied, 520 Pa. 575, 549
RRS SRSA Se ce a
Hull v. Merck & Co., 758 F.2d 1474 (11th Cir.
MRED OT ston 9 PERE ae er cE a
International Union, UAW v. Johnson Controls,
Inc., 886 F.2d 871 (7th Cir. 1989), cert. granted,
110 S. Ct. 1522 (1990) (No. 89-1215) _..............
Kenosha Liquor Co. v. Heublein, Inc., 895 F.2d
re a scane
Lewis Vv. B.F. Goodrich Co., 850 F.2d 641 (10th
UIs: MTU cchnndss inc uchdesndecaieaprianasdeberdeabtbebaiibadataiaiateiNdsiniidintis

Page

17

10

27
28, 29

18, 19

27

11, 20

26

15, 21

ix
TABLE OF AUTHORITIES—Continued

Lima v. United States, 708 F.2d 502 (10th Cir.
ITED sass sclssdehas en dadentichteeee ecenlbaneisisiaetaididdamninaabeaiennttticebaes
Linkstrom v. Golden T. Farms, 888 F.2d 269 (3d
SE: BUN IUUIE catesdidtesiptnsibciginiscenenedeiiputeceshieiisn inet iaaldatrocainieainscs
Lynch Vv. Merrell-National Labs., 830 F.2d 1190

Se NE IED scticciehalleneaedintanonieniiene .....14, 16, 17,

Marsh-McBirney, Inc. Vv. Montedoro-Whitney Corp.,
882 F.2d 498 (Fed. Cir. 1989), wacated, 59
U.S.L. WEEK 3501 (U.S. Jan. 22, 1991) (No. 89-
SOE ia bhai ascesstceeat ca aaeaeiincbanisinsaeisaeeetdasheaiaina da mmnteeaneaees

Martin v. Johns-Manville Corp., 508 Pa. 154, 494
(Sy fC Ere A Reem

Matsushita Elec. Indus. Co. Vv. Zenith Radio Corp.,
REE IE rer Looe

McGlinchy v. Shell Chem. Co., 845 F.2é 802 (9th
cee a ae ebanininiee nas

Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666
I ele caiadinaione

Merry V. Westinghouse Elec. Co., 684 F. Supp. 847
NS RSAC Sea etree nN

Mid-State Fertilizer Co. v. Exchange Nat’l Bank,
877 F.2d 1333 (7th Cir. 1989) ...... abled 2s Bete AO

Milmark Services, Inc. v. United Sta*es, 731 F.2d
a EE ie A ae eos

Mustafa v. United States, 479 U.S. 953 (1986) .......

Nachtsheim Vv. Beech Aircraft Corp., 847 F.2d 1261
I A aT a

Novak v. United States, 865 F.2d 718 (6th Cir.
ECS ae SRE De aie ON re Ne ee

Oak Constr. Co. v. Huron Cement Co., 475 F.2d
1220 (6th Cir. 1978) ................. dilcsesebnelnmascsisdetdetoeis

Over the Road Drivers, Inc. v. Transport Ins. Co.,
Gey F.me eee (nee Car. BOG) .........-......................

Perkins Vv. Volkswagen of America, Inc., 596 F.2d
Oe a tsi

Potter v. Firestone Tire & Rubber Co., 225 Cal.
App. 3d 213, 274 Cal. Rptr. 885 (1990) ............

Richardson Vv. Richardson-Merrell, Inc., 857 F.2d
823 (D.C. Cir. 1988), cert. denied, 110 S. Ct. 218

ET iecnsaceiienpaaananidanieiininniiescesinnimmiiteninass 10, 11, 16, 18,

Page

15

23, 25

29

22, 233

x
TABLE OF AUTHORITIES—Continued

Page
Rogers Vv. Raymark Industries, Inc., 922 F.2d 1433
Be RR «OR Ieeeeeee SAR Pie a 20
Russell v. Salve Regina College, 890 F.2d 484 (1st
Cir. 1989), cert. granted, 110 S. Ct. 3269 (1990)
RRR Tae Renae DINO E ata 27
Salem v. United States Lines Co., 370 U.S. 31
1 ERP SEAS al acme ane SONNE. hs nee eran 11, 20, 21
Sanchez v. Safeway Stores, Inc., 451 F.2d 998
UE SI TIITTITIETT ssisionis-<conis ctuieteincntheoncakanabtbidebataieeiatilaiieetesioes 21
Shaw Vv. Republic Drill Corp., 810 F.2d 149 (7th
a 27
Slaughter v. Southern Tale Co., 919 F.2d 304 (5th
SO a 14, 21
Spring Co. v. Edgar, 99 U.S. 645 (1879) -............... 20
Sterling v. Velsicol Chem. Corp., 855 F.2d 1188
I 14, 19, 23
Stoleson Vv. United States, 708 F.2d 1217 (7th Cir.
eT ee LE RTO a a A eo 9
THI-Hawaii, Inc. v. First Commerce Financial
Corp., 627 F.2d 991 (9th Cir. 1980) ........000000000.... 25
Thompson Vv. Southern Pac. Trans. Co., 809 F.2d
Re Ms CID ccectiticssoccbnemceieastiied seuss Detvaniticenan 22, 25
United Mine Workers v. Gibbs, 388 U.S. 715
RAE RE De reno sea i, 12, 26
United States v. Brown, 776 F.2d 397 (2d Cir.
SRA ea Rane oo dln Me se ee oN 20
United States v. Christophe, 833 F.2d 1296 (9th
RR erRRIn err oa Stevia 2 Maar Pon eS 19
United States v. Darby, 857 F.2d 623 (9th Cir.
SRT aen EE GND Pe RT Preteen 21
United States v. Downing, 753 F.2d 1224 (3d Cir.
ERNE eee A on ere PIE cae ene ST 18
United States v. Hansen, 795 F.2d 35 (7th Cir.
issn sient ih cat aR 28
United States v. Lundy, 809 F.2d 392 (7th Cir.
I ah carhta is teinsinadiaiiialsandichceiaM te 21
United States v. MacDonald, 688 F.2d 224 (4th Cir.
1982), cert. denied, 459 U.S. 1108 (1988) ............ 21

United States v. McBride, 786 F.2d 45 (2d Cir.
RT OOS MIO ES Ts eae an aa ain 18

xi
TABLE OF AUTHORITIES—Continued

Page
United States v. Shorter, 809 F.2d 54 (D.C. Cir.),
cert. denied, 484 U.S. 817 (1987) .......................- 19
United States v. Smith, 776 F.2d 892 (10th Cir.
STITT isis bs cdbn cape ticaceieinehiosinta ie ibieseielieintetone 19
United States v. Smith, 869 F.2d 348 (7th Cir.
IIIA “sccicsiessoinsscsicdpticiolhctebasdiestanictsapiiepiathenncnbaataadiabsdabeninions 18
United States v. Tutino, 883 F.2d 1125 (2d Cir.
1989), cert. denied, 110 S. Ct. 1189 (1990) ......... 21
United States v. Various Slot Machines, 658 F.2d
Re Te is SE irri ceincteenttaretiioncetinn 23
Villari v. Terminix Int’l, Inc., 663 F. Supp. 727
+ 8 Ss RR eee lly Ree 27
Viterbo v. Dow Chem. Co., 826 F.2d 420 (5th Cir.
I viictcnccrsttcheactigiuaiiciteeeetineeilindickabinseas 6, 10, 14, 18, 22, 25
Washington v. Armstrong World Industries, Inc.,
968 F.3d 11381 (6th Cie. 1908) ........................... 25
Washington v. Union Carbide Corp., 870 F.2d 957
RI I I oii icccanspalancninescmhncumumneeisnnietaienstbienn 27

Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741
(11th Cir.), cert. denied, 479 U.S. 950 (1986) .... 17, 18
Wheelahan V. G.D. Searle & Co., 814 F.2d 655 (4th

a client 23
Wilmington V. J.I. Case Co., 793 F.2d 909 (8th Cir.

nai inckaisteniehiensintniaesisidiapamiedcnsadelnieebannapedaanibmanims one 21
Wilson v. Merrell Dow Pharmaceuticals, Inc., 893

ip Bt! By Et SS | Reneeneneeneenen 16

Statutes:

I I is slieeranceenienincinimennctioedenpmennasions 2
tO I ios icinisicncecsicndescicasesiinsheneacnumtesiiabiesnesancomhte i, 2, 28

Comprehensive Environmental Response, Compen-
sation, and Liability Act, § 113, 94 Stat. 2767,

ee, Se I oie eeis ns vncin ec cce ic scsnsneeens sss 2
Federal Employers’ Liability Act, 35 Stat. 65, as
amended, 45 U.S.C. §§ 51-60 —.........-.------------------ 2
Rules:
Federal Rules of Appellate Procedure, Rule 4 ........ 2, 28

Federal Rules of Civil Procedure, Rule 54 .....i, 2, 6, 12, 28
Rule 56....... 2, 10, 22, 25

xii

TABLE OF AUTHORITIES—Continued

Page

Federal Rules of Evidence, Rule 104 ............ 2, 9, 18, 19

ee 8 2

Rule 403 _............ i, 2, passim

RE 2,12

Rule 702 ............... i, 2, passim

Rule 708 ............... i, 2, passim
Rules of the Supreme Court of the United States,

RR AE eee RCE See oe ee AWN ii

Miscellaneous:

Anno., 50 A.L.R. 4th 13 (1986) ................................ 26
D. LOUISELL & C. MUELLER, FEDERAL EVIDENCE

ee ee 18
P. GIANNELLI & E. IMWINKELRIED, SCIENTIFIC EVI-

EE AO ae eee aE 19
Huber, On Law and Sciosophy, 24 VALPARAISO L.

IER SRI eres 30
Imwinkelried, Science Takes the Stand: The Grow-
ing Misuse of Expert Testimony, 26 THE

ee 30

J. Moorg, et al. FEDERAL PRACTICE (2d ed. 1990) .. 29

Note, 63 IND. L.J. 849 (1988) ......... iPM Des CARS 26
REPORT OF THE TORT POLICY WORKING GROUP

CRETE ee eer eis eee Oi. le ae a a 30

W. PRosseR & R. KEETON, TorTS (5th ed. 1984)... 26
Weinstein, Improving Expert Testimony, 20 U.
RIicH. L. REV. 473 (1986)... isesdaiiessiaiaeieaesacbaats 30

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990
No. ——

GENERAL ELECTRIC COMPANY, et al.,
¥ Petitioners,
Mary ALICE KNIGHT, et al.,
Respondents.

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners pray that a writ of certiorari issue to re-
view the judgment of the United States Court of Appeals
for the Third Circuit entered in these consolidated cases
September 20, 1990.

OPINIONS BELOW

The opinion of the District Court granting summary
judgment is reported in part at 706 F. Supp. 358 and
appears in the Appendix at A. 91a.’ The original opinion
of the Court of Appeals is at A. la. The first set of
amendments to the opinion of the Court of Appeals ap-
pears at A. 86a, and the second set of amendments at
A. 88a. A version incorporating both sets of amend-
ments is reported at 916 F.2d 829.

1 Citations to “A.” are to the appendix to this petition and to
“R.” to the appendix filed in the Court of Appeals.

2

JURISDICTION

The opinion and order of the District Court granting
partial summary judgment as to personal injury claims
were entered November 29, 1988. A. 91a, 138a. Its
order certifying the partial summary judgment as a
final judgment was entered January 4, 1989. A. 140a.
The judgment and first opinion of the Court of Appeals
were entered September 20, 1990. A. la. Timely peti-
tions for rehearing were filed October 5, 1990. Re-
hearing was denied November 23, 1990. A. 143a. This
Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTE AND RULES INVOLVED

Title 28 U.S.C. § 1291, Rules 54 and 56 of the Federal
Rules of Civil Procedure, Rules 104, 402, 403, 701, 702
and 703 of the Federal Rules of Evidence, and Rule 4
of the Federal Rules of Appellate Procedure appear at
Appendix J, A. 146a.

STATEMENT

These are pendent jurisdiction claims brought in the
United States District Court for the Eastern District of
Pennsylvania.* The plaintiffs, respondents here, claimed
to have suffered forty-seven different kinds of illness
from living near the Paoli Railroad Yard, where
transformer fluid containing fire-retardant PCBs (poly-
chlorinated biphenyls) was released over a period of
years into the air and soil.* Some of them, not claiming

*The personal injury claims, arising under Pennsylvania law,
were appended to claims for property damage under § 113 of the
Comprehensive Environmental Response, Compensation, and Liabil-
ity Act (CERCLA), 94 Stat. 2767, 2795, 42 U.S.C. § 9613(b). Three
plaintiffs claimed occupational injury under the Federal Employers’
Liability Act, 45 U.S.C. §§ 51-60, from working at the Yard. Some
complaints were remo /ed from state court.

3’ The measurements of the plaintiffs’ blood showed, and a specia!
U.S. Public Health Service study concluded, that even though PCB
fire-retardant fluid had been spilled at the Paoli yard, the few parts
per billion (ranging from none to 338) detected in the plaintiffs’

3

that any present injury existed, sought to recover for
fear, emotional distress, and costs of future medical
examinations to monitor their health for possible future
illness.

This petition is limited to issues concerning: (1)
whether the district court was within its authority in
rejecting opinions of experts offered to prove causation;
(2) whether a federal court may create a new state tort
cause of action for “medical monitoring;” and (3) ap-
pealability of interlocutory orders at a time they have
not been certified as finai.

A. The Expert Opinions.

Nowhere in the record was there any published or un-
published study, based on human epidemiology, clinical
data or toxicology, that concludes that PCBs at any ex-
posure level are capable of causing any of the forty-
seven illnesses alleged.‘ Also totally absent were any
clinical diagnoses concluding that these plaintiffs’ par-
ticular ailments were caused by PCBs instead of by any
of a number of recognized potential causes.

As their evidence that PCBs had caused all these ill-
nesses, plaintiffs relied entirely upon opinions of five ex-
perts. Two of those witnesses declared on behalf of
nineteen and three plaintiffs, respectively, that each ill-
ness complained of had indeed been caused by PCBs from
the Paoli Railroad Yard. The other three gave more
limited opinions. In summary:

—Deborah Barsotti, Ph.D., a toxicologist, swore ‘‘to a
reasonable scientific certainty” that PCBs had caused

bodies was within the range considered normal for residents of the
United States. Plaintiffs contested the value of the norm; that issue
is not included in this petition.

4 These were alleged to include, e.g., asthma, insomnia, anemia,
anorexia, swollen hands, seizures, enlarged prostate, Parkinson’s
Disease, cardiovascular disease, arthritis, gastritis, lung disease,
brain cancer, pancreatic cancer, muscle cramps, irritability, and
stiff joints.

4

every medical or psychiatric complaint of nineteen re-
spondents, none of whom she had ever met. When de-
posed, she repeatedly acknowledged that those ailments
could also have had other causes, e.g., R. 5352, 5354,
5380, 5559, 5812, and that she had not attempted to ex-
clude those other explanations because “I don’t diagnose.
I’m not a physician.” R. 5634.5 When confronted with
her own past writings, she testified that in articles she
had coauthored “we recognized the fact” that whether
PCBs could cause any adverse effects to human beings
“thas not been determined.” R. 5798.

—Harry Shubin, M.D., on behalf of three plaintiffs
explained that his scientific method was simply to at-
tribute all their adverse medical conditions to PCBs “un-
til I would be shown that I was wrong.” R. 6394. He
testified that he had not made any systematic review of
the scientific literature; instead, he relied for authority
principally on newspaper reports. R. 6471-72, 6389-94,
6411, 6416, 6491.

—Arthur C. Zahalsky, Ph.D., an “immunologist” who
had attended only one graduate-level course that included
immunology, simply offered his blanket opinion that PCB
exposure had caused “alterations” (not necessarily in-
juries) to all the respondents’ immune systems, although
he said he had performed no examinations or tests. He also
testified that “certainly” there could be other causes. R.
6297. When asked to name any studies on which he re-

5 When asked to identify any published study to support her
statement that PCBs could cause, for example, cardiovascular dis-
ease, she testified that “I can’t draw them to mind at this time” and
“T can’t at this point in time find out ... or can I remember
the source of that article.” R. 5117, 5119. When asked to cite any
study associating PCBs with the asthma she opined they had caused
in persons with a family history of asthma, she testified that “I
can’t recall that in the literature that that specific respiratory ail-
ment has been associated with PCB exposure.” R. 5159.

5

lied, he replied he could name “[n]ot even one” because
“T don’t recall them.” R. 6267.°

—G. John DiGregorio, M.D., on behalf of nine re-
spondents testified that his “only finding” was that they
suffered from “anxiety” and that “I have not been able
to establish any physical findings yet.” R. 7160. He
added that ‘“‘we haven’t been able to determine the chronic
effects” of PCBs. R. 6971, 7309.

—Finally, William J. Nicholson, Ph.D., a physicist prac-
ticing industrial hygiene, filed an affidavit in which he
stated that after a search of existing studies on PCBs,
in the form of a “meta-analysis,” he concluded that the
scientific literature supported a conclusion (even though
no study had so concluded) that PCBs could cause liver,
gall bladder and biliary tract cancer. R. 9377. However.
none of those diseases was among the forty-seven differ-
ent ailments complained of by respondents.

B. The District Court’s Ruling.

When petitioners moved for summary judgment, the
District Court examined the opinions and over 2400 pages
of deposition testimony of these proffered experts, and
held that such opinions were plainly unsupported by data
or methods reasonably relied upon by scientists in the
pertinent disciplines. It explained that “Even if I
found that plaintiffs’ experts testimony reached the level
of being probative, I would rule to exclude it under Rule
703 and 403 as ‘unhelpful’ and more prejudicial than
probative.” A. 110a. Citing also Rule 702’s requirement
that expert opinion testimony “will assist the trier of
fact,” the District Court found that “plaintiff’s experts’
opinions a-e not admissible because they are not suffi-
ciently scientifically reliable,” A. 123a, and emphasized
that a crucial requisite of admissibility was missing:

6 Dr. Zahalsky explained, R. 6275:
“Q. So you're saying that because these people have the condi-
tions they have, you think that’s enough to show that they got
them from being exposed to PCBs, is that right?
A. Yes, I do.”

6

that these were not opinions founded on data and meth-
ods scientists really use; instead, the proffered experts
simply asserted personal opinions not based on scientific
data and methodology. The Court observed that if it did
not exclude such opinion testimony, then “any case
in which an expert was willing to use two sets of magic
words would always survive motions for summary judg-
ment and directed verdict,” and “then Rule 703 should
read: ‘An expert may cite as the basis of his opinion
anything he likes.’ ” A. 107a.

The District Court proceeded to grant partial summary
judgment for petitioners on the personal injury claims
because of absence of proof of causation.’ A. 125a-137a,
138a. Later it certified its order as a final judgment
under Fed. R. Civ. P. 54(b).§ A. 140a. The Court held
that under this Court’s decisions in Celotex Corp. V.
Catrett, 477 U.S. 317 (1986), and Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986), respondents had failed
to come forward with evidence sufficient to create a
genuine issue of material fact to establish causation. It
explained that even if these opinions were treated as ad-
missible, they lacked scientific basis, and respondents fur-
ther had failed to produce even one epidemiological study
or differential diagnosis—i.e., a diagnosis based upon con-
sideration and elimination of other possible causes—that
concluded that exposure to PCBs had actually resulted in
harm to a plaintiff. A. 98a, 109a-110a, 124a; see A. 49a-
50a. The District Court emphasized that, as it under-
stood this Court’s decisions, “[s]ummary judgment is
not precluded merely because a party has produced an
expert . . . who brings little more than his credentials
and a subjective opinion.” A. 99a.°

TIt alternatively granted summary judgment also for failure to
produce evidence of unusual exposure. That ruling, which the Court
of Appeals also reversed, is not included in this petition.

8 Nine of the twenty-two consolidated appeals were noticed before

the certification, and were taken from the interlocutory partial sum-
mary judgment order. See pp. 27-29, infra.

® Citing also Merit Motors, Inc. v. Chrysler Corp., 569 F.2d 666,
673 (D.C. Cir. 1977), Viterbo v. Dow Chem. Co., 826 F.2d 420, 424

7

C. The Court of Appeals’ Reversal.

The Court of Appeals reversed every ruling of the
District Court. It chastised the District Court for “[p]re-
cipitous” and “unfair and improper” application of Rule
403, which permits trial judges to exclude evidence that
on balance is prejudicial or confusing. A. 72a. It held
that Rule 403 was an “extreme measure” that should
“rarely” be used at summary judgment, and that to do
so “a court must have a record complete enough on the
point at issue to be considered a virtual surrogate for
a trial record.” Jd. The thousands of pages of opinions
and testimony on which the District Court had based its
ruling, the Court of Appeals held, were not enough. The
Court of Appeals held that these five experts—although
they presented no human clinical, toxicological or epi-
demiological basis for their conclusions, did not exclude
other obvious causes, and according to an affidavit by
twelve leading academic scientists were not practicing
science at all—nevertheless should have been respectfully
treated by the District Court as ‘“‘on the cutting edge of
scientific research.” A. 7la-72a.

The Court of Appeals also rejected the District Court’s
exclusions under Rules 702 and 703. In doing so the
Court of Appeals limited its discussion of four of the
five causation witnesses to a single paragraph, A. 70a-
71a, in which it acknowledged that the arguments against
admissibility of their opinions “are forceful.” A. 70a.
Nevertheless, it reversed the District Court as to every
one because, despite these experts’ own testimony ad-
mitting absence of support for their conclusions, “there
has not been adequate process.” A. 7la. It said the Dis-
trict Court should have held an in limine hearing even
though the plaintiffs themselves had opposed it. A. 61la-
62a. The opinion separately discussed the fifth causa-
tion expert, Dr. Nicholson, who had offered only his
“meta-analysis” literature review; the Court of Appeals

(5th Cir. 1987), and In re “Agent Orange” Product Liability Litiga-
tion, 611 F. Supp. 1223, 1258-59 (E.D.N.Y. 1985) (Weinstein, J.),
aff'd on other grounds, 818 F.2d 187 (2d Cir. 1987).

8

held meta-analysis should be admissible, A. 64a-70a, but
brushed aside the District Court’s alternative basis for
excluding Nicholson’s conclusions: that they were sim-
ply irrelevant, because Nicholson did not opine that
PCBs could cause or had caused any of the ailments com-
plained of. A. 118a-119a.

Turning to the District Court’s summary judgment
holding—that even if allowed as evidence, such unsup-
ported opinions could not create a genuine issue of ma-
terial fact—the Third Circuit also disposed of it in only
a few sentences. It reversed the summary judgment be-
cause, it said, “[b]oth Drs. Barsotti and Nicholson testi-
fied to a positive correlation between PCB exposure and
human illness,” A. 77a, that they and the other three
causation witnesses “gave testimony, with reference to
[unspecified] scientific studies,” id., and that on that basis
“a jury could infer that there is a causal relationship be-
tween PCB exposure and the various illnesses contracted
by plaintiffs.” Jd. The Court of Appeals was silent as to
how, even if shown, a “positive correlation between PCB
exposure and human illness” could establish causation of
particular illnesses of particular individuals under the
applicable more-probable-than-not burden of proof.

The Court of Appeals also established a new state tort
by which it held that all the plaintiffs, whether claiming
present injury or not, should be able to recover for in-
definite future “medical monitoring” of their health; it
did so even though it acknowledged that the courts of
Pennsylvania had never allowed recovery for risk without
present physical injury, and even though the District
Judge, sitting in Pennsylvania, had held that Pennsy!-
vania law provides no such cause of action. A. 58a,
112a-113a, 124a. The Third Circuit announced that “the
policy reasons for recognizing this tort are obvious,” A.
57a, and that “[w]le... predict that the Supreme Court
of Pennsylvania would . . . recognize a cause of action
for medical monitoring.” A. 56a.

Twice in response to petitions for rehearing the Court
of Appeals issued extensive amendments to its opinion.

9

A. 86a-87a, 88a-90a. It then denied rehearing and re-
hearing en banc. A. 148a.

REASONS FOR GRANTING THE WRIT

The present case focuses what Judge Patrick E.
Higginbotham just over a year ago called “one of the
more vexing problems currently facing the federal courts
—the role of experts.” Brock v. Merrell Dow Pharma-
ceuticals, Inc., 884 F.2d 167, 168 (5th Cir. 1989) (dis-
sent from denial of rehearing en banc), cert. denied, 110
S. Ct. 1511 (1990).

This Court in fundamental rulings five years ago em-
phasized the duty to grant summary judgment against
claims unsupported by true evidence. It has also directed
that district judges be allowed wide discretion to admit
or exclude expert opinions, thereby authorizing them to
ensure that opinions put before a jury are really science
and not something else. Applying this Court’s guidance,
the courts of appeals in several Circuits have respectea
district court rulings that exclude unsupported “expert”’
opinions about chemical causation.

The Third Circuit here, however, has issued a set of
rulings and directions vastly different from those of other
Circuits, and not reconcilable with this Court’s prior de-
cisions. The Third Circuit here has undone a district
judge’s serious attempt, in applying the Federal Rules
of Evidence and Civil Procedure, to set some modest
limits to the power of a party to put before a jury asser-
tions about causation based on methodology and reason-
ing that are not recognizable as science at all. This is a
constant current problem for district judges. For nowa-
days “there is not much difficulty in finding a medical ex-
pert witness to testify to virtually any theory of medical
causation short of the fantastic.” Stoleson v. United
States, 708 F.2d 1217, 1222 (7th Cir. 1983).

Until the Third Circuit’s decision, two screens had been
applied in the federal courts to set some outer limits on
the opinions of experts that could be put before a jury.

10

The first was the Federal Rules of Evidence, which in
Rules 104, 403, 702 and 703 authorize district judges to
exclude “expert” testimony which falls below minimum
standards of scientific basis. In an increasing number of
decisions, district courts exactly like the district court
here have had to exercise that authority and duty, and
courts of appeals in other Circuits have affirmed them,
reasoning that “[i]f an opinion is fundamentally unsup-
ported, then it offers no expert assistance to the jury.”
Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir.
1987).

The second restraint was summary judgment under
Rule 56 of the Federal Rules of Civil Procedure, which,
as this Court explained in three landmark decisions five
years ago, recognizes that some evidence is simply too
spurious and unreliable to create a genuine issue of ma-
terial fact. Celotex Corp. v. Catrett, 477 U.S. 317
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986). That route has also been
followed in several Circuits to stop litigation dependent
on expert: opinions when “the plaintiff’s expert brought
to court little more than his credentials and a subjective
opinion.” Viterbo, supra, at 421; see also, e.g., Richard-
son V. Richardson-Merrell, Inc., 857 F.2d 823, 829 (D.C.
Cir. 1988) (judgment notwithstanding verdict is proper
even though “a party has produced an expert to support
its position”), cert. denied, 110 S. Ct. 218 (1989). Often
the appellate cases, like the District Court’s opinion here,
refer both to the inadmissibility of unsupported opinions,
and to the inability of such statements to create a genuine
issue of material fact.

Yet in the face of this body of law that most “Circuits
have been developing to apply the Federal Rules and the
Celotex trilogy to the flood of “toxic tort’ litigation, the
Third Circuit, for several years increasingly unwilling to
allow exclusion of expert opinions,’? has now firmly

10 See, e.g., DeLuca Vv. Merrell Dow Pharmaceuticals, Inc., 911
F.2d 941, 952-57 (3d Cir. 1990) (reversing exclusion of expert

11

committed itself to reversing the trend. At the very
same time other Circuits are urging tighter judicial con-
trol of opinion testimony,'! the Third Circuit here instead

—Holds that pretrial exclusions of expert testi-
mony under Rule 403 are “an extreme measure that
is rarely necessary” and “should rarely be granted,”
and then only based upon “a virtual surrogate for a
trial record.” A. 72a.

—Holds that exclusions under Rules 702 and 703
normally should net be made without in limine hear-
ings, even when a full testimonial record for sum-
mary judgment already exists.

—Holds that it will review exclusions of expert
testimony on an abuse-of-discretion standard, disre-
garding the clear direction by this Court that such
exclusions are “to be sustained unless manifestly
erroneous.” Salem v. United States Lines Co., 370
US. 31, 35 (1962). A. 64a n.33.

—Holds that, without human clinical, epidemio-
logical, or toxicological support, “experts” may pre-
vent summary judgment simply by asserting their
scientifically unsupported personal beliefs that PCBs
here caused all of forty-seven unrelated human ill-
nesses.

—Rejects, as it has in the past, the rule of Frye v.
United States, 293 Fed. 1013 (D.C. Cir. 1923), that

opinion) ; Habecker v. Copperloy Corp., 893 F.2d 49, 52 (3d Cir.
1990) (same) ; Linkstrom v. Golden T. Farms, 883 F.2d 269, 270 (3d
Cir. 1989) (same). See also Hines vy. Consolidated Rail Corp.,
No. 89-1350 (3d Cir. Feb. 13, 1991) (same), reiterating “the Third
Circuit’s ‘broad’ and ‘liberal’ standard of admitting expert testi-
mony.” Slip op. at 24.

11 2.g.: “Our message to our able trial colleagues: it is time to take
hold of expert testimony in federal trials.” Jn re Air Crash Dis-
aster, 795 F.2d 1230, 1234 (5th Cir. 1986). See also Richardson V.
Richardson-Merrell, Inc., 857 F.2d 823, 831 n.59 (D.C. Cir. 1988)
(“special care should be exercised in evaluating the reliability and
probative worth”), cert. denied, 110 S. Ct. 218 (1989); Brock v.
Merrell Dow Pharmaceuticals, Inc., 874 F.2d 307, 315 (“encourag-
ing district judges faced with medical and epidemiologic proof in
subsequent toxic tort cases to be especially vigilant”), modified,
884 F.2d 166 (5th Cir. 1989), cert. denied, 110 S. Ct. 1511 (1990).

12

expert opinion testimony must be based on generally
accepted scientific principles.

If, as the Third Circuit holds, the District Court erred in
granting summary judgment on such a record, then sum-
mary judgment effectively is no longer available to par-
ties attempting to defend against “toxic tort” claims.

Finally, the Third Circuit here, in the face of Erie
R.R. v. Tompkins, 304 U.S. 64 (1938), United Mine
Workers v. Gibbs, 383 U.S. 715 (1966), and the holding
of the District Court, invented a new state tort. It ac-
knowledged that Pennsylvania’s Legislature and courts
(like nearly all others in this country) have never en-
acted a tort of “medical monitoring,” which would allow
plaintiffs to recover without any proof of present in-
jury; in fact, a series of recent Pennsylvania decisions,
respected by federal district judges, hold that Pennsyl-
vania does not allow tort recovery in the absence of pres-
ent physical injury. Yet the Third Circuit here an-
nounced that although “the Pennsylvania Supreme Court
has expressed some reluctance to recognize claims for
enhanced risk of harm,” A. 53a, nevertheless the Third
Circuit would “predict” into existence, A. 56a, for “policy
reasons,” A. 57a, a new and virtually unbounded state-
law cause of action.”

It is unlikely that this Court will soon have before it
any case that more starkly frames, on a fully developed
record, these issues of judicial responsibility in an ex-
panding and controversial sector of federal litigation.

I. THE THIRD CIRCUIT’S STANDARDS FOR RE-
VERSAL OF EXCLUSION OF OPINION TESTI-
MONY CONFLICT WITH DECISIONS OF THIS
COURT AND NINE OTHER CIRCUITS.

Griginally a small and convenient exception to the gen-

eral prohibition of opinion testimony, see Fed. R. Evid.
701, “expert” opinions now have taken center stage in

12 Also, the Third Circuit’s holding that an invalid appeal from an
interlocutory order can be cured by a later Rule 54(b) certification
would merit grant of certiorari in itself. See pp. 27-29, infra.

13

much litigation in the federal courts. In cases like these,
where “toxic tort” plaintiffs claim that injury (or po-
tential injury) has been caused by exposure to minute
amounts of chemicals, “expert”? opinions usually are
essential.

This creates a dilemma, with which the courts of ap-
peals and the district courts have been struggling—up
to now with some success. On the one hand, expert opin-
ions usually are the only evidence plaintiffs can present
to establish causation. On the other hand, “expert” wit-
nesses for hire abound, and if some are allowed to tell
juries opinions having no basis in anything recognizable
as science, then juries are being misled into regarding as
“expert” a kind of opinion that in fact has no more evi-
dentiary worth than any layperson’s.

What most district courts have been doing, and most
courts of appeals approving, is to exercise the district
courts’ authority under Rule 104 of the Federal Rules of
Evidence to exclude the very worst instances of unsup-
ported “expert” opinions—colloquially termed “junk
science”’—by invoking Federal Rules of Evidence 403
(excluding testimony that is on balance too prejudicial
or confusing) or 702 and 703 (setting the standards of
helpfulness and whether the opinions are based upon
facts or data “of a type reasonably relied upon by experts
in the particular field”). The District Court did exactly
that here.

The Third Circuit, however, has brought even this kind
of minimal scrutiny to a sudden halt, and instead di-
rected that henceforth opinions of “experts” are “rarely”
to be excluded, and then only after elaborate new proce-
dures of the Third Circuit’s own creation. Its directive
is inconsistent with the Federal Rules of Evidence and
with this Court’s few, but firm, decisions on the subject;
even more strikingly, it is a total departure from the
efforts of other Circuits to bring rationality and order
to this important procedural area.

14

A. The Third Circuit’s Reversal of Exclusion of Un-
supported Expert Opinions Conflicts with Decisions
of the First, Second, Fifth, Sixth, Seventh, Ninth,
Tenth, Eleventh, and District of Columbia Circuits.

1. Conflict as to Speculative Opinions.

In depositions these experts were forced to explain the
scientific basis for their blanket causation conclusions—
and on all the key points admitted that they had none.
It is unlikely that a plainer record of speculation mas-
querading as science has ever been compiled. If it was
reversible error for the District Court to examine such a
record and exclude such opinions, then in federal! toxic
tort cases, anything goes.

But that is not the law applied in the other Circuits.
They allow and indeed require district courts to exclude
“expert” opinions that rest on unscientific speculation.
The inter-Circuit conflict raised by the Third Circuit’s
ruling is massive, as a simple listing of recent decisions
demonstrates:

1. First Circuit: Lynch v. Merrell-National Labs., 830
F.2d 1190, 1196-97 (1st Cir. 1987): “the district court’s
firm rejection here of foundationless expert testimony
was necessary, admirable, and entirely within the discre-
tion of the court under Federal Rules of Evidence 403
and 703.”

2. Fifth Circuit: Viterbo v. Dow Chem. Co., 826 F.2d
420, 424 (5th Cir. 1987): widely cited holding that
“wlithout more than credentials and a subjective opin-
ion, an expert’s testimony that ‘it is so’ is not admis-
sible.”

Slaughter v. Southern Tale Co., 919 F.2d 304, 306-07
(5th Cir. 1990): affirms district court’s exclusion of ex-
pert’s “bare conclusions,” because “Federal Rule of Evi-
dence 703 requires courts to examine the reliability of
an expert’s sources to determine whether they satisfy the
threshold established by the rule.”

8. Sixth Circuit: Sterling v. Velsicol Chem. Corp.,
855 F.2d 1188, 1208-09 (6th Cir. 1988): district court

15

erred in failing to exclude scientific opinions that lacked
“conformity to a generally accepted explanatory theory.”

Coal Resources, Inc. v. Gulf & Western Industries,
Inc., 865 F.2d 761, 772 n.4 (6th Cir. 1989): “Although
F.R.E. 703 has greatly liberalized the law regarding the
type of information on which an expert may base his
opinion . . . that liberalization has not eliminated the re-
quirement that an expert ground his opinion on reliable
data rather than pure speculation.”

4. Ninth Circuit: McGlinchy v. Shell Chem. Co., 845
F.2d 802, 807 (9th Cir. 1988): “His study rests on un-
supported assumptions .... Lacking any sound founda-
tion, the study would mislead a jury... .”

5. Tenth Circuit: Lima v. United States, 708 F.2d
502, 507 (10th Cir. 1983): affirms district court’s rejec-
tion of physician’s testimony that “did not reach the
threshold standards for admissibility as set forth under
Fed. R. Evid. 703.”

6. Eleventh Circuit: Hull v. Merck & Co., 758 F.2d
1474, 1477 (11th Cir. 1985): when physician reached
conclusion by assuming (like Drs. Zahalsky and Shubin
here) that the chemical caused the injury, “The district
court was well within its discretion in excluding the evi-
dence.”

7. Second Circuit (district court): In re “Agent
Orange” Product Liability Litigation, 611 F. Supp. 1267,
1283 (E.D.N.Y. 1985), aff'd on other grounds, 818 F.2d
187 (2d Cir. 1987): “The unfounded assumptions and
speculation underlying Dr. Carnow’s testimony reduce its
probative value to a point approaching zero.” **

13 See also In re “Agent Orange” Product Liability Litigation,
611 F. Supp. 1223, 1250, 1260 (E.D.N.Y. 1985) (Weinstein, J.),
aff'd on other grounds, 818 F.2d 187 (2d Cir. 1987): physicians’
opinions were “insufficient as a basis for a finding of causality
because they fail to consider critical information”’:

“careful scrutiny of proposed evidence is especially appropriate
in the toxic tort area. The uncertainty of the evidence in such
cases, dependent as it is upon speculative scientific hypotheses
and epidemiological studies, creates a special need for robust

16

It is utterly clear that if the District Court’s exclusion
of such facially unsupported and speculative testimony
had been appealed in any Circuit but the Third, it would
have been affirmed. In some Circuits it might well have
been affirmed summarily or routinely.”

2. Conflict as to Causation Opinions Contrary to
Epidemiological Evidence.

The plaintiffs provided no epidemiological studies con-
necting PCBs to the illnesses complained of at all.’* In
fact the record contained extensive epidemiological stu-
dies concluding there is no such connection.

Several Circuits have developed a rule that “toxic
tort”? causation opinions that are not supported by—or
as here fly in the face of—epidemiological studies and
data, are inadmissible. Thus recently in Ealy Vv.
Richardson-Merrell, Inc., 897 F.2d 1159, 1160 (D.C.
Cir.), cert. denied, 111 S. Ct. 370 (1990), the Dis-
trict of Columbia Circuit declared it a “binding rule”
that an expert opinion on causation “is without scien-
tific foundation under Federal Rule of Evidence
703 in the face of ‘a wealth of published epidemi-
ological data’ to the contrary,” quoting in part Richard-
son V. Richardson-Merrell, Inc., 857 F.2d 823, 832 (D.C.
Cir. 1988), cert. denied, 110 S. Ct. 218 (1989). Accord,
Wilson v. Merrell Dow Pharmaceuticals, Inc., 893 F.2d
1149, 1155 (10th Cir. 1990); Lynch v. Merrell-National
Labs., 830 F.2d 1190, 1194 (1st Cir. 1987). “The federal

screening of experts and gatekeeping under Rules 403 and 703
by the court.”

14F.g., Amato v. Syntex Labs., Inc., 917 F.2d 24, 1990 U.S.
App. Lexis 19210 (6th Cir. 1990) (unpublished) (“In order to be
admissible, such [expert] testimony must be supported by more
than qualifications and a subjective opinion that ‘it is so’’”’).

15In two incidents in Japan and Taiwan, some human beings
accidentally ate rice oil heavily contaminated with chemicals includ-
ing PCBs and suffered skin reactions and some other acute effects,
nearly all different from those claimed here; plaintiffs’ own expert
concluded that “it is now clear that the majority of the Yusho-Yu
Cheng symptoms can. be attributed to other compounds,” and “[t]he
findings cannot be attributed to the Yusho patients’ PCB exposure.”
R. 8907-08; R. 8900.

17

courts have held that . . . expert opinion which is not based
on epidemiological evidence is not admissible to establish
causation... .” Daubert v. Merrell Dow Pharmaceu-
ticals, Inc., 727 F. Supp. 570, 575 (S.D. Cal. 1989). The
Third Circuit, however, here holds the contrary, and the
Eleventh likewise has held that epidemiological evidence
is not essential. Wells v. Ortho Pharmaceutical Corp.,
788 F.2d 741 744-45 (11th Cir.), cert. denied, 479 U.S.
950 (1986). The split is clear and should be resolved.

3. Conflict as to Causation Opinions Extrapolating
From Animal Experiments.

The District Court, observing that “‘[t]here are federal
court cases on both sides,” A. 105a, excluded opinions in-
sofar as they referred to studies of diseases induced by
massive doses applied to laboratory animals. A. 108a."
The Court of Appeals held that there was insufficient
factual basis for that ruling. A. 58a-59a.

“(Jljurisdictions are in disagreement over the admis-
sibility of expert medical or scientific testimony based on
animal studies. . . .” Ball v. Joy Manufacturing Co.,
1990 U.S. Dist. Lexis 16011 n.5 (S.D.W. Va. 1990).
Several Circuits have ruled that, whatever animal studies
may indicate about avenues for further research, or risk
assessment decisions for regulatory agencies, they are not
probative in a tort action to base opinions of causation
in human beings—particularly when, as here, all the
epidemiological evidence shows the contrary. “Studies of
this sort [involving animals], singly or in combination,
do not have the capability of proving causation in hu-
man beings in the absence of any confirmatory epidemio-
logical data.” Lynch v. Merrell-National Labs., 830 F.2d
1190, 1194 (1st Cir. 1987). The District of Columbia
Circuit agrees that “[a]t least where epidemiological
evidence was available, animals studies ‘are of so little
probative force and are so potentially misleading as to

16 Feeding or injecting laboratory animals with large doses of
PCBs produced liver cancer (not complained of by any plaintiff)
and some acute effects, almost none of which were among the numer-
ous diseases alleged by plaintiffs.

18

be inadmissible.” Richardson v. Richardson-Merrell,
Inc., supra, 857 F.2d at 830, 831 n.59, quoting in part
In re “Agent Orange” Product Liability Litigation, su-
pra, 611 F. Supp. at 1241. The Fifth and Seventh Cir-
cuits have similar holdings. Viterbo v. Dow Chem. Co.,
supra, 826 F.2d at 424; Brock v. Merrell Dow Phar-
maceuticals, Inc., supra, 874 F.2d at 313 (animal stud-
ies are “of questionable applicability to humans’); /n-
ternational Umion, UAW v. Johnson Controls, Inc., 886
F.2d 871, 889 (7th Cir. 1989) (en banc) (animal studies
“speculative and unconvincing’), cert. granted, 110 8S.
Ct. 1522 (1990) (No. 89-1215).

In reversing the District Court’s exclusion of animal
studies here, the Third Circuit again is in company with
the Eleventh. See Wells v. Ortho Pharmaceutical Corp.,
788 F.2d 741, 744-45 (11th Cir.), cert. denied, 479 US.
950 (1986).

4. Conflict as to Requirement of Generally Ac-
cepted Science.

The Third Circuit here relied on its own prior
“groundbreaking decision” ’’ in United States v. Down-
ing, 753 F.2d 1224, 1232-41 (3d Cir. 1985), which held
that after adoption of Rule 702, expert opinions no
longer need reflect “generally accepted” science, as up
to then had been required in the leading case of Frye v.
United States, 293 Fed. 1013 (D.C. Cir. 1923).

However, as two Justices of this Court pointed out,
some other Circuits do not agree with the Third Circuit,
and instead hold that Frye’s requirement is still part of
Rule 702, which is “an obviously recurring and impor-
tant issue.” Mustafa v. United States, 479 U.S. 953
(1986) (White and Brennan, JJ., dissenting from denial
of certiorari), citing United States v. McBride, 786 F.2d
45, 49 (2d Cir. 1986), and Barrel of Fun, Inc. v. State
Farm Fire & Cas. Co., 739 F.2d 1028, 1031 n.9 (5th Cir.
1984). The split remains unresolved and has broadened.
See, e.g., United States v. Smith, 869 F.2d 348, 351 (7th

173 D. LOUISELL & C. MUELLER, FEDERAL EVIDENCE (1979) (1990
Supp.) 420. See also id. (“has the effect of broadening the admissi-
bility of scientific proof’’).

19

Cir. 1989) (“this circuit has continued to affirm (and
to apply) the Frye standard”); accord, Sterling v. Vel-
sicol Chem. Corp., 855 F.2d 1188, 1208 (6th Cir. 1988) ;
United States v. Christophe, 833 F.2d 1296, 1299 (9th
Cir. 1987); United States v. Shorter, 809 F.2d 54, 60
(D.C. Cir.), cert. denied, 484 U.S. 817 (1987); United
States v. Smith, 776 F.2d 892, 898 (10th Cir. 1985). “The
courts and commentators are divided over whether the
Federal Rules of Evidence have superseded the Frye test.”
P. GIANNELLI & E. IMWINKELRIED, SCIENTIFIC EVIDENCE
28-29 (1986) (footnotes omitted).

5. Conflict as to New Procedures Required for
Rule 403.

In imposing an apparently unwaivable '* requirement
for district judges to hold in limine hearings prior to
exclusion of experts, and in demanding that from now on
to sustain Rule 403 exclusions there must be “a virtual
surrogate for a trial record,” A. 72a, the Third Circuit
has invented barriers to trial judges’ authority to make
evidentiary rulings that no other Circuit recognizes.
Such collateral proceedings should be tools available for
a trial judge, not straitjackets. They certainly are not
required by Federal Rule of Evidence 104, which with-
out such restrictions authorizes district judges to de-
termine admissibility. The Third Circuit here has simply
enacted daunting new procedural obstacles to discourage
exclusion of baseless expert opinions.

Calling Rule 403 a “trial-oriented” and ‘extreme meas-
ure” that is “rarely necessary” and should “rarely” be
used by district courts on summary judgment, A. 72a,
the Third Circuit adds a warning to its district courts
that if Rules 702 and 703 are satisfied, “Rule 403 is an

18 Although it disclaimed an absolute requirement for all cases,
the Third Circuit repeatedly denounced the absence of an in limine
hearing, A. 23a, 6la, and held that “[o]n this ground alone” it
would “have to” reverse. A. 62a. The Court of Appeals in its second
set of amendments adhered to that holding even though it finally
acknowledged that the plaintiffs themselves had vigorously opposed
an in limine hearing here. A. 6la 1.29a; see A. 23a, 61a, 86a-87a,
89a.

20

unlikely basis for exclusion.” Jd. It relied last week on
its holding here to reverse exclusion of expert testi-
mony in another toxic tort case, reiterating that “exclud-
ing evidence under Fed. R. Evid. 403 at the pretrial
stage is an extreme measure.” Hines v. Consolidated
Rail Corp., supra, slip op. at 29. Other Circuits not only
do not impose such new procedural obstacles, but tell
their district courts exactly the opposite: that they
should not forget to use Rule 403 to screen out mislead-
ing opinions even if other rules would not.”

B. The Third Circuit Applied a Standard of Review
Different From the One Prescribed by This Court
and Applied in Other Circuits.

Petitioners strenuously argued to the Court of Appeals
that the District Court’s rulings excluding expert opin-
ions had to stand unless they were “manifestly errone-
ous.” That is the standard of review enunciated by this
Court in Spring Co. v. Edgar, 99 U.S. 645, 658 (1879),
and reiterated in Salem v. United States Lines Co., 370
U.S. 31, 35 (1962) (emphasis supplied) :

“the trial judge has broad discretion in the matter
of the admission or exclusion of expert evidence,
and his action is to be sustained unless manifestly
erroneous.”

Nevertheless, the Court of Appeals instead reviewed
using an abuse-of-discretion standard, as it has in other
recent cases on expert testimony.” A. 64a & n.33. By
that standard, it reversed in spite of what it acknowl-
edged was a “forceful,” A. 70a, record supporting the
Districts Court’s exclusion decision. Far from deferring

19 “Even if the court finds a witness qualified under Rule 702, it
may still exclude testimony under Rule 403.” Rogers v. Raymark
Industries, Inc., 922 F.2d 1433 (9th Cir. 1991). Accord, e.g.,
Nachtsheim v. Beech Aircraft Corp., 847 F.2d 1261, 1270-71 (7th
Cir. 1988); United States v. Brown, 776 F.2d 397, 401 n.6 (2d Cir.
1985); Barrel of Fun, Inc. v. State Farm Fire & Cas. Co., 739 F.2d
1028, 1033 (5th Cir. 1984).

20 F.g., Hines v. Consolidated Rail Corp., supra, slip op. at 10;

Habecker v. Copperloy Corp., 893 F.2d 49, 51 (3d Cir. 1990);
Linkstrom Vv. Golden T. Farms, 883 F.2d 269, 270 (3d Cir. 1989).

21

to that Court’s judgment, it overturned the District
Court’s supporting findings with such coi.:ments as: “We
dismiss out of hand the district court’s finding . . . that
‘Dr. Nicholson’s testimony would confuse the jury....”’
A. 65a n.35.

Cases from most Circuits do not so readily reverse evi-
dentiary rulings of district courts. They instead follow
Salem,*' which they recognize imposes at least a “clearly
erroneous” test. Hdwards v. Sears, Roebuck & Co., 512
F.2d 276, 292 (5th Cir. 1975). Some other Circuits, how-
ever, have occasionally slipped into equating this Court’s
“manifestly erroneous” standard with abuse of discre-
tion.** The meaning of Salem plainly needs to be clarified.
The standard of appellate review of decisions to exclude
expert testimony should be unambiguous and should be
the same in all the Circuits.

II. THE THIRD CIRCUIT'S BASIS FOR REVERSING
SUMMARY JUDGMENT CONFLICTS WITH THIS
COURT’S CELOTEX TRILOGY AND WITH DECI-
SIONS IN SEVEN OTHER CIRCUITS.

A. Conflict as to Requirement for Probative Evidence
to Support Opinion of Causation.

Without dispute, respondents had the burden to estab-
lish causation by presenting sufficient probative evidence
that PCBs both were capable of causing, and in fact had

21 B.g., United States v. Tutino, 883 F.2d 1125, 1134 (2d Cir. 1989),
cert. denied, 110 S. Ct. 1189 (1990); United States v. MacDonald,
688 F.2d 224, 227-28 (4th Cir. 1982), cert. denied, 459 U.S. 1103
(1983); Slaughter v. Southern Tale Co., 919 F.2d 304, 307 (5th
Cir. 1990); Perkins v. Volkswagen of America, Inc., 596 F.2d 681,
682 (5th Cir. 1979); Apponi v. Sunshine Biscuits, Inc., 809 F.2d
1210, 1218 (6th Cir.), cert. denied, 484 U.S. 820 (1987); United
States v. Lundy, 809 F.2d 392, 394 (7th Cir. 1987); United States
Vv. Darby, 857 F.2d 623, 625 (9th Cir. 1988); Hull v. Merck & Co.,
758 F.2d 1474, 1477 (11th Cir. 1985); Coleman v. Parkline Corp.,
844 F.2d 863, 865-66 (D.C. Cir. 1988); Milmark Services, Inc. V.
United States, 731 F.2d 855, 860 (Fed. Cir. 1984).

22 F.g., Apostol v. United States, 838 F.2d 595, 599 (1st Cir.
1988); Wilmington v. J.J. Case Co., 793 F.2d 909, 919 (8th Cir.
1986) ; Sanchez v. Safeway Stores, Inc., 451 F.2d 998, 1000 (10th
Cir. 1971).

ad

22

caused, each of the numerous injuries complained of. Yet
they admittedly presented no opinions at all based on
diagnoses excluding other likely causes (differential diag-
noses), and instead relied upon assertions unsupported by
human clinical, epidemiological or toxicological evidence.

In Celotex Corp. v. Catrett, supra, this Court consid-
ered the exposure (rather than causation) aspect of a
toxic tort claim, and held that “Rule 56(c) mandates the
entry of summary judgment” when a party “fails to
make a showing sufficient to establish the existence of an
element essential to that party’s case.” 477 U.S. at 322.
In Anderson v. Liberty Lobby, Inc., supra, it held that
“Tf the evidence is merely colorable ... or is not signifi-
cantly probative ... summary judgment may be granted.”
477 U.S. at 249-50.

The Court of Appeals did not explain how the ipse
dixit pronouncements of these experts, lacking scientific
support, could be “significantly probative’ of causation
of every one of the plaintiffs’ forty-seven illnesses, or
even of one.** And it declined even to mention the deci-
sions of other courts of appeals on which the District
Court had relied in finding that such speculative and
unsupported opinions lack probative value. Richardson
v. Richardson-Merrell, Inc., supra; Viterbo v. Dow Chem.
Co., supra.

Little more than a year ago, in directing dismissal of
a claim based on expert opinions that had more support
than those in the present case, the Fifth Circuit gave its
district judges a direction diametrically opposed to the
Third Circuit’s here:

“courts must critically evaluate the reasoning proc-
ess by which the experts connect data to their con-
clusions . . . . [S]peculation unconfirmed by epi-
demiologic proof cannot form the basis for causation
in a court of law.” .

23 Nor did it explain how an affidavit by Dr. Nicholson blaming
PCBs only for three other illnesses could block summary judgment
when, as the District Court recognized, A. 118a-119a, an irrelevant
affidavit cannot create a genuine issue of material fact. Edwards
v. Aguillard, 482 U.S. 578, 595 (1987).

23

Brock v. Merrell Dow Pharmaceuticals, Inc., supra, 874
F.2d at 310, 315. Accord, Thompson v. Southern Pac.
Trans. Co., 809 F.2d 1167, 1169 (5th Cir. 1987), cert.
denied, 484 U.S. 819 (1987) (rejecting unsupported ex-
pert testimony that porphyria was caused by dioxin). In
the present case, the Third Circuit reversed its district
court for having done exactly what the Fifth Circuit
commands.

At least six other Circuits agree with the Fifth that
unsupported expert testimony cannot create a genuine
issue of material fact. See Lynch v. Merrell-National
Labs., 830 F.2d 1190, 1196 (1st Cir. 1987) (“the dis-
trict court’s firm rejection here of foundationless ex-
pert testimony was necessary, admirable, and entirely
within the discretion of the court’); Sterling v. Velsicol
Chem. Corp., 855 F.2d 1188, 1209 (6th Cir. 1988)
(“{wlithout the requisite clinical tests and a widely ac-
cepted medical basis for reaching its conclusions, plain-
tiffs’ experts’ opinions are insufficient to sustain plain-
tiffs’ burden of proof”); Richardson v. Richardson-
Merrell, Inc., supra, 857 F.2d at 829 (“expert wit-
nesses are indispensable in a case such as this. But that
is not to say that the court’s hands are inexorably tied,
or that it must accept uncritically any sort of opinion
espoused by an expert merely because his credentials ren-
der him qualified to testify”); Kenosha Liquor Co. Vv.
Heublein, Inc., 895 F.2d 418, 420 (7th Cir. 1990) (“Ex-
pert opinions are worthless without data and reasons’’) ;
Hasler v. United States, 718 F.2d 202, 206 (6th Cir.
1983) (claim that swine flu vaccine had caused arthritis
was unsupported as a matter of law when “the experts
testified that there was no medical literature or evidence
to support the plaintiff’s theory of causation,” and “any
causal connection” was “merely conjectural’), cert. de-
nied, 469 U.S. 817 (1984) ; United States v. Various Slot
Machines, 658 F.2d 697, 700-01 (9th Cir. 1981) (sum-
mary judgment affirmed over expert opinions that lacked
factual basis; “[i]t would be an imposition on the trial
judge, and make a mockery of summary judgment proce-

24

dure, to hold otherwise”); Wheelahan v. G.D. Searle &
Co., 814 F.2d 655 (4th Cir. 1987), affirming mem. 630
F. Supp. 1087, 1089 (D. Md. 1986) (“It is particularly
important to be assured that an inference of causation is
based upon at least a reasonable probability of causation,
in an effort to remove purely conjectural and speculative
questions from the jury’).

B. Conflict as to Implausible Claims.

In Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
supra, this Court held that a district court must grant
s’/mmary judgment “if the claim is one that simply makes
no... sense,” 475 U.S. at 587—such as, for example,
the assertion here that PCBs caused asthma in persons
with a family history of asthma, when it was conceded
that no other scientist had ever associated PCBs with that
infirmity. The claim of the plaintiffs here—that exposure
to minute amounts of PCBs had caused them to suffer
dozens of diverse varieties of human illness—is on its
face implausible, particularly when the record before the
District Court was that in spite of years of intensive
inquiry, no peer-reviewed scientific study had ever con-
cluded that PCBs are capable of causing human beings
to suffer anything more than temporary skin irritation.
“(I]f the factual context makes the non-moving party’s
claim implausible, that party must come forward with
more persuasive evidence than would ordinarily be neces-
sary to show that there is a genuine issue for trial.”
California Architectural Bldg. Prods., Inc. v. Franciscan
Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)
(emphasis in original), cert. denied, 484 U.S. 1006
(1988); accord, Mid-State Fertilizer Co. v. Exchange
Nat’l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989).

C. Conflict as to Failure to Eliminate Other Causes.

A physician diagnosing the cause of an illness con-
siders and eliminates other possible causes. Respondents’
own experts here recognized that only a physician is
qualified to perform that process, which is called “differ-
ential diagnosis.” See A. 37a; R. 5634. The Court of

25

Appeals acknowledged that no differential diagnoses from
physicians had been presented, but asserted wholly in-
correctly and without explanation that there were some
from non-physicians. A. 50a, 77a. As the District Court
found, A. 124a, the plaintiffs presented no differential
diagnosis by anyone, and plaintiffs’ experts themselves
conceded that other possible causes existed.

Several Circuits hold that when other causes have not
been eliminated, causation simply has not been proven.
Novak v. United States, 865 F.2d 718, 722 (6th Cir.
1989) ; Viterbo v. Dow Chem. Co., supra, 826 F.2d at
423; Thompson v. Southern Pac. Trans. Co., supra, 809
F.2d at 1169; Lynch v. Merrell-National Labs., supra,
830 F.2d at 1194.

D. Conflict as to Rule 56(f).

In Celotex this Court also held that ‘‘[a]ny potential
problem with . . . premature [summary judgment] mo-
tions can be adequately dealt with under Rule 56(f),”
which allows district courts to defer ruling on a summary
judgment motion if the opposing party submits affidavits
demonstrating need for further discovery. 477 U.S. at
326. Here respondents made no motion for further dis-
covery under Rule 56(f). Nevertheless, the Third Cir-
cuit scolded that the District Court “did not give the
plaintiffs sufficient opportunity to explore the issues.”
A. 61a.

At least four Circuits hold that summary judgment
cannot be reversed for lack of discovery when there has
been no Rule 56(f) motion. See Chicago Florsheim Shoe
Store Co. v. Cluett, Peabody & Co., 826 F.2d 725, 727
(7th Cir. 1987); Gray v. Udevitz, 656 F.2d 588, 592 (10th
Cir. 1981); Over the Road Drivers, Inc. v. Transport
Ins. Co., 637 F.2d 816, 821 (1st Cir. 1980) ; THI-Hawaii,
Inc. Vv. First Commerce Financial Corp., 627 F.2d 991,
994 (9th Cir. 1980); Brown v. Chaffee, 612 F.2d 497,
504-05 (10th Cir. 1979). Nor could an unsupported as-
sertion that more discovery might produce new facts up-
set summary judgment. Washington v. Armstrong World
Industries, Inc., 839 F.2d 1121, 1123 (5th Cir. 1988).

26

III. THE CREATION OF A NEW STATE CAUSE OF
ACTION CONFLICTS WITH PLAIN HOLDINGS OF
OTHER CIRCUITS AND OF THIS COURT.

Almost casually the Third Circuit here, in quasi-
legislative fashion, reviewed the arguments favoring a
new “medical monitoring” tort requiring no proof of
physical injury, and decided to enact it.

Temptation no doubt exists for federal judges to cre-
ate new state law when they conclude for “policy” rea-
sons, A. 57a, that the state’s statutes and jurisprudence
are not sufficiently progressive. The Third Circuit here,
in spite of recent Pennsylvania decisions that require
physical injury as a precondition to recovery, ** neverthe-
less “predicted” that one day Pennsylvania (unlike most
states 7°) would recognize a “medical monitoring” tort
for recovery of damages without any proof at all of
physical injury. A. 56a. The Third Circuit’s result is an
entire new and unbounded category of tort litigation in
the federal courts of Pennsylvania, of a kind which in
the estimation of one court “could potentially devastate
the court system.” Ball v. Joy Mfg. Co., supra.

Other courts of appeals resist such temptations, as
they are required to do by this Court’s decisions in Erie
R.R. v. Tompkins, 304 U.S. 64 (1938) (diversity), and
United Mine Workers v. Gibbs, 383 U.S. 715 (1966)

24 F.g., Martin Vv. Johns-Manville Corp., 508 Pa. 154, 164-65, 494
A.2d 1088, 1093-94 (1985) : Houston v. Texaco, Inc., 371 Pa. Super.
399, 404, 538 A.2d 502, 504, allocatur denied, 520 Pa. 575, 549 A.2d
136 (1988).

25 Although the Court of Appeals described its new tort as con-
sistent with “‘the weight of authority,” A. 56a, it is actually a tiny
minority policy rejected in nearly all jurisdictions. See W. PROSSER
& R. KEETON, TORTS 165 (5th ed. 1984); Anno., 50 A.L.R.4th 13,
216 (1986). The Court of Appeals appears to have adopted the ele-
ments of its new tort, A. 56a-57a, almost verbatim from a student
note that called such a proposal “novel” and “innovative.” See Note,
63 IND. L.J. 849, 858, 872 (1988). Recently the California Court of
Appeal, specifically rejecting the Third Circuit’s decision here, held
that until and unless authorized by higher authority, “we decline to
create a cause of action for medical monitoring.” Potter v. Firestone
Tire & Rubber Co., 225 Cal. App. 3d 213, 232, 274 Cal. Rptr. 885,
896 (1990),

27

(pendent jurisdiction). As the Fourth Circuit recently
held,
“Federal courts are permitted under Erie R.R. Co.
v. Tompkins ... and Gibbs .. . to rule upon state
law as it presently exists and not to surmise or sug-
gest its expansion.”
Washington v. Union Carbide Corp., 870 F.2d 957, 962
(4th Cir. 1989). The Seventh Circuit has reiterated “our
unwillingness to speculate on any trends in state law.”
Shaw v. Republic Drill Corp., 810 F.2d 149, 150 (7th Cir.
1987). Accord, e.g., In re Fibreboard Corp., 893 F.2d
706, 711 (5th Cir. 1990) (‘Texas has made its policy
choices”) ; Hausman v. Buckley, 299 F.2d 696, 704 (2d
Cir.) (‘the proper function of this Court is to ascertain
what [state] law is, and not to speculate about what it
will be”), cert. denied, 369 U.S. 885 (1962). More-
over, the Third Circuit here, contrary to other Circuits,
failed to give any weight to the interpretation of Penn-
sylvania law by the district judge (and other district
judges **) sitting in that state. See, e.g., Russell v. Salve
Regina College, 890 F.2d 484 (1st Cir. 1989), cert.
granted, 110 S. Ct. 3269 (1990) (No. 89-1629).

IV. THE CIRCUITS ARE DIVIDED ON WHETHER AN
APPEAL FROM AN INTERLOCUTORY ORDER
CAN BE VALIDATED BY A LATER RULE 54(b)
JUDGMENT.

A month ago in FirsTier Mortgage Co. v. Investors

Mortgage Ins. Co., 111 S. Ct. 648 (1991), this Court held

26 See Villari v. Terminix Int’l, Inc., 663 F. Supp. 727, 735
n.5 (E.D. Pa. 1987) (Pollak, J.) (“The Villaris urge this court
to predict that the Pennsylvania Supreme Court will . . . hold that
the cost of future medical monitoring is a proper element of dam-
ages .... The Villaris have offered no basis for this prediction and
we see none”); see also Bubash v. Philadelphia Elec. Co., 717
F. Supp. 297 (M.D. Pa. 1989), in which the author of a case cited
by the Court of Appeals, Merry v. Westinghouse Elec. Co., 684
F. Supp. 847 (M.D. Pa. 1989), see A. 56a, clarified his reading
of Pennsylvania law as follows: “Mrs. Bubash has been unable to
show any physical injury or medically identifiable effect ....[WlJe
cannot say on this record that her claim is redressable under current
Pennsylvania law.”

28

that Rule 4(a) (2) of the Federal Rules of Appellate Pro-
cedure permitted a premature notice of appeal from an
announced order that would be final when entered. What
FirsTier did not specifically rule on is whether Rule
4(a) (2) applies in a situation where (1) a district court
enters a clearly interlocutory order disposing of some
but not all claims; (2) a notice of appeal is filed; and
then (3) later the district court directs that a final judg-
ment be entered pursuant to Rule 54(b), Fed. R. Civ. P.
That question determines appellate jurisdiction in nine of
the twenty-one consolidated cases here.””

In those nine cases, the plaintiffs sought to recover
for both property damage and personal injury. The Dis-
trict Court announced on November 28, 1988, and en-
tered the next day, an interlocutory partial summary
judgment, limited to their personal injury claims. A.
139a. These plaintiffs filed a notice of appeal from that
interlocutory order on December 23, 1988. Later, on
January 4, 1989, the District Court granted a motion and
entered a final judgment under Rule 54(b). A. 140a-142a.
But these plaintiffs filed no notice of appeal from that
final judgment.

Petitioners moved to dismiss these appeals under 28
U.S.C. § 1291, citing Oak Constr. Co. v. Huron Cement
Co., 475 F.2d 1220 (6th Cir. 1973), which squarely held
that a notice of appeal from an interlocutory order can-
not be validated by a subsequent Rule 54(b) certification.
The Third Circuit nevertheless held it had jurisdiction.
A. 24a n.6. The Tenth Circuit, over a vigorous dissent
of two judges, agrees with the Third Circuit, as do some
others. Lewis v. B.F. Goodrich Co., 850 F.2d 641 (10th
Cir. 1988) (en banc). But at least three Circuits follow
the opposite rule. General Television Arts, Inc. v. South-
ern Ry., 725 F.2d 1327, 1830-31 (11th Cir. 1984); see
also United States v. Hansen, 795 F.2d 35, 37 (7th Cir.

27 Barbetta; Johnson; and Christopher, Cathlene, Craig, Celeste,
Clemmon, Cloyd and Curtis Brown.

29

1986) (noting that “[t]he cases are split”) ; Marsh-Mc-
Birney, Inc. v. Montedoro-Whitney Corp., 882 F.2d 498,
503 (Fed. Cir. 1989), vacated and remanded, 59 U.S.L.
WEEK 3501 (U.S. Jan. 22, 1991) (No. 89-954); see also
9 J. Moore, et al., FEDERAL PRACTICE { 204.14 at 4-129
(2d ed. 1990).

This Court in FirsTier cautioned that Rule 4(a) (2)
applies only to notices of appeal from a “decision
that would be appealable if immediately followed by
the entry of judgment.” 111 8S. Ct. at 653 (emphasis in
original). That is not the case where, as here, the deci-
sion was interlocutory was immediately entered, was ap-
pealed from, and only a later decision under Rule 54(b)
created a subsequent appealable order. The conflict in
the Circuits and with FirsTier should be resolved.

V. THE ISSUES ARE IMPORTANT.

““'U]kase in the guise of expertise is a plague in con-
temporary litigation.” Mid-State Fertilizer Co. v. Ex-
change Nat'l Bank, supra, 877 F.2d at 1340. Judge
Higginbotham of the Fifth Circuit recently stressed the
need for an authoritative decision on

“the role of experts in the federal courts including
whether we should accept opinions of experts not
based upon a generally accepted scientific principle

[Wle ought not leave this lion in the busy
street of our trial courts and inevitably multiply the
appellate workload.”

Brock v. Merrell Dow Pharmaceuticals, Inc., supra, 884
F.2d at 168, 170 (dissenting from denial of rehearing
en banc). Officials of the Executive Branch as well have
worried that

“it has become all too common for ‘experts’ cr
‘studies’ on the fringes of or even well beyond the
outer parameters of mainstream scientific or medi-
cal views to be presented to juries as valid evidence
from which conclusions can be drawn.” -

30

REPORT OF THE TORT POLICY WORKING GROUP 35
(1986) .78

The Third Circuit here has rendered a major and
deviant opinion. The inevitable trend, under the Third
Circuit’s doctrine, will be towards breakdown of the ad-
missibility standards that some Circuits have developed,
and towards ever more extreme and unreliable scientific
testimony, for “[a]n expert can be found to testify to the
truth of almost any factual theory, no matter how frivo-
lous.” Weinstein, Improving Expert Testimony, 20 U.
RIcH. L. REv. 473, 482 (1986).

“Basic policy questions that affect the very nature of a
trial lie behind decisions to receive expert testimony.”
In re Air Crash Disaster, 795 F.2d 1230, 1233 (5th Cir.
1986). In most Circuits, district judges have been al-
lowed to exercise the screening control that the Third Cir-
cuit now has undermined. It is time for this Court to
decide which of the Circuits is correct.

CONCLUSION
For the reasons stated, certiorari should be granted.

Respectfully submitted,

JOHN G. KESTEK *
JOHN W. VARDAMAN, JR.
SARAH H. DUGGIN

Of Counsel: ROBERT J. SHAUGHNESSY
HARRY A. SHORT, JR. WILLIAMS & CONNOLLY
STEPHEN M. MCMANUS 839 17th Street, N.W.
LIEBERT, SHORT & Washington, D.C. 20006
HIRSHLAND (202) 331-5000
1901 Market Street Attorneys for Petitioner
Philadelphia, Pa. 19103 General Electric Company

(215) 557-4011
* Counsel of Record
28 See also, e.g., Huber, On Law and Sciosophy, 24 VALPARAISO L.

Rev. 319 (1990); Imwinkelried, Science Takes the Stand: The
Growing Misuse of Expert Testimony, 26 THE SCIENCES 20 (1986).

RICHARD A. KRAEMER
NANCY H. RESNICK
MARGOLIS, EDELSTEIN,
SCHERLIS, SAROWITZ
& KRAEMER
The Curtis Center
Independence Square West
Philadelphia, Pa. 19106
(215) 922-1100
Attorneys for Petitioner
National Railroad
Passenger Corporation

RICHARD J. GOLD
First Deputy City Solicitor
ROBERT A. SUTTON
Chief Assistant City
Solicitor
City Solicitor’s Office
1540 Municipal Services
Building
15th Street and
John F. Kennedy Blvd.
Philadelphia, Pa. 19102
(215) 686-5245
Attorneys for Petitioner
the City of Philadelphia

ROGER F.. Cox

JEROME R. RICHTER

PAUL J. GIORDANO

JOHN J. MONSEES
BLANK, ROME, COMISKY

& MCCAULEY

Four Penn Center Plaza
Philadelphia, Pa. 19103
(215) 569-5500

Attorneys for Petitioner
Southeastern Pennsylvania
Transportation Authority

February 20, 1991

31

MICHAEL H. MALIN
WHITE AND WILLIAMS
Suite 1800
One Liberty Place
1650 Market Street
Philadelphia, Pa. 19103
(215) 864-7138

Attorneys for Petitioner
Monsanto Company

DAVID RICHMAN
PEPPER, HAMILTON &
SCHEETZ
3000 Two Logan Square
Philadelphia, Pa. 19103
(215) 981-4000
Attorneys for Petitioner
Consolidated Rail
Corporation

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1681%3A1. Public record. Not legal advice.