Petition for Writ of Certiorari — Abuan v. General Electric Co.

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ey E UO

vo. 93-999 '

als

IN THE be ‘

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

BARTOLOME E. ABUAN, et al.,

Petitioner

V.

GENERAL ELECTRIC COMPANY and

MONSANTO COMPANY,

Respondents

Petition for Writ of Certiorari To The

United States Court of Appeals

For the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Alan C. Milstein, Esquire

SHERMAN, SILVERSTEIN, KOHL,

ROSE & PODOLSKY

Fairway Corporate Center

4300 Haddonfield Road

Suite 311

Pennsauken, New Jersey 08109

(609) 662-0700

Attorneys for Petitioners

QUESTIONS PRESENTED

i. Whether the Ninth Circuit erred

in holding that (1) Plaintiffs" expert

reports failed to adequately present

evidence that the individual plaintiffs

were individually reasonably medically

certain to incur future disease as 4

result of their toxic exposure and thereby

did not show the requisite increased risk

of injury; and (2) plaintiffs' experts had

failed to show that plaintiffs had

suffered a "significantly" increased risk

of contracting a serious latent disease as

is required to recover the costs of

medical monitoring which they failed to do

because the evidence did not define the

significance of the increased risk with

respect to individual plaintiffs.

ADDITIONAL PARTIES

PLAINTIFFS

Rudolfo Augstin, Rogelio Basto,

Milton Holt, Tom Qiutugaa, Jeremia Reyes,

Jeffrey Babauta, , Alejandro Ada, Paul

Balajadia, Joseph Blas, Joseph Blas,

Raymond Blas, Roberto Cabreza, Gregory

Camacho, Noel Castro, Richard Castro, Mark

Cepeda, Jesse Chaco, Jose CruzZ, Victor

Cruz, Vincent Cruz, Roger Delos Reyes,

Mariano Dronila, William Dulla, Paul

Enriquez, James Fejeran, Eladio Figueroa,

Daniel Fujikawa, Anthony Garrido, Michael

Garrido, Lawrence Guerrero, Joseph

Jackson, Johhny Lava, Benny Mandapat,

Joseph Manibusan, Roy Mantanona, William

Meeks, Robert Mesa, Francisco Pereda,

thomas Perez, Michael Prejean, David

Quenga, Larry Quenga, Jesus Quinata, Ryan

Ragadio, Vincen Ramos, Glenn Salangéa,

Anthony Santos, Joseph Santos, Mark

Santos, Rudy Tamondong, Froilan Tanghal,

Paul Tenorio, James Toves, Vincente

Untalan, Lucas Villagomez, Bernard Watson,

Jose Quichocho, Don Quinata, Peter Blas,

Charles Ettlemen, Oly Marquez, Pedro

Apuron, Felix Fernandez, Dolores Guzman,

Jose Santos, Carl Afaisen, Eduardo Aguon,

Gilbert Aguon, Gilbert Alvarez, Joseph

Aquino, Rogelio Bejerana, Simeon Cachero,

Donald Calvo, Ernest Castro, Leonides

Corcuera, Alan Cruz, Benny Cruz, Victor

Damian, Primo Dancel, Carlos Deocampo,

Vincente Diaz, Eddie Dungca, Mamerto

Dusaban, Pedro Esteban, Jose Garrido,

Augusto Laxamana, Leon Guerrero, Joaquin

Lujan, Junito Magnase, Albert Mendiola,

Antonio Mendiola, Abraham Ordona, Joaquin

Quinata, Roy Quinata, Enrique Rama,

Cecilio Sablan, Francisco Santiago,

Vicente Tajalle, Toribio Tangi, Michael

Weaver, Benjamin Posadas, Jose Borja,

Thomas Borja, Randolph Castro, Johnny

Duenas, Joseph Eustaquio, Johhny Farnum,

Paul Flores, Francisco Isezaki, Carlito

Macaraeg, Glenn Mendiola, David

Pangelinan, Ernesto Patague, Henry Santos,

Jesse Tajalle, Pedro Untalan, Anthony

Castro, Danny Agar, Alfredo Silverio,

Eduardo Soriano, Robert Unpingco, Jose

Aguon, John Santos, Carl Aquino, Ann

Babauta, Charlie Cheguina, Nersty

Corcuera, Jesus Gogo, Artemio Inocencio,

Manuel Lumbang, Francisco Paulino, Manuel

Tenorio, Phuoc Van Dinh, Dennis Garcia,

Antonio Perez, Thomas Heacock, “om

Luciano Bensan, Franklin Borja, Seerapio

Cardines, Harold Charfauros, Ruperto

Cortez, Candido Dela Cruz, Benedicto

Laher, Amado Tenoso, Edward Duenas, Juan

Blas, Eric Cruz, Gerry Adrillan, George

Bell, Junior Borja, Anacleto Carpela,

David Castrod, Jose Chiguina, Francisco

Diaz, Antonio Duenas, Juan Duenas, Henry

Goss, Frandisco Guerrero, Francis

Guerrero, Jose B. Mafnas, Jose S. Mafnas,

John Manibusan, Frerddie Mesias, Joel

Mesias, Peter Nauta, Vicente Okiyama,

Joseph Pangelinan, Castor Patino, Juan

Patubo, Franklin Paulino, Bernardino

Ramirez, Florante Rebanal, Arsenio

Salumbides, Vicente Santos, Santiago Sogo-

An, Antonio Suarez, Primitvo Susbilla,

William Taimanglo, Morey Teruel, Warlito

Villaranda, Manuel Perez, Cecile Holloway,

Ramon Balajadia, Jr., Antonion Tobes,

Francisco Manalisay, Frankie Sablan, Allan

Alferos, Dennis Caasi, Federico Franco,

Francis Guerrero, Jacinto Pablo, Geroge

Raguindin, Joseph Salgado, Daniel Bunoan,

Joseph Baza, Antonio Flores, Glenn Cruz,

Isidro Cruz, Roy Dema-Ala, Bobby Ignacio,

Pablo, Lustiano, Jovita Manibusan,

Esmeraldo Monterde, Neri Ogo,

Michele Okiyama, Kenneth Rhein, Larry

Rhoden, Jessie Rodriquez, Romulo Sanchez,

Tomas Santos, Daniel Speight, Domingo

Villaflores, Jr., Jesus Yamanaka, Danny

Marges, Jose Takano, Leo Abilo, Frank

Cruz, Romeo Acejo, Vincente Acfalle, Juan

Aflague, Franklin Artero, Pedro Atalig,

Tomas Babauta, Luis Charfauros, Mario

Cortez, Charles Cruz, Francisco Cruz,

Frank Cruz, marvin Cruz, Leslie Dezell,

Jerry Enaligo, Bruce Estrada, Vicente

Flores, Anthony Reyes, Rafael Hermosilla,

Juan Hernandez, Amancio Hitosis, Gavinc

Mateo, Juan Naputi, Frederick Oakes,

Alfred Pangelinan, Joseph Pangelinan,

Anthony Perez, Adolpho Roberto, Geroge

Taijeron, Eddy Tropel, Michael Wong, Duane

Harrison, Perfecto Taladoc, Stoney DeMent,

Mario Delos Reyes, Alvin Lorenzo

TABLE OF CONTENTS

STATEMENT OF QUESTION PRESENTED...

TABLE OF AUTHORITIES.............

REFERENCES TO OFFICIAL AND

VORJePeCIAL REPORTS... cccccceccses

APPENDIX

OPINION OF THE UNITED STATES

COURT OF APPEALS FOR

po By

OPINION OF THE UNITES STATES

DISTRICT COURT FOR

THE DISTRICT OF GUAM............

(ii)

TABLE OF AUTHORITIES

PAGE(S)

Askey v. Occidental Chemical

Corp. 102 N.Y.A.D.2d 130,

G7? Rotate Gee, (SOE Seb cctees 25, 26

Ayers v. Township of Jackson,

106 N.J. 557, 525 A.2d 287

(N.J. 1987)

vacated on other grounds,

202 N.J. Super. 106,

Gee Meee See CADE P ls ve vrtecoceesee 30, 36,

Burns v. Jaquays Mining Corp.,

i360 Aris. 373, 7204-P.40 426

(Ct. App. 1988)

review dismissed,

162 Ariz. 186,

yc EM RE EG ee 45

Coll v. Sherry, 29 N.J. 166,

Da ae Ge RO Oe beac heneecee ses 45

Cook v. Rockwell Intern. Corp.,

755 F. Supp. 1468, 1477

OR I 8 ee ee eae 42, 46

Daubert v. Merrell Dow

Pharmaceuticals, Inc.

Bae etree Ue Chee pe ccccetccees 34, 35

Davis v. Graviss,

672 S.W.2d 928 (Ky. 1984).......- 26

Evers v. Dollinger,

95 N.J. 399, 471 A.2d 405 (1984). 45

(aa3)

oe

Feist v. Sears, Roebuck & Co.,

267 Or. 402, 517 P.2d 675 (1973). 26

Friends for All Children, Inc. v.

Lockheed Aircraft Corp.,

740 ¥F.426 816 (D.C. Cir. 1964)... 44

Haggerty v. L & L Marine

Services, Inc.,

7ee F.26 315 (Sth Cir. 1966)..<<«- 44

Herber v. Johns-Manville Corp.,

Fae Some Fe Cane CAR. 29GO)ceaces 43

Herskovits v. Group Health

Cooperative, 99 Wash. 2d 609,

See ee eee 6 ONS as owe oO ee oes 28

In Re Paoli Railyard Litigation,

Tae Pua wae tenes. GEls« B9PChcess She ae

33, HS,

36, 42

Mauro v. Owens-Corning

Fiberglas Corp.,

225 N.J. Super 196,

542 A.2d 16 (1988),

a. wee ome wen C2PSS)ccccces 45

Merry v. Westinghouse Electric

Corp., 684 F.Supp. 847

cea Pi eh wt eeeeeceescneneceos 36, 44,

47, 48

Stead v. F.E. Myers Co.,

DC Vt., No. 89-169 (11/26/90).... 45

(iv)

PERIODICALS

Gone Today and Here Tomorrow:

Damage Recovery for Subsequent

Developing Latent Diseases in

Toxic Tort Exposure Actions,

14 AM.J.TRIAL ADVOC. 15 (1990).... 22

Note, Ayers v. Township of Jackson:

Damages for the Enhanced Risk of |

Future Disease,

5 PACE ENVTL.L.REV. 257 (1987).... 22

Note, Risk of Disease from_

Hazardous waste: A Proposal

For Judicial Relief,

60 Wash. L. Rev. 635 (1985)....... 26, 31

Toxic Torts and Latent Diseases: |

The Case for an Increased Risk.

Cause of Action,

38 U.KAN.L.REV. 1087 (1990)....... 27, 28,

29, 30

(v)

REFRENCE TO OFFICIAL AND

UNOFFICIAL REPORTS

The Opinion of the Ninth Circuit in

this matter is reported at 3 F.3d 329 (9th

Cir. 1993). The District Court Opinion,

included in the Appendix jnfra, is

unreported.

(vi )

JURISDICTIONAL STATEMENT

Jurisdiction of this Court is invoked

by virtue of 28 U.S.C. §1254 and by the

Supreme Court Rule 17. Petitioner seeks

review of an Order of the Ninth Circuit

dated August 26, 1993.

(vii)

STATEMENT OF THE CASE

A. BACKGROUND

On May 26, 1987, a General Electric

transformer exploded at the Piti Power

Plant on Guam. The plaintiffs in this

action are workers of the plant who were

exposed to the toxic substances during as

well as after the explosion when they were

required to clean up the effects of the

explosion. Others were exposed when they

worked in contaminated areas of the plant.

The United States General Accounting

Office conducted an extensive study of the

Piti incident and concluded that "the

exact cause of the spill is unknown, but

it is suspected that the cause was low-

level arcing due to a breakdown in the

dielectric strength of the PCB insulating

fluid with a gradual increase in

pressure." (Toxic Substances, PCB Spill

at the Guam Naval Power Generating Plant,

September 1988, United States General

Accounting Office ["GAO Report"], p. 9.)

Earlier in the report, the GAO opined that

"dioxins and furans, which are more potent

than PCBs, can be generated where there is

a fire-related or pressurized release of

PCBs in which heat is generated.” (GAO

Report, p. 8)

The cleanup of the PCB-contaminated

oil at the Piti Power Plant began almost

immediately after the spill. The initial

cleanup workers "entered the contaminated

area before [the Navy] determined whether

or not there was a potential for dioxin

and furan contamination. As a result, the

response team and the cleanup crews may

have encountered contamination without

proper protection." (GAO Report, p. 14)

The GAO made the following

observation about these workers:

...-A Navy-contracted report said

that because some employees did

not know that the failed

transformer contained PCBs, PPE

was not a consideration.

Once [the Navy] determined that

the oil contained PCBs, » & -

evacuated most of the employees

from the plant. However, some

of the medical records we

reviewed indicated that some

workers stayed in the plant with

no PPE [personal protective

equipment]; 1 stayed in the

plant an additional 8 hours.

(GAO Report, p. 28)

The adequacy of personal protective

equipment ("PPE") worn by the emergency

response crew which entered the plant

approximately one hour after the spill was

not much better:

When the emergency response crew

first entered the contaminated

plant, about 1 hour after the

spill, they wore PPE consisting

of self-contained breathing

apparatus, three layers of

plastic bags over their shoes,

3

(GAO

Tyvek coveralls, painter's

hoods, two layers of surgical

gloves, and heavy neoprene outer

gloves....

The Tyvek coveralls used and

plastic bags worn over shoes are

not recommended for use during

this type of accident. The

coveralls have not been shown to

be effective against the

permeation of liquid PCBs. Even

though OSHA regulations require

that chemical-resistant footwear

be used, the Navy outfitted its

crew in several layers of

plastic bags over normal work

footwear. The required

coveralls and footwear were not

available at Piti duriis the

early stages of the clean’...

Report, p. 28)

Further:

During the emergency response to

and cleanup of the contaminates,

the workers wore civilian

clothes under the PPE because

the recommended undergarments

were not available. Since the

Tyvek coveralls were

transparent, it was necessary to

have some type of

undergarment....

----it was not uncommon for the

contaminated oil and solvents to

penetrate the Tyvek coveralls

4

and soak through their clothes

to their skin. One individual

we spoke with told us that

cleaning the overhead crane was

particularly dirty work. To

Clean the crane, workers built a

scaffold. To clean the

underside of the crane and the

trolley it rides on, the workers

had to lie on their backs. This

position caused solvent and

contaminates to continually

dribble on the clothing and eye

protection worn by the workers.

(GAO Report, p. 31)

Of equal significance, those workers

in the Piti plant at the time of the

explosion were not wearing respirators.

After the incident, "[they] described a

fine mist in the air, and most described

breathing problems as a result of being in

or near the mist." (GAO Report, p. 30)

The respiratory protection provided

to the subsequent cleanup workers was also

inadequate:

{The Navy ] initially sent

emergency response crews in to

the plant on May 26, the day of

5

the accident, with self-

contained breathing apparatus.

On May 27 [the Navy] replaced

this apparatus with half-face

respirators, and, by June 3 [the

Navy] deleted the requirement

for any type of respirator for

those individuals not’ using

solvents. However, at the time

of our review, individuals going

into the plant were required to

wear full-face respirators

because of the discovery of

dioxins and furans.

(GAO Report, p. 30)

Wipe samples taken by the Navy after

the spill showed PCB levels in the plant

as high as 19,800 ug/100 cm* or almost 2000

times higher than USEPA cleanup criteria.

Wipe samples taken June 23, 1987, almost a

month after the spill, indicated levels of

furans and dioxins as high as 3400 ug/100

cm*

, 340 times the USEPA cleanup criterion.

The Navy and the workers did not receive

these dioxin and furan results until July

of 1987, almost two months after the

spill. It was only then after the bulk of

6

the toxins were removed in an unsafe

manner that cleanup was halted.

Thereafter, the Navy contracted with an

outside firm to finish the cleanup at a

cost of more than three million dollars

($3,000,000.00).

In short, because of the late

discovery of dioxins and furans, "workers

may have been allowed to enter the

contaminated portion of the plant early in

the cleanup phase without wearing

respirators of any kind." (GAO Report, p.

33)

The GAO Report gives the following

summary of the varying levels of PCB

exposure suffered by the various Piti

employees:

Of the 66 employees, 29 came

into direct contact with the

spill, including operators,

mechanics, supervisors, and

others working in the area.

Some were contaminated when they

7

came into the spill area to see

what happened or to help control

or contain the spill so that it

did not reach the water drains.

After the release, a number of

employees began to wipe up or

contain the oil. They worked in

the area of the spill about 15

to 30 minutes before they were

told to evacuate the plant and

go to the designated meeting

place for emergencies outside

the plant. It was about 1 hour

before [the Navy's] safety

officer informed those at the

plant that the oil in the

transformer contained PCBs.

Once the plant safety officer

learned that the transformers

contained PCBs, he told the

plant supervisors not to let

their employees go home. A bus

had been requested to take them

to the hospital for medical

examinations. However, because

the accident happened right at

the shift change, some of the

contaminated employees had gone

home. When the bus arrived, 16

of the 29 employees who were

directly exposed to the spill

were taken to the hospital where

they were told to strip, wash

with waterless soap, dry, and

then take showers. Afterward,

they were given medical

examinations, which included

checking their vital signs and

respiratory functions, taking

8

blood samples, and establishing

a medical monitoring program for

each individual.

An additional 9 employees, who

either could not leave the plant

earlier or had already gone

home, came to the hospital

during the next 3 days for

medical examinations. Two of

the remaining three employees

reported to the hospital on June

l1 and 4. The last of the 29

employees reported to the

hospital on July 9, 1987. Navy

officials stated that they did

not know that the last employee

to report to the hospital, a

boiler plant operator, was in

the plant until he reported to

the hospital and told the doctor

that he had been in direct

contact with the PCBs.

On May 27 and 28, 1987, at the

request of medical clinic

officials, [Navy] officials told

all plant supervisors to ask all

employees who had been in the

plant at the time of the

accident or who thought they may

have been close enough to the

plant to be exposed to PCBs to

report to the hospital for

examinations. Eventually 37

employees reported to the

hospital, stating that they had

been inside the plant at the

time of the accident. Six of

the 37 employees did not report

9

for examinations until

September, and one reported in

October.

To be on the safe side, [Navy]

and hospital officials decided

to ask all Navy employees who

thought they may have been

exposed to PCBs to report for a

medical examination. During the

following months the number of

employees who requested a

medical examination reached 252,

which includes 186 people who

reported to the hospital even

though they were not directly

exposed.

(GAO Report, pp. 35-36)

The Navy originally sought to provide

medical monitoring only to those

individuals who had been "directly

contaminated and those involved in the

cleanup and decontamination." The

discovery of dioxins and furans in the

plant, however, compelled the Navy to

expand its monitoring program to all

individuals who had reported exposure -

direct or indirect. (GAO Report, p. 38)

10

The PCBs involved in the Piti

transformer explosion were produced by

Monsanto, the sole manufacturer of PCBs in

the United States. Monsanto's largest

customer for PCBs was General Electric

which placed them in the thousands of

electrical transformers and capacitors

which it sold throughout the United States

and abroad. The United States Navy

purchased several of the General Electric

transformers filled with Monsanto's PCBs

and installed them at the Piti Power

Plant.

On May 25 1989, plaintiffs

instituted this class action against

Monsanto and General Electric to recover

damages for those injuries they sustained

as a result of an explosion at the Piti

Power Plant on Guam which caused them to

be exposed to polychlorinated biphenyls

11

(PCBs) as well as to dioxins (PCDDs) and

polychlorinated dibenzofurans (PCDFs), and

chlorobenzenes (CBs). Suit was initiated

in the United States District Court for

the District of Guam. Jurisdiction being

based upon 28 U.S.C. §1332.

On September 28, 1990, the trial

court issued a scheduling order which,

inter alia, required plaintiffs to submit

expert reports setting forth which

plaintiffs suffered sufficient exposure to

justify their claim for medical

monitoring. Plaintiffs thereafter timely

submitted expert reports opining that

certain named plaintiff members had

sufficient exposure to PCBs, PCDDs, PCDFs

or CBs as a result of the Piti Power Plant

incident to place them at increased risk

of future injury for which they should be

medically monitored. Specifically,

12

plaintiffs submitted the expert reports of

Dr. Robert J. Rutman, a professor of

biochemistry and molecular biology and the

University of Pennsylvania as well as the

expert report of Dr. Ronald Brecher, a

toxicologist. Dr. Brecher submitted an

expert report in which he listed each

individual plaintiff, their exposure the

toxic agents involved and thereafter

opined on their likelihood for acquiring

cancer and the need for medical

monitoring. Specifically, Dr. Brecher

stated:

Based on the foregoing, my

review of the plaintiffs’

answers to interrogatories,

questionnaires, personal

statements and other documents I

have reviewed on this case, it

is my Opinion, within a

reasonable degree of scientific

certainty, that these plaintiffs

were exposed to PCBs, PCDFs,

PCDDs, and/or CBs as a result of

the Piti Power Plant incident on

May 26, 1987, and that such

exposure place these plaintiffs

13

at an increased risk of future

injury, illness or disease. It

is my opinion that a regular and

ongoing medical monitoring

program is required for these

plaintiffs in order to enable

early detection and treatment of

any adverse effects arising from

these plaintiffs' exposures.

Defendants then filed motions for

summary judgment alleging plaintiffs

failed to state a cause of action. On

February 25, 1992, the United States

District Court for the Territory of Guam

granted Defendant's Motion for Summary

Judgment. Accordingly, plaintiffs timely

filed an appeal.

The United States Court of Appeals

for the Ninth Circuit affirmed the trial

court's ruling concluding” that: (1)

Plaintiffs expert reports failed to

adequately present evidence that the

individual plaintiffs were individually

reasonably medically certain to incur

14

future disease as a result of their toxic

exposure and thereby did not show the

requisite increased risk of injury; and

(2) plaintiffs' experts had failed to show

that plaintiffs had suffered a

"significantly" increased risk of

contracting a serious latent disease as is

required to recover the costs of medical

monitoring which they failed to do because

the evidence did not detine the

significance of the increased risk with

respect to individual plaintiffs.

1S

ARGUMENT

The issues presented by this case

deserve review on a writ of certiori under

the criteria set forth in Rule 10.1 (a),

Rules of the Supreme Court of the United

States. The decision of the Court of

Appeals conflicts directly with other

courts of appeals on the same issues,

prior decisions of the Supreme Court of

the United States as well as the Federal

Rules of Evidence.

A. INCREASED RISK OF FUTURE INJURY

In light of their exposure to toxic

chemicals, plaintiffs have stated a valid

Claim for damages resulting from the

increased risk of developing cancer and

plaintiffs expert reports adequately

reflect the damages sustained by each

individual plaintiff herein.

16

The theory of liability in this

matter emanates from the invasion of the

body by the foreign substance, which

immediately acts upon the body and sets in

motion the forces that result in disease.

Askey v. Occidental Chemical Corp., 102

N.Y. A.D. 2d 130, 477 N.Y.S. 2d 242

(1984). Historically, courts required a

high standard of proof that any future

disease might develop: "there must be such

a degree of probability of their

occurrence as to amount to a reasonable

certainty that they will result." Id. A

growing number of jurisdictions are moving

away from this medical certainty rule and

towards a less harsh standard. In 1963,

six states including California,

Connecticut, New Hampshire, and

Pennsylvania applied a rule based on the

"extent of the injury." This rule

17

entitles a plaintiff to recover damages

for future illnesses that may result from

present injury, without certainty that

these illnesses will develop. See Note,

Risk of Disease from Hazardous Waste: A

Proposal for Judicial Relief, 60 Wash. L.

Rev. 635, 640 (1985). A number of

courts have awarded damages based on

expert opinions that the future diseases

or illnesses were "possible" or "likely."

See, e.g., Davis v. Graviss, 672 S.W.2d

928 (Ky. 1984) (court properly awarded

damages for future development of spinal

meningitis while expert could only say

plaintiff might possibly suffer this

ailment); Feist v. Sears, Roebuck & Co.,

yi a 402, S5i7 P.26 6795 (1973).

Adoption of the “extent of injury" rule

demonstrates a growing awareness that it

is inappropriate to apply traditional tort

18

doctrines to claims for the increased risk

of future disease from exposure to toxic

chemicals because the potential injuries

may take years to develop. Comment, Toxic

Torts and Latent Diseases: The Case for an

Increased Risk Cause of Action, 38

U.KAN.L.REV. 1087 (1990).

Most often, ... medical experts

are unable to establish this

degree of certainty. Even in

asbestos cases where the medical

risks of exposure are well-

established, the chances of

acquiring an asbestos-related

disease after exposure do not

reach fifty-one percent.

Consequently, the forty-nine

victims out of one hundred that

do develop a future disease go

uncompensated under current

doctrine.

Id. at 1092.

Indeed, other tort doctrines support

the recognition of a cause of action

absent a reasonable medical probability

that the disease will develop. See, 38 U.

KAN.L.REV. 1087, 1104 (1990). One such

19

a

doctrine is "loss of chance.” This

doctrine “involves instances in which

plaintiffs are allowed to recover if they

can prove that the defendant decreased the

plaintiff's chances of obtaining a desired

result, even though the plaintiff's

injuries may not be directly traceable to

the defendant." 38 U. KAN.L.REV. 1087,

1104. Indeed, in Herskovits v. Group

Health Cooperative, 99 Wash. 2d 609, 615,

664 P.2d 474, 479 (1983), the court

permitted plaintiff to recover where a

negligent physician decreased his chances

of survival by a mere fourteen percent.

Id., 99 Wash. 2d at 615, 664 P.2d at 479.

"Logically, there is no difference between

decreasing a chance of survival by less

than fifty percent and increasing a chance

of death by less than fifty percent.

Recognition of this degree of harm as

20

actionable in the loss of chance context

merits similar recognition in the toxic

tort context.” 38 U. KAN.L.REV. 1087,

1104.

The recognition of a present cause of

action for increased risk of future

diseases, and adoption of the "extent of

the injury" rule, would better serve the

traditional tort goals of deterrence and

compensation. The present system is ill-

Suited to deter toxic tort defendants

because plaintiffs must wait until the

disease manifests itself to sue. Id. at

1105. The application of the "extent of

the injury" rule is more appropriate in

toxic tort cases because it forces

tortfeasors to assume responsibility for

their actions immediately. In this way,

they are unable to avoid compensating the

victims. Also, by adhering to this new

21

standard and allowing a present cause of

action for the increased risk of future

diseases, this court would force society

as a whole and those responsible for toxic

chemicals present in our environs to deal

with these materials’ inherent dangers.

Id. See also Note, Gone Today and Here

Tomorrow: Damage Recovery for Subsequent

Developing Latent Diseases in Toxic Tort

Exposure Actions, 14 AM.J.TRIAL ADVOC. 15

(1990); #£=xNote, Ayers ev. Township of

Jackson: Damages for the Enhanced Risk of

Future Disease, 5 PACE ENVTL.L.REV. 257

(1987).

In this case, the Ninth Circuit

failed to realize that "the injury in an

increased risk action is the increased

risk itself, not the manifested disease.

The probability at the time of the trial

of the plaintiff developing cancer is

22

relevant only insofar as it must be used

to determine how much the defendant has

increased the risk of cancer." (Emphasis

added ) Note, 60 WASH. L. REV. at 589.

Plaintiffs, here, have increased their

chances of developing a future illness, in

particular cancer, due to their exposure

to PCBs. If the court follows’ the

increasing modern trend toward adherence

to the "extent of the injury" rule, then

plaintiffs are certainly entitled to

damages on their claim for increased risk

of disease.

A recent case which illustrates 4a

federal court's reluctance to tolerate

Summary judgment on the question of

exposure in a toxic tort case is In Re

Paoli Railyard Litigation, 916 F.2d 829

(3rd. Cir. 1990). In Paoli, plaintiffs

were 38 individuals who worked at or lived

near a railyard from which PCBs, a

component in railcar transformers, were

released into the soil and air. Like the

plaintiffs in the instart case, the Paoli

plaintiffs claimed that they had been

exposed to PCBs and that the PCBs had

caused them a variety of specific injuries

and had also caused them to suffer an

increased risk of contracting future

disease. The plaintiffs' claims were

Supported by various expert reports.

After excluding the bulk of plaintiffs’

expert evidence under F.R.E. 403, 702 and

703, the District Court for the Eastern

District of Pennsylvania granted the

defendants’ motion for summary judgment.

In reversing, the Third Circuit Court of

Appeals criticized the trial court for its

exclusion of plaintiffs’ evidence at the

pretrial stage and found that the

24

plaintiffs had raised issues of material

fact as to all elements of their prima

facie case.

Paoli is particularly significant to

this case because, in material respects,

the defendants' attacks on the plaintiffs'

exposure evidence in that case mirrors

their attack here. Notably, two of the

defendants in Paoli, Monsanto and General

Electric, are defendants in this case. It

is therefore not surprising that. the

defendants in Paoli attacked the

plaintiffs' prima facie case on exposure

grounds virtually identical to those

raised in the motion before this Court --

that, inter alia, the inability of the

plaintiffs' experts to assign a precise

number to the level of each plaintiff's

PCB exposure level rendered the experts'

conclusion insufficient. Id., at p. 842.

25

Although the Third Circuit rejected the

Paoli defendants' attack on this basis,

the Ninth

though the facts were extremely similar.

in Daubert v. Merrell Dow Pharmaceuticals,

inc.

As the Supreme Court recently stated

7

113 S. Ct. 2786 (1993):

Of course, it would be

unreasonable to conclude that

the subject of scientific

testimony must be "known" to a

certainty; arguably, there are

no certainties in science. See,

e.g., Brief for Nicolaas

Bloembergen et al. as Amicic

Curiae 9 ("Indeed, scientists do

not assert that they know what

is immutably 'true' -- they are

committed to searching for new,

temporary theories to explain,

as best they can, phenomena" );

Brief for American Association

for the Advancement of Science

and the National Academy of

Sciences as Amici Curiae 7 - 8

("Science is not an encyclopedic

body of knowledge about the

universe. Instead, it

represents a process for

proposing and refining

theoretical explanations about

the world that are subject to

further testing and refinement” )

26

Circuit failed to do so even

(emphasis in original). But, in

order to qualify as "scientific

knowledge," an inference or

assertion must be derived by the

scientific method. Proposed

testimony must be supported by

appropriate validation -- i.e.

"good grounds," based on what is

known. In short, the

requirement that an expert's

testimony pertain to "scientific

knowledge” establishes a

standard of evidentiary

reliability.

In the instant case, the Ninth

Circuit placed an insurmountable obstacle

in plaintiff's path to compensation by

ruling that the plaintiffs expert reports

failed to adequately present evidence that

the individual plaintiffs were

individually reasonably medically certain

to incur future disease as a result of

their toxic exposure and thereby did not

show the requisite increased risk of

injury.

27

B. MEDICAL MONITORING

Pursuant to the holding of the

Ninth

Circuit, in order to establish a cause of

action for medical monitoring, 4 plaintiff

must prove that:

1. Plaintiff was significantly

exposed to a proven hazardous

substance through the negligent

actions of the defendant.

y As a proximate result of

exposure, plaintiff suffers 4a

significantly increased risk of

contracting a serious latent

disease.

x That increased risk makes

periodic diagnostic medical

examinations necessary.

4. Monitoring and _ testing

procedures exist which make the

early detection and treatment of

the disease possible and

beneficial.

In Re Paoli R.R. Yard PCB Litigation, 916

F.2d at 852; accord, Merry v. Westing

house

Electric Corp., 684 F. Supp. at 850;

vy. Township of Jackson, 189 N.J. S

561,

461 A.2d 184 (1983),

28

Ayers

uper.

ee

vacated on other grounds, 202 N.J. Super.

106, 493 A.2d 1314 (1985).

The unique peculiarity of exposure to

carcinogens is that doses capable of

eventually producing cancer cause no

observable symptomology predicting the

likelihood of the disease, its degree of

latency or malignancy. These types of

cellular injuries are not detectable by

routine medical, pathological or

histological testing because they are

imbedded in the genetic substance of the

affected cell. Accordingly, there can be

no statement of a predictable outcome for

the exposed individual and it is

impossible to aver that for this

particular individual that it is

reasonably medically certain that he or

she will incur a future disease as a

result of their toxic exposure. No

29

———————

statement as to medical certainty can be

made other than that the exposure has

increased the likelihood that the exposed

individual will contract the disease.

Additionally, the standards as set

forth by the Ninth Circuit will make it

impossible for plaintiffs to prove that

they have sustained a "significant risk"

of obtaining cancer. The reasons for this

being:

Le The actual quantitative exposure

of any "real individual" rather than the

"average individual" cannot be known. The

variables responsible for this effect

include individual uptake rates, (i.e.

respiratory, ingestive, absorptive) the

uniformity and persistence of the

contamination of the environment and

environmental factors;

30

Y hereditary differences in the

sensitivity to toxic chemicals;

. differences in metabolism and

detoxification;

4. variations in hormonal and

nutritional effects;

Je variations in immune responses;

and

6. variations in genotoxic repair

Capacity.

In the case of an average exposure to

a carcinogenic substance, the increased

risk of cancer can be calculated; this is

the likelihood that the exposed party

would get cancer above and beyond the

normally existent likelihood. The risk

measure is actually a statement of

probability stating that whereas X persons

in 1000 are ordinarily expected to get

cancer, after exposure, X + Y can be

31

oan en rereas

expected to get the disease. But whether

any given individual will be part of the X

+ Y cannot be predicted since this

information is not contained within the

statistical analysis. The criterion set

forth by the Ninth Circuit, that exposure

has "made it more likely than not" that

the exposed individual will contract the

disease simply cannot be met. If this

statement is required as proof for medical

monitoring, there is no possibility for

such an finding.

Additionally, under the circumstances

present, the plaintiffs have produced

ample evidence to support their claims for

monitoring and surveillance. The Ninth

Circuit however has held that plaintiffs

failed to state how "significant" or

relative the increased risk was for any

individual. As previously stated, it is

32

EV

scientifically impossible to quantify what

the likelihood that an individual who has

been exposed to a carcinogen will develop

cancer. The Ninth Circuit, in violation

Of Federal Rule 702 and 703, took this

issue out of the jury's hands and placed

too great a burden on the expert to give

an opinion which cannot be stated by any

expert due to the factors enunciated

above. Accordingly, it is clear that the

Ninth Circuit went well beyond its

in granting summary judgment in

defendant's favor in contravention to Rule

702 and 703 of the Federal Rules of

Evidence.

The rationale of a medical monitoring

Claim is that it is sound medical practice

to seek medical surveillance to determine

if plaintiff has contracted a disease

caused by exposure to hazardous

33

substances. Because the defendant's

actions caused the need for medical

monitoring, such defendant may be required

to pay the costs of the monitoring. Cook

vy. Rockwell Intern. Corp., 755 F. Supp.

1468, 1477 (D. Colo. 1991).

Indeed, "an action for medical

monitoring seeks to recover only the

quantifiable costs of periodic medical

examinations necessary to detect the onset

of physical harm In Re Paoli

R.R. Yard PCB Litigation, 916 F.2d at 850;

Cook, 755 F. Supp. at 1476. Ina medical

monitoring claim, the injury is the cost

of the medical care undertaken to detect

the injury. In Re Paoli R.R. Yard PCB

Litigation, 916 F.2d at 850. As the Paoli

court explained:

The policy reasons for

recognizing this tort are

obvious. Medical monitoring

claims acknowledge that, in a

34

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 discharge of toxic

chemicals and encourages

plaintiffs to detect and treat

their injuries as soon as

possible

‘

id

i Y

at 852. See also, Herber v. Johns-

Manville Corp., 785 F.2d 79 (3rd Cir.

1986) (New Jersey recognizes cost of

preventative monitoring occasioned by tort

as independent element of damages); Ayers

v. Township of Jackson, 106 N.J. 557, 525

A.2d 287 (N.J. 1987) vacated on other

grounds, 202 N.J. Super. 106, 493 A.2ad

1314 (1985). ("Compensation for reasonable

and necessary medical expenses is

35

consistent with well-accepted legal

principles.... It is also consistent with

the important public health interest in

fostering access to medical testing for

individuals whose exposure to toxic

chemicals creates an enhanced risk of

disease.") Id. at 3ll. See also, Hagerty

v. L & L Marine Services, Inc. 788 F.2d

315 (5th Cir. 1986) (Seaman accidentally

soaked with toxic chemicals while on duty

entitled to recover from employer

reasonable costs of medical checkups for

cancer); Friends for All Children, inc. V-

Lockheed Aircraft Corp., 746 F.2d 816

(D.C. Cir. 1984) (recognized claim for

medical monitoring damages for children

exposed to depressurization of airplane

cabin); Merry Vv.- Westinghouse Electric

Corp., 684 F.Supp. 847 (M.D. Pa. 1988)

(medical monitoring action can be premised

36

upon proof of exposure to hazardous

substance resulting in potential for

injury and need for early detection and

treatment); Stead v. F.E. Myers Co., DC

Vt., No. 89-169 (11/26/90); Burns vy.

Jaquays Mining Corp., 156 Ariz. 375, 752

P.2d 28 (Ct. App. 1988) (residents of land

adjacent to asbestos-producing mill

entitled to recover for medical

surveillance of cancer development),

review dismissed, 162 Ariz. 186, 781 P.2d

1371 (1989); Evers v. Dollinger, 95 N.J.

399, 471 A.2d 405 (1984) (cost of

preventative monitoring allowed); Coll v.

Sherry, 29 N.J. 166, 148 A.2d 481 (1959)

(cost of preventative monitoring allowed);

Mauro v. Owens-Corning Fiberglas Corp.,

225 N.J. Super 196, 542 A.2d 16 (1988),

aff'd, 961 A.2d 251 (1989) (medical

Surveillance claim allowed to facilitate

37

early treatment necessitated by enhanced

risk of cancer); Cook v. Rockwell Intern.

Corp., 755 F. Supp. 1468, 1477 (D. Colo.

1991) (Colorado would recognize 4 medical

monitoring claim).

In Askey V- Occidental Chemical

Corp., 102 N.Y.A.D.2d 130, 477 N.Y.S.2d

242, (1984), the New York Supreme Court,

Appellate Division, held that the future

expense of medical monitoring of

plaintiffs claiming the enhanced

likelihood of medical problems due to

exposure to toxic waste could be a

recoverable consequential damage. The

court held:

The future expense of medical

monitoring, could be a

recoverable consequential damage

provided that plaintiffs can

establish with 4 reasonable

degree of medical certainty that

such expenditures are

"reasonably anticipated” to be

incurred by reason of their

exposure. There is no doubt

38

etiam

that such a remedy would permit

the early detection and

treatment of maladies and that

as a matter of public policy the

tort-feasor should bear its

cost.

477 N.Y.S.2d at 247 (emphasis added).

Similarly, in Merry v. Westinghouse

Elec. Corp, 684 F. Supp. 847 (M.D. Pa.

1988), property owners whose wells had

been contaminated by toxic substances

sought recovery for damages, including the

cost of medical monitoring. Id., at 848.

In denying defendants' motion for summary

judgment, the court asserted that

plaintiffs need not exhibit symptoms of a

disease before seeking medical monitoring.

Id., at 849. Furthermore, the court

stated that Pennsylvania law did not

require physical injury in order to

maintain a claim for medical monitoring.

Id.

Indeed, plaintiffs' experts in Merry

39

were unable to quantify the chances of

contracting an exposure related disease.

Moreover, the reports were not based on

plaintiffs' physical examination, but on

laboratory and clinical studies, among

other items. Id., at 851. Nevertheless,

despite the fact that plaintiffs' experts

could not provide 4 scientifically sound

conclusion as to the precise degree of

risk faced by plaintiffs, the court stated

that plaintiffs had proffered sufficient

evidence to defeat defendant's summary

judgment motion. Id., at 851. ‘It would

be reasonable for a jury to conclude that

the plaintiffs have 4 significantly but

unquantifiably enhanced risk of serious

disease, that such enhanced risk of

disease justifies periodic medical

examinations." Id., at 852.

40

In the instant case, the Ninth

Circuit clearly erred in applying the

standard enunciated above as it pertains

to the required language to be included in

an expert's report in a toxic tort case

such as this.

CONCLUSION

hs ha

For the above stated reasons, 4 Writ of

Certiorari should issue to review the

judgment and opinion of the Ninth Circuit

Court of Appeals.

Respectfully submitted,

Sherman, Silverstein, Kohl,

Rose & Podolsky

a

F 4 a

ff a" A

{7 LQ“

lr =

— ALAN C. MILSTEIN, ESQUIRE

Attorneys for Plaintiffs

By:

42

CERTIFICATION OF BAR MEMBERSHIP

I hereby 1g ofthe Bar | I am a member

in good standing of Bar of the United

States Supreme Court.

ALAN C. MILSTEIN, ESQUIRE

Dated:

43

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARTOLOME E.

ABUAN, et al.,

Plaintiff- :

Appellant, : No. 92-15476

Vv. : D.C. No.

GENERAL ELECTRIC

CO., MONSANTO :

COMPANY, ; CV-89-00031-ARM

Defendants-

Appellees.

BARTOLOME E.

ABUAN, et a].,

Plaintiff-

Appellee,

Ve

GENERAL ELECTRIC

Coe, : No. 92-15662

Defendant, : OPINION

and

MONSANTO COMPANY,

Defendant-

Appellant.

Appeal from the United States District

Court for the District of Guam

Alex R. Munson, Chief Judge, Presiding

Argued and Submitted

July 15, 1993-San Francisco, California

Filed August 26, 1993

Before: J. Clifford Wallace, Chief

Judge, and Dorothy W. Nelson and Diarmuid

F. O'Scannlain, Circuit Judges.

Opinion by Judge Nelson

SUMMARY

Environmental Law/Torts/Government Law

The court of appeals affirmed a

judgment of the district court. The court

held that plaintiffs failed to prove a

genuine factual issue regarding either the

probability of future injury or the

necessity of continuing medical monitoring

resulting from alleged exposures to toxic

chemicals.

Appellant Bartolome Abuan and a

Similarly situated class of plaintiffs

were exposed to toxic chemicals when an

——————————eEO

electrical transformer manufactured by

appellee General Electric Co. ruptured,

releasing PCBs manufactured by appellee

Monsanto Company. Plaintiffs included

workers exposed during the accident or its

clean-up, and individual class members had

varying degrees of exposure. Plaintiffs

sued for personal injuries.

GE and Monsanto moved for summary

judgment. Plaintiffs presented expert

opinion from a professor of biochemistry

and molecular biology that discussed the

general conditions of exposure at the site

of the mishap, but did not address the

relative exposures of individual

Plaintiffs. They also presented expert

opinion from a toxicologist who concluded

that Plaintiffs were exposed as a result

of the accident and that the exposure

placed them at an increased risk of future

illness that required continuing medical

monitoring, but did not make qualitative

Or quantitative distinctions among the

exposures of the various Subgroups of

Plaintiffs. The district court granted the

motions, holding that Plaintiffs had

failed to prove exposure to sufficient

levels of toxics to establish proximate

cause. Plaintiffs appealed.

[1] Because Plaintiffs failed to

present evidence that they were

individually reasonably medically certain

to incur future disease as a result of

their toxic exposure, they did not show

the requisite increased risk of injury.

[2] Further, Plaintiffs had to show that

(A-5)

they suffered a significantly increased

risk of contracting a serious latent

disease in order to recover the costs of

medical monitoring, [3] which they failed

to do because their evidence did not

define the significance of the increased

risk with respect to individual

Plaintiffs.

COUNSEL

Alan C. Milstein, Leon H. Rose, Sherman.

Silverstein, Kohl, Rose & Podolsky,

Pennsauken, New Jersey, for the

appellants-cross-appellees.

Murk A. Grinnis, Williams & Connolly,

Washington, D.C.. and Thomas L. Roberts.

Moore, Ching, Boertzel & Lawlor, Agana,

(A-6)

4

£

3

Guam, for appellee General Electric

Company.

Jose H. Garcia, Bronson, Bronson &

McKinnon. San Francisco, California, for

the appellee-cross-appellant Monsanto

Company.

OPINION

D.W. NELSON, Circuit Judge:

In May of 1997. an electrical

transformer ruptured at the Piti Power

Plant on the United States Naval Base in

Guam, releasing a variety of toxic

Chemicals. Appellant Bartolome Abuan and

@ similarly situated class of plaintiffs

("Plaintiffs" ) sued General Electric

Company ("GE") and Monsanto Company

("Monsanto") for injuries arising from the

accident. The district court granted

defendants’ motions for summary judg-

ment. Plaintiffs appeal from the grant of

summary judgment, and Monsanto

cross-appeals the district court's denial

of its motion to dismiss for lack of

personal jurisdiction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Until the late 1970's, Monsanto

manufactured chemicals known as

polychlorinated biphenyls ("PCBs"). GE

purchased PCBs from Monsanto in order to

produce Pyranol, a fire resistant

dielectric fluid, which GE then used as

insulation in electrical transformers and

other devices. In 1949, GE sold one of

(A-8)

a rem ob .

its transformers to the Navy and delivered

it to Guam, where it was used at the Piti

Power Plant. The junction box on the

transformer ruptured on May 26, 1987,

releasing its contents. and allegedly

exposing Plaintiffs to PCBs and other

toxic chemicals. The Navy immediately

instituted a cleanup program using local

workers. Following the incident, the Navy

established a medical surveillance program

for workers who might have been exposed to

the spill.’ Plaintiffs include workers

who were allegedly exposed to the

chemicals during the accident or the

cleanup.

(A-9)

‘A subsequent report concluded that

the cleanup crew entered the area before

officials had determined whether dioxin

and furans had been released, without the

recommended protective gear, and in some

cases without proper training. General

Accounting Office, Toxic Substances: PCV

Spill at the Guam Naval Power Generating

Plant 2-4 (1988)("GAO Report").

The Guam legislature subsequently

authorized funding for suits by the

workers against the United States, GE, and

Monsanto. PCB Recovery Fund Act of 1989,

Pub. L. No. 20-32, 9 Guam Sess. Laws 166.

The legislature also enacted the Toxic

Substances Exposure Compensation Act

("TSECA"), 10 Guam Code. Ann. §41101-07,

to facilitate recovery for individuals

injured by exposure to toxic substances.

Plaintiffs brought suit against GE and

Monsanto, alleging that they had been

exposed to PCBS, dioxins, and furans as a

result of the accident and requesting

relief on grounds of negligence and

outrageous conduct, strict products

(A-10)

ochre *

ee a ee ae cer

liability, breach of warranty, civil

conspiracy. and violations of TSECA.?

A class was certified on October 16,

1989. Monsanto's motion to dismiss for

lack of personal jurisdiction was denied

on April 20, 1990, Abuan v. General

Electric Co., 735 F. Supp. 1479 (D. Guam

1990), and we denied Monsanto's petition

for an interlocutory appeal. The district

court entered a Scheduling Order on

October 1. 1990, which provided:

4. By January 31. 1991, each

Claimant shall file and serve on

defendants all medical and

scientific opinions of experts.

based on a reasonable degree of

(A-11)

‘Plaintiffs brought a separate class

action against the United States and

individually named defendants. See

Fiqueroa v. United States, Nos. 92-15914,

92-16602 (9th Cir., argued July 15, 1993).

a

medical or scientific certainty

and expressed in report form,

supporting each claimant's claim

that he or she was exposed to a

sufficient level of PCBS. PCDFs

and/or dioxins as a result of

the Piti Power Plant incident to

require medical monitoring of

said claimant and that such

exposure placed claimant at

increased risk of future injury,

illness or disease.

Several claimants were subsequently

dismissed for failing to be deposed or to

answer interrogatories.

Defendants brought three separate

summary judgment motions against the

remaining class members. The district

(A-12)

Rema ths £4

court granted the first two motions,

finding that Plaintiffs had failed to

demonstrate: (1) sufficient evidence of

exposure which placed them at an increased

risk of future illness, injury, or

disease, and (2) present physical injury,

which was an essential element of

Plaintiffs' common law claims.’ Plain-

tiffs timely appealed. and Monsanto timely

cross-appealed.

ANALYSIS

We review a district courts grant of

Summary judgment de novo. Pave heaGe, WW,

O'Melveny & Meyers, 969 F.2d 744, 747 (9th

(A-13)

*The third motion, which alleged that

TSECA was unconstitutional, was not

addressed by the district court and is not

part of this appeal. Because we affirm

the grant of summary judgment on the issue

of exposure, we need not address the

propriety of the district court's

alternative holding that summary judgment

was proper because plaintiffs had failed

to introduce evidence of physical injury.

Cie. i9Gel« The evidence must he viewed

in the light most favorable to the

nonmoving party to determine whether there

are any genuine issues of material fact

for trial, and whether the district court

correctly applied the relevant substantive

law." Id. Summary judgment must be

entered “against a party who 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."

Celotex Corp. v. Catrett, 477 U.S. 31 7

322 (1986).

The analysis in this case is

complicated by the fact that there are no

reported Guam cases on point. However,

where "there is a substantial body of

(A-14)

ew one nite Mine Sn

i tei alan

legal authority under which affirmance is

indicated, and in the absence of any

indication that the local courts would

reject that authority,” we may affirm.

Chase Manhattan Bank, N.A. Vv.

Gems-By-Gordon, Inc., 649 F.2d 710, 713

(9th Cir. 1991). For this reason, we will

look to the current trends in toxic tort

jurisprudence to guide our analysis.

The district court found that

Plaintiffs had failed to comply with the

requirements of paragraph four of the

Scheduling Order in that they had not

introduced expert opinions, based on a

reasonable degree of medical or scientific

certainty, that they had been exposed to

it sufficient level of toxic substances to

succeed on their claims. The district

(A-15)

court found that Plaintiffs’ expert

reports failed to comply with relevant

legal standards, and “admittedly made no

attempt to indicate that any individual

plaintiff was exposed to 4 sufficient

level of toxins to justify future medical

monitoring or conclude that 4a plaintiff

faced an increased likelihood of future

injury, illness, or disease due to

exposure." In short, the district court

found that Plaintiffs failed to introduce

expert evidence sufficient to demonstrate

the requisite proximate cause. After

reviewing the reports, we agree.

Expert Opinions

Before we turn to the sufficiency of

the evidence regarding exposure. a brief

(A-16)

ee

summary of the expert reports is required.

Plaintiffs rely heavily on the reports of

Dr. Robert J. Rutman, a professor of

biochemistry and molecular biology, and

Dr. Ronald Becher, a toxicologist.

Additional information regarding exposure

was contained in the GAO Report.

Dr. Rutman submitted it cursory

two-page preliminary report stating that

in his opinion the Plaintiff... had been

exposed to PCBS, PCDFS, PCDDs and/or CBs

as a result of the accident, had an

increased risk of future injury or

iliness, and required medical monitoring

to detect possible adverse effects. Dr.

Rutman's final report explained the

potential toxic effects of exposure to the

chemicals contained in the transformer

(A-17)

oils. He described in general terms the

conditions of exposure at the Plant, but

did not address the relative exposures of

the different members of the plaintiff

class.

All cases of exposure to these

carcinogenic chemicals

inexorably lead to physical

injury taking the form of

present cellular damage to the

genetic material (DNA). In my

opinion, the available data

show, to a reasonable degree of

scientific certainty. that the

Plaintiffs have sustained such

physical injury to their cells.

It is also my opinion that the

exposures sustained by

(A-18)

Plaintiffs, and responsible for

this physical damage have

Significantly increased their

risk of cancer, birth defects

and other toxic effects. such

[as] hepatic dysfunction and

abnormal immune system function.

An appropriate regimen of

regular medical Surveillance

based on a scientifically

designed schedule of examination

and testing would seem to be

fully justified

In his deposition, Dr. Rutman

testified that he was "interested in

producing ... [a] ballpark statement of

whether these people had seen a negligible

amount of chemical contamination or

something which was substantial and

therefore had to be considered. I would

not even begin to say that told me what

the actual exposure was." He also opined

that .. “we would reduce the cancer risk

by something close to 50 percent if there

were adequate monitoring of the entire

population for early cancer..." (emphasis

added ).

Dr. Brecher's report described the

results of various samples taken at the

Plant after the accident, as well as the

possible toxic effects of such exposure.

Dr.Brecher stated:

[It] is probable that anyone

involved in the cleanup

operation, or other related

duties at the Piti Power Plant,

(A-20 )

from the time of the incident

until December 28, 1987 or later

was exposed to any chemicals

present in the transformer oil.

This exposure would have

occurred both through inhalation

and through the skin.

Dr. Brecher's report broke the plaintiff

class into several categories. Each

section reiterated how the individual

plaintiffs claimed to have been exposed to

chemicals from the transformer, and almost

every section concluded:

Based on the foregoing, my

review of the plaintiffs’

answers to interrogatories,

questionnaires, personal

statements and other documents I

"

(A

have reviewed on this case, it

is my opinion, within a

reasonable degree of scientific

certainty that these plaintiffs

were exposed to PCBS, PCDFS,

PCDDs and/or CBs as a result of

the Piti Power Plant incident on

May 26, 1987, and that such

exposures placed these plain-

tiffs at an increased risk of

future injury, illness or

disease. It is my opinion that

a regular and ongoing medical

monitoring program is required

for these plaintiffs in order to

enable early detection and

treatment of any adverse effects

arising from these plaintiffs'

exposures.

(A-22)

Dr. Brecher's categories ranged from the

cleanup crew who had also been present in

the Plant during the explosion to a woman

who entered the Plant on the day of the

explosion for ten to twenty minutes to

look for her father. He made no

quantitative nor qualitative distinctions

between the exposures suffered by the

different groups.

During his deposition, Dr. Brecher

stated that he "did not develop a method

for quantifying workers' exposures," and

made a qualitative rather than a

quantitative decision about exposure.

"Any person who has a PCB exposure is at

increased risk. And my definition of

"increased risk," is risk increased

compared to someone who has not been

(A-23)

exposed." He recommended that “anyone

exposed to these materials in an

involuntary release be subjected to 4a

medical monitoring program." The district

court noted that "Dr. Brecher believes

that any exposure to a toxic substance, no

matter how minute or fleeting, always

places a person at increased risk and

justifies medical monitoring. His

personal belief is so all encompassing and

amorphous that it is of no utility in the

context of this lawsuit."

The GAO Report concluded that "29

employees were directly exposed to the

PCB-contaminated oil" at the time of the

accident. GAO Report at 2. Due to their

lack of proper training, "Navy employees

at Piti Power Plant were contaminated

(A-24)

aos same be rt, Dele TL ir

Pk NOR ARE Ba Ne Pale

with PCBS, and it is possible that they

may also have been contaminated with

dioxins and furans." Id. at 3.

One of Plaintiffs' other experts, Dr.

Yoshito Masuda, reviewed blood samples

taken from the members of the plaintiff

Class. However, Masuda drafted an article

which concluded that the PCB patterns of

the allegedly exposed workers were "not

much different" from those of the control

group.

II. Analysis

"In cases claiming personal injury

from exposure to toxic substances, it is

essential that the plaintiff demonstrate

that she was, in fact, exposed to harmful

(A-25)

levels of such substances." Maddy _ v.

Vulcan Materials Co., 737 F. Supp. 1528,

1533 (D. Kan. 1990) (emphasis added).

However, "precise data on the exact degree

of exposure to each chemical" is not

required. Harper v. Illinois Cent. Gulf

R.r., 808 F.2d 1139, 1141 (5th Cir. 1987).

Plaintiffs contend that their experts and

the GAO report established sufficient

exposure to preclude summary judgment.‘

In response, Monsanto and GE argue that

because Plaintiffs would be required to

prove sufficient individual exposures at

(A-26)

‘Plaintiffs also argue that exposure

can be established through the testimony

of individual class members alone.

However they concede that the expert

reports are necessary "insofar as they set

forth the conclusion that such exposure

was at levels proximately causing harm and

justifying medical monitoring." Some

jurisdictions do require expert testimony

to prove causation. See, e.q., Cottle v.

Superior Court, 5 Cal. Rptr. 2d 882, 892

(Ct. App. 1992).

ee ee

:

trial, their failure to provide any expert

testimony on this element mandates the

entry of summary judgment.

It is clear that at some point in the

litigation Plaintiffs would be required to

prove individual causation and damages.

See e.q., Sterling v. Velsicol Chem.

Corp., 855 F.2d 1188, 1200 (6th Cir. 1988)

("generalized proofs will not suffice to

prove individual damages" ) (emphasis

added ). The expert reports established

that the release of chemicals from the

transformer had exposed Piti workers to

PCBs. As Plaintiffs concede, however, the

individual class members had _ varying

degrees of exposure. The experts made no

attempt to compare the exposure levels of

these different workers, nor did they

(A-27)

a

provide any estimates of the relative

increase in risk or need for future

monitoring. The experts simply concluded

that the workers had been exposed and, as

a group, were at risk for future injury

@ind required medical monitoring. This

testimony simply did not suffice to meet

the requirements of each chosen cause of

action.

A. Increased risk of future injury

[1] A plaintiff who seeks damages for

increased risk of future illness or injury

"Can recover only where he can show that

the toxic, exposure more probably than not

will lead to" the malady. Hagerty v. L &

L Marine Servs., Inc., 788 F.2d 315, 319

(A-28)

a Saat a lS AY Ce Ne Nig OTR et Oo 7

(Sth Cir.), modified on other grounds, 797

F.2d 256 (5th Cir. 1986). See also

Sterling, 855 F.2d at 1204 ("[w]Jhere the

basis for awarding damages is the

potential risk of susceptibility to future

disease, the predicted future disease must

be medically reasonably certain to

follow"); Mauro v. Raymark Indus., Inc.,

961 A.2d 257, 264 (N.J. 1989) ("plaintiff

must prove that the prospective disease is

at least reasonably probable to occur").

None of the expert reports contained such

a conclusion, and Plaintiffs do not claim

to have presented evidence on this

element. Summary judgment was appropriate

with respect to this issue.

(A-29)

a

B. Medical Monitoring

[2] Although this issue is more

difficult, we are convinced that the

district court's conclusion was correct.

In order to recover for costs of medical

monitoring, a plaintiff must prove 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 suffers a

significantly increased risk of

contracting a serious latent

disease.

(A-30)

we That increased risk makes

periodic diagnostic medical

examinations reasonably

necessary.

4. Monitoring and testing

procedures exist which make the

early detection and treatment of

the disease possible and

beneficial.

Brown v. Monsanto Co. (In re Paoli R.R.

Yard PCB Litigation), 916 F.2d 829, 852

(3d Cir. 1990), cert. denied, 111 S. Ct.

1584 (1991) (emphasis added). See also

Merry v. Westinghouse Elec. Corp. ,684 F.

Supp. 847, 852 (M.D. Pa. 1998) (requiring

"a significantly but unquantifiably

(A-31)

enhanced risk of serious disease"); Ayers

v. Township of Jackson, 525 A.2d 287, 312

(N.J. 1987) (requiring “expert testimony

predicated upon the significance and

extent of exposure to chemicals ... [and]

the relative increase in the chance of

onset of disease"). Because the district

court combined its discussion of medical

monitoring with that of increased risk, it

conducted no independent analysis of the

exposure required to sustain a medical

monitoring claim. The district court

merely concluded that Plaintiffs had not

presented competent expert evidence of

exposure.

[3] Both the Rutman and _ Becher

reports concluded in general that medical

(A-32)

monitoring was required in order to detect

early signs of PCB-induced illness in

Plaintiffs. Dr. Rutman also stated that,

in his opinion, "the exposures sustained

by Plaintiffs ees have significantly

increased their risk of cancer, birth

defects and other toxic effects, such as

hepatic dysfunction and abnormal immune

system function." Neither expert,

however, attempted to state how

"significant" or relative the increased

risk was for any individual, either in the

abstract or as compared to other members

of the class. Thus, their evidence failed

to meet the Paoli significance standard.

Moreover, the deposition testimony of

the experts undercut the force of their

reports. As the district court noted, Dr.

(A-33)

Brecher stated that "any exposure to 4

toxic substance, no matter how minute or

fleeting 206 justifies medical

monitoring." Similarly, Dr. Rutman stated

that “medical monitoring is justified at

any level of risk," and opined that

medical monitoring of the population at

large would be "a good idea." Given the

"amorphous" views of the experts and the

dearth of conclusions regarding the

quantitative (Or even qualitative)

increased risk to individuals, Plaintiffs

failed to create a genuine factual issue

on exposure and summary judgment was

appropriate.

TSECA

Ge

The district

“plaintiffs have

court

not

concluded that

only failed to show

individual exposure, they have failed to

show sufficient exposure, whether to

individuals or the group of plaintiffs as

a whole, even under Guam's extremely

plaintiff friendly

Son wno

"La]ny

per

toxic substances

federally permitted

bring an action for

Ann. § 41104.

Federally permi

exposure shall

levels of

determined by

[TSECA]."

expos

federally

TSECA allows

has been exposed to

at a level above

levels of exposure” to

lamages. lO Guam Code

lag« .

tteaqd levels of

maximum

mean tne

of humans as

ure

[sic]

regulatory agencies, including

but not limited to [the EPA,

OSHA, and NIOSH]. In the case

of

conflicting maximum per-

missible exposure levels, the

lowest maximum permissible

exposure level shall apply. For

exposure in the work place, the

eight-hour work place exposure

level shall be considered the

"federally permitted level of

exposure." If no eight-hour work

place exposure level exists, the

lowest applicable maximum

permissible exposure level shall

apply.

10 Guam Code Ann. §41103(3) (emphasis

added ).

The district court found that no

(A-36)

Plant sample revealed a PCB level higher

than the sole "eight-hour work place

exposure level," i.e., OSHA's standard (.5

mg/m3). See, 29 C.F.R. § 1910.1000(a)(2)

(Table Z-1-A) (1992).

On appeal, Plaintiffs argue that the

district court misread § 41103(3). They

argue that the Act considers the

"federally permitted level" to be "the

lowest maximum permissible" level,

regardless of whether or not another

agency has set an eight-hour «ork place

level. Plaintiffs then rely on Dr.

Rutman's statement that Plaintiffs

“necessarily inhaled contaminated air

containing in excess of NIOSH limits of 1

ug/m3 of PCBs" to support their TSECA

Claim. However, a plain reading of

(A-37 )

§41103(3) demonstrates that the "lowest

applicable maximum permissible exposure

level" applies only when there is no

eight-hour work place exposure level. The

parties agree that only OSHA has set an

eight-hour work place exposure level.

Because Plaintiffs have offered no

evidence that their exposures exceeded the

OSHA limit, summary judgment was proper on

the TSECA claim.

CONCLUSION

We affirm the district court's grant

of summary judgment on the grounds that

Plaintiffs failed to introduce sufficient

evidence of exposure to demonstrate the

requisite proximate cause. Because we

(A-38)

conclude that summary judgment was proper,

, we need not decide whether the denial of

Ha

Monsanto's motion to dismiss for lack of

personal jurisdiction was error.

AFFIRMED.

(A-39)

IN THE UNITED STATES DISTRICT COURT

FOR THE TERRITORY OF GUAM

BARTOLOME E. ABUAN, : Civil Action

et al., : No. 89-00031

Plaintiffs

Vv.

: DECISION AND ORDER

GENERAL ELECTRIC : RE DEFENDANTS '

COMPANY and : MOTION FOR

MONSANTO COMPANY, : SUMMARY JUDGMENT

Defendants

THIS MATTER came before the Court on

Thursday, January 30, 1992, for hearing of

defendants' three motions for summary

judgment. The motions seek summary

judgment on the grounds that 1) plaintiffs

have failed to show sufficient evidence of

exposure to toxic substances

(A-40)

(polychlorinated biphenyls, or PCBs), 2)

plaintiffs have failed to show present

injury and, 2) the asserted

unconstitutionality of Guam's "Toxic

Substance Exposure Compensation Act," upon

which plaintiffs base part of their

claims.

THE COURT, having reviewed all

matters on file, and having considered the

written and oral arguments of the parties

and all attached exhibits in support of

and opposition to the motion, and being

otherwise informed, rules as follows:

Summary Judgment Standard

Rule 56 of the Federal Rules of Civil

Procedure provides in part that a summary

judgment

(A-41 )

ener ee en Teer. eee eee ee er ee %

---Shall be rendered forthwith

if the pleadings, depositions,

answers to interrogatories, and

admissions on file, together

with the affidavits, if any,

show that there is no genuine

issue as to any material fact

and that the moving party is

entitled to judgment as a matter

of law.

"[T]he plain language of Rule 56(c)

mandates the entry of summary judgment,

after adequate time for discovery and upon

motion, against a party who fails to make

@ 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

(A-42)

eT ae

NN Aetna

wae... Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S.CT. 2548, 91 L.Ba.2d

265 (1986). There can be no "genuine

issue of material fact" if there is a

complete failure of proof concerning an

essential element of the non-moving

party's case, since such a failure renders

all other facts immaterial. Id., at 323.

"(T)here is no issue for trial unless

there is sufficient evidence favoring the

non-moving party for a jury to return a

verdict for that party.... If the

evidence is merely colorable... or is not

Significantly probative...sunmmary judgment

may be granted." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50, 106

S.Ct. 2505, 91 L.Ed.2d 202

(1986)(citations omitted). The mere

existence of some alleged factual dispute

is insufficient; there must be no genuine

issue of material fact. Id., at 248-249.

"As tc materiality, the substantive law

will identify which facts are material. *

x * That is, while the materiality

determination rests on the substantive

law, it is the substantive law's

identification of which facts are critical

and which are irrelevant that governs."

Dike « at 248. Summary judgment is

appropriate "If, under the governing law,

there can be but one reasonable conclusion

as to the verdict." Id., at 250.

(A-44)

Jurisdiction

This Court has jurisdiction based

upon diversity. 28 U.S.C. § 1332(a). As

a federal court sitting in diversity, the

Court must apply Guam substantive law.

Erie Railroad Co. v. Thompkins, 304 U.S.

64, 58 S.Ct. 817, 82 L.Ed.2d 1188 (1938).

Summary of Defendants' Argument

Defendants move for summary judgment

on three grounds: That plaintiffs have

failed to show any injury as to the common

law causes of action alleged in Claims One

(negligence and outrageous conduct), Two

(strict products liability), and Three

(breach of warranty) of their Third

Amended Complaint; that plaintiffs have

failed to present sufficient evidence of

exposure,

(A-45)

and thus cannot recover under either

common law or statutory claims; and,

finally, that the Guam Toxic Substance

Exposure Compensation Act of 1990 is

unconstitutional on several grounds,

including violations of equal protection

and due process.

For the reasons stated below,

defendants' three motions for summary

judgment are GRANTED.

Analysis

| Plaintiffs Have Failed to Show

Sufficient Evidence That Exposure, If

Any, Has Placed Them at Increased

Risk of Future Injury, Illness, or

Disease

Paragraph 4 of this Court's

scheduling order of September 28, 1990,

stated:

(A-46)

2 oe. a tee ann sel

By January 31, 1991°, each

claimant shall file and serve on

defendants all medical and

scientific opinions of experts,

based on a reasonable degree of

medical or scientific corteinty

and expressed in report form,

supporting each claimant's claim

that he or she was exposed to a

sufficient level of PCBs, PCDFs,

and/or dioxins as a result of

the Piti Power Plant incident to

require future medical

monitoring of said claimant and

that such exposure placed

claimant at

(A-47 )

in

°A subsequent order extended the time

which this information was to

provided to April 30, 199i.

be

increased risk of future injury,

illness or disease.

Plaintiffs have failed to 1) provide

any expert opinions based on a reasonable

degree of medical or scientific certainty

2) that individual plaintiffs 3) were

exposed to a sufficient level of toxic

substances 4) to warrant future medical

monitoring or 5) that any such exposure

placed a plaintiff at an increased risk of

future injury, illness, or disease.

a The Expert Opinions

Plaintiffs submitted three reports,

from Drs. Rutman, Schecter, and Brecher.

None of the reports complies with the

scheduling order or relevant legal

standards. The reports of Dr. Rutman and

(A-48 )

Dr. Brecher admittedly make no attempt to

indicate that any individual plaintiff was

exposed to a sufficient level of toxins to

justify future medical monitoring or

conclude that a plaintiff faced an

increased likelihood of future injury,

illness, or disease due to exposure.

Dr. Brecher believes that any

exposure to a toxic substance, no matter

how minute or fleeting, always places a

person at increased risk and justifies

medical monitoring. His personal belief

is so all-encompassing and amorphous that

it is of no utility in the context of this

lawsuit.

None of plaintiffs' three experts was

able to provide an opinion based on a

(A-49 )

reasonable degree of scientific or medical

certainty. A medical expert must be able

to articulate that there is more than a

mere possibility that a causal

relationship exists between a defendant's

negligence and the injury for which

plaintiff seeks damages. See, e.qd.,

Mayhew v. Bell S.S. Co., 917 F.2d 961 (6th

Cir. 1990). Accurate information

regarding the duration of exposure and

dcse is critical and the court is

justified in excluding expert opinions

based on “critically incomplete or grossly

inaccurate dosage or duration data."

Christophersen v. Allied Signal Corp., 939

F.2d 1106 (5th Cir. 1991).

(A-50)

Yo Individual Exposure

Plaintiffs have provided nothing

regarding the issue of individual

exposure.

Je Level of Exposure

Generally, mere exposure to toxic

chemicals does not provide the requisite

physical injury to entitle plaintiffs to

recover for emotional distress. Ball v.

Joy Mfq. Co., 755 F. Supp. 1344, 1364

(S.D.W.Va. 1990), aff'd without published

opinion as Joy v. Ball Technologies, Iinc.,

940 F.2d 651 (4th Cir. Aug. 5, 1991),

Petition for cert. filed 60 U.S.L.W. 3388

(U.S. Nov. 4, 1991) (No. 91-759).

(A-51)

Here, plaintiffs have not only failed

to show individual exposure, they have

failed to show sufficient exposure,

whether to individuals or the group of

plaintiffs as a whole, even under Guam's

extremely plaintiff-friendly Toxic

Substance Exposure Compensation Act

(TSECA).

TSECA requires a plaintiff to prove

exposure above "federally permitted levels

of exposure," which are defined as:

The maximum levels of exposure

of humans as_ determined by

federally (sic) regulatory

agencies, including but not

limited to the Environmental

Protection Agency, the

(A-52)

Occupational Safety and Health

Administration, and the National

Institute for Occupational

Safety and Health. In the case

of conflicting maximum

permissible exposure levels, the

lowest maximum permissible

exposure level shall apply. For

exposure in the work place, the

eight-hour work place exposure

level shall be considered the

"federally permitted level of

exposure." If no eight-hour

work place exposure level

exists, the lowest applicable

maximum exposure level shall

apply.

10 GCA § 41103(3).

(A-53)

Plaintiffs have failed to controvert

defendants' claim that there is only one

"eight-hour work place exposure level"

standard: The Occupational Safety and

Health Administration (OSHA) permissible

exposure level (PEL). There are no other

"federally (sic) regulatory agencies" that

provide an eight-hour work place standard

for PCBs.

The lowest OSHA PEL for PCBs is .5

mg/m3 (.5 milligrams per cubic meter or

900 micrograms per cubic meter). Numerous

air samples were taken at the Piti Power

Plant, beginning June 2, 1987, and

continuing through March of 1990, when the

Plant was declared free of contamination.

No samples ever taken revealed a PCB level

higher than the OSHA

(A-54)

standard. Thus, even under TSECA,

plaintiffs have failed to meet their

burden of showing sufficient exposure. 10

GCA § 41104(1).

4. Medical monitoring and Increased Risk

The requirements of the order are

also in keeping with established case law

from other jurisdictions.° in cased

claiming personal injury from exposure to

toxic substances, it is essential that the

plaintiff demonstrate that [he or] she

was, in fact, exposed to harmful levels of

such substances. " Maddy Vv. Vulcan

Materials Co., 737 F.Supp. 1528,

(A-55)

6 The Court has been unable to find

any reported cases from the Superior Court

of Guam which address the tort law issues

presented in this lawsuit.

1533 (D.Kan. 1990), citing Celotex Corp.,

Supra, 477 U.S. at 319. See, also, Renaud

v. Martin Marietta Corp., 749 F.Supp.

1545, 1555 (D.Colo. 1990)(plaintiff's

burden at summary judgment hearing is to

present a prima facie case of causation;

i.e. that he or she was exposed to

contaminants at levels sufficient to cav.2

the injuries alleged). A plaintiff ma,

not recover for continuing expenses of

periodic medical check-ups absent a

demonstrated injury. Hagerty v. L & L

Marine Services, Inc., 788 F.2d 315, 319

(5th Cir. 1986).

Plaintiffs have submitted no

competent evidence to indicate they fact

an increased risk of future injury,

(A-56)

‘

2

4

é

illness, or disease. Because a jury

cannot award damages based on speculation

or conjecture, a claim of increased risk

of future injury, illness, or disease must

be shown to be probable and reasonably

certain not a mere possibility. See,

e.g., Hagerty v. L & L Marine Services,

Inc., 788 F.2d at 319 (plaintiff can

recover only where he can show that the

toxic exposure more probably than not will

lead to disease); Herber v. Johns-Manville

Corp., 785 F.2d 79, 82 (3rd Cir. 1986)("A

future injury, to be compensable under New

Jersey law, must be shown to be a

reasonable medical probability." ); Jackson

vy. Johns-Manville Sales Corp., 781 F.2d

394, 411-412 (5th Cir.)(plaintiff with

asbestosis also

(A-57)

entitled to recover for the "reasonable

probability" of developing cancer in view

of medical evidence that he had a greater

than 50 percent chance of developing

cancer), cert. denied, 478 U.S. 1022

(1986); Dartez v. Fibreboard Corp., 765

F.2d 456, 466 (5th Cir. 1985) (under Texas

law, plaintiff may recover damages for a

disease that may develop in the future

only if it is established through expert

testimony that there is a reasonable

medical probability that the disease will

appear); Laswell v. Brown, 683 F.2d 261,

269 (8th Cir. 1982)(a lawsuit for personal

injuries cannot be based solely upon the

mere possibility of some future harm),

cert. denied, 459 U.S. 1219 (1983).

(A-58)

Where, as here, even 4 medical expert

cannot form an opinion with sufficient

certainty so as to make a medical

judgment, there is nothing on the record

with which a jury can make 4a decision with

sufficient certainty so as to make a legal

judgment. Fitzgerald v. Manning, 679 F.2d

341, 350 (4th cir. 1982)(in the context of

a medical malpractice lawsuit).

For the foregoing reasons, the Court

finds that plaintiffs did not fulfill

their duties under the scheduling order

and have failed to present a genuine issue

of material fact so as to preclude summary

judgment against them.

II. Plaintiffs Have Failed to Show Any

present Physical Injury

Defendants argue that plaintiffs

common law claims must fail because

plaintiffs do not allege any actual

present or past physical injury due to

exposure to PCBs. Defendants assert that

present injury is an essential element for

any claim for future risks or for fear

associated with those risks based on

exposure to PCBs. Defendants also note

(A-60)

ee

that plaintiffs have previously stated on

the record that "in the vast majority of

circumstances these [plaintiffs] have not

had physical injuries which are treatable

or observable at this point."’

(A-61 )

"Statement by attorney Bennet A.

McConaughy to Judge Rothstein, Hearing on

July 18, 1991, in Figueroa, et al v.

United States of America, Guam District

Court Civil No. 91-00030. All plaintiffs

in this matter are also plaintiffs in

Figueroa, although Figueroa also has

additional plaintiffs not parties to this

action.

Sitting in diversity, this Court

generally would follow Guam substantive

law. Erie Railroad Co. v. Thompkins,

Supra. However, as noted earlier, neither

the parties nor the Court have found any

Guam decisions on this issue. Insofar as

Guam's Legislature has, in TSECA, spoken

on the issue of the need for a present

injury, such element is implicit in the

Guam law.

As shown above, TSECA presumes an

injury only when exposure to a certain

level has been shown. Plaintiffs have

failed to show sufficient exposure. It is

not necessary to consider other aspects of

TSECA when it is clear that plaintiffs

have failed to surmount this’ hurdle.

Therefore, all other avenues

(A-62)

being foreclosed, the Court will rely for

its decision on traditional principles of

tort law regarding the elements of

negligence and outrageous conduct, strict

liability, and breach of warranty.

A cause of action for negligence

requires, inter alia, actual loss or

damage to the interests of another.

Prosser & Keeton, Torts, § 30, pp. 164-165

(5th ed. 1984). Intentional infliction of

emotional distress by extreme or

outrageous conduct requires "conduct

exceeding all bounds usually tolerated by

decent society, of a nature which is

especially calculated to cause, and does

cause, mental distress of a very serious

kind." Id., § 12 at 60-64. The "great

majority" of cases require actual

(A-63)

physical injury, id. at p. 64, but some

courts allow recovery "if the enormity of

the outrage itself carries conviction that

there has in fact been severe and serious

mental distress, which is neither feigned

nor trivial." oe Strict liability

requires a defendant to make good "any

actual harm" done to another. 14, | Fa,

p. 537. Finally, a breach of warranty

Claim also requires physical harm to

persons or tangible things. Id. §97, pp.

690-694.

Each of plaintiffs' chosen causes of

action requires as an essential element

that there be proof of a physical injury

(A-64)

®8California law is in accord. See,

Eisenberg _ v. Insurance Co. of North

America, 815 F.2d 1285, 1292 (9th Cir.

1987)(a cause of action for intentional

infliction of emotional distress arises

when the harm is inflicted; harm must be

"severe." )

ee

or evidence of severe and serious mental

distress. Most plaintiffs claim no

present physical injury. Of those

plaintiffs who do claim present physical

injuries, the injuries are limited to

insomnia, irritability, and other hard-to-

quantify general complaints. Headaches,

insomnia, anxiety, and irritability are

generally not a "severe" enough injury to

Support a cause of action for intentional

infliction of emotional distress. See,

e.g., Standard Wire & Cable Co. v. Ameri-

Trust Corp., 697 F. Supp. 368 (C.D.Cal.

1988). There is no evidence that any

plaintiff has sought or is currently under

medical or psychiatric care as a result of

the exposure to PCBs at the Piti Power

Plant.

(A-65)

Simply put, there is not before the Court

the quantum of evidence necessary to

sustain any of these common law causes of

action.

III. Guam's Toxic Substance Exposure

Compensation Act of 1990

It is fundamental and longstanding

principle of judicial restraint that a

court will avoid reaching constitutional

questions unless necessary. See, e.g.,

Lyng Vv. Northwest Indian Cemetery

Protective Ass'n., 485 U.S. 439, 108 S.Ct.

1319, 99 L.Ed.368 (1988). Because of the

analysis above, it is unnecessary to

consider any of the many constitutional

challenges to TSECA.’®

(A-66)

°For the same reason, the Court does

not decide whether it is necessary to

allow Guam's Attorney General to intervene

under 28 U.S.C. § 2403(b) to address any

questions of TSECA'S constitutionality.

CONCLUSION

Plaintiffs have failed to adequately

rebut defendants' assertion that

plaintiffs , having alleged no present

injury, have not stated a current cause of

action under the common law or Guam's

Toxic Substance Exposure Control Act. For

this reason, defendants ' motion for

summary judgment is GRANTED.

However, the Court wishes to make it

clear that it does not intend to foreclose

future causes of action by any of these

plaintiffs if and when an injury manifests

itself. The Court recognizes, as have

other courts and commentators, that those

who have been exposed to toxic torts fact

the dilemma of either having to sue before

the statute of limitations

(A-67 )

has run (and perhaps before any serious

injury has become evident) or having to

perhaps forego a remedy for a present,

less sei1ious injury, for fear that to

recover on it might later bar them from

recovery for a more serious illness or

disease that does not occur until years

later. Guam's TSECA also recognizes this

problem, and provides that the statute of

limitations can also be deemed to commence

from the date of discovery of the harm

caused by the exposure. 10 GCA §

41104(6). Common law also recognizes that

a cause of action for toxic torts can be

deemed to run from the date the injury

becomes apparent.

See, e.g., Hagerty, supra, 788 F.2d at

320.

(A-68 )

The U.S. Navy's monitoring program

continues, at no cost to plaintiffs; and

plaintiffs may yet institute their own

medical monitoring program. It is the

intent of the Court to expressly leave

available to any plaintiff a cause of

action for any injury or disease which

evidences itself in the future.

FOR THE FOREGOING REASONS,

defendants' three motions for Summary

judgment are GRANTED.

IT IS SO ORDERED.

DATED this 25th day of February,

1992.

(A-69)