Appendix — General Electric Co. v. Knight
Supreme Court brief1991
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| Siprewe Court, us
90-1809 FILED
a OF THE CLERK
In THE :
Suprene Court of the United States
OCTOBER TERM, 1990
ee.
:
GENERAL ELECTRIC COMPANY,
NATIONAL RAILROAD PASSENGER CORPORATION,
CITY OF PHILADELPHIA, SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY, MONSANTO COMPANY, and
CONSOLIDATED RAIL CORPORATION,
¥ Petitioners,
MAryY ALICE KNIGHT, e¢ al.,
Respondents.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit
APPENDIX TO
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. Sl’ .-UGHNESSY
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)
WILSON - 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
Philadelphia, Pa. 19106
(215) 922-1100
Attorneys for Petitioner
National Railrvad
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
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
monn oS
TABLE OF CONTENTS
Page
Opinion of the Court of Appeals (Sept. 20, 1990).. la
First Amendments to Opinion of the Court of
Bem i Te erecta ices 86a
Second Amendments to Opinion of the Court of
pt ee | Ra eee enero ecm 88a
Opinion of the District Court (Nov. 28, 1988) ...... 9la
Order of the District Court (Nov. 28, 1988)........ 138a
Order of the District Court (Jan. 4, 1989) .....0....... 140a
Judgment of the District Court (Jan. 4, 1989)... 142a
Order of the Court of Appeals denying rehearing
fe ARS eae ee ae Re ca EEA Ae LPG DEED 148a
Judgment of the Court of Appeals (September 20,
1990; issued December 3, 1990) ....000.2.2 0c 144a
Statute and Rules Involved ..................0000000.2.......---. 146a
la
APPENDIX A
[Please note: Amendments to this opinion made by the
Court of Appeals’ orders of October 29, 1990 and November
23, 1990 are indicated as follows: deletions made by the
_amendments are shown by italicizing the words deleted and
enclosing them within brackets; additions made by the
amendments are shown in bold-face type.]
Filed September 20, 1990
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 88-1973 /74/75/76/77/78/79/80/81/82/83/84/85/
86/87/88/89/90/91/92, 89-1070/71/72/73/74/75/76/77/
78/79 and 89-1097
No. 88-1973
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BROWN, CHRISTOPHER S. and BROWN,
J ACQUELINE MICHELL, h/w
V.
MONSANTO COMPANY
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA’”), NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK”), AND
CONSOLIDATED RAIL CORPORATION (“CONRAIL”)
V.
CITY OF PHILADELPHIA
UNITED STATES OF AMERICA
Christopher Brown, Appellant
2a
No. 88-1974
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BROWN, CATHLENE
Vv.
MONSANTO COMPANY
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA”), NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK”), AND
CONSOLIDATED RAIL CORPORATION (“CONRAIL”)
Ws
CITY OF PHILADELPHIA
UNITED STATES OF AMERICA
Cathlene Brown, Appellant
No. 88-1975
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BROWN, CRAIG A. and
BROWN, CATHERINE D. h/w
V.
MONSANTO COMPANY
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA’’), NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK”), AND
CONSOLIDATED RAIL CORPORATION (“CONRAIL”)
V.
CITY OF PHILADELPHIA
UNITED STATES OF AMERICA
Craig Brown, Appellant
3a
No. 88-1976
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BARBETTA, MARGHERITA
Le
MONSANTO COMPANY
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA”), NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK’”’), AND
CONSOLIDATED RAIL CORPORATION (“CONRAIL”)
We
CITY OF PHILADELPHIA
UNITED STATES OF AMERICA
Margherita Barbetta, Appellant
No. 88-1977
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
JOHNSON, MARY RETTA
V.
MONSANTO COMPANY
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA’”), NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK”), AND
CONSOLIDATED RAIL CORPORATION (“CONRAIL”)
V.
CITY OF PHILADELPHIA
UNITED STATES OF AMERICA
Mary Retta Johnon, Appellant
4a
No. 88-1978
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BROWN, CELESTE
Ws
MONSANTO COMPANY
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA”), NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK”), AND
CONSCLIDATED RAIL CORPORATION (“CONRAIL”)
Vv.
CITY OF PHILADELPHIA
UNITED STATES OF AMERICA
Celeste Brown, Appellant
No. 88-1979
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BROWN, CLEMMON L.
Vv.
MONSANTO COMPANY
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA”), NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK”), AND
CONSOLIDATED RAIL CORPORATION (“CONRAIL”)
A
CITY OF PHILADELPHIA
UNITED STATES OF AMERICA
Clemmon L. Brown, Appellant
5a
No. 88-1980
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BROWN, CLoyp H.
Vv.
MONSANTO COMPANY
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA”), NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK’’), AND
CONSOLIDATED RAIL CORPORATION (“CONRAIL”)
V.
CITY OF PHILADELPHIA
UNITED STATES OF AMERICA
Cloyd H. Brown, Appellant
No. 88-1981
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BROWN, CURTIS
va
MONSANTO COMPANY
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA”), NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK”), AND
CONSOLIDATED RAIL CORPORATION (“CONRAIL”)
V.
CITY OF PHILADELPHIA
UNITED STATES OF AMERICA
Curtis Brown, Appellant
6a
No. 88-1982
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
REID, WILLIAM JR., and
REID, WILLIAM JR., EXECUTOR OF THE
ESTATE OF REID, MINNI, DECEASED
V.
MONSANTO COMPANY
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA”’), NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK”) ; and
CONSOLIDATED RAIL CORPORATION (“CONRAIL’’)
V.
UNITED STATES OF AMERICA
William Reid, Jr., Appellant
Nos. 88-1983 & 89-1070
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BROWN, MABEL, Individually and on
behalf of all others similarly situated
V.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY (“SEPTA’’) ; NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK”’) ; and
CONSOLIDATED RAIL CORPORATION (“CONRAIL”)
V.
UNITED STATES OF AMERICA
Roy F. WESTER, INC. and
GENERAL ELECTRIC COMPANY and
THE BuDD COMPANY and —_
WESTINGHOUSE ELECTRIC CORPORATION
Mabel Brown, Appellant
7a
Nos. 88-1984 & 89-1077
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
WILLIAMS, ANDRE, SR., Individually and on
behalf of all others similarly situated
V.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION
AUTHORITY (“SEPTA”) ; NATIONAL RAILROAD
PASSENGER CORPORATION (“AMTRAK’”’) ;
CONSOLIDATED RAIL CORPORATION
(“CONRAIL”) ; MONSANTO COMPANY;
GENERAL ELECTRIC COMPANY;
THE CITY OF PHILADELPHIA
Andre Williams, Sr., Appellant
Nos. 88-1985 & 89-1076
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
NARCISE, HELEN V., Administratrix of the
Estate of NARCISE, JOHN G., deceased,
NARCISE, HELEN V. as personal representative
of NARCISE, JOHN G., NARCISE, HELEN VY.
in her own right
Ve
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY (“SEPTA”) ;
NATIONAL RAILROAD PASSENGER
ASSOCIATION (“AMTRAK’’) ; CONSOLIDATED
RAIL CORPORATION (“CONRAIL”) ; MONSANTO
COMPANY (‘*MONSANTO”’’) ; GENERAL ELECTRIC
CoMPANY (“GE”) ; CITy OF PHILADELPHIA
(““PHILADELPHIA”’)
V.
8a
UNITED STAT«s OF AMERICA
Helen V. Narcise, Appellant
Nos. 88-1986 & 89-1075
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
KNIGHT, MARY ALICE
Vv.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY (“SEPTA”’) ;
NATIONAL RAILROAD PASSENGER
ASSOCIATION (“AMTRAK”’) ; CONSOLIDATED
RAIL CORPORATION (“CONRAIL”) ; MONSANTO
CoMPANY (“MONSANTO”) ; GENERAL ELECTRIC
CoMPANY (“GE”) ; CITY OF PHILADELPHIA
(“PHILADELPHIA”)
we
UNITED STATES OF AMERICA
Mary Alice Knight, Appellant
Nos. 88-1987 & 89-1074
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
INGRAM, JOHN Sr. and INGRAM, PATRICIA
in their own right and as parents and
natural guardians of INGRAM, JOHN JR., and
INGRAM, APRIL in her own right
V.
ee
9a
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY (“SEPTA”) ;
NATIONAL RAILROAD PASSENGER
ASSOCIATION (“AMTRAK”) ; CONSOLIDATED
RAIL CORPORATION (“CONRAIL”) ; MONSANTO
COMPANY (“MONSANTO’’) ; GENERAL ELECTRIC
CoMPANY (“GE”); CiTy oF PHILADELPHIA
(““PHILADELPHIA”’)
V.
UNITED STATES OF AMERICA
John Ingram, Sr. and
Patricia Ingram, Appellants
Nos. 88-1988 & 89-1079
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
CUNNINGHAM, MATTHEW AND
CUNNINGHAM, BESSIE
V.
MONSANTO COMPANY and SOUTHEASTERN
PENNSYLVANIA TRANSPORTATION AUTHORITY
(“SEPTA”) and NATIONAL RAILROAD
PASSSENGER CORPORATION (“AMTRAK”) and
CONSOLIDATED RAIL CORPORATION
(“CONRAIL”)
Matthew and Bessie Cunningham,
Appellants
10a
Nos. 88-1989 & 89-1071
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BURRELL, GEORGE ALBERT and PRISCILLA
ETHERIDGE, in their own right, and BURRELL,
GEORGE ALBERT and BURRELL, PRISCILLA
ETHERIDGE, as parents and natural guardian
of BURRELL, AMBER SHARDAI, a minor, and
BURRELL, GEORGE ALBERT, as parent and
natural guardian of WALKER, ANDREW, a
minor, and BURRELL, PRISCILLA ETHERIDGE,
as parent and natural guardian of BURRELL,
BosBy GEORGE ALBERT CHRISTIAN, a minor,
V.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY (“SEPTA”’), and
NATIONAL RAILROAD PASSENGER
CORPORATION (“AMTRAK”), and
CONSOLIDATED RAIL CORPORATION
(“CONRAIL”)
V.
UNITED STATES OF AMERICA
George Albert Burrell and Priscilla
Etheridge Burrell, Appellants
Nos. 88-1990 & 89-1072
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
CUMMINS, WALLACE DARRYL
Vv.
lla
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY (“SEPTA’’) AND
NATIONAL RAILROAD PASSENGER
CORPORATION (“AMTRAK”) AND
CONSOLIDATED RAiL CORPORATION
(“CONRAIL”)
V.
UNITED STATES OF AMERICA
Wallace Darryl Cummins, Appellant
Nos. 88-1991 & 89-1073
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
JONES, K. LOUISE, ADMINISTRATRIX OF THE ESTATE OF
JONES, HARVEY N. JR., DECEASED AND JONES, K. LOUISE
AS PERSONAL REPRESENTATIVE OF JONES, HARVEY N. JR.,
AND JONES, K. LOUISE IN HER OWN RIGHT
1 *
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY (“SEPTA”),
NATIONAL RAILROAD PASSENGER
CORPORATION (“AMTRAK’’) AND
CONSOLIDATED RAIL CORPORATION (“CONRAIL”)
V.
UNITED STATES OF AMERICA
CITY OF PHILADELPHIA
K. Louise Jones, Appellant
12a
Nos. 88-1992 & 89-1078
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
STANBACH, CHARLES W., Executor of the Estate of
STANBACH, CHARLES, JR., deceased and
STANBACH, CHARLES W., as a personal representative of
STANBACH, CHARLES W. in his own right and
STANBACH, SUSANNA
Vv.
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY (“SEPTA”) and
NATIONAL RAILROAD PASSENGER
CORPORATION (“AMTRAK”) and CONSOLIDATED
RAIL CORPORATION (“CONRAIL”) and
MONSANTO CoMPANY (“MONSANTO”)
Vv.
CITY OF PHILADELPHIA
Charles and Susanna Stanbach, Appellants
No. 89-1097
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
BUTLER, WILLIAM; BUTLER, THERESA;
SIMPSON, MARVIN L.; SIMPSON, ALLEN K.;
SIMPSON, KAREN R.; SIMPSON, DONALD E.;
and JACKSON, BRYAN M.
.
13a
SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY (“SEPTA”) ;
NATIONAL RAILROAD PASSENGER CORPORATION
(“AMTRAK”’) ; and CONSOLIDATED RAIL
CORPORATION (“CONRAIL”)
V.
UNITED STATES OF AMERICA
CITY OF PHILADELPHIA
William Butler, Theresa Butler,
Marvin L. Simpson, Allen K.
Simpson, Karen R. Simpson, Donald
E. Simpson and Bryan M. Jackson,
Appellants
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Nos.
86-7414/15/16/17/18/19/20/21/22/
87-5304, 86-2229, 87-1258, 87-1190, 87-0712,
86-7561, 87-5269, 86-2235, 86-2669, 86-5277,
87-3227, 87-2874
Argued September 8, 1989
Before: BECKER, MANSMANN and NYGAARD, Cir-
cuit Judges
(Filed September 20, 1990)
l4a
D. BRUCE HANES
Friedman and Hanes
4 Penn Center
Suite 700
Philadelphia, PA 19103
Attorney for Christopher Brown,
Cathlene Brown, Craig Brown,
Margherita Barbetta, Mary
Retta Johnson, Celeste Brown,
Clemmon L. Brown, Cloyd
Brown, Curtis Brown,
Appellants
JAMES C. SARGENT, JR.
Lamb, Windle & McErlane, P.C.
24 East Market Street
P.Q. Box 565
West Chester, PA 19381
Attorney for William Reid, Jr.,
Appellant
GEOFFREY L. BEAUCHAMP
Wisler, Pearlstine, Talone, Craig
& Garrity
515 Swede Street
Norristown, PA 19401
KENNETH Roos (Argued)
JOSEPH DONLEY
Kittredge, Kaufman & Donley
421 Chestnut Street, 5th FI.
Philadelphia, PA 19106
Attorneys for William Butler,
Theresa Butler, Marvin L.
Simpson, Allen K. Simpson,
Karen R. Simpson, Donald E.
Simpson and Bryan M. Jackson,
Appellants
15a
CHARLOTTE E. THOMAS
ARNOLD E. COHEN (Argued)
JOHN E. SPELMAN
ANDREW O. SCHIFF
Klehr, Harrison, Harvey,
Branzburg, Ellers & Weir
1401 Walnut Street, 8th Fl.
Philadelphia, PA 19102
and
HAROLD E. KOHN
JOSEPH C. KOHN
Kohn, Savett, Klein & Graf
1101 Market Street
24th Floor
Philadelphia, PA 19107
Attorneys for Mabel Brown,
Andre Williams, Sr., Helen V.
Narcise, Mary Alice Knight,
John and Patricia Ingram,
Matthew and Bessie
Cunningham, George Albert
Burrell, Priscilla Etheridge,
Wallace Darryl Cummins,
K. Louise Jones, Charles W.
Stanback, Appellants
MICHAEL H. MALIN (Argued)
JAMES D. SHOMPER
JEANNE PROKO-ELKINS
White and Williams
1234 Market Street
Philadelphia, PA 19107
Attorneys for Monsanto Company,
Appellee
16a
ROGER F.. Cox (Argued)
JEROME R. RICHTER
GEORGE J. KRUEGER
JAY W. EISEN HOFER
Blank, Rome, Comisky &
McCauley
Four Penn Center Plaza
Philadelphia, PA 19103
Attorneys for Southeastern
Pennsylvania Transportation
Authority (“SEPTA”’),
Appellee
JOHN G. KESTER (Argued)
JOHN W. VARDAMAN, JR.
MARK A. SRERE
DIANA L. SCHACHT
Williams & Connolly
Hill Building
839 - 17th Street, NW
Washington, DC 20006
HARRY A. SHORT, JR.
STEPHEN M. MCMANUS
Liebert, Short, Fitzpatrick
& Hirshland
1200 One Franklin Plaza
Philadelphia, PA 19103
Attorneys for Genera! Electric
Company, Appellee
RICHARD J. GOLD
First Deputy City Solicitor
JOY J. BERNSTEIN
Deputy City Solicitor
City Solicitor’s Ovice
1540 Municipal Services Building
1th St. and JFK Boulevard
Philadelphia, PA 19102
Attorneys for City of
Philadelphia, Appellee
17a
DAVID RICHMAN
KATHERINE KRAMER LAIRD
Pepper, Hamilton & Scheetz
3000 Two Logan Square
Philadelphia, PA 19103
Attorneys for Consolidated Rail
Corporation (“CONRAIL”),
Appellee
RICHARD A. KRAEMER
NANCY H. RESNICK
Margolis, Edelstein, Scherlis,
Sarowitz & Kraemer
1315 Walnut Street
Philadelphia, PA 19107
Attorneys for National Rail
Passenger Corporation
(“AMTRAK”), Appellee
RICHARD F. KINGHAM
BRUCE N. KUHLIK
MARJORIE E. POWELL
Covington & Burling
1201 Pennsylvania Ave., NW
P.O. Box 7566
Washington, DC 20044
Attorneys for American Tort
Reform Association,
Amicus Curiae
DENIS V. BRENAN
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
Attorneys for American Council
on Science and Health, Inc.,
Amicus Curiae
18a
C. JAMES ZESZUTEK
MICHAEL R. BUCCI, JR.
Thorp, Reed & Armstrong
One Riverfront Center
Pittsburgh, PA 15222
Attorneys for The Pennsylvania
Defense Institute,
Amicus Curiae
SHEPHEN [sic] M. SHAPIRO
JOHN E. MUENCH
KATHLEEN M. HENNESSEY
Mayer, Brown & Platt
190 South LaSalle Street
Chicago, IL 60603
Attorneys for The Chamber of
Commerce of The United States,
The Chemical Manufacturers
Association, The National
Association of Manufacturers,
The Business Roundtable, and
The Product Liability Advisory
Council, Inc., Amicus Curiae
ROBERT C. BARNARD
SARA D. SCHOTLAND
Cleary, Gottlieb, Steen &
Hamilton
1752 N Street, NW
Washington, DC 20036
Attorneys for American Industrial
Health Council, Amicus Curiae
THOMAS W. BRUNNER
LAURA A. FOGGAN
FREDERICK S. ANSELL
Wiley, Rein & Fielding
1776 K Street, NW
Washington, DC 20006
Attorneys for American Insurance
Association, Amicus Curiae
19a
LEONARD W. SCHROETER
Schroeter, Goldmark & Bender
540 Central Building
3rd and Comumbia [sic]
Seattle, WA 98104
Cooperating Counsel for Trial
Lawyers for Public Justice
JERRY S. COHEN
ANTHONY Z. ROISMAN
RICHARD S. LEWIS
Cohen, Milstein & Hausfeld
1401 New York Avenue, NW
Suite 600
Washington, DC 20005
Cooperating Counsel for Trial
Lawyers for Public Justice
ARTHUR H. BRYANT
Trial Lawyers for Public Justice
2000 P Street, NW
Suite 611
Washington, DC 20036
Attorneys for American Public
Health Association, et al.,
Amicus Curiae
ARNOLD LEVIN
DAVID J. PERLMAN
Levin, Fishbein, Sedran & Berman
320 Walnut Street, Suite 600
Philadelphia, PA 19106
LEE C. SWARTZ
Hepford, Swartz, Menaker
& Morgan
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108
Attorneys for James D. Carrigan,
Amicus Curiae
ee
20a
OPINION OF THE COURT
BECKER, Circuit Judge.
This is a toxic tort case brougiit by some thirty-eight
persons who have either worked in or lived adjacent to
the Paoli railyard, an electric railcar maintenance facil-
ity at the western terminus of the noted Paoli Local,
which serves the Philadelphia Main Line. The plaintiffs’
primary claim is that they have contracted a variety of
illnesses as the result of exposure to polychlorinated
biphenyls, better known as PCBs. PCBs are toxic sub-
stances which, as the result of decades of PCB use in the
Paoli railcar transformers, can be found in extremely
high concentration at the railyard and in the ambient air
and soil. The defendants are Monsanto Corporation, the
nation’s leading manufacturer of PCBs (marketed under
the trade name “Aroclor”’); General Electric Company,
manufacturer of the transformers; Amtrak, owner of the
railyard site since 1976; Conrail, which operated the
facility between 1976 and 1983; the Southeastern Penn-
sylvania Transit Authority (SEPTA), which has op-
erated the facility since 1983; and the City of Philadel-
phia, which owns some of the railroad cars at the
facility.’
This opinion addresses an appeal by all plaintiffs from
the grant of summary judgment by the district court in
1The district court’s subject matter jurisdiction was founded
primarily upon 28 U.S.C. § 1331 (federal question) because of the
inclusion of claims under the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act (CERCLA), 42 U.S.C.
§§ 9601-75, and the Federal Employer’s Liability Act (FELA), 45
U.S.C. § 51-60. The court also exercised pendent jurisdiction over
various state law claims. Several plaintiffs initially filed their
claims in Pennsylvania courts, but these claims were removed under
28 U.S.C. § 1441 (c).
—~~————
2la
favor of all defendants on ali claims except those for
property damage and response costs under CERCLA?
We direct our attention principally to a series of pretrial
evidentiary rulings by which the district court apparently
excluded * the bulk of the expert reports and testimony
upon which plaintiffs relied to establish (1) that they
were subject to an abnormally high level of PCB expo-
sure, and (2) that this exposure caused them harm. Be-
cause the grant of summary judgment inexorably flowed
from these evidentiary rulings, if they are set aside so
must be the summary judgment. Our scrutiny of the
rulings will focus not only upon their legal foundations,
but also on the procedures by which they were made and
the adequacy of their articulation.
We conclude that the district court’s evidentiary rul-
ings must be set aside for a number of reasons. One
problem with the district court’s rulings is procedural.
Not only did the court fail to give plaintiffs an adequate
opportunity to present their factual and legal contentions
on evidentiary issues, it ruled on an inadequate factual
record, and it failed adequately to articulate the bases
for its rulings. It also failed to follow the protocols es-
tablished by the jurisprudence of this court for evidenti-
ary ruiings governed by Fed. R. Evid. 702 and 703.
Other problems with the district court opinion are sub-
stantive. The court applied too stringent a standard to
the qualification of experts under Rule 702 and the court
erred in its application of the Downing test for the ad-
missibility of novel scientific evidence (under Rule 702).
Given these improper evidentiary exclusions, we cannot
affirm the district court’s summary judgment ruling be-
2 The district court certified the matters before us as final judg-
ments. See Fed. R. Civ. P. 54(b).
3In a number of instances, the district court did not articulate
whether it was excluding expert opinion as an evidentiary matter
or was merely ascribing little weight to it in its summary judgment
analysis.
22a
cause if the improperly excluded evidence is considered,
the record contains genuine issues of material fact on
the toxic tort issues.
A number of other discrete legal issues are also before
us on appeal. These include the viability of plaintiffs’
claims to recover the costs of periodic medical examina-
tions necessary to protect against the development of
latent diseases caused by their exposure to PCBs (“medi-
eal monitoring”) under Pennsylvania law; the propriety
of the district court’s refusal to permit certain plaintiffs
voluntarily to dismiss their complaint so as to proceed at
a later time when their apparently sub-clinical injuries
manifest themselves; and the availability to SEPTA of a
lack of notice defense under 42 Pa.C.S.A. § 5522. We
find that the district court abused its discretion in refus-
ing to permit the voluntary dismissal without prejudice
of certain plaintiffs’ claims, and that the court erred as
a matter of law in its analysis of both the medical moni-
toring and SEPTA notice issues. For all these reasons,
we must reverse the grant of summary judgment and
remand for further proceedings.
I. PROCEDURAL HISTORY
Plaintiffs filed their complaints in the district court for
the Eastern District of Pennsylvania beginning in April
1986. The complaints alleged a variety of theories of
recovery, including claims based upon CERCLA, common
law tort, and the medical monitoring doctrine. The
twenty-one actions before us on this appeal were consoli-
dated. On September 24, 1987, in response to a motion
by defendants, the district court filed a case management
order which provided a schedule for conducting further
discovery and filing summary judgment motions.‘
4 The order contained the following four mandates:
1. Defendants will answer discovery efforts by the Plaintiffs
directed to reveal the quantity and nature of PCBs used at the
Paoli Railyard and the health effects on Defendants’ employees
23a
The defendants filed a joint motion for summary judg-
ment.® After plaintiffs answered the motion, attorneys
on both sides requested oral argument. In a letter dated
October 28, 1988, the court denied these requests, stating
that oral argument would be unnecessary “[b]ecause the
issues contained in those motions have been throughly
and extensively briefed and because I have been working
with this case for over a year... .” The court also
[denied plaintiffs’ request for] failed to conduct in limine
hearings regarding the admissibility of the plaintiffs’ ex-
pert testimony, notwithstanding defendants’ summary
judgment strategy that depended largely on exclusion of
that testimony under Fed. R. Evid. 702, 703 and 403.
On November 28, 1988, the district court granted de-
fendants’ joint motion for summary judgment against
all plaintiffs on the personal injury claims. The court’s
order was accompanied by an opinion, discussed below in
Part IV, concentrating on the exclusion of plaintiffs’ ex-
pert testimony. These appeals followed.
of exposure to PCBs. This Discovery is to be completed by
December 23, 1987.
2. Plaintiffs will then answer discovery efforts by the Defend-
ants directed to reveal whether the Plaintiffs have suffered
personal injury and whether the injury is caused by exposure
to PCBs caused by the Defendants. This Discovery is to be
completed by March 22, 1988.
3. All other discovery is to be stayed meanwhile.
4. Any Summary Judgment Motions, to be made by the De-
fendants, are to be filed by April 21, 1988.
5 Throughout the course of discovery, individual parties filed nu-
merous motions for summary judgment or dismissal with respect to
discrete issues. However, for purposes of this appeal, our discus-
sion will center on the joint motion for summary judgment. Other
motions will be discussed where they are directly relevant to issues
on appeal—for example, the Butler plaintiffs’ motion for dismissal
without prejudice, and defendants SEPTA’s separate motion for
summary judgment under a governmental notice statute.
24a
Il. APPELLATE JURISDICTION
Defendants make a number of attacks upon our ap-
pellate jurisdiction, all of which we find without merit,
and only one of which warrants extended discussion:
did the original notice of appeal in ten of the cases fail
to identify the appealing parties with the specificity re-
quired by Torres v. Oakland Scavenger Co., 487 U.S. 312
(1988).° In Torres, the notice of appeal was captioned,
“Joaquin Moreles Bonilla, et al., Plaintiffs in interven-
tion.” The body of the notice named fifteen of the six-
teen putative appellants, but not Torres. The Court con-
cluded that the notice was insufficient to specify Torres -
as an appellant, and that he was therefore barred from
pursuing his appeal for failing to comply with the re-
quirements of Fed. R. App. P. 3{c). See 487 U.S. at
317-18.
We recently had the opportunity to construe Torres in
Dura Systems, Inc. v. Rothbury Investments, Ltd., 886
F.2d 551 (3d Cir. 1989), cert. denied, 110 S.Ct. 844
(1990), in which we held that a consent order, entered
after a notice of appeal but within the period required
for timely notice of appeal, could confer jurisdiction over
parties not explicitly named in the notice of appeal. See
id. at 555. We summarized the applicable principles as
follows:
In formulating its holding, the [Torres] Court
made clear that Rules 3 and 4 of the Federal Rules
6 Although a number of the appeals were premature, Fed. R. Civ.
P. 54(b), the prematurity was cured by the subsequent Rule 54(b)
certification. See Dowling v. City of Philadelphia, 855 F.2d 136,
158 (3d Cir. 1988); Cape May Greene, Inc. v. Warren, 698 F.2d
179, 184-85 (3d Cir. 1983); Richerson v. Jones, 551 F.2d 918, 922
(3d Cir. 1977). We reject defendants’ claim that this holding is
inconsistent with Griggs v. Provident Consumer Discount Co., 459
U.S. 56 (1982) (per curiam), which held that the filing of a post-
judgment motion under Fed. R. Civ. P. 50(b), 52(b), or 59 destroys
an otherwise effective notice of appeal. Unlike Griggs, this case
involves no such post-judgment motion.
ee a
25a
of Appellate Procedure create a jurisdictional thresh-
old, and that the requirements of the two rules may
not be abrogated for “good cause shown” under Fed.
R. App. P. 2. Moreover, the fact that Rule 3 excuses
“informality of form or title” in a notice of appeal
does not forgive compliance with the Rule’s require-
ments: “[p]ermitting imperfect but substantial com-
pliance with a technical requirement is not the same
as waiving the requirement altogether as a jurisdic-
tional threshold.” Although the Torres court man-
dated compliance with the specificity requirement of
Fed. R. App. P. 3(c), it recognized that:
the requirements of the rules of procedure
should be liberally construed and that ‘mere
technicalities’ should not stand in the way of
consideration of a case on the merits. Thus, if
a litigant files papers in a fashion that is tech-
nically at variance with the letter of a proce-
dural rule, a court may nonetheless find that the
litigant has complied with the rule if the liti-
gant’s action is the functional equivalent of
what the rule requires.
This approach mirrors the practice sanctioned in the
Advisory Committee Notes to the 1979 amendment
to Fed. R. App. P. 3(c), which cites with approval
cases holding that, “so long as the function of notice
is met by the filing of a paper indicating an inten-
tion to appeal, the substance of the rule has been
complied with.”
Id. at 554-55 (footnote and citations omitted).
Applying those principles here, it is not clear that
plaintiffs’ notice of appeal in the ten referenced cases, in
its original form, was insufficient. For example, the origi-
nal notice appears to have served as a “functional equiv-
alent” of the requirements of Rule 3(c) because it men-
tions the docket numbers and surnames of the cases then
i.
26a
before the district court. Indeed, correspondence from
defense counsel confirms that no party was misled by the
notice, and that all parties presumed it to include all
plaintiffs referenced under the relevant docket numbers.
At all events, any impediment that might have existed
was removed by a January 6, 1989 letter from counsel
for the subject plaintiffs to the clerk of this court, with
copies to all counsel, just two days after the Rule 54(b)
certification, identifying in detail the parties to the ap-
peal. The letter is analogous to the consent order in Dura
Systems in that the letter was filed within the period
allowed for appeal. The “Court’s directive to construe
the rule “liberally,” and to avoid a construction that
would allow ‘mere technicalities’ to bar consideration of
a case on the merits” Jd. (quoting Torres, 108 S.Ct. at
2408) compels this result.?. Accord Masquerade Novelty,
Inc. v. Unique Industries, Inc., No. 90-1090 (3d Cir.
August 16, 1990) (attorney appearance form and civil
appeal information statement filed within time limit con-
stitute adequate notice).
II. THE SUMMARY JUDGMENT RECORD
A. The Plaintiffs’ Submissions
Plaintiffs set out to prove that their personal injuries
were proximately caused by their exposure to the PCBs
that defendants permitted to contaminate the area sur-
rounding the Paoli Railyard. Their case depends upon
expert testimony pertaining to exposure and causation.
The attorneys for different plaintiffs employed different
expert witnesses, and it is therefore convenient, in dis-
cussing the record before us, to categorize plaintiffs ac-
cording to which counsel represents them.
7 Our recent decision in Cruz v. Melendez, 902 F.2d 232 (3d Cir.
1990), is not to the contrary. That case, like Torres, stands only
for the proposition that, without further explanation, proffered in
a timely fashion, the designation, “et al.,” is insufficient to provide
the required notice.
27a
Of the ten cases in which plaintiffs are represented by
Kohn, Savett, Klein & Graf, P.C., or Klehr, Harrison,
Harvey, Branzburg, Ellers & Weir, (the “Kohn/Klehr
plaintiffs”), nine answered discovery with the opinions
of three experts: Dr. Herbert Allen, Dr. Deborah
Barsotti, and Dr. Arthur Zahalsky. In the tenth Kohn/
Klehr case, Cunningham, and in the Reid case,* Dr. Harry
Shubin submitted an opinion on the question of causa-
tion. In the nine cases in which plaintiffs are represented
by D. Bruce Hanes, expert testimony was offered solely
by Dr. G. John DiGregorio. The remaining plaintiffs
offered no expert testimony.
Dr. Herbert Allen received his doctorate in environ-
mental chemistry from the University of Michigan in
1974. He is currently employed as a professor of chem-
istry at Drexel University, where he serves as the direc-
tor of Drexel’s Environmental Studies Institute. Id.
Allen has published numerous scholarly articles. His
primary role was to testify to the Kohn/Klehr plaintiffs’
exposure to the Paoli Railyard’s elevated PCB levels.
Initially, Allen noted the “extremely high levels” of
PCBs in soil samples taken from the neighborhood ad-
jacent to the yard. A9253. He explained that runoff
from the railyard caused contamination in the soil on
Central Avenue, with the highest concentrations of
PCBs being found in residential yards adjacent to the
railyard. Central Avenue samples contained concentra-
tions as high as 577 mg/kg, while some residential yard
concentrations were as high as 1000 mg/kg. Dr. Allen
opined that the high concentrations of PCBs found deep
in the soil indicated a discharge of extremely high
amounts of PCBs. He also noted specifically that certain
“heat-producing” operations, such as the welding and
cutting of contaminated equipment and the burning of
contaminated railroad ties, which employees testified had
8 Appellant William Reid, Jr., is separately represented by James
C. Sargent, Jr.
ee
28a
occurred at the yard, could have converted PCBs to other
toxins such as PCDD’s (dioxins) and PCDF’s (furans).
This testimony is particularly significant in view of the
conclusion of certain of plaintiffs’ proffered studies that
exposure to PCDFs can cause numerous adverse health
effects, see infra typescript at 30.
Relying on his knowledge of the scientific literature,
his own testing, the testimony of employees, and a scien-
tific formula which he had devised, Dr. Allen calculated
the amount of PCBs in plaintiffs’ bodies based on the
amount of PCBs in the soil. Among other things he re-
lied on the affidavit of an employee nanied Kraljevich who
stated that the use of heat-producing tools caused PCBs
to “hang in the air like a fog,” and that leaking trans-
formers caused foul PCB odors to permeate the air.
A8677, A9257. Allen then concluded that neighborhood
residents had been exposed to elevated PCB concentra-
tion since approximately 1940. Although unable to quan-
tify the extent of plaintiffs’ exposure, Allen opined that
the residential plaintiffs may have been exposed to air
containing more than 10’ g/m3 of PCBs, while railyard
employees may have suffered even greater exposure.
Deborah A. Barsotti, Ph.D., offered expert opinions on
both exposure and causation for the Kohn/Klehr plain-
tiffs. Dr. Barsotti, a toxicologist, received her doctorate
in pathology from the University of Wisconsin Medical
School in 1980, and is qualified to interpret human clin-
ical tests. A4978. She has published a number of articles
on the toxicity of PCBs, and her work has been cited in
the Congressional Record and in legislative debates on
the Toxic Substances Control Act. She is currently em-
ployed as the Chief of the Research Analysis Branch of
the Agency for Toxic Substance and Disease Registry
(ATSDR) of the United States Government. A4658.
Barsotti based her opinions regarding exposure on her
review of the relevant scientific literature and on her
own gas chromatography testing. She explained that
29a
PCBs may be absorbed into the body by oral ingestion,
through the skin, or by inhalation, and that PCBs are
transported through the body in blood, and eventually re-
distributed to fat and organs containing fat. A8995. She
concluded that the plaintiffs had in fact ingested PCBs.
A major part of Dr. Barsotti’s exposure testimony con-
sisted of her attempt to show, through gas chromatog-
raphy tracing, that the PCBs to which plaintiffs were
exposed came specifically from the Paoli Railyard. She
did this by comparing chromatographic tracings of plain-
tiffs’ blood to similar tracings from soil at Paoli. She
then attempted to match certain “early emerging peaks,”
(in plaintiffs’ blood tests which she testified related) to
particular PCB isomers.
Barsotti used the results of these tests, along with
medical and clinical records from the plaintiffs, to but-
tress her testimony regarding causation. In determining
causation, she also personally inspected the railyard, and
reviewed, inter alia, the Kraljevich affidavit, published
reports and studies, and soil samples taken from the
yard. She concluded that plaintiffs’ exposure to PCBs at
Paoli was a substantial factor in causing their particu-
lar injuries, including elevations in triglyceride, choles-
terol, and liver enzyme levels.
Also testifying with respect to causation for the Kohn/
Klehr plaintiffs was Arthur C. Zahalsky, Ph.D., who re-
ceived his doctorate in microbiology from New York Uni-
versity in 1967, Dr. Zahalsky is 2 professor at Southern
Illinois University, where he teaches courses in immu-
nology and human diseases. A5873. However, he has
spent the majority of his time in the past few years in
his consulting business, which specializes in providing
scientific consultation for litigation. A6283-87.
Dr. Zahalsky offered his opinion that plaintiffs have
suffered immune system injuries as a result of their ex-
posure to PCBs at Paoli. A3354. He testified that as a
general proposition, PCBs damage the immune systems
ll
30a
of humans and animals because they alter the cell pro-
duction and replenishment rate of immune cells, and im-
pair the survivability of those cells. A9057. Basing his
opinion on a personal inspection of the railyard and sur-
rounding area, a review of plaintiffs’ medical records
and PCB exposure history, and various laboratory test
results and published reports, Dr. Zahalsky concluded
that plaintiffs have sustained immune system damage,
and that exposure to PCBs at Paoli was a substantial
factor in causing such damage. A9056-69. Zahalsky
submitted a list of 82 studies upon which he relied in
formulating his opinion. A number of these studies dis-
cussed two notorious incidents of human beings ingest-
ing contaminated rice oil. These incidents, which tock
place in Japan in 1968 and Taiwan in 1979, are referred
to as the “Yusho” and “Yu Cheng” incidents. The oil
was tainted with large quantities of Kaneclor, a Japanese
analog of Aroclor that contains significant amounts of
PCDFs, as well as PCBs.
Harry Shubin, M.D., an internist, offered opinions on
the issue of causation in the Cunningham and Reid cases.
In formulating his opinion, Dr. Shubin examined the
plaintiffs and reviewed medical records and lab test re-
sults. He cited numerous published studies and reports
on which he claims to have relied. Shubin was also in-
formed that the EPA had removed PCB-contaminated
soil from the Cunninghams’ residence. He diagnosed
plaintiffs as suffering from a variety of illnesses and
harmful conditions, and concluded that these conditions
were caused by exposure to PCBs.
The nine plaintiffs represented by D. Bruce Hanes re-
lied on the testimony of G. John DiGregorio, M.D., Ph.D.
Dr. DiGregorio is a clinical pharmacologist who received
a degree from Hahnemann University. The Hanes plain-
tiffs, residents of properties adjacent to the railyard,
claim to have been injured because defendants permitted
PCBs to flow onto these properties, thereby causing
3la
plaintiffs to inhale PCB dust and ingest fruits and veg-
etables grown in the soil of their PCB-contaminated gar-
dens. In formulating his opinions as to these plaintiffs,
Dr. DiGregorio relied on medical history questionnaires
filled out by plaintiffs themselves, laboratory tests reveal-
ing abnormal PCB blood levels in certain plaintiffs,® and
scientific literature on the harmful effects of PCBs to
both humans and animals. He performed no physicial
examinations. He opined that five of the nine Hanes
plaintiffs suffered from specific injuries caused by PCBs;
that all nine suffered from anxiety of contracting di-
seases in the future_based on their exposure to PCBs;
and that all nine were at increased risk of contracting
future diseases because of their exposure. See, e.g.,
A6923, 6934, 7004, 7051-52. DiGregorio’s testimony as
to exposure was based largely on the statements of plain-
tiffs themselves and the results of laboratory tests reveal-
ing abnormal blood burdens of PCBs in various plaintiffs.
Although these expert witnesses were the only ones
whose opinions were discovered pursuant to the case man-
agement order, they are not the only experts updn whom
the plaintiffs rely. In response to the defendants’ joint
motion for summary judgment, plaintiffs submitted the
affidavits of four additional experts; Ian C.T. Nisbet,
Ph.D.; Robert K. Simon, Ph.D.; Benjamin Calesnick,
M.D.; and William J. Nicholson, Ph.D.
Dr. Nisbet, who received his Ph.D. in physics from
Cambridge University in 1958, currently serves as the
® The issue of what constitutes a “normal” or “background” PCB
exposure level is sharply contested. The district court adopted the
findings of a study conducted by the Agency for Toxic Substance
[sic] and Disease Registry (ATSDR), concluding that “the geometric
mean serum concentration of populations having no known unusual
source of PCB exposure range between 4.2 ppb (parts per billion)
and 6.4 ppb.” App. at 10,100. The Hanes plaintiffs point out that
at least four of its number have tests showing a body burden of
PCBs higher than the court-accepted background level. Hanes Br.
at 16 n.2.
Pe
32a
president of a scientific consulting firm. A8758. He has
published numerous articles in the fields of human ex-
posure to chemicals and the assessment of associated
health risks. A8768-70. Dr. Nisbet submitted an affida-
vit containing his opinions that (1) the defendants’ esti-
mates of the background PCB exposure level in the
United States, as well as the studies upon which these
estimates were based, are mistaken; (2) the correct
background level, which should be determined by an
adipose to blood ratio calculation, is much lower; (3)
many plaintiffs exposures exceed the lower level; and (4)
there are serious health hazards posed by exposure to
PCBs. A8745-57.
Dr. Simon, who describes himself as “a professional
industrial hygienist, toxicologist, and forensic analytical
chemist,” received his Ph.D. from the University of
Maryland. A9297. The opinions contained in Dr.
Simon’s affidavit closely parallel those expressed by Dr.
Nisbet, with varying degrees of emphasis.
Dr. Calesnick is a pharmacologist who received his
medical degree in 1944 from Hahnemann Medical Col-
lege, where he currently serves as a professor of medicine
and as the director of Hahnemann’s Division of Human
Pharmacology. His resume lists one hundred published
articles, as well as numerous academic and professional
honors. A9109-19. Dr. Calesnick performed physical
examinations and several laboratory tests on the Kohn/
Klehr plaintiffs. He concluded summarily in his affidavit
that these plaintiffs require medical surveillance as a con-
sequence of their exposure to PCBs at Paoli. A9107-08.
10 This method of calculating blood levels of PCB exposure from
measured levels of exposure in human adipose tissue was employed
in the National Human Adipose Tissue Survey (NHATS study).
The NHATS study concluded that only 10% of the United States
population has blood levels greater than 5 ppb. Thus, the plaintiffs
submit, a blood level greater than 5 ppb should be considered high.
Dr. Simon also opined that the NHATS study employed the proper
method of measuring the background level.
ee
33a
The final affidavit offered in response to the summary
judgment motion was that of Dr. Nicholson, a physicist
who received his Ph.D. from the University of Washing-
ton in 1960 and is currently employed as a professor of
community medicine at Mount Sinai School cf Medicine
in New York City. A9373, A9385. He has published
over seventy articles and has served on various profes-
sional and governmental committees. A9385-92. Nichol-
son’s affidavit advances two major theses: (1) contrary to
the assertions of defendants and their experts, the epi-
demiologic studies conducted to date do support a conclu-
sion that PCBs are causally associated with adverse
health effects to humans; and (2) defendants and their
experts are incorrect in asserting that animal carcino-
genicity studies have little relevance for estimating car-
cinogenicity in humans. A9374.
In order to support his first thesis, Dr. Nicholson con-
ducted a “meta-analysis,” in which he combined the re-
sults of numerous epidemiologic surveys in order to
achieve a larger sample size, adjusted the results for
differences in testing techniques, and drew his own
scientific conclusions. Specifically, he concluded that the
results of the various surveys, considered as a whole,
show that exposure to PCBs can cause liver, gall bladder
and biliary tract disorders. A9377. Nicholson maintains
that this is true even though none of the individual sur-
veys supports such a conclusion when considered in iso-
lation.
B. The Defendants’ Submissions
Defendants’ view of the case, as encapsulated in their
joint motion for summary judgment, is that plaintiffs
“failed to submit competent evidence creating a genuine
issue of material fact concerning either of two essential
elements on which plaintiffs bore the burden of proof:
abnormal exposure, and causation.” Appellees’ Br. at 36.
In support of this assertion, defendants adopted a two-
pronged approach. First, they vigorously attacked plain-
tiffs’ expert testimony, and sought to have it excluded
—
|
34a
under Fed. R. Evid. 702, 703, and 403. Second, defend-
ants submitted studies and expert testimony of their own
on both exposure and causation issues. Because the case
was resolved at the summary judgment stage, where
credibility determinations are inappropriate, the latter
evidence is significant only insofar as it relates, within
the contours of our Rule 703 jurisprudence, to whether
certain of plaintiffs’ expert opinions should have been
excluded because they were not based on facts or data
reasonably relied on by experts in the field.
On the question of exposure, defendants attack the
opinions of both Dr. Allen and Dr. Barsotti. Defendants
submit that Dr. Allen’s testimony should not be con-
sidered because his data and methodology were unreli-
able. They assert that Dr. Allen ignored the actual meas-
ured body samples of PCB exposure, and instead at-
tempted to calculate exposure levels from levels of PCBs
in the soil by using a formula “of his own devising.” Dr.
Allen’s opinion is unhelpful, defendants say, because he
was unable to provide “an exact calculation of the PCB
dose received by the inhabitants.” A3345. Further, de-
fendants submitted the affidavit of a physical chemist
and chemical hazard control specialist, Neil Jurinski,
Ph.D., who expressed the view that Dr. Allen’s soil-to-air
migration hypotheses were “pure speculation unsup-
ported by the data available or by scientific principles,”
and that they “were not arrived at by using accepted
scientific methods.” A4226, 4228.
Dr. Barsotti, whose sought to show that plaintiffs were
exposed to PCBs that came specifically from the Paoli
Railyard, was subjected to similar methodological criti-
cism for her “fingerprinting” method of gas chromatog-
raphy. Defendants contend that Dr. Barsotti lacked ex-
perience in reviewing chromatographic tracings of human
blood for evidence of PCBs, A5336-38, pointing out that
Barsotti had never before attempted to compare soil
chromatograms with human blood chromatograms.
ll
35a
A5067, 5328, 5331. They further criticize Barsotti for
having claimed to be able to match “early emerging
peaks” in certain PCB isomers, because she later con-
ceded that it was impossible for her to do so, having
failed to use the proper equipment. A5244-45, 5255-57,
5685-86, 5693-97. Defendants also attack Barsotti’s pro-
cedures as impossible to replicate, because she kept vir-
tually no record of either her procedures or the basis for
her conclusions. She was, they note, unable to identify
any particular soil sample which was compared with any
particular plaintiff; neither could she produce the spe-
cific chromatograms she used to compare plaintiffs’ PCB
blood levels to those of the unexposed population or at the
railyard. A5334, 5708, 5044-45, 5258-59, 5304-05.
Defendants further attack Dr. Barsotti’s opinions be-
cause, although she could not “think of anybody” who
had ever done the analysis she purported to do in this
case, she pursued her own methods, and ignored the body
of existing data, “including the Public Health Service’s
Paoli Study, which concluded that it was scientifically
impossible to determine that the Paoli Yard rather than
the environment in general was the source of the resi-
dents’ exposure.” Appellee’s Br. at 19. A5021-22. In
addition, defendants presented their own expert, Dr.
Raymond Harbison, a professor of toxicology and pharma-
cology, who concluded that “Dr. Barsotti lacks the requi-
site experience in reading and interpreting human and
soil chromatograms to be able to perform the type of
analysis that she purported to perform,” and that “if in
fact Dr. Barsotti did what she claims, she would be the
first person to do this.” A4190-91. With regard to the
validity of Barsotti’s experimental procedures, Dr. Har-
bison opined that it is impossible to identify the source
of such low PCB levels, that the equipment used could
not support Barsotti’s analysis, and that the experiments
lacked control and have not been replicated. A4191-92.
He therefore dismissed Barsotti’s results as being scien-
tifically invalid. Jd.
—————
— —_
36a
Defendants also attacked Barsotti’s opinions on causa-
tion, claiming that because she is not a physician, she is
unqualified to make the differential medical diagnoses
that defendants assert are critical to a finding of causa-
tion. Further, they argue that it was inappropriate for
Dr. Barsotti to offer opinions on causation without ever
having physically examined a single plaintiff. They point
out that each of her nineteen scientifie reports which
represent her conclusions on nineteen plaintiffs is identical
for the first fourteen pages, which Barsotti described as
“boiler plate background information” on PCBs, A4900,
4980, and contains only one or two additional para-
graphs, which list the alleged injuries of the individual
plaintiff and conclude “to a reasonable scientific cer-
tainty” that they were caused by PCBs. A3328-37.
In support of their challenge to Dr. Barsotti’s exper-
tise and conclusions, defendants offered the affidavits of
their own experts.’' These experts concluded generally
that Dr. Barsotti is not qualified to form opinions on
medical causation, A4093; that the opinions she did form
lack evidentiary support and would not withstand re-
view by experts in the field, A4237, 4240, 4075, 4094;
and that her opinions are therefore not based upon
known science or medicine. Defendants also assail Dr.
Barsotti’s opinion that plaintiffs, including one two-year-
old child, suffer from increased fear of illness and are
emotionally distressed. They note that she offered this
opinion, having spoken only to one plaintiff over the tele-
phone, and without having met or examined any of the
plaintiffs. Further, defendants contend that she per-
11 The experts were Anthony J. Triolo, Ph.D., professor of phar-
macology at Jefferson Medical College; Dr. Gio Batta Gori, an
epidemiologist and toxicologist who directs the National Health
Policy Center; Eddy A. Bresnitz, M.D., a professor of medicine and
epidemiology at the Medical College of Pennsylvania; and Arnold
L. Brown, M.D., Dean of the University of Wisconsin Medical
School.
37a
formed no psychiatric evaluations or tests, and she is
unqualified to do so. A5814, 4239, 4093."
Defendants took a similar tack in attempting to dis-
credit the opinions of Dr. Zahalsky, attacking first his
qualifications as an expert, and then challenging the
bases for his scientific opinions that plaintiffs had suf-
fered immune system damage as a result of having been
exposed to PCBs. Insofar as Dr. Zahalsky’s credentials
are concerned, defendants point out that he claimed a
specialty in immunology, but had completed only one
graduate-level course that included immunology. A5877.
Zahalsky conceded his lack of expertise in epidemiology,
A5888, toxicology, A5891, and medicine, id., and ad-
mitted that because he is not a medical doctor, he is not
qualified to examine patients, perform clinical tests, or
render differential diagnoses. A6010, 5913.
At his deposition, Dr. Zahalsky offered diagnoses of
immune system damage in a number of plaintiffs, even
though he had not tested any of the plaintiffs, and in-
stead simply assumed that plaintiffs had elevated PCB
exposure. A 6022, 6054-55, 6058-59. He admitted that
his opinions could be validated only by a series of tests
that he designed, and further noted that these tests had
not yet been performed. In attempting to show the lack
12 Defendants also attacked with specificity the opinions that Dr.
Barsotti offered with respect to each individual plaintiff. For in-
stance, they observed that she attributed plaintiff Patricia Ingram’s
asthma to PCB exposure, even though no one else has ever claimed
that PCBs can cause asthma, and even though Ingram has a family
history of asthma. A5156, 5161. They point out that Barsotti lists
CBs as a substantial factor in causing Charles Stanbach’s stomach
cancer, although Stanbach died at age 66, leaving no medical records
indicative of PCB exposure. A5529. They also criticize her for not
attempting to rule out the many genetic, dietary, and socioeconomic
risk factors which could have contributed to his disease. A5559-60,
5812. Finally, defendants contend that this failure to rule out
alternative causes renders Barsotti’s testimony that PCBs caused
certain ailments of seven other plaintiffs useless. A5380, 5633-34,
5741-45, 5842-43, 5548-49, 5551, 5557, 5806-12, 5856-58, 5352-54.
38a
of scientific approval for the proposition that PCBs dam-
age the immune system, defendants point to Zahalsky’s
own somewhat cryptic statement that if his tests should
support such a conclusion, “‘then I will have done some-
thing with the clinical immunologists that has not yet
been done.” A6003.
Defendants also noted that all of the studies relied
upon by Zahalsky were either animal studies or human
studies arising from the Yusho and Yu Cheng incidents.
Defendants argue that reliance upon the Yusho and Yu
Cheng studies is scientifically inappropriate because the
PCB contamination in those incicents was intermingled
with exposure to and ingestion of PCDFs, which defend-
ants characterize as a far more toxic chemical. Indeed,
even one of plaintiffs’ experts opined that the toxicity of
PCDFs is “500 to 2000 times greater” than that of PCBs.
A8907. Further, they rely on a Public Health Service
comment that there appears to be general agreement in
the scientific community that PCDFs “contributed sig-
nificantly” to the adverse health effects analyzed in the
Yusho and Yu Cheng studies. Moreover, Zahalsky was
generally unable to specify supporting authorities for his
opinions, see, e.g., A6267, and often simply assumed that
the existence of symptoms in plaintiffs evidenced ex-
posure to PCBs. A6275. Zahalsky himself characterized
his opinion as a “hypothesis” or “statement of expecta-
'~ fion.”” A6332-34.
Defendants also submitted an affidavit signed by twelve
physicians and scientists who had reviewed ail existing
medical and scientific knowledge regarding PCBs. The
affidavit criticized Zahalsky’s results, noting that “one
may not conclude to a reasonable degree of medical and
scientific certainty that PCBs can cause immune system
disorders.” A3814. Several of the individual defense ex-
perts then criticized Zahalsky’s work directly. One ex-
pert stated that because Zahalsky is neither an immunol-
ogist nor a medical doctor, he is not qualified to diagnose
39a
human illness. A4252. Another expert decried as false
the claim that the scientific literature supported Za-
halsky’s position, and asserted that Zahalsky’s attempted
extrapolations from the existing literature were “scien-
tifically improper.” A9940. Zahalsky’s methodology was
described as “scientifically inadmissible” because of its
failure to obtain basic data, its lack of control groups,
and its inadequate histories. And one expert opined that
“!njo doctor would rely on the tests described in the
Zahalsky affidavit for any purpose whatsoever.” A9944.
Defendants likewise criticized the opinions of Dr.
Shubin, who offered causation testimony in the Cunning-
ham and Reid cases. Defendants objected to Shubin’s
conclusions that plaintiffs’ injuries were caused by PCBs
because: (1) his diagnosis conflicted with diagnoses of
other physicians who had previously examined plaintiffs,
A6723; and (2) his diagnosis was based on a method
that improperly assumed the injuries to be caused by
PCBs. A6394. As with Dr. Barsotti, defendants also reg-
4stered more particular complaints regarding the individ-
ual diagnoses. When Shubin cited PCBs as the cause of
Matthew Cunningham’s hypertension, defendants argued
that he had failed to consider other factors, including
Cunningham’s family history of hypertension, his obesity,
and his high blood sugars. A6636-46. In addition, Shubin
was unable to point to any studies showing a direct
causal relationship between PCB exposure and hyperten-
sion. A6623-24. Shubin attributed Cunningham’s Par-
kinson’s Disease and eventual death to PCB exposure,
even though previous doctors had determined the Par-
kinson’s Disease to have been caused by the use of psy-
chotropie drugs, and even though Shubin did not know
the circumstances of Cunningham’s death. A6729-31,
6438-40.
Defendants cited similar flaws in Shubin’s diagnoses
of Bessie Cunningham and William Reid. Shubin con-
cluded that Ms. Cunningham’s four spontaneous abor-
40a
tions were related to PCB exposure, although he knew
neither the circumstances surrounding the abortions, nor
even when in the past forty years they had occurred.
A6757-63. Shubin opined that a host of illnesses allegedly
suffered by William Reid were the result of PCB ex-
posure, A3285-91, although he found no PCBs in Mr.
Reid’s blood, A8287, and did not rule out other possible
causes, such as smoking. A3289. Defendants also ob-
jected to Shubin’s reliance on animal studies and the
Yusho and Yu Cheng incidents.
Some of the same experts who criticized Dr. Bar-
sotti’s work also criticized Dr. Shubin’s. They character-
ized his opinions as “conjectural guesses,” A4333, which
“fail adequately to consider multiple etiologic factors, as
well as obvious differential diagnoses,” A4118, and
“would not withstand review by a qualified panel of his
peers.” A4119. One expert stated that because Shubin’s
opinions “have no basis in factual observation or in a
plausible hypothesis, [they are] devoid of scientific justi-
fication.” A4333.
Similarly suspect, according to defendants, are the
opinions of Dr. DiGregorio, whom defendants criticize for
offering a “certain” opinion that plaintiffs suffered from
anxiety and fear of future harm as a result of PCB
exposure, even though he never conducted a mental status
examination, took a psychiatric history, or reviewed any
medical records. A7089, 7132, 7140. Indeed, DiGregorio
acknowledged that his diagnoses were only preliminary,
and that further testing would have to be conducted.
A7219-20, 7266, 7297. In his own words, DiGregorio
saw each plaintiff only “for a brief period of time,”
A7152, “never reviewed any medical records of anyone,”
A7216, and was unable “to establish any physical find-
ings yet.” A7160. He nevertheless offered the opinion
with respect to five of the plaintiffs, that “until other-
wise proven,” see A7169, 7185, whatever ailments they
had were caused by PCBs. Defendants argue strenuously
4la
that these opinions are improper, not only because they
are based on insufficient information, but because, in
every case, the doctor failed to rule out other possible
causes for the injuries. They view the failure to conduct
a conclusive differential diagnosis as a fatal flaw in Di-
Gregorio’s opinion.
Defendants also objected to the opinions offered in each
of the four supplemental affidavits offered by plaintiffs
in response to the joint motion for summary judgment.
Defendants criticized Dr. Nisbet as being unqualified to
offer an opinion that was, in any event, unsupported.
Nisbet’s attempt to use a conversion factor to determine
PCB blood level from adipose tissue levels was, defend-
ants argue, indefensible because it was based on no pub-
lished or peer-reviewed studies, and is in fact contra-
dicted by both the Public Health Service’s Toxicological
Profile, A9818, 4412, and plaintiffs’ own expert, Dr.
DiGregorio. A7043. Defendants characterize Nisbet’s
method as “assumptions plus arithmetic,” and assert that
his conversion factor is_proven wrong by physical evi-
dence that plaintiffs whose blood levels and adipose tissue
levels were measured did not reflect the blood levels that
would have been expected using Nisbet’s ratio to extrapo-
late from tissue burden. See Appellees’ Br. at 88-89 n.88.
Defendants also apply these criticisms to the opinions of
Dr. Simon, whose testimony overlapped with that of Dr.
Nisbet.
Defendants roundly criticize Dr. Calesnick’s opinion
on medical monitoring as an “eleventh-hour’” affidavit
that was no more than a “one-sentence conclusion assert-
ing simply, with no reasons whatsoever, that ‘these Plain-
tiffs have been exposed to PCBs,’ and that there was ‘a
potential for them to sustain injuries from PCB ex-
posure.’” Jd. at 93 n.93, 39. Defendants object to the
admission of this testimony as (1) conclusory and un-
supported; (2) improper opinion testimony because
Calesnick was not formally offered as an expert; and (3)
42a
irrelevant because Pennsylvania law does not recognize
a cause of action for the cost of medical monitoring. Jd.
at 94.
Finally, defendants challenge the affidavit of Dr. Ni-
cholson, who claimed that the results of his ‘“meta-
analysis” established a causal connection between PCB ex-
posure and various of the plaintiffs’ injuries. Defendants
submit that Nicholson’s submission is irrelevant because
none of the plaintiffs alieges injuries for which Nicholson
proffered a causal connection. More importantly, defend-
ants argue that Nicholson’s entire concept of meta-anal-
ysis, for,ywhich the only cited support is a non-peer-re-
viewed pamphlet written by Nichvlson himself, is scien-
tifically flawed. Nicholson’s study found a causal connec-
tion between PCB exposure and human iliness even
though none of the studies he reviewed in compiling the
meta-analysis revealed such a connection.’* Defendants
offered a counteraffidavit stating that by omitting from
his review data that was inconsistent with his conclu-
sions, Nicholson had produced a scientifically invalid
study. A9946-50.
IV. THE DISTRICT COURT’S OPINION
The district court’s opinion is devoted primarily to a
discussion of the opinions of piaintiffs’ experts. The court
seems to have envisioned plaintiffs’ experts as relying
on three primary sources for their testimony: (1) animal
studies purporting to show the deleterious health effects
of PCBs; (2) studies employing data from the Yusho
and Yu Cheng studies; and (3) their own opinions and
research. With one or two exceptions explained below,
the court analyzed this evidence pursuant to Fed. R. Evid.
703, which provides that facts or data not otherwise ad-
missible in evidence may nevertheless serve as the basis
for an expert opinion if the information is “of a type
13 One of the studies did suggest a possibility that PCB exposure
in high doses may cause skin irritation.
ae
43a
reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject.” The
court appears to have excluded the bulk of the expert
opinion under Rule 703.
With regard to the animal studies, the court’s analysis
was bifurcated, discussing first whether it could look
beyond an expert’s assertion that his opinion is reason-
ably relied upon by experts in the field, and second
whether animal studies are a proper basis for an opinion
about causation. The court answered the first question
readily, concluding that an expert’s opinion on the rea-
sonableness of his or her own data could not be disposi-
tive or Rule 703’s limitation would be meaningless. In
reaching this conclusion, the court distinguished this
court’s opinion in Jn re Japanese Electronic Products
Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983), rev’d
on other grounds sub nom., Matsushita Elec. Ind. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986), which
held, inter alia, that a court may not ignore an expert’s
uncontradicted testimony that his opinions are “of a type
reasonably relied upon by experts in the field.” Jd. at
276. The court reasoned that, unlike Japanese Electron-
ics, in the present case “we have very convincing evi-
dence on the record that says that these studies are ir-
relevant.” Ai0108. Apparently relying on that evidence,
the court proceeded to exclude the animal studies. How-
ever, the court neither detailed the “very convincing evi-
dence” indicating that the studies are “irrelevant,” nor
explained why the relevancy of the studies pertains to
their reliability under Rule 703. The opinion is similarly
silent as to precisely which expert opinions it meant to
exclude in this manner.
The court’s consideration of the Yusho and Yu Cheng
studies as possible bases for expert opinions as to causa-
tion is similarly abbreviated. The court’s holding is
found in the following two sentences:
It does seem clear that the consensus conclusion
from the scientific literature is that the diseases
44a
that occurred in the victims of these incidents were
caused by the ingestion of highly toxic PCDFs with
their food and is not evidence of the effects of PCBs.
Therefore, for the same reasons as addressed above
regarding animal studies, I wil exclude from evi-
dence any expert opinion based on studies of the
Yusho or Yu Cheng incidents.
A10,108. Again, the court did not state which of the ex-
pert opinions were tainted by reliance on these studies or
which opinions offered in rebuttal suggested a “consensus
conclusion” indicating unreliability.
After excluding these two significant sources of evi-
dence, the court turned to its third category, plaintiffs’
experts’ own research results not based on animal studies
or the Yusho and Yu Cheng incidents. Before analyzing
in a particularized manner the opinions of the individual
experts, it noted that:
Even if I found that plaintiffs’ experts|’] testimony
reached the level of being probative, I would rule to
exclude it on the basis of Rule 703 and 403 as “un-
helpful” and more prejudicial than probative.
A10111 (citation omitted). Nonetheless, the opinion con-
sidered each of the individual expert opinions, beginning
with that of Dr. Barsotti.
The court noted that Dr. Barsotti:
. .. finds PCB caused hypertension and asthma even
in people who have family histories of hypertension
and asthma. She finds that PCBs caused the plain-
tiffs emotional distress, despite the fact that her area
of expertise has nothing to do with emotional dis-
eases and she has only talked to one of the plaintiffs.
She claims that, by studying the plaintiffs’ medical
histories, she excluded other causes of these dis-
eases, but she is not a medical doctor and is not
trained in differential diagnosis.
A10,112. Although certain factual findings may be im-
plicit in the court’s discussion (for example, that some
45a
plaintiffs have family histories of hypertension and
asthma, and that Barsotti talked with only one plaintiff),
the court never explained the basis for its decision to ex-
clude Barsotti’s opinion."
The court’s analysis of other experts including doctors
Zahalsky, DiGregorio, Shubin and Allen, was comparable
in that it elucidated the potential flaws in the doctors’
testimony but failed to make definitive admissibility find-
ings. However, the court gave more detailed considera-
tion to the affidavits filed by plaintiffs in response to the
summary judgment motion, including the opinions of Dr.
Nisbet and Dr. Simon. The court provided a summary of
both doctors’ attacks on the ATSDR study, and criticized
their opinions as follows:
Dr. Simon does not give a basis for his statement
that the background PCB blood burden can be cal-
culated from the [National Human Adipose Tissue
Survey], Drs. Simon and Nesbit evidently believe
that their blood to adipose tissue formula is over
the number of studies that defendants cite that indi-
cate a PCB blood background amount directly by
measuring it. However, the only reason they- give
for not believing them is that the NHATS is more
recent. However, the NHATS ended in 1983 and
some of the defendants’ studies are more recent than
that. Neither doctor cites any study that measures
PCBs in the bood directly or cites a basis for cal-
culating blood burden from adipose tissue burden.
Further, there are some plaintiffs in our case who
have had both blood tests and adipose tissue tests
and they do not reflect the 20 to 250 times relation-
ship that these experts claim.
14 An exception to this observation is the court’s exclusion of
Dr. Barsotti’s opinion “tracing” the PCBs in the plaintiffs’ bodies
to the Paoli railyard though gas chromatography. In that instance,
the court made clear that Barsotti’s testimony would be excluded
because she “is not a chemist,” and such conclusions are therefore
“beyond the scope of her expertise.” A10, 112. But see infra note
15.
46a
A10,119. Nonetheless, the court did not declare these ob-
servations to be grounds for excluding the opinions, and
did not even state whether it excluded these opinions.”
The court next addressed the affidavit of Dr. Nichol-
son, whose “meta-analysis” it analyzed under the “novel
scientific evidence” standards of United States v. Down-
ing, 753 F.2d 1224 (3d Cir. 1985). Downing requires
that admissible scientific techniques be reliable, be of a
sort that will not mislead juries, and have a sufficient
connection to the particular factual issues in the case."*
In the court’s view, all three Downing factors weighed
against admission of the affidavit. The court reasoned
that:
[t]he reports of defendants’ experts advance con-
vincing reasons why meta-analysis as a technique,
and this meta-analysis in particular, is not reliable.
Dr. Nicholson’s report has not been peer-reviewed or
accepted by anybody in particular, even the Ontario
Ministry of Labor |for whom the report was com-
piled]. There is a possibility that Dr. Nicholson’s
testimony would confuse the jury because of its sci-
entific nature and his credentials so they would
make more of it than it actually deserved.
The third factor is the most influential in this de-
termination. The conclusion of Dr. Nicholson’s re-
port is that there was “substantial evidence for a
15The quoted passage is immediately followed by the court’s
reflection that “I feel compelled to note further that I see nothing
in Dr. Nisbet’s curriculum vita that would qualify him to testify
as an expert in this area.” It is not clear from the opinion whether
this statement is mere dicta, or is intended to exclude the testimony
under Rule 702. The district court made similarly cryptic indict-
ments of Dr. Barsotti’s qualifications to make psychiatric diagnosis,
A10112, and Dr. Zahalsky’s qualifications to perform differential
diagnoses, A10112, A10123.
16 For a more complete discussion of Downing, see Part VI.C2
below.
47a
causal association between excess risk of death from
eancer of the liver, biliary tract and gall bladder
and exposure to PCBs.” Dr. Nicholson’s report could
not be the basis for anyone to say with reasonable
degree of scientific certainty that some particular
person’s disease, not cancer of the liver, biliary tract
or gall bladder, was caused by PCBs.
Ai0,121-2. It would thus appear that the district court
intended to exclude Nicholson’s affidavit as based upon an
inadmissible scientific technique."
The last expert the court considered is Dr. Calesnick,
who testified that the plaintiffs he examined have the
potential to suffer harm from PCB exposure, and should
therefore be monitored regularly to protect their health.
The court characterized Calesnick’s testimony as being
“strikingly similar to the opinion offered in Martin v.
Johns Manville Corp. and ruled inadmissible by the
Pennsylvania Supreme Court.” A10,123.'* It then noted
that because Martin “was an asbestos case, and it has
been epidemiologically proved that asbestos exposure can
cause cancer, that doctor might have had more of a basis
for his opinion.” Jd. However, the court did not explic-
itly state that it was excluding Calensnick’s testimony,
much less why it might be excluding it. Indeed, later in
the opinion, the court barred the entire medical monitor-
ing claim, stating that “the testimony of Dr. Calesnick
17 The court added that “even if Dr. Nicholson’s testimony was
admissible despite being a novel scientific technique, it would be
difficult to understand how it was relevant.” A10122. Whether the
court intended a Rule 402 relevancy exclusion is unclear.
18JIn Martin, 508 Pa. 154, 164-65, 494 A.2d 1088 (1985), the
court excluded a doctor’s testimony that, based on the plaintiff’s
“history of exposure to asbestos together with his one blood-
spitting episode” the plaintiff might have had cancer at the time
the doctor examined him. That testimony, the court ruled, was “not
probative of the fact for which appellee now says it is offered, 7.e.,
that appellee faced a substantially increased risk of contracting
cancer.” Jd. at , 494 A.2d at 1094.
48a
and thé other plaintiffs’ experts who testif[ied] regard-
ing the risk of future injury is insufficient to support it
under Pennsylvania law.” A10129. This comment sug-
gests that Calesnick’s opinion was admitted, but did not
raise a genuine issue of fact deemed “material,” Fed. R.
Civ. P. 56(¢), under Pennsylvania law.
Thus, the court appears to have excluded almost all of
plaintiffs’ expert testimony. The Yu Cheng, Yusho and
animal studies appear to have been excluded as not rea-
sonably relied on by experts in the field, under Rule 703,
and the opinions of various experts appear to have been
excluded either on the same grounds or because the dis-
trict court found them to be unqualified under Rule 702.
Dr. Nicholson’s testimony was excluded as based upon an
unreliable scientific technique under Rule 702.
Having concluded its discussion of the evidentiary is-
sues, the court turned its attention to the summary judg-
ment motion itself, positing that in order to survive a
motion for summary judgment, plaintiffs must establish
a genuine issue of fact with respect to their prima facie
case, which the court defined as including the following
four elements:
1) that defendants released PCBs into the environ-
ment; 2) that plaintiffs somehow ingested these
PCBs into their bodies; 3) that plaintiffs have an
injury; 4) that PCBs are the cause of that injury.
A10,126-7.
The first element was uncontested. Observing that the
second question depends on whether the plaintiffs have
been exposed to PCBs to a greater degree than has the
general population, the court analyzed the issue as fol-
lows:
Either plaintiffs are right and they have more
PCBs in their bodies than the rest of us, or defend-
ants are right and they do not. If they do have an
49a
unusually high amount of PCBs, circumstantial evi-
dence indicates where they came from.
However, the only legally admissible evidence in
this case is that they do not. The plaintiffs have cer-
tainly failed to carry their burden to prove that they
do.. For the reasons discussed above, plaintiffs evi-
dence to the contrary is inadmissible. Since the
plaintiffs cannot demonstrate that they have been
more heavily exposed to PCBs than the general pop-
ulation, they cannot recover.
Id. With respect to the third issue, whether plaintiffs
have an injury, the court concluded that “plaintiffs must
point to some health problem that they have or they are
out of court under Pennsylvania law. If the best they
ean do is possibility of future harm, emotional distress,
or the mere fact that they have PCBs in their body, then
those plaintiffs cannot recover.” Jd.
Finally, the opinion divided the fourth issue, causation,
into three separate considerations. First, the court
stated, without particularization, that plaintiffs’ expert
opinions on causation were inadmissible because they
lacked a sufficient scientific founcation. It is unclear
whether the court meant to exclude all of the plaintiffs’
experts on this basis. Second, the court noted that many
of these experts ‘“‘seem to have very little formal aca-
demic training in the areas in which they testify,”
thereby raising the question whether these experts “really
are experts.” However, the court concluded that because
defendants failed to attack the experts systematically and
neglected to brief the question, the issue would not be
considered.’® Third, the court pointed out that plaintiffs’
experts, for the most part, did not provide testimony
eliminating other possible causes of the various afflic-
19 This holding seems in tension with the explicit exclusion of
Dr. Barsotti’s testimony on these same grounds, see supra note 14
and accompanying text, and the comments about the qualifications
of Doctors Nesbit and Zahalsky, see supra note 15.
50a
tions, i.e. differential diagnoses. None of the plaintiffs’
medical doctors rendered differential diagnoses, and
plaintiffs’ experts who did were Ph.D.’s who, the court
declared, are not trained or qualified to conduct differen-
tial diagnoses. Again, it is unclear whether the court
was excluding this evidence, and if so, for lack of qualifi-
cation or on some other ground.
After dealing briefly with a number of miscellaneous
issues (discussed below in Sections VIII and IX), the
court concluded the opinion with a series of short para-
graphs specifying the injury claims of each individual
plaintiff, but granting summary judgment to defendants
on all claims. In sum, the district court opinion appears
to have excluded almost all of the plaintiffs’ evidence and
then went on to determine whether plaintiffs, with almost
none of their evidence left in the record, met their burden
on the contested issues of exposure to PCBs, injury, and
causation. Not surprisingly, given the consequent lack of
evidence, the court found that the plaintiff had not met
its burden on any of these issues. It therefore, granted
summary judgment for defendants. :
V. MEDICAL MONITORING
Because it bears on the question of what evidence is
admissible, we turn first to the viability of certain plain-
tiffs’ “medical surveillance,” or ‘medical monitoring,”
claims, by which plaintiffs sought to recover the costs of
periodic medical examinations that they contend are med-
ically necessary to protect against the exacerbation of
latent diseases brought about by exposure to PCBs.
Neither the Pennsylvania Supreme Court nor the Penn-
sylvania Superior Court has decided whether a demon-
strated need for medical monitoring creates a valid cause
of action.*’ Therefore, sitting in diversity, we must pre-
20 The one Pennsylvania trial court to have considered this type
of claim allowed it to proceed. See Habitants Against Landfill
Toxicants v. City of York, No. 84-S-3820 (Pa. York Co. May 20,
5la
dict whether the Pennsylvania Supreme Court would rec-
ognize a claim for medical monitoring under the substan-
tive law of Pennsylvania, and if so, what its elements
are. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
Medical monitoring is one of a growing number cf non-
traditional torts that have developed in the common law
to compensate plaintiffs who have been exposed to various
toxic substances." Often, the diseases or injuries caused
by this exposure are latent. This latency leads to prob-
lems when the claims are analyzed under traditional com-
mon law tort doctrine because, traditionally, injury
needed to be manifest before it could be compensable.
Thus, plaintiffs have encountered barriers to recovery
which “arise from the failure of toxic torts to conform
with the common law conception of an injury.” Note,
Medical Surveillance Damages, supra note 20, at 852.
Nonetheless, in an effort to accommodate a_ society
with an increasing awareness of the danger and potential
injury caused by the widespread use of toxic substances,”
1985), 15 Envtl. L. Rep. 20,937 (allowing an action seeking relief
in the form of a medical surveillance trust fund). For the reasons
expressed, below in note 22, we believe that Peterman v. Techalloy
Co., Inc., 29 Pa. D. & C.3d 104 (Mont. Co. 1982), a Pennsylvania
trial court decision, which denied relief, is distinguishable because
plaintiffs in that case requested relief in the form of a trust fund
for future medical expenses, including, presumably, medical treat-
ment, not just medical surveillance.
21See generally Note, The Inapplicability of Traditional Tort
Analysis to Environmental Risks: The Example of Toxic Waste
Pollution Victim Compensation. 35 Stan. L. Rev. 575, 576-78 (1983)
(collecting cases); Note, Medical Surveillance Damages: A Solu-
tion to the Inadequate Compensation of Toxic Tort Victims, 63 Ind.
L. J. 849 (1988) (same).
22 The necessity of addressing problems of toxic exposure become
[sie] particularly important with the continued widespread use of
chemicals in American industrial and agricultural development. One
commentator has pointed out that:
there are approximately 50,000 hazardous waste sites nation-
wide. In all, over 65,000 chemicals are in commercial use today
52a
courts have begun to recognize claims like medical moni-
toring, which can allow plaintiffs some relief even absent
present manifestation of physical injury. More specifi-
cally, in the toxic tort context, courts have allowed plain-
tiffs to recover for emotional distress suffered because of
the fear of contracting a toxic exposure disease, see, e.g.,
Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1206
(6th Cir. 1988) (applying Tennessee law), the increased
risk of future harm, see generally, Note, Decreasing the
Risks Inherent in Claims for Increased Risk of Future
Disease, 438 U. Miami L.Rev. 1081 (1989), and the rea-
sonable costs of medical monitoring or surveillance, see,
e.g., Ayers v. Township of Jackson, 106 N.J. 557, 525
A.2d 287 (1987); Burns v. Jaquays Mining Corp., 156
Ariz. 375, 752 P.2d 28 (Ct.App. 1988); Merry v. West-
inghouse Electric Corp., 684 F.Supp. 847 (M.D.Pa.
1988); Villari v. Terminix International, Inc., 663 F.
Supp. 727 (E.D.Pa. 1987) .*
It is easy to confuse the distinctions between these
various non-traditional torts. However, the torts just
mentioned involve fundamentally different kinds of in-
jury and compensation. Thus, an action for medical
monitoring seeks to recover only the quantifiable costs of
which have not been tested for their effects on human health
or the environment. According to varying estimates, workplace
exposure to hazardous substances alone accounts for from five
percent to as much as thirty-eight percent of all cancers.
Note, Medical Surveillance Damages: Using Common Sense and
the Common Law to Mitigate the Dangers Posed by Environmental
Hazards. 12 Harv. Envtl. L. Rev. 265, 265 (1988) (footnote
omitted).
23 In addition, several courts have modified the traditional rules
discussed above to better serve in the toxic tort context. See, e.g.,
Ayers, 106 N.J. at 584, 525 A.2d at 300 (stating that “neither the
statute of limitations nor the single controversy rule should bar
timely causes of action in toxic-tort cases instituted after discovery
of a disease or injury related to tortious conduct, although there
has been prior litigation between the parties of different claims
based on the same tortious conduct”).
53a
periodic medical examinations necessary to detect the on-
set of physical harm, whereas an enhanced risk claim
seeks compensation for the anticipated harm itself, pro-
portionately reduced to reflect the chance that it will not
occur. We think that this distinction is particularly im-
portant because the Pennsylvania Supreme Court has ex-
pressed some reluctance to recognize claims for enhanced
risk of harm. In Martin v. Johns-Manville Corp., 508 Pa.
154, 494 A.2d 1088 (1985), the court made clear that a
plaintiff in an enhanced risk suit must prove that future
consequences of an injury are reasonably probable, not
just possible. 7d. at 165 n.5, 494 A.2d at 1094 n.5.
Martin does not lead us to believe that Pennsylvania
would not recognize a claim for medical monitoring, how-
ever. First, the injury that the court was worried about
finding with reasonable probability in Martin is different
from the injury involved here. The injury in an en-
hanced risk claim is the anticipated harm itself. The in-
jury in a medical monitoring claim is the cost of the
medical care that will, one hopes, detect that injury.”
The former is inherently speculative because courts are
forced to anticipate the probability of future injury. The
latter is much less speculative because the issue for the
jury is the less conjectural question of whether the
plaintiff needs medical surveillance. Second, the Pennsyl-
vania Supreme Court’s concerns about the degree of cer-
tainty required can easily be accommodated by requiring
that a jury be able to reasonably determine that medical
monitoring is probably, not just possibly, necessary.
Defining injury in this way is not novel. Friends for
All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d
24 Once the injury is detected, the plaintiff may or may not have
a cause of action against the same defendant for the injury itself.
See generaliy Note, Claim Preclusion in Modern Latent Disease
Cases: A Proposal for Allowing Second Suits, 103 Harv. L. Rev.
1989 (1990). Because that situation is not before us, we do not
reach it.
54a
816 (D.C.Cir. 1984), the court, in recognizing a claim
for medical monitoring damages for children exposed to
the depressurization of an airplane cabin, noted that
“Tilt is difficult to dispute that an individual has an in-
terest in avoiding expensive diagnostic examinations just
as he or she has an interest in avoiding physical injury.”
Id. at 826. See also, Laxton v. Orkin Exterminating Co.,
639 S.W.2d 431 (Tenn. 1982) (ingestion of contaminated
water requiring testing held to be injury in itself, even
though ingestion found to be harmless).
Similarly, in Askey v. Occidental Chemical Corp., 102
A.D.2d 130, 477 N.Y.S.2d 242 (1984), the court analyzed
the issue as follows:
Damages for the prospective consequences of a tor-
tious injury are recoverable only if the prospective
consequences may with reasonable probability be ex-
pected to flow from the past harm. Consequences
which are contingent, speculative, or merely possible
are not properly considered in ascertaining damages.
If a plaintiff seeks future medical expenses as an
element of consequential damage, he must establish
with a degree of reasonable medical certainty
through expert testimony that such expenses will be
incurred.
In light of the foregoing, it would appear that under
the proof offered here persons exposed to toxic chem-
icals emanating from the landfill have an increased
risk of invisible genetic damage and a present cause
of action for their injury, and may recover all “rea-
sonably anticipated” consequential damages. The
future expense of medical monitoring could be a re-
coverable consequential damage provided that plain-
tiffs can establish with a reasonable degree of medi-
cal certainty that such expenditures are “reasonably
anticipated” to be incurred by reason of their ex-
posure.
55a
Id. at 136-37, 477 N.Y.S.2d at 247 (citations omitted).
Thus the appropriate inquiry is not whether it is reason-
ably probable that plaintiffs will suffer harm in the fu-
ture, but rather, whether medical monitoring is, to a
reasonable degree of medical certainty, necessary in order
to properly diagnose the warning signs of disease.**
Federal district courts, sitting in diversity, have ad-
dressed the medical monitoring issue under Pennsylvania
law. In Villavi v. Terminix International, Inc., 663
F.Supp. 727 (E.D.Pa. 1987), the court allowed plaintiffs,
who had presented sufficient medical evidence of present
physical injuries resulting from exposure to an allegedly
25 Our research has yielded only two cases in which courts have
purported to disallow recovery based on a medical monitoring
theory. Both cases are distinguishable. In Rheingold v. E.R. Squibb
& Sons, No. 74 Civ. 3420 (S.D.N.Y. Oct. 8, 1975), the court
rejected a class action claim for what might more accurately be
called “medical management” damages. Plaintiffs, who had used
DES during pregnancy, sought to establish a fund to finance the
periodic examinations of plaintiffs’ affected female offspring, as
well as, inter alia, the medical treatment of “‘such girls as develop or
show any propensity toward development of (vaginal cancer or
other related conditions).” Jd. at 7. This remedy is far broader
than a mere claim for medical monitoring as we have defined it.
Moreover, to the extent that the Rheingold court interpreted New
York law as requiring actual injury as a prerequisite to recovery,
such reasoning is seriously called into question by subsequent New
York state appellate court decisions to the contrary, see Askey,
supra.
In Morrissy v. Eli Lilly & Co., 76 Ill. App. 3d 753, 394 N.E.2d
1369 (1979), the plaintiff explicitly characterized their claims as
requesting, inter alia, that defendants “establish and maintain a
fund of money reasonably calculated to compensate all class mem-
bers for such medical expenses which have been and will continue
to be incurred due to the physiological damage done by DES,” id.
at 757, 394 N.E.2d at 1373. The court held that “|t]he nexus thus
suggested between exposure to DES in utero and the possibility of
developing cancer or other injurious conditions in the future is an
insufficient basis upon which to recognize a present injury.” Jd.
at 761, 394 N.E.2d at 1376. However, like Rheingold, the plaintiffs’
request in Morrissy was for treatment as well as monitoring. Thus,
it is inapposite to the case at bar.
56a
carcinogenic pesticide, to recover the costs of future med-
ical surveillance. Jd. at 735. The court required a show-
ing of present physical injury and expressly refused to
follow Ayers, which it characterized as holding that “the
cost of future medical monitoring is a proper element of
damages whenever medical testimony establishes the need
for future monitoring.” Jd. at 735 n.5. However, be-
cause the plaintiffs in Villari had demonstrated sufficient
physical injury, the question whether the cause of action
could be sustained without it was not squarely raised.
Villari’s putative physical injury requirement was re-
jected in Merry v. Westinghouse Electric Corp., 684
F.Supp. 847 (M.D.Pa. 1988). In Merry, property owners
whose wells had been contaminated by toxic substances
sought recovery for, inter alia, the cost of medical sur-
veillance. In denying defendant’s motion for summary
judgment, the court agreed with Villari that “a plaintiff
need not exhibit symptoms of a disease before medical
surveillance is sought,” id. at 849, but disagreed to the
extent that Villari required “physical injury before a
claim for future medical monitoring can be maintained.”
Id. (emphasis in original). Consequently, Merry sug-
gested that a medical monitoring action could be prem-
ised upon proof of exposure to hazardous substances re-
sulting in the potential for injury and the need for early
detection and treatment. /d. at 850.
We agree with Merry, and predict that the Supreme
Court of Pennsylvania would follow the weight of au-
thority and recognize a cause of action for medical mon-
itoring established by proving that:
1. Plaintiff was significantly exposed to a proven
hazardous substance through the negligent actions of
the defendant.
2. As a proximate result of exposure, plaintiff suf-
fers [an] a significantly increased risk of contract-
ing a serious latent disease.
3. That increased risk makes periodic diagnostic
medical examinations reasonably necessary.
57a
4. Monitoring and testing procedures exist which
make the early detection and treatment of the dis-
ease possible and beneficial.
These factors would, of course, be proven by competent
expert testimony, see Ayers, 106 N.J. at 606, 525 A.2d
at 312.
The policy reasons for recognizing this tort are ob-
vious. Medical monitoring claims acknowledge that, in a
toxic age, significant harm can be done to an individual
by a tortfeasor, notwithstanding latent manifestation of
that harm. Moreover, as we have explained, recognizing
this tort does not require courts to speculate about the
probability of future injury. It merely requires courts to
ascertain the probability that the far less costly remedy
of medical supervision is appropriate. Allowing plaintiffs
to recover the cost of this care deters irresponsible dis-
charge of toxic chemicals by defendants and encourages
plaintiffs to detect and treat their injuries as soon as
possible. These are conventional goals of the tort system
as it has long existed in Pennsylvania.*™*
Having established the applicable standard, we discuss ~
below, in Part VII, whether summary judgment was
properly granted for the defendants on the medical mon-
itoring claim.
VI. EVIDENTIARY ISSUES
A. Introduction
To the extent that the district court actually excluded
the bulk of plaintiffs’ expert opinion evidence, our thresh-
old question is whether it did so properly. As we have
explained supra, at times, the text of the district court
opiniot., which attacks many of plaintiffs’ expert opinions
“a In light of the statute of limitations problems caused by
Pennsylvania law against splitting causes of action, we intimate
no view as to whether a plaintiff who goes for medical monitoring
must forego his or her claim for damages if and when the disease
ultimately manifests itself.
58a
without formally excluding them, suggests that the court
was merely describing, not excluding the testimony.
However, at other times, the court appears to have ex-
cluded most if not all of the testimony. In view of the
court’s “bottom line,’ we will assume that the court ex-
cluded the challenged evidence. If these exclusions were
proper, summary judgment would doubtless be appropri-
ate because exclusion of the opinions would effectively
eviscerate plaintiffs’ case. However, whether that evi-
dence was properly excluded at this stage of the proceed-
ings is quite another question. We address first the ade-
quacy of the district court’s Fed. R. Evid. 703 analysis.
We then turn to the district court’s Rule 702 determina-
tions, and-then to its rather abbreviated reliance on Rule
403.
B. Evidence Excluded under Rule 703
1. Factual Inquiry
Although it stops short of giving the basis for a num-
ber of its rulings, the district court appears to have
found that much of plaintiffs’ expert opinion evidence,
including the animal studies and the Yusho and Yu
Cheng incidents, was unreliable and excludable under
Rule 703.°° However, its analysis did not track the Rule
703 protocols established by this court in Jn Re Japanese
Electronic Products, 723 F.2d 238 (3d Cir. 1983), rev’d
on other grounds sub nom., Matsushita Electrical Indus-
trial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
In Japanese Electronics, the district court had excluded
expert testimony under both Rules 702 and 703, and
granted summary judgment in favor of defendants. Re-
versing those rulings, this court took the opportunity to
“6 Fed. R. Evid. 703 states:
The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. If of a
type reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject, the facts
or data need not be admissible in evidence.
59a
provide the district courts with guidance in approaching
such situations. Of specific relevance here is its holding
that, in determining for purposes of Rule 703 whether
the informational basis of an expert opinion is of a type
reasonably relied upon by experts in the field, “[t]he
proper inquiry is not what the court deems reliable, but
what experts in the relevant discipline deem it to be.”
Id. at 276. Further, the court noted emphatically that
“as a matter of law, the district court must make a
factual inquiry and finding as to what data experts in
the field find reliable. There is no discretion to forbear
from making this inquiry and finding.” Jd. at 277. “[A]
factual determination under Rule 104(a) ... must be
made when there is a factual dispute over such reliance.”
Id. at 276.
Japanese Electronics does not require that the ‘factual
inquiry” take the form of an in limine or other hearing.
It does make clear, however, that the district court must
have a proper and reviewable foundation for making its
admissibility findings. We can identify no such founda-
tion here. With respect to the animal studies, the court
seems to have excluded the expert testimony because it
had “very convincing evidence on the record that says
that these studies are irrelevant.” However, the court
did not make specific reference to the evidence in the
voluminous record it has chosen to credit, did not reveal
the theory on which it has rejected opinions to the con-
trary, and did not identify which opinions it means to
exclude in this manner. Thus, we have no way of evalu-
ating the district court’s gal conclusion that the evi-
dence was inadmissible under Rule 703 because we do not
know what facts it relied on in making its legal deter-
mination. Moreover, it is not clear that the court was
not merely choosing between opinions as opposed to ex-
cluding plaintiffs [sic] opinion on evidentiary grounds.”
27 As noted, the court may have meant to exclude the animal
studies as irrelevant under rule 402 because even if they showed
60a
The court’s treatment of the Yusho and Yu Cheng in-
cidents as a basis for expert testimony was similarly
fiawed. It stated that its decision to exclude opinions
based on these incidents was compelled by a “finding’’
that “the consensus conclusion from the scientific litera-
ture is that the diseases that occurred in the victims of
these incidents were caused by the ingestion of highly
toxic PCDFs with their food and is not evidence of the
effects of PCBs.” ** The court did not, however, specify
what scientific literature or which consensus conclusion it
was referring to, nor did it say which opinion it was ex-
cluding as inconsistent with the consensus conclusion.
Moreover, the court did not even consider the record evi-
dence that certain plaintiffs may have been exposed to
PCDFs as well as PCBs.
For the foregoing reasons, the district court’s eviden-
tiary exclusions under Rule 703 cannot pass muster and
must be set aside. Those rulings that do implicate facts
or data which are the basis for expert opinion may be
reconsidered in the remanded proceedings pursuant to the
Japanese Electronics methodology.*’
correlation between PCBs and animal disease, they were not proba-
tive of a connection between PCB exposure and human disease.
However, it made no such definitive ruling.
28 As just noted with regard to the animal studies, the court’s
reasoning with regard to these two incidents seems to follow a
relevancy rationale, not a Rule 703 unreliability rationale. There is
no indication that the data from Yusho and Yu Cheng is unreliable.
The court’s concern appears to be more grounded in whether a
study regarding the effect of PCDF’s is relevant to this proceeding.
2° Although, for the reasons explained, factfinding is a prerequi-
site to definite conclusions, it appears to this court that most of
the data upon which plaintiffs’ experts rely is “of a type reasonably
relied upon by experts in the particular field,” Fed. R. Evid. 703,
and thus admissable [sic] under Rule 703. However, even if admis-
sible under Rule 703, plaintiffs’ experts may be using their data in
an unreliable manner. As we explain infra, that is a Rule 702 ques-
tion and much of plaintiffs’ evidence may be excludable on that basis.
6la
2. Process
Closely related to the question whether the district
court conducted an appropriate and adequate factual in-
quiry is the question whether the court provided the
plaintiffs with sufficient process for defending their evi-
dentiary submissions. The adversarial process upon
which our legal system is based assumes that a fact
finder will give the parties an adequate opportunity to be
heard; if it does not, it cannot find facts reliably. Thus
the detailed factual record requirement, firmly en-
trenched in our jurisprudence, Japanese Electronics
supra; Indian Coffee Corp. v. Proctor & Gamble, 752
F.2d 891, 895 (38d Cir.) cert. denied, 474 U.S. 863
(1985); DeLuca v. Merrell Dow Pharmaceuticals, Inc.,
No. 89-5572 (filed Aug. 16, 1990), requires adequate
process at the evidentiary stage, particularly when a
summary judgment may flow from it. The district court
did not afford that process here.
More precisely, notwithstanding the complexity of the
matter, and the voluminous nature of the expert opin-
ions, the district court did not give the plaintiffs suffi-
cient opportunity to explore the issues upon which they
were ultimately denied relief. First, the court [rejected
plaintiffs request for] failed to conduct an in limine
hearing.*** Second, it denied oral argument on the evi-
dentiary issues and on the related summary judgment
motion. Compounding these restrictions was a case man-
agement order which arguably did not give plaintiffs an
adequate opportunity to discover defendants’ expert
positions.*” Of particular significance, is the plaintiffs’
2%. The plaintiffs did not request an in limine hearing and in
fact opposed it on the grounds that it was premature, i.e., they
did not want to be forced into it before their discovery was com-
plete. We emphasize, however, that the management of complex
litigation may not be relegated to the lawyers but at all times
remains the responsibility of the court. See Manual for Complex
Litigation 2d § 20.1.
30 By its terms, the case management order granted plaintiffs
three months within which to conduct discovery limited to “the
ieee
62a
inability to contest the reasonableness of the data and
techniques relied on by defendants’ experts. Having no
foreknowledge of the direction that the district court’s
opinion might take, the plaintiffs should have been given
an opportunity to be heard on the critical issues before
being effectively dispatched from court. An in limine
hearing would have been quite manageable. At least
some process should have been devised to afford plaintiffs
a surrogate for that trial scenario where the equivalent
evidentiary exclusion and adverse judgment might occur.
On this ground alone, the summary judgment would have
to be set aside.
C. Evidence Excluded under Federal Rule of
Evidence 702
As noted, the district court apparently made the bulk
of its exclusionary rulings under Rule 703. However, the
court did, on several occasions, invoke Rule 702 either
explicitly or implicitly. We deal now with those exclu-
sions.
The court’s Rule 702 exclusions can generally be di-
vided into two categories; (1) rejection of the witness
as unqualified to give expert testimony in the relevant
field ** and (2) rejection of the expert because, however
qualified, he or she was relying on an unreliable scien-
tific technique. The district court here made both kinds
of Rule 702 exclusions.
quantity and nature of the PCBs used at the Paoli Railyard and
the health effects on Defendants’ employees of exposure to PCBs.”
App. at 2958. This was to be followed by defendants’ discovery of
the evidence comprising plaintiffs’ prima facie case on causation.
All other discovery, including discovery by plaintiffs of defendants’
experts, was stayed, and plaintiffs’ motion to compel such discovery
were [sic] denied.
81 As pointed out supra note 19, these exclusionary holdings can-
not be reconciled with the court’s later statement that the question”
of plaintiffs’ witnesses’ qualification as experts would not be ad-
dressed by the opinion.
. rk in BP tit a sil a
63a
1. Expert Witness Qualifications
The court appears to have excluded much of Dr. Bar-
sotti’s testimony on the grounds that she is not a chemist,
and is therefore unqualified to present an opinion based
on gas chromatography tracing, or a medical doctor, and
is therefore unqualified to present her opinion on what
caused the plaintiffs [sic] emotional and physical injuries.
A10112. Similarly, the court appears to have excluded
much of Dr. Zahalsky’s testimony regarding the effect of
PCBs on human beings because “he is not trained in dif-
ferential diagnosis.”** Jd. The court also noted that
“Dr. Nesbit’s curriculum vita [did not] qualify him to
testify as an expert” in the area of whether the ATSDR
study (which indicated that the level of PCBs in the
plaintiffs [sic] body was typical of the American popula-
tion) was accurate.
The district court’s insistence on a certain kind of de-
gree or background is inconsistent with our jurispru-
dence in this area. The language of Rule 702 and the
accompanying advisory committee notes make clear that
various kinds of “knowledge, skill, experience, training,
or education,” Fed. R. Evid. 702, qualify an expert as
such. Interpreting the rule liberally, we recently held
that a safety specialist who had received a master’s de-
gree in safety education and a doctorate in human fac-
tors and product safety design, could testify on whether
the failure of the forklift manufacturer to put seatbelts
in the forklift caused the death of the operator cf a fork-
lift which overturned, notwithstanding the fact that the
expert was not an engineer. Havdecker v. Copperloy
Corp., 893 F.2d 49 (8d Cir. 1990). See also Knight v.
Otis Elevator Co., 596 F.2d 84 (38d Cir. 1979) (expert
may testify that unguarded elevator buttons constitute
32 We note that most, if not all of the evidence supporting Dr.
Zahalsky’s conclusions regarding causation are based on the Yusho
and Yu Cheng studies. If those studies are excluded under Rule 708,
then Dr. Zahalsky’s qualifications as an expert may not be impor-
tant.
64a
a design defect despite that expert’s lack of a specific
background in the design and manufacture of elevators).
See also, Hammond v. Int'l Harvester Co., 691 F.2d 646
(3d Cir. 1982) (engineer, whose only qualifications were
sales experience in the field of automotive and agricul-
tural equipment and teaching high school automobile re-
pair, was nevertheless permitted to testify in products
liability action involving tractors).
Dr. Barsotti, a toxicologist with a Ph.D. in Pathology,
has conducted extensive research in the toxicology of
PCB’s, and currently serves as the Chief of the Research
Analysis Branch of the Agency for Toxic Substance [sic]
and Disease Registry of the United States. Dr. Zahalsky
has a Ph.D. in microbiology from New York University
and teaches courses in immunology and human diseases.
Dr. Nisbet has a Ph.D. in Physics from Cambridge Uni-
versity and has published numerous articles in the field of
human exposure and the health risks attendant upon that
exposure. A8768-70. In light of the liberal Rule 702 ex-
pert qualification standard, we hold that the district court
abused its discretion *’ in excluding portions of Doctors
Barsotti, Zahalsky and Nesbit’s testimony simply _be-
cause the experts did not have the degree or training
which the district court apparently thought would be
most appropriate.
2. Meta-Analysis
As noted, the district court also used Rule 702 to ex-
clude the testimony of Dr. Nicholson because the court
found that Dr. Nicholson’s “meta-analysis” was an inad-
missible novel scientific technique. Meta-analysis involves
combining the results of different epidemiological studies
done by other scientists, and re-analyzing the combined
data to see if the data, an toto, renders different results
than the individual studies done with a smaller data
sample. Dr. Nicholson’s meta-analysis is particularly im-
33 Decisions to exclude expert opinion evidence under Rule 702
are reviewed for abuse of discretion. Knight, 596 F.2d at 87.
65a
portant in this case because it is one of the few pieces
of direct evidence indicating that PCBs actually cause
disease. If there is no evidence of causation in the rec-
ord, then the plaintiffs cannot survive a motion for sum-
mary judgment.
Because the defendants challenge the technique of
meta-analysis itself, in evaluating Dr. Nicholson’s testi-
mony the court properly invoked the standard announcea
by this court in United States v. Downing, 753 F.2d
1224 (3d Cir. 1985) for analyzing expert testimony based
on novel scientific techniques.** However, the court’s
analysis under the Downing standard was inadequate.*
34 As we explained in Downing, a technique should be considered
“novel” for purposes of Rule 702 whenever its reliability is not so
well established as to warrant recognition by judicial notice. Jd. at
1234.
35 Downing requires a court that is:
ruling upon the admission of (novel) scientific evidence, i.e.
evidence whose scientific fundaments are not suitable candi-
dates for judicial notice, conduct a preliminary inquiry focus-
ing on (1) the soundness and reliability of the process or tech-
nique used in generating the evidence; (2) the possibility that
admitting the evidence [will] overwhelm, confuse, or mislead
the jury, and (3) the-proffered connection between the scien-
tific research or test result to be presented, and particular dis-
puted factual issues in the case.
Id. at 1237 (footnote omitted).
We dismiss out of hand the district court’s finding, under the
second prong of Downing, that “Dr. Nicholson’s testimony would
confuse the jury because of its scientific nature and his credentials
so they would make more of it than it actually deserved.” A10121.
What the second prong of Downing flags for concern is “a technique
which has ‘assume[d] a posture of mythic infallibility,’”’ Downing,
753 F.2d at 1239, quoting Addison v. United States, 498 F.2d 741,
744 (D.C. Cir. 1974). In other words, a technique that the jury
will automatically assume, either because of its notoriety or its
elaborate presentation, to be completely reliable, needs to be scru-
tinized by the court. Dr. Nicholson’s meta-analysis does not fall
into that category. His scientific presentation is not notably differ-
ent than any other of the experts offered in this case—by either
side. If Dr. Nicholson can be excluded under the second prong of
Downing, then so could most of the experts in the case.
66a
We begin our Downing analysis with the frank rec-
ognition that the determination whether expert testimony
depends on a reliable “scientific technique,” to be ana-
lyzed under Rule 702, or whether the basis for testimony
is “facts or data... of a type reasonably relied upon by
experts in the particular field,” to be analyzed under
Rule 703, see supra, is oftimes subtle if not strained, it
can be difficult to determine whether the putative prob-
lem with scientific evidence lies in the underlying data
itself or the method by which the data is analyzed. Non-
scientifically trained courts are at a disadvantage in try-
ing to categorize sophisticated scientific data.
While our recent decision in DeLuca v. Merrell Dow
Pharmaceuticals, Inc., No. 89-5572 (filed Aug. 16, 1990),
does not lay the problem to rest, and the courts must
grapple with it on a case by case basis, DeLuca an-
nounces an important rule by making clear that when
it is a scientist’s methodology that is being attacked in
contrast to the data relied on, the court must analyze the
reliability of that methodology under Downing (and Rule
702). As Judge Stapleton explained: ‘Rule 703 is satis-
fied once there is a showing that an_expert’s testimony
is based on the type of data a reasonable expert in the
field would use in rendering an opinion on the subject at
issue; it does not address the reliability or general ac-
ceptance of an expert’s methodology.” DeLuca, slip op.
at 26.
For purposes of this case, we agree with the district
court that Dr. Nicholson’s ‘‘meta-analysis” should be
analyzed as a scientific technique under Downing. De-
fendants do not assert that the data that Dr. Nicholson
used is not “relied upon by experts in the particular
field,” Rule 703. Indeed, the human epidemiological stud-
ies which Dr. Nicholson used in his meta-analysis are the
same studies that defendants’ experts use to show that
PCBs do not cause human disease. Instead, defendants
charge that meta-analysis is too unreliable to be accepted
by a court. Thus, it is the reliability analysis that is
critical here.
hear oy a bhlB
67a
As we explained in Downing, the “helpfulness” re-
quirement in Rule 702 “implies a quantum of reliability
beyond that required to meet a standard of bare logical
relevance.” Downing, 783 F.2d at 1235. See also De-
Luca, typescript at 38, quoting, 3 Weinstein’s Evidence,
| 702(03), at 702-35 (“helpfulness turns on whether the
expert’s ‘technique or principle [is] sufficiently reliable so
that it will aid the jury in reaching accurate results’ ”’).
However, the reliability requirement must not be used
as a tool with which the court excludes all questionably
reliable evidence. The Federal Rules of Evidence “em-
body a strong and undeniable preference for admitting
any evidence having some potential for assisting the trier
of fact and for dealing with the risk of error through
the adversary process.” DeLuca, typescript at 38, citing
Barefoot v. Estelle, 463 U.S. 880, 899 & 901 n.7 (1983) ;
and Downing, 753 F.2d at 1241; and 3 Weinstein’s Evi-
dence, {| 702|02]-{03}. Therefore, in making reiiability
determinations, courts must err on the side of admission
rather than exclusion.
At some point, however, even with the balance
weighted as it is towards admissibility, courts must de-
termine at what level evidence becomes “reliable enough.”
We think that the fact that the Rules Committee did not
draft rules which provide that evidence need be 95% or
85% or even 51% accurate, is significant. Instead, Con-
gress seems to have understood, as the cases and the com-
mentators reflect, that “|tihe reliability inquiry .. .
|must be] flexible and may turn on a number of factors.”
Downing, 753 F.2d at 1238. Applying that logic in this
ease, it is clear that if there were evidence in this record
that meta-analysis is inaccurate as a mode of analysis—
that the concept of combining raw data from different
independent studies and re-analyzing it in total does not
render accurate results—then there might be grounds for
excluding meta-analysis.
There is no such evidence, however. As plaintiffs point
out, hundreds of meta-analyses are done each year. Brief
for Appellant at 92. Indeed, notwithstanding the prin-
68a
ciple thrust of defendant’s reliability argument before
this court, defendants’ own experts do not question the
reliability of all meta-analyses; they question “the way
in which Dr. Nicholson applied ‘meta-analysis.’” A9948.
There is some evidence that “half the time you shouldn’t
believe meta-analysis,” Naylor, Two Cheers for Meta-
Analysis: Problems and Opportunities in Aggregating
Results of Clinical Trials, 188 Can. Med. Ass’n J. 891,
894 (1988), quoted in Brief of Appellee 64 and n.55,
but that does not mean that meta-analyses are necessar-
ily in error. It means that they are, at times, used in
circumstances when they should not be.
The district court excluded Nicholson’s report under
the reliability prong of Downing because “Dr. Nichol-
son’s report has not been peer-reviewed or accepted by
anybody in particular, even the Ontario Ministry of
Labor,” A10121 (for whom it was done). In reaching
this conclusion, the district court relied on an affidavit
by one of the defense experts who stated that
Dr. Nicholson’s claim that his report has been peer-
reviewed is inaccurate in the sense that the term
‘peer review’ is used by the scientific community.
In fact, I am unaware that the report has ever been
subjected to pre-publication review, and the report
has never been published in the scientific literature.
This is an inadequate ground for excluding the testi-
mony. First, “the Federal Rules of Evidence contain no
requirement that an expert’s testimony be based upon
reasoning subjected to peer-review and published in the
professional literature.” DeLuca, typescript at 32. See
also Brock v. Merrell Dow Pharmaceuticals, Inc., 874
F.2d 307, 313, modified per curiam 884 F.2d 166 (5th
Cir. 1989), cert. denied, 110 S. Ct. 1511 (1990). Second,
Dr. Nicholson’s own affidavit states that his report was
reviewed by cooperating researchers and the Industrial
Diseases Standards Panel. A9374-75. Moreover, Dr. Nes-
bit’s affidavit demonstrates that he reviewed Dr. Nichol-
son’s work and found it to be “a balanced assessment.”
69a
What we have, therefore, is a record that shows sig-
nificant disagreement about whether this particular
meta-analysis is reliable. But that too may implicate the
Downing standard. If the allegation is that a reliable
methodology was so altered as to skew the methodology
itself, Downing would be the appropriate vehicle for
evaluation. However, if the challenged procedure is more
accurately described as an application of an accepted
methodology, it is not the proper subject of a Rule 702-
based exclusion, but is rather the subject of cross-
examination of the expert and resolution by the jury. See
DeLuca, slip op. at 31, n.15.
Assuming that Dr. Nicholson’s meta-analysis is the
proper subject of Downing scrutiny, the district court’s
decision is wanting because it did not make explicit
enough findings on the reliability of Dr. Nicholson’s meta-
analysis to satisfy Downing. We decline to define the
exact level at which a district court can exclude a tech-
nique as sufficiently unreliable. Reliability indicia vary
so much from ease to case that any attempt to define
such a level would most likely be pointless. Downing it-
self lays down a flexible rule. What is not flexible under
Downing, is the requirement that there be a developed
record and specific findings on reliability issues. Those
are absent here. Thus, even if it may be possible to ex-
clude Dr. Nicholson’s testimony, under Downing, as an
unreliable, skewed meta-analysis, we cannot make such a
determination on the record as it now stands. Not only
was there no hearing, in limine or otherwise, at which
the bases for the opinion of the contesting experts could
be evaluated, the experts were not even deposed. All of
the expert evidence was based on affidavits.
Assuming that the district court excluded what it
thought to be an application of an accepted methodology,
it did so on the basis of a credibility judgment—i.e., it
believed defendants’ experts that Dr. Nicholson’s meta-
analysis was not reliable, and disbelieved plaintiffs’ ex-
70a
perts who said that it was. This approach runs afoul of
DeLuca, slip op. at 31, n.15, because credibility deter-
minations are normally the province of the jury. If no
reasonable person could believe Dr. Nicholson’s brand of
meta-analysis, it would presumably be excludable but we
doubt that to be the case here. Under all these circum-
stances we cannot uphold, on this record, the exclusion of
Dr. Nicholson’s testimony.
We turn to the court’s exclusion of the testimory un-
der the third Downing factor (the connection or “fit”
between the research and the factual issues in the case).
Dr. Nicholson’s research suggests increased risk of can-
cer of the liver, biliary tract and gall bladder. Because
none of the plaintiffs have any of those ailments yet, the
district court found Dr. Nicholson’s research immaterial.
We reject this reasoning because Dr. Nicholson’s affidavit
suggests that proof of an increased risk of liver cancer
is probative of increased risk of other forms of cancer.
Furthermore, as we explain infra, the district court’s
rejection of the medical monitoring claim must be re-
versed and therefore the increased risk of the cancers
that Dr. Nicholson documents is material to the factual
dispute in this case. If plaintiffs can prove that they are
at an increased risk for these cancers because of exposure
to defendants’ products, then they may be able to prove
that they are entitled to have defendants bear the in-
creased medical monitoring costs incurred by those who
are at an increased risk of cancer. Thus, the third Down-
ing factor (the “fit’’) is also met, further supporting our
conclusion that the district court’s exclusion of Dr.
Nicholson’s expert opinion, on the present record, must
be set aside.
3. Scientific Techniques of Other Experts
Defendants criticize the scientific data and or method
of most of plaintiffs’ other experts, including Drs. Allen,
Barsotti, Zahalsky, Shubin, and DiGregorio. See supra
typescript at 34-36. These attacks are forceful and we
a ee
TN
Tla
cannot say, at this point, that they are without merit.
However, neither can we, at this point, accept those con-
tentions, because to the extent that the attacks are
grounded on Rule 703, there has not been adequate proc-
ess under Japanese Electronics, and to the extent that
they are grounded on Rule 702, there has not been ade-
quate record development and fact-finning [sic] under
Downing. That effort was not expended here. We cannot
affirm what we caanot [sic] review; henne [sic], to the
extent that the summary judgment was ased [sic] upon
putative but unspoken exclusionary rulings, we must
reverse and remand.
D. Exclusion under Rule 403
As noted supra Section VA2, it is not clear that the
court actually excluded any opinions under Rule 403.
The court at one point suggests that it is excluding all
of the plaintiffs’ expert opinion under Rule 703 and 403,
but it is not clear how or why. What is apparent is that
the district court did not conduct the careful balancing
required by Rule 403 and the jurisprudence of this court.
See, e.g., United States v. Downing, 753 F.2d 1224, 1243
(8d Cir. 1985) (declining to decide the Rule 403 question
where the district court neither mentioned Rule 403 on
the record nor “conducted the balancing required by that
rule”); United States v. Long, 574 F.2d 761, 770 (3d
Cir.) (Adams, J., concurring), cert. denied, 439 US.
985 (1978).
In Downing, while declining to prescribe any manda-
tory procedures for trial courts to follow in making pre-
liminary admissibility determinations, we recognized that
“the most efficient procedure that the district court can
use... is an in limine hearing.” Downing, 753 F.2d at
1241. We again decline to set forth mandatory rules for
the trial court. However, we suggest that in complex
litigation such as this, where there are numerous experts
presenting voluminous testimony on the cutting edge of
72a
scientific research, an in limine hearing may be a very
useful tool in conducting both the inquiry and the fact-
finding and balancing, which are the hallmarks of Rule
703 and 403 respectively.
Moreover, we stress that pretrial Rule 403 exclusions
should rarely be granted. As we recently noted in De-
Luca, supra, “if . .. testimony survives the rigors of
Rule 702 and 703 ..., Rule 403 is an unlikely basis for
exclusion.” Slip op. at 36. Excluding evidence as being
more prejudicial than probative, at the pretrial stage is
an extreme measure that is rarely necessary, because no
harm is done admitting it at that stage. If a court be-
lieves evidence is irrelevant, it need only say so and dis-
count it accordingly when it makes its summary judg-
ment determination. However, a court cannot fairly as-
certain the potential relevance of evidence for Rule 403
purposes until it has a full record relevant to the puta-
tively objectionable evidence. We believe that Rule 403 *°
is a trial-oriented rule. Precipitous Rule 403 determina-
tions, before the challenging party has had an oppor-
tunity to develop the record, are therefore unfair and
improper.
In sum, we hold that in order to exclude evidence un-
der Rule 403 at the pretrial stage, a court must have a
record complete enough on the point at issue to be con-
sidered a virtuai surrogate for a trial record. The record
in this case clearly does not meet that standard and hence
the district court’s exclusion of evidence under Rule 403
must be reversed.
36 Fed. R. Evid. 403 states that:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
73a
VII. WAS SUMMARY JUDGMENT
PROPERLY GRANTED
Because the district court excluded the bulk of plain-
tiffs’ proffered evidence on causation, it had no difficulty
concluding that plaintiffs had failed to produce sufficient
evidence to survive summary judgment under the stand-
ards announced in the Supreme Court’s noted trilogy.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ; Anderson
v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsu-
shita Electronic Industrial Co. v. Zenith Radio Corp., 475
U.S. 574 (1986). As we have explained, the district
court erred in its exclusion of this evidence. However,
defendants argue that even if we were to admit all of
the evidence excluded by the district court, summary
judgment would nonetheless be appropriate because plain-
tiffs are unable to create a genuine issue of material
fact as to the required elements of the prima facie case
on causation. Consequently, we must presume the ad-
missibility of all of plaintiffs’ proffered evidence, and de-
termine sufficiency under the prevailing standards for
summary judgment.
Under Celotex, a court must enter summary judgment
when the nonmoving party “after adequate time for dis-
covery ... fails to make a showing sufficient to establish
the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof
at trial.’”** 477 U.S. at 322. A party cannot survive
37 As we have already noted, see supra note 30 and accompanying
text, appellants make a forceful argument that the case manage-
ment order has prevented them from conducting full discovery, and
that summary judgment was improperly granted because of the
incompleteness of the record. See Al-Khazaraft v. Saint Francis
College, 784 F.2d 505, 517 (3d Cir. 1986) (record incomplete for
summary judgment purposes where plaintiff was unable to conduct
full discovery), aff'd on other grounds, 481 U.S. 604 (1987) ; Arnold
Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d
Cir. 1986) (error for district court to enter summary judgment
where discovery is limited to non-moving party). Because of our
resolution of the merits of the grant of summary judgment, we do
not address the propriety of the case management order here.
T4a
summary judgment simply by presenting “conclusory al-
legations or denials; the existence of specific material evi-
dentiary facts must be shown.” Liberty Lobby, 477 U.S.
at 256. Morover, the Liberty Lobby court points out
that
there is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to
return a verdict for that party. If the evidence is
merely colorable or is not significantly probative
summary judgment may be granted.
Id. at 249-50 (citations omitted). Consequently the
ccart must ask whether, on the summary judgment rec-
ord, reasonable jurors could find facts which demon-
strated, by a preponderance of the evidence, that the non-
moving party is entitled to a verdict.
As noted above, the district court defined the prima
facie case as consisting of four elements:
1) that defendants released PCBs into the environ-
ment; 2) that plaintiffs somehow ingested these
PCBs into their bodies; 3) that plaintiffs have an
injury; 4) that PCBs are the cause of that injury.
Dist. Ct. Op. at 38-39.°° The first element (release of
PCBs) was not disputed, but the district court found
against the plaintiffs on the other three elements. We,
however, believe that the evidence described in Part ITA,
if admissible, creates a genuine issue of material fact on
all three contested elements.
With regard to exposure, prong two of the district
court’s prima facie case, defendants assert that plain-
tiffs have not adduced sufficient evidence that they have
been exposed to PCBs to a greater extent than anyone
else. More specifically, defendants maintain that plain-
tiffs’ exposure does not exceed the normal “background”
level of PCB exposure in the United States. However,
88 The parties accept this formulation of Pennsylvania law.
75a
whether plaintiffs have proffered sufficient evidence to
show that their exposure level exceeds the normal back-
ground level depends on what that normal background
level is. There is conflicting evidence on this point. De-
fendants’ evidence suggests that PCB levels in the gen-
eral United States population range up to 40 parts per
billion (ppb) as measured in the bloodstream, while
plaintiffs’ evidence suggests that the level is “well below
3 ppb,” and that a 5 ppb level falls within the 90th per-
centile in the United States. See supra notes 9 and 10.
This conflict creates a genuine issue of material fact suffi-
cient to withstand summary judgment on the exposure
question because if a jury could reasonably believe plain-
tiffs’ background level statistics, then there is ample evi-
dence from which to conclude that the plaintiffs who lived
adjacent to the railyard, had a higher PCB level than
usual because of their exposure to defendants’ PCBs.
There are also genuine issues of material fact with re-
gard to the third element of the prima facie case, i.e.,
injury. Although most of the plaintiffs presented evi-
dence of physical injury, defendants point out that sev-
eral plaintiffs failed to allege or submit any evidence
demonstrating physicial injury. This appears to be an
accurate observation, but regardless of whether all plain-
tiffs alleged demonstrable physical injury, they all clearly
alleged monetary injury. The medical monitoring claim
is a claim for monetary damages. Plaintiffs are asking
for money because, allegedly, their exposure to PCBs re-
quires them to bear the costs associated with increased
medical surveillance. This is an economic injury, which,
according to the plaintiffs, is attributable to the defend-
ants.
The court dismissed the medical monitoring claim as
follows:
Dr. Calesnick provides a two page affidavit which
states that he has experience in treating persons ex-
posed to PCB’s, that he has performed physical
eee eee
76a
examinations on some of the plaintiffs and con-
cludes: “To a reasonable degree of medical cer-
tainty, these plaintiffs have been exposed to PCBs,
there is a potential for them to sustain injuries from
PCB exposure, if they have not already sustained
these injuries, and there is a need for early detec-
tion and treatment of these PCB induced injuries
for plaintiffs.” ‘This seems to be strikingly similar
to the opinion offered in Martin v. Johns Manville
Corp.|, 508 Pa. 154, 494 A.2d 1088 (1985),] and
ruled inadmissible by the Pennsylvania Supreme
Court. Because that was an asbestos case, and it has
been epidemiologically proven that asbestos exposure
can cause cancer, that doctor might have had more
of a basis for his opinion.
* * *
[Dr. Calesnick] is unwilling to say that any particu-
lar disease the plaintiffs have is caused by PCBs,
just that they should be regularly checked because
of the possibility of future harm. The plaintiffs call
this a “medical monitoring claim.” However, the
claim is barred because the testimony of Dr. Cales-
nick and the other plaintiffs’ experts who testify re-
garding the risk of future injury is insufficient to
support it under Pennsylvania law.
Op. at 35, 40-41.
This language strongly suggests that the court, rather
than measuring sufficiency of plaintiffs |sic] evidence re-
garding a medical monitoring claim, evaluated plaintiffs’
evidence as if it were offered to prove an action for en-
hanced risk of future harm, and “barred” the action, fol-
lowing its interpretation [sic] Martin, as a matter of law.
As we have explained, supra Part V, medical monitoring
and enhanced risk claims are distinct causes of action.
The question, on the medical monitoring claim, is whether
the jury could reasonably believe Dr. Calesnick’s asser-
tion that there is a reasonable “need” for medical sur-
77a
veillance. Because the district court appears to have ap-
plied the standards for enhanced risk claims in an action
for medical monitoring, we find error, and we will there-
fore reverse the grant of summary judgment on this
point.
On the fourth prong of the prima facie case, causa-
tion, defendants submit that plaintiffs have not offered
any admissible toxicological or epidemiological evidence
showing a correlation between PCBs and adverse health
effects in humans. Appellants’ Br. at 97. However, if
we assume all proffered evidence is admissible, this is not
so. Both Drs. Barsotti and Nicholson testified to a posi-
tive correlation between PCB exposure and human illness.
Drs. Barsotti, Nicholson, Zahalsky, Shubin and DiGregorio
| gave testimony, with reference to scientific studies, from
| which a jury could infer that there is a causal relation-
ship between PCB exposure and the various illnesses
contracted by plaintiffs. See DeLuca v. Merrell Dow
Pharmaceuticals, Inc., No. 89-5572 (3d Cir. Aug. 17,
1990). The principles of DeLuca respecting statistical
significance are also, of course, applicable to any studies
relied on. The defendants’ experts offer evidence to the
contrary, but that makes the issue suitable for a jury,
not dismissible.
Defendants also argue that plaintiffs cannct possibly
meet their burden on causation because no qualified ex-
pert submitted the differential diagnoses required to
prove causation. Although defendants make this argu-
ment in terms of causation, we believe it is really an evi-
dentiary contention and it is a contention that we have
dealt with supra in Part VIC1. Admittedly, plaintiffs
did not submit differential diagnoses performed by medi-
cal doctors, but they did submit differential diagnoses
from non-medica! doctors and we do not believe that the
diagnoses are invalid simply because they were per-
formed by non-physician experts.
As our discussion supra Part VIC1 makes clear, our
Rule 702 expert qualification jurisprudence rejects rigid
78a
formalism. The decision to qualify someone as an expert
rests not on the specific academic degree held, but on the
presence of sufficient knowledge, skill, experience, train-
ing or education. It would make little sense to exalt the
opinion of a medical doctor with no experience in toxic
exposure over the opinion of, for example, an eminently
qualified toxicologist with a Ph.D. and years of experi-
ence and training. As Judge Pollak noted in denying a
defendant’s motion to exclude medical testimony by a
non-medical doctor:
[while it is true that an expert must demonstrate
special competence to present expert testimony there
is no per se rule that non-physicians are unqualified
to testify about the medical condition of individuals
exposed to chemicals.
Villari v. Terminix International, Inc., 692 F.Supp. 568,
573 (E.D.Pa. 1988) (citation omitted). Therefore, we
must consider the diagnoses of plaintiffs’ experts. In
light of that evidence, we are left with a genuine issue of
material fact on the issue of causation.*”
In sum, if we consider all of the evidence improperly
excluded by the district court, plaintiffs have submitted
sufficient evidence to survive summary judgment on each
element of the prima facie case. A jury could believe
plaintiffs’ evidence regarding normal PCB background
levels and from there could conclude that these plaintiffs
were exposed to a larger than average dose of PCBs.
Plaintiffs’ evidence regarding the likelihood of latent di-
39 Our decision in Vadino v. A. Valey Engineers, 903 F.2d 253
(3d Cir. 1990), compels remand in the four instances in which the
district court granted summary judgment on the separate ground
that plaintiffs refused to comply or delayed in complying with dis-
covery orders. This issue affects the cases of Cloyd Brown (No. 88-
1980), William Reid (No. 88-1982), and Andre Walker and Bobby
Burrell (Nos. 88-1989 and 89-1071). The district court’s purely
conclusory treatment of the issue leaves us without an effective
basis for review, and we therefore reverse and remand for “an
explanation of the legal basis for the district court’s order.”
Id. at 259.
79a
sease could lead a reasonable jury to conclude that plain-
tiffs needed to be monitored by medical experts. Finally,
if the opinions of [Drs. Barsotti and Nicholson’s] plain-
tiffs’ experts are admissible, a jury could conclude that
the defendants’ PCBs caused plaintiffs’ injuries. Hence,
the grant of summary judgment must be reversed.
[Needless to say, we intimate no view as to whether a
genuine issue of material fact would remain if, after
further proceedings consistent with this opinion, the dis-
trict court were to exclude enough of plaintiffs’ expert’s
[sic] evidence on causation (or other critical issues)
such that no genuine issue of material fact remained.]
Needless to say, if, after further proceedings consistent
with this opinion, the district court were to exclude
enough of plaintiffs’ expert’s [sic] evidence on causa-
tion (or other critical issues) such that no genuine issue
of material fact remained, it would be free to grant
summary judgment for the defendants.
VI. [sic] THE BUTLER PLAINTIFFS’
MOTION TO AMEND
The seven Butler plaintiffs, having filed a complaint
alleging both personal injury and property damage, later
admitted, in response to defendants’ discovery requests,
that they do not currently suffer from any adverse health
effects as a result of their exposure to PCBs. Defendants
moved for summary judgment based on the Butler plain-
tiffs’ failure to produce evidence in support of their per-
sonal injury claims. In their response to this motion, the
Butler plaintiffs sought leave to amend their complaint to
eliminate the personal injury claims, pursuant to Fed.
R. Civ. P. 41. The theory of this motion was that al-
though the Butlers were not then afflicted with injuries,
the long latency periods often associated with toxic ex-
posure could cause them to suffer injury in the future,
thus making it advisable to preserve their personal in-
jury claims until such time as any harm becomes mani-
fest. Defendants, having already made significant in-
80a
vestments in the instant litigation, opposed this motion,
arguing that they would be prejudiced by the possibility
of having to defend against these actions in the future.
The court, without explanation, summarily denied plain-
tiffs’ motion for leave to amend, and granted summary
judgment in favor of defendants. A10141.
In Howze v. Jones & Laughlin Steel Corp., 750 F.2d
1208 (3d Cir. 1984), addressing the propriety of a sim-
ilarly unexplained denial of a motion to amend, we noted
that
[ajlthough the grant or denial of a motion to amend
is within the sound discretion of the district court,
Lewis v. Curtis, 671 F.2d 779, 783 (3d Cir.), cert.
denied, 459 U.S. 880... (1982), the general rule
is that leave to amend “shall be freely given when
justice so requires.” Fed. R. Civ. P. 15(a).
Id. at 1212. Unable to find either a compelling reason
for denial or any evidence of prejudice to the non-moving
party in Howze, we concluded that the denial of the mo-
tion to amend was “not consistent with the sound exer-
cise of discretion.” Id. The Howze holding was rooted
in the well established rule that amendments should be
granted liberally. A similar liberal policy has been
adopted in the voluntary dismissal context. Rule 41 mo-
tions “should be allowed unless defendant will suffer some
prejudice other than the mere prospect of a second law-
suit.” 5 J. Moore, Moore’s Federal Practice § 41.05[1],
at 41-62 (1988).
Defendants will not be significantly prejudiced by
granting plaintiffs’ amendment. Although defendants
have invested a good deal of time in this suit, the vast
majority of their argument attacks the plaintiffs’ theor-
ies of causation, exposure and non-physical injury. There
is no indication that defendants invested significant
amounts of time in the specific issue germane to the
amendment, i.e., the Butler plaintiffs’ physicial injuries,
and that they will therefore be prejudiced if the Butler
8la
plaintiffs eliminate their physical personal injury claims
from their complaint. We therefore hold that the district
court’s denial of plaintiffs’ motion for leave to amend
was an abuse of discretion. Thus, we will reverse the
district court’s order denying plaintiffs’ motion, and re-
mand for further proceedings.
IX. SEPTA NOTICE
SEPTA moved separately for summary judgment
against a number of plaintiffs based on those plaintiffs’
failure to comply with the requirements of subsection
(a) (1) of section 5522 of Pennsylvania’s Judicial Code,
42 Pa.C.S.A. § 5522(a) (1). That section provides, in
relevant part, as follows:
(a) (1) Within six months from the date that any
injury was sustained or any cause of action accrued,
any person who is about to commence any civil ac-
tion or proceeding within this Commonwealth or else-
where against a government unit for damages on ac-
count of any injury to his person or property under
Chapter 85... shall file in the office of the govern-
ment unit, and if the action is against a Common-
wealth agency for damages, then also file in the office
of the Attorney General, a statement in writing...
setting forth ... [the particulars of the case] ....
(2) If the statement provided for by this subsection
is not filed, any civil action or proceeding commenced
against the government unit more than six months
49On appeal, SEPTA argues that the district court’s grant of
summary judgment in its favor in five such cases should be affirmed.
These cases are: No. 88-1975 (Craig Brown), Nos. 88-1987 and
89-1074 (Ingram), No. 88-1977 (Johnson), Nos. 88-1988 and 89-
1079 (Cunningham), and No. 88-1982 (Reid). In addition, SEPTA
argues that summary judgment should have been granted in its
favor in two additional cases where the issue was raised, but not
addressed by the district court. These cases are: Nos. 88-1986 and
89-1075 (Knight) and Nos. 88-1991 and 89-1073 (Jones).
82a
after the date of injury shall be dismissed and the
person to whom any such cause of action accrued for
any injury to person of [sic] property shall be for-_
ever barred from proceeding further thereon within
this Commonwealth or elsewhere. The court shall
excuse failure to comply with this requirement upon
a showing of reasonable exuse for failure to file such
statement.
(3) In the case of a civil action or proceeding
against a government unit other than the Common-
wealth government:
* * *
(iii) Failure to comply with this subsection
shall not be a bar if the government unit had
actual or constructive notice of the incident or
condition giving rise to the claim of a person.
(Emphases added.) Plaintiffs, despite their noncompli-
ance with this statute, argue that summary judgment in
favor of SEPTA on this issue is improper because (1)
SEPTA had actual or constructive notice of the condi-
tions giving rise to plaintiffs’ injuries, and (2) SEPTA
suffered no prejudice from the failure to give notice.
Plaintiffs’ first argument invokes the protection of sub-
section (a) (3) (iii), which by its terms extends only to
actions against a government unit “other than the Com-
monwealth governmeut.” Thus, if SEPTA is part of the
Commonwealth government, plaintiff’s first argument
must fail. The term “Commonwealth government” is de-
fined as including, inter alia, “the departments, boards,
commissions, authorities and officers and agencies of the
Commonwealth.” 42 Pa.C.S.A. § 102. In a recent deci-
sion, the Pennsylvania Supreme Court held, in the con-
text of determining sovereign immunity, that the Port
Authority of Allegheny County is an ‘agency of the
Commonwealth,’ rather than one of the types of local
agencies excluded from the definition of ‘Commonwealth
83a
government.’ ” Marshall v. Port Authority of Allegheny
County, —— Pa. : , 568 A.2d 931, 933-34
(1990). The court based its decision on the express
statutory language creating the Port Authority, which
empowered the Authority to “exercis[e] the public pow-
ers of the Commonwealtii as an agency thereof.” 55 Pa.
C.S.A. § 553 (a).
SEPTA’s authorizing statute includes a similar man-
date that SEPTA “exercise the public powers of the
Commonwealth as an agency and instrumentality there-
of.” 55 Pa. C.S.A. § 600.303(a). Consequently, we be-
lieve that the Pennsylvania Supreme Court would rule
that SEPTA, as an agency of the Commonwealth, is part
of the Commonwealth government as defined in 42 Pa.
C.S.A. § 102. Therefore, the provisions of subsection
(a) (3) (iii) cannot be applied to excuse the plaintiffs’
failure to give actual notice to SEPTA.*!
Plaintiffs second contention is that they should be ex-
cused from noncompliance under subsection (a) (2) be-
cause, although they were negligent in not realizing that
SEPTA is a governmental unit for the purposes of the
notice statute, SEPTA has not shown that it was preju-
diced. SEPTA concedes that it has not shown prejudice,
but argues that the statute does not require a showing of
prejudice. The language of subsection (a)(2) itself
makes no reference to a showing of prejudice, and notes
only that the court “shall excuse noncompliance . . . upon
a showing of reasonable excuse.” However, a Pennsyl-
vania Supreme Court case, interpreting a substantially
similar predecessor to the notice statute, held that a “‘rea-
sonable excuse” was established “[w]here the ignorance
of a claimant or the negligence of his counsel is coupled
with a determination that no undue hardship resulted to
41 This holding is consistent with the Pennsylvania Supreme
Court’s decision in Feingold v. Southeastern Pennsylvania Trans-
portation Authority, 512 Pa. 567, 517 A.2d 1270 (1986), which
held that SEPTA is an agency of the Commonwealth for liability
purposes.
84a
the municipality from the failure to file.” Yurechko v.
County of Allegheny, 480 Pa. 325, 331, 248 A.2d 372,
376-77 (1968).
Litigation under the current statute has yielded diver-
gent results on this issue in the Commonwealth Court but
no opinion by a higher court. In Graffigna v. City of
Philadelphia. 98 Pa.Commw. 624, 512 A.2d 91 (1986),
the court affirmed SEPTA’s invocation of the notice stat-
ute, stating as follows:
[T]he appellant argues that SEPTA failed to dem-
onstrate that the appellant’s noncompliance with the
notice prerequisite prejudiced SEPTA. However, a
government unit need not show that it was preju-
diced by lack of timely notice. The statute imports
no such requirement.
Id. at 630, 512 A.2d at 94. However, a later decision of
the same court concluded that “the holding of the Su-
preme Court in Yurechko ... control[s] a case where a
plaintiff has failed to comply with the notice requirement
established by subsection (a)(1)..., and then contends
that his noncompliance should be excused pursuant to
subsection (a)(2). Ramon v. Dept. of Transportation,
124 Pa.Commw. 416. ——, 556 A.2d 919, 923 (1989),
aff'd without opinion, —— Pa. ——, 573 A.2d 1025
(1990) (per curiam). The Ramon court distinguished
Graffigna by limiting Graffigna’s holding that no preju-
dice need be shown to those situations in which “noncom-
pliance should have been excused pursuant to. . . sub-
section (a) (3) (iii) (actual or constructive notice)” and
not in situations where the “reasonable excuse” provi-
sions of subsection (a) (2) are invoked. Id.
Although the Supreme Court’s affirmance of the panel
decision in Ramon took the form of a summary, per
curiam order, it nonetheless contributes “a binding deci-
sion of precedential authority” under the law of Pennsyl-
vania. Commonwealth v. Gretz, 520 Pa. 324, , 554
Ae ents Nara
~
85a
A.2d 19, 20 (1989). Therefore, we must reject SEPTA’s
attempt to have us apply Grafigna [sic] in this case be-
cause plaintiffs are invoking the “reasonable excuse” pro-
visions of subsection (a) (2). In short, Ramon stands for
the proposition that SEPTA must show prejudice in this
context. Because SEPTA has not shown prejudice, the
summary judgment on that ground must be set aside.
VII. CONCLUSION
For all of the foregoing reasons, the summary judg-
ment will be reversed, and the case remanded to the dis-
trict court for further proceedings consistent with this
opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
86a
APPENDIX B
Filed October 29, 1990
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 88-1973/74/75/76/77/78/79/80/81/82/83/84/85/
86/87/88/89/90/91/92, 89-1070/71/72/73/74/75/
76/77/78/79 and 89-1097
* * * *
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
* * * *
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Nos. 86-7414/15/16/17/18/19/20/21/22/
87-5304, 86-2229, 87-1258, 87-1190, 87-0712, 86-7561,
87-5269, 86-2235, 86-2669, 86-5277, 87-3227, 87-2874
Argued September 8, 1989
Before: BECKER, MANSMANN and NYGAARD,
Circuit Judges
* e * *
ORDER AMENDING OPINION
The slip opinion filed September 20, 1990 in the above-
captioned case is amended as follows:
On page 25, line 5 [page 23a, line 9 herein], the words
“failed to conduct” are substituted for “denied plaintiffs’
requests for.”
87a
On page 68, line 23 [page 61a, line 24 herein], the
words “failed to conduct” are substituted for “rejected
plaintiffs’ request for.”
On page 86, first full paragraph, line 10 [page 77a,
line 14 herein], the following sentences are inserted be-
fore the last sentence of that paragraph:
Drs. Barsotti, Nicholson, Zahalsky, Shubin and Di-
Gregorio gave testimony, with reference to scien-
tific studies, from which a jury could infer that
there is a causal relationship between PCB exposure
and the various illnesses contracted by plaintiffs.
See Deluca v. Merrell Dow Pharmaceuticals, Inc.,
No. 89-5572, (3d Cir. Aug. 17, 1990). The princi-
ples of DeLuca respecting statistical significance are
also, of course, applicable to any studies relied on.
The following sentence is inserted at the end of the
carryover paragraph on pages 87 and 88 [page 79a, line
7 herein] :
Needless to say, we intimate no view as to whether
a genuine issue of material fact would remain if,
after further proceedings consistent with this opin-
ion, the district court were to exclude enough of
plaintiffs’ expert’s evidence on causation (or other
crictial issues) such that no genuine issue of mate-
rial fact remained.
BY THE COURT,
/s/ Edward R. Becker
Circuit Judge
DATED: October 29, 1990
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
88a
APPENDIX C
Filed November 23, 1990
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 88-1973 /74/75/76/77/78/79/80/81/82/83 /84/85/
86/87/88/89/90/91/92, 89-1070/71/72/73/74/75/
76/77/78/79 and 89-1097
* * * *
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Nos. 86-7414/15/16/17/18/19/20/21/22/
87-5304, 86-2229, 87-1258, 87-1190, 87-0712, 86-7561,
87-5269, 86-2235, 86-2669, 86-5277, 87-3227, 87-2874
Argued September 8, 1989
Before: BECKER, MANSMANN and NYGAARD,
Circuit Judges
* * * *
ORDER AMENDING OPINION
The slip opinion filed September 20, 1990 in the above-
captioned case and amended October 29, 1990 is again
amended as follows:
1. On page 63 of the slip opinion !page 56a herein],
the word “significantly” is inserted before “increased” in
3
89a
the second line of the second numbered paragraph, so that
the sentence will now read:
2. As a proximate result of exposure, plaintiff suf-
fers a significantly increased risk of contracting a
serious latent disease.
2. On page 64 of the slip opinion, line 5 [page 57a,
line 20 herein], insert the following footnote (denomi-
nated 25a) after ‘Pennsylvania’:
In light of the statute of limitations problems caused
by Pennsylvania law against splitting causes of ac-
tion, we intimate no view as to whether a plaintiff
who sues for medical monitoring must forego his or
her claim for damages if and when the disease ulti-
mately manifests itself.
3. On page 68, line 24 [page 61a, line 25 herein], the
following footnote (denominated 29a) is inserted after
the word “hearing”’:
The plaintiffs did not request an in limine hearing
and in fact opposed it on the grounds that it was
premature, i.e., they did not want to be forced into
it before their discovery was complete. We em-
phasize, however, that the management of complex
litigation may not be relegated to the lawyers but
at all times remains the responsibility of the court.
See Manuai for Complex Litigation 2d § 20.1
4. On page 88, lines 9 and 10 [page 79a, lines 2 and
3 herein], the words “plaintiffs’ experts” is substituted
for “Drs. Barsotti and Nicholson.”
5. On pages 87 and 88, the sentence at the end of the
carryover paragraph (added in the previous amendment
to opinion filed October 29, 1990) [at page 79a herein],
is amended to read as follows:
Needless to say, if, after further proceedings con-
sistent with this opinion, the district court were to
90a
exclude enough of plaintiffs’ expert’s evidence on
causation (or other critical issues) such that no
genuine issue of material fact remained, it would be
free to grant summary judgment for the defendants.
BY THE COURT,
/s/ Edward R. Becker
Circuit Judge
DATED: November 23, 1990
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
9la
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT
OF PENNSYLVANIA
Master File No. 86-2229
IN RE: PAOLI RAILROAD YARD PCB LITIGATION
THIS DOCUMENT RELATES TO CIVIL ACTION NUMBERS:
86-2229 (MABEL BROWN v. SEPTA, et al.)
86-2235 (BURRELL Vv. SEPTA, et al.)
86-2669 (CUMMINS v. SEPTA, et al.)
86-4037 (COHEN & GARON V. SEPTA, et al.)
86-4723 (THOMPSON v. SEPTA, et al.)
86-5277 (JONES v. SEPTA, et al.)
86-5886 (LAMENT v. SEPTA, et al.)
86-7414 (CHRISTOPHER BROWN v. SEPTA, et al.)
86-7415 (CATHLENE BROWN v. SEPTA, et al.)
86-7416 (CRAIG BROWN v. SEPTA, et al.)
86-7417 (BARBETTA Vv. SEPTA, et al.)
86-7418 (JOHNSON v. SEPTA, et al.)
86-7419 (CELESTE BROWN v. SEPTA, et al.)
86-7420 (CLEMMON BROWN v. SEPTA, et al.)
86-7421 (CLOYD BROWN v. SEPTA, et al.)
86-7422 (CURTIS BROWN v. SEPTA, et al.)
86-7561 (INGRAM v. SEPTA, et al.)
87-0712 (KNIGHT v. SEPTA, et al.)
87-1190 (NARCISE v. SEPTA, et al.)
87-1258 (WILLIAMS v. SEPTA, et al.)
87-2874 (BUTLER v. SEPTA, et al.)
87-3227 (STANBACH v. SEPTA, et al.)
87-5269 (CUNNINGHAM v. SEPTA, et al.)
87-5304 (REID v. SEPTA, et al.)
92a
MEMORANDUM
R. F. KELLY, J. November 28, 1988
This memorandum is written in disposition of three
summary judgment motions filed by the defendants in
these actions.
FACTS
Since the 1930s, the twenty-three acre Paoli railyard
has been a regional maintenance facility for various rail
companies. The railyard was owned and operated by the
Pennsylvania Railroad and its successor, the Penn Cen-
tral Transportation Company, until 1976. Defendant
Amtrak has owned the site since 1976. Between 1976
and 1983, the facility was operated by defendant, Con-
rail, as part of the commuter rail service that it operated
during this period. Since 1983 defendant SEPTA has
operated the railyard.
Throughout this period, the various railroads stored,
handled and disposed of PCBs (polychlorinated biphenyls)
that were used as dielectric fluid in the transformers on
railroad cars. Defendant City of Philadelphia owned
some of these railroad cars. Defendant General Electric
manufactured and supplied the electrical transformers
that contained PCBs. Defendant Monsanto was the only
company that produced PCBs for the American market.
SEPTA no longer uses PCB fluid in its railear trans-
formers. However, the long-term presence and leakage
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