Opposition Brief — General Electric Co. v. Ingram

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No. 94-1070

IN se i

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

GENERAL ELECTRIC COMPANY, et al.,

Petitioners,

Vv.

PATRICIA INGRAM, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Harold E. Kohn

Counsel of Record

Joseph C. Kohn

Martin J. D’Urso

Diana Liberto

KOHN, NAST & GRAF, P.C.

1101 Market St., Suite 2400

Philadelphia, PA 19102

(215) 238-1700

Arnold E. Cohen

KLEHR, HARRISON, HARVEY

BRANZBURG & ELLERS

1401 Walnut Street

Philadelphia, PA 19107

Attorneys for Respondents,

Patricia Ingram, et al.

D. Bruce Hanes

POWELL, O’SHEA, HANES &

MINEHART

1700 Market Street

Suite 3131

Philadelphia, PA 19103

(215) 972-8200

Attorneys for Respondents,

Christopher S. Brown, et al.

QUESTION PRESENTED

Should the Petition for Certiorari be denied where

all Courts of Appeal, including the Third Circuit,

recognize that decisions to admit expert testimony are

committed to the discretion of the district courts and thus

are to be reviewed for an abuse of such discretion?

- ii - |

TABLE OF CONTENTS

CAUSE PUMETEEED 6c ccc cet eewne en i

TABLES UP AUTHPOIEEe oc cbt cccccenses ill

ge er eer a 1

COUNTERSTATEMENT OF THE CASE ....... 2

REASONS FOR DENYING THE WRIT ........ 5

A. These Actions Are Not Ripe For

Be ss k-can ke eee eas eS Ow 5

B. No Conflict of Authority Exists To

Merit This Court’s Review Of The

Third Circuit’s Decision. .......... 6

1. The Courts Which Purportedly

Apply A “Manifestly Erroneous”

Standard Actually Review For An

Abuse of Discretion. ........ 8

& Those Circuits Which the

Petition Acknowledges Apply

An Abuse of Discretion

Standard Also Employ "Manifestly

Erroneous” Terminology. .... 14

5 As Demonstrated In The Decision

Below, The Third Circuit Also

Applies An Abuse Of Discretion

Ek kc tera ew 15

CPS 66k cane es iu eee sawenews 20

«fis

TABLE OF AUTHORITIES

CASES

American Construction Co. v. Jacksonville, T. & K.

ae Re . eee 5

Apostol v. United States,

bw & 0) le a | errr 10

Arleth v. Freeport-Moran Oil & Gas Co., 2 F.3d 630

I ee eee ee ee 11

Arnold v. Loose,

pe a a 16

Brotherhood of Locomotive Fireman v. Bangor & A.R.

a Be as EE CEPT so cc eeencecceens 5

- Cantrell v. GAF Corp.,

999 F.2d 1007 (6th Cir. 1993) ........... 12, 15

Carroll vy. Morgan,

op & & Sf. Te Ab, | | area 11

Cella v. United States,

pm fy Be A ee ee 13

Christophersen v. Allied-Signal Corp. , 939 F.2d 1106 (Sth

Cir. 1991), cert. denied, 112 S.Ct. 1280 (1992) .. 11

Coleman v. Parkline Corp.,

844 F.2d 863 (D.C. Cir. 1988) ............ 15

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

ep ee 5) ee eee 6, 13

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

1995 U.S. App. LEXIS 12 (9th Cir. Jan. 4, 1995) 3, 18

Davidson Oil Country Supply v. Klockner, Inc.,

908 F.2d 1238 (Sth Cir. 1990) ........... 11, 12

DeLuca v. Merrell Dow Pharmaceuticals, Inc.,

ip & fF. l> 3 rr 16

deMars v. Equitable Life Assur. Soc. of U.S..,

ee fo: fe ae | oer 19

nies

E.E.O.C. v. State of Delaware DHSS

8 Ee Se

Environmental Defense Fund, Inc. v. EPA,

Ce

Environmental Defense Fund, v. EPA,

ee ie A ee a

Evans v. Mathis Funeral Home, Inc.,

996 F.2d 266 (11th Cir. 1993) .............

Forbro Design Corp. v. Raytheon Co.,

ie ey Ti le A 6

General Ill. Electro Music Corp. v. Samick Music

Corp., 19 F.3d 1405 (Fed. Cir. 1994) ........

Grove v. Dun & Bradstreet, Inc.,

ee ee ee ee

Hamling v. United States,

as 4 Ss 0 as 0 wo 8 00 8

Kearns v. Keystone Shipping Co..,

Bef) le Sh re

Liggons v. Roehm Gmbh,

1993 U.S. App. LEXIS 1335 (6th Cir. 1993) .

Lutz Farms vy. Asgrow Seed Co.,

948 F.2d 638 (10th Cir. 1991) .............

Malarkey v. Texaco, Inc.,

983 F.2d 1204 (2d Cir. 1993) .............

Marcel v. Placid Oil Co.,

ea a

Mars v. United States,

roP BG Fy Le A. | ee

Matter of Quanta Resources Corp.,

yop he po. Le | ee

Morgan v. District of Columbia,

824 F.2d 1049 (D.C. Cir. 1987) ............

-V-

Nat’l Metal Finish. Co., Inc. v. Barclays American/

Commercial, Inc., 899 F.2d 119 (1st Cir. 1990) ... 7

In re Paoli Railroad Yard PCB Litigation, 35 F.3d

ripe: 1: 3 | Eee 1,2,4,15,16,17,18

In re Paoli Railroad Yard PCB Litigation,

916 F.2d 829 (3d Cir. 1990), cert. denied,

gS Re are 5

In re Paoli Railroad Yard PCB Litigation,

Civil Action No. 92-08542 (CCP Chester County) .. 2

Peteet v. Dow Chemical Co.,

868 F.2d 1428 (Sth Cir.), cert. denied,

og a ne 8

Pierce v. Underwood,

ee ee ne oes oe eee Ne 7

Richardson v. Consolidated Rail Corp., 17 F.3d 213

Te as i gs ad 6 0 ew ae 8 14

Rogers v. Raymark Industries, Inc..,

922 F.2d 1426 (9th Cir. 1991) ........... eae

Rosado v. Deters,

Ee BR fe 8 a. rr 11

Rosenfield v. Wellington Leisure Prods..,

827 F.2d 1493 (llth Cir. 1987) ............ 19

Sage Realty Corp. v. Insurance Co. of North America,

34 F.3d 124, 128 (2d Cir. 1994) .......... a, 4

Salem v. United States Lines,

ee ee I ee ec ee ewes 7, 12, 14

Simon v. Shearson Lehman Bros. ,

895 F.2d 1304 (llth Cir. 1990) ............ 19

United States v. Aminy,

poe BF ee 10

United States v. Angiulo,

847 F.2d 956 (1st Cir. 1988), cert. denied,

408 US. G2 & Fae (ISSR) ww ce 10

United States v. Angiulo,

- vi -

897 F.2d 1169 (1st Cir. 1990) .............. 9

United States v. Bartley,

855 F.2d 547 (8th Cir. 1988) ............. 15

United States v. Bilzerian,

926 F.2d 1285 (2d Cir. 1990) .............. 7

United States v. Bolton,

1994 U.S. App. LEXIS 4888 (6th Cir. 1994) .... 13

United States v. Bonds,

eo Re A: | 12,17

United States v. Daccarett,

eT, 10

United States v. Echeverri,

See Fade Gro (het Cir. 1993)... wc ce 10

United States v. Grandison,

780 F.2d 425 (4th Cir. 1985) ............. 14

United States v. Hauert,

1994 U.S. App. LEXIS 31882 (7th Cir. 1994) .... 7

United States v. Hoffman,

832 F.2d 1299 (Ist Cir. 1987) ............. 10

United States v. Howard,

1994 U.S. App. LEXIS 31536 (6th Cir. 1994) ... 12

United States v. Ladd,

885 F.2d 954 (Ist Cir. 1989) ...........0... 9

United States v. MacDonald,

688 F.2d 224 (4th Cir. 1982) ............. 14

United States v. Nallie,

1994 U.S. App. LEXIS 230 (6th Cir. 1994)..... 13

United States v. Onumonu,

967 F.2d 782 (2d Cir. 1992) .............. 11

United States v. Ortiz,

804 F.2d 1161 (10th Cir. 1986) ............. 8

United States v. Pearce,

org we Ff 8 7

- Vil -

United States v. Quiroz,

AES § Fo" | Re.) | rarer 11

United States v. Rahm, :

S33 F.2e 1405 Ge Cir. 1993)... ccc we 15

United States v. Sepulveda,

ee BF) ee oe Ae, ) rare 9

United States v. Shorter,

Sap we oe Ge Gt. TPS) ww ts 15

United States v. Simpson,

ree @ 7) Ve Ae...) rr 15

Wallace v. Mulholland,

hye Fee Eo ae |. >) rrr 13

Williams v. Poulos,

Eee 8 oe ee re 10

Wilmington v. J.I. Case Co.,

tae Fume wow Came CO, TODD Cw kc ee eee 15

Wilson v. Chicago, 6 F.3d 1233 (7th Cir. 1993)... 8, 13

STATUTES

ae Sa I es alg Sd oe ae oe a Se oe ee 3

RULES

Pee ey ga Cee co ak ews ae 18

Pe ee a ea a ea ee ee oe 11

MISCELLANEOUS

See Ce. BOG. Get CG) wc cece eee 3

a ra 19

The Philadelphia Inquirer, Oct. 6, 1992 at Fl ..... 17

Childress & Davis, Standards of Review §4.2 (1986) .. 8

3 Weinstein’s Evidence 702[2] ..............4. 8

22 Wright and Graham, Federal Practice and

Procedure: Evidence §5166 (1994 Supp.) ....... 8

INTRODUCTION

Every Circuit Court recognizes that decisions to

admit scientific evidence are committed to the discretion of

trial courts. Such decisions are to be reviewed, therefore,

for an abuse of such discretion. The Petition for Certiorari

rests on a fallacy: that some appellate courts review for

"abuse of discretion” while others review for "manifest

error." As Respondents, Patricia Ingram, et al.',

demonstrate below, however, these two terms are used

interchangeably to describe the same deferential standard of

review. Because it raises a mere matter of terminology,

not a split among the Circuits on a matter of substance, the

Petition should be denied.

' This brief is filed on behalf of two groups of litigants,

referred by the court below as the "’Kohn /Klehr’ plaintiffs" (John

Ingram, Sr. in his own right and for Patricia Ingram, deceased; April

Ingram Robinson-Ray; John Ingram, Jr.; Mabel Brown; George

Burrell, Priscilla Etheridge Burrell, in their own right and as parents

and natural guardians of Amber Shardai Burrell, a minor; Priscilla

Etheridge Burrell, as parent and natural guardian of Monica Hilton, a

minor; Wallace D. Cummins; K. Louise Jones, in her own right and as

Admuinistratrix of the Estate of Harvey N. Jones, Jr., deceased; James

Lament; Mary Knight; William Butler; Theresa Butler; Marvin

Simpson; Alan Simpson; Karen Simpson; Donald Simpson; Brian

Jackson; Bessie Cunningham, in her own right and as representative of

Matthew Cunningham) and the "’Hanes’ plaintiffs” (Christopher S. and

Jacqueline M. Brown; Cathlene Brown; Craig A. Brown; Catherine D.

Brown; Mary Retta Johnson; Margherita Barbetta; Celeste Brown,

Clemmon L. Brown, Cloyd Brown, and Curtis Brown). See In re

Paoli Railroad Yard PCB Litigation, 35 F.3d 717, 736 (3d Cir. 1994)

(hereafter, Paoli II).

2.

COUNTERSTATEMENT OF THE CASE

Petitioners’ Statement of the Case contains

misstatements and omissions.” Respondents adopt by

reference the statement of facts in the opinion presented for

review and emphasize the following:

1. These consolidated actions were

commenced in 1986 on behalf of 38 people who

live adjacent to the Paoli Railroad Yard (the

"Yard") to recover for personal injuries and

property damage caused by polychlorinated

biphenyls ("PCBs") and other related transformer

fluid toxins, including PCDFs ("furans") and

PCDDs ("dioxins"). These chemicals were used,

leaked, spilled, and discharged at the Yard for more

than thirty years. Most related claims (i.e., those

of more than 250 other individuals arising from the

same PCB contamination of the Yard) are pending

in Pennsylvania state court, Jn re Paoli Railroad

Yard PCB Litigation, Civil Action No. 92-08542

(CCP Chester County). A class-wide settlement

with one defendant has been approved under

Pennsylvania class action rules.

? For example, the Certiorari Petition states (at 3) that

Respondents offered the opinions of two physicians and one physicist

at the in limine hearing. This disregards the testimony of a chemist

found to be persuasive by the Third Circuit, Paoli Il, 35 F.3d at 778,

the opinions of a chemical engineer and real estate expert as to whom

Petitioners’ motions in limine were denied, and the voluminous

documentary evidence offered in support of the disputed expert

enema

~ ¥

2. Virtually every major industrialized

nation, including the United States, has banned or

severely restricted the manufacture, sale, and use of

PCBs.” Thus, in this case, it is the conclusions of

Petitioners’ experts which are at odds with those

consistently reached by courts, legislatures, and

pertinent administrative agencies. Cf. Daubert v.

Merrell Dow Pharmaceuticals, Inc., 1995 U.S.

App. LEXIS 12 at *21 n.9 (9th Cir. Jan. 4, 1995)

(the FDA continues to approve Bendectin for use by

pregnant women and it is still widely used in this

fashion abroad).

3. The Paoli Railroad Yard is a part of a

notorious Superfund site,* once described by the

National Institute for Occupational Safety and

Health (NIOSH) as having the worst PCB

contamination ever encountered during a health

* The Toxic Substances Control Act ("TSCA") focuses primarily

on PCBs and bans, inter alia, their manufacturer. See 15 U.S.C.

§2605(e). TSCA was supported by unequivocal findings, such as: "[1|

PCBs have been found... to cause severe skin and liver problems in

humans.... [and] [2] [t}here is no dispute over their toxicity to wildlife

and to humans.” 122 Cong. Rec. 8281 (1976). See also

Environmental Defense Fund, v. EPA, 598 F.2d 62, 65-66, 84 n.78

(D.C. Cir. 1978) (PCBs are extremely toxic to humans and are

suspected of causing a significent share of health and ecological

problems) (quoting the Sixth Annual Report of Council on

Environmental Quality 108 (1975)); accord Matter of Quanta

Resources Corp., 739 F.2d 912, 913 n.1 (3d Cir. 1984), cert. granted

469 U.S. 1207 (1985), aff'd, 474 U.S. 494 (1986); Environmental

Defense Fund, Inc. v. EPA, 636 F.2d 1267, 1270 (D.C. Cir. 1980).

* The EPA Site includes the 28 acre railroad yard and the adjacent

watershed in which Respondents reside. (A6127).

ee

inspection. (A4046). It is located at the crest of a

hill; the Respondents live downgradient from it in

the area identified by the Environmental Protection

Agency (EPA) as having experienced the most

severe PCB runoff. (A6204).

4. In 1992, six years after completing

emergency remediation work and almost a decade

after PCBs were removed from nearby trains, the

EPA determined that PCBs were still found at the

Yard and Respondents’ homes at dangerous levels.

Thus, in its July 1992 Record of Decision (ROD)

regarding the Paoli Site, the EPA ordered further

remedial actions, including: (1) reducing the level

of PCBs in soil at the Yard to 25 parts per million

("ppm"), (2) reducing the level of PCBs in

residential soils to 2 ppm, (3) erecting new erosion

controls to reduce water runoff from the Yard to

Respondents’ homes, and (4) creating deed

restrictions to prohibit any residential or agricultural

use of the Yard. (A6123-25). Although EPA

submits that these actions, when completed, will

reduce "excess cancer risks” to acceptable levels, it

acknowledges that hazardous substances will be left

on site "above health-based levels." (A6125).

5. In the decision now presented for

review, In re Paoli Railroad Yard PCB Litigation,

35 F.3d 717 (3d Cir. 1994) (hereafter, Paoli IN),

the Third Circuit stated no fewer than sixteen times

that it would only reverse those decisions of the

trial court which constituted an "abuse of

discretion.” See infra §B3. Using this deferential

standard, most of the district court’s evidentiary

Sa

is

decisions were affirmed. The same cannot be said

of the first series of evidentiary rulings (and grants

of summary judgment) in these cases. See In re

Paoli Railroad Yard PCB Litigation, 916 F.2d 829

(3d Cir. 1990), cert. denied, 499 U.S. 961 (1991)

(hereafter, "Paoli I").°

REASONS FOR DENYING THE WRIT

A. These Actions Are Not Ripe For Review

Because there has not been a final disposition in this

matter and it has been remanded for further proceedings, it

is not ripe for review by this Court. See, e.g.,

Brotherhood of Locomotive Fireman v. Bangor & A.R.

Co., 389 U.S. 327, 328 (1967); American Construction

Co. v. Jacksonville, T. & K. R. Co., 148 U.S. 372, 284

(1893).

* In Paoli I, the Third Circuit concluded that the district court

abused its discretion repeatedly, first, by failing to conduct an adequate

"factual inquiry” into the disputed issues of scientific reliability. Paoli

I, 916 F.2d at 836, 853. Indeed, the trial judge granted defendants’

motions in limine without so much as oral argument and then failed to

articulate his reasons for doing so. Id. Moreover, the district court

abused its discretion by insisting on a "certain kind of degree or

background” for Respondents’ experts, id. at 855-56, making

“credibility judgments,” id. at 858, insisting that scientific evidence

not “peer reviewed" was inherently unreliable, id., and entering an

unduly restrictive "case management order” which, inter alia, denied

Respondents an opportunity to discover Petitioners’ experts’ positions.

Id. at 854.

~

The Third Circuit has remanded this matter, for a

second time, for trial. At trial, some but not all of the

expert testimony at issue may be offered, and it may or

may not be accepted by the jury. This case, which has

already been in suit for almost nine years, thus may be

resolved in a number of ways that will render moot the

decisions about which Petitioners complain. Moreover, as

shown below, no conflict of authority exists which might

justify this Court’s intervention at this time.

B. No Conflict of Authority Exists

To Merit This Court’s Review Of

The Third Circuit’s Decision.

While this Court’s decision in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993), did

not comment upon the well-established rule that evidentiary

decisions are committed to trial judges’ discretion, the

Petitioners argue that it has somehow engendered three

disparate standards among the Circuits.° More

particularly, Petitioners argue that in the wake of Daubert

the First, Second, Fifth, Sixth and Seventh Circuits reverse

only for "manifest error.” See Petition For A Writ of

Certiorari at 12-13. Conversely, the Fourth, Eighth,

Ninth, Tenth and D.C. Circuits purportedly apply what

Petitioners call a “simple” abuse of discretion standard,

id. at 13, while the Third Circuit, in the decision presented

° Though preceding Daubert, Petitioners made the same argument

as they do now in their unsuccessful 1990 Certiorari Petition. See

General Electric Co., et al., v. Knight, et al., Reply In Support of

Petition for a Writ of Certiorari, at 6, No. 90-1309 (Oct. Term 1990)

(the Third Circuit failed to apply the so-called “clearly erroneous”

standard of review).

=

for review, applied what Petitioners must regard as a

"complex" abuse of discretion standard of review.’

As Petitioners must acknowledge, all Circuits

recognize that evidentiary decisions are committed to trial

judges’ discretion. Thus, they are to be reviewed for an

abuse of that discretion. See, e.g., Pierce v. Underwood,

487 U.S. 552, 558 (1988). Contrary to Petitioners’

argument, there is no practical difference between the

“abuse of discretion” and "manifest error" terms used to

describe the deferential standard of review given trial

judges’ evidentiary decisions. See, e.g., Hamling v.

United States, 418 U.S. 87, 108 (1974) ("abuse-of-

discretion" standard); Salem v. United States Lines, 370

U.S. 31, 35 (1962) ("clearly erroneous” standard); United

States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1990)

(citing Salem as requiring an “abuse of discretion"

standard), cert. denied, 112 S.Ct. 163 (1991).* See

7 Although they do not so state, Petitioners apparently view the

so-called “simple” abuse of discretion standard as less deferential than

the “manifestly erroneous" standard which they prefer.

* Indeed, some opinions define an abuse of discretion as a

“clear” or "manifest" error. E.g., Sage Realty Corp. v. Insurance Co.

of North America, 34 F.3d 124, 128 (2d Cir. 1994) (evidentiary

“determinations will not be reversed in the absence of an abuse of

_ discretion amounting to manifest error"); United States v. Hauert,

1994 U.S. App. LEXIS 31882 *13 (7th Cir. 1994) (finding “no abuse

of discretion, no clear error" in preclusion of lay opinion testimony);

United States v. Pearce, 912 F.2d 159, 163 (6th Cir. 1990) (admission

of expert testimony is reviewed for “abuse of discretion" and sustained

unless "clearly erroneous"), cert. denied, 498 U.S. 1093 (1991);

National Metal Finishing Co., Inc. v. Barclays American/Commercial,

Inc., 899 F.2d 119, 123 (1st Cir. 1990) (“abuse of discretion" found if

(continued...)

wh.

generally 1 S. Childress & M. Davis, Standards of Review

§4.2 at 233 (1986) (review of expert testimony decisions

for manifest error “appears to work out to an abuse of

discretion test").” Indeed, as demonstrated below, the

"abuse of discretion” and "manifest error" terms are used

in a i Circuits, often interchangeably, to illustrate that

every possible error made by a trial court in admitting or

excluding evidence need not be reversed. See infra pp. 9,

12, 16-17."°

1. The Courts Which Purportedly

Apply A "Manifestly Erroneous"

Standard Actually Review For An

Abuse of Discretion.

Petitioners erroneorsly argue that the First, Second,

Fifth, Sixth and Seventh Circuits review for "manifest

*(.. continued)

a decision is “clearly erroneous"); United States v. Ortiz, 804 F.2d

1161, 1164 n.2 (10th Cir. 1986) ("abuse of discretion” found if

decision is “clear error").

° Compare 22 Wright and Graham, Federal Practice and

Procedure: Evidence §5166, at 28 (1994 Supp.) (trial judges’

evidentiary decisions are reviewed for an “abuse of discretion") with 3

Weinstein’s Evidence [702[2], at 702-22 to 702-23 (1994) (trial

judges’ evidentiary decisions are reviewed for “manifest error”). ’

10 See, e.g., Wilson v. City of Chicago, 6 F.3d 1233, 1238 (7th

Cir. 1993) (contrasting simply evidentiary error with an “abuse of

discretion"); cert. denied, 114 S. Ct. 1844 (1994); Peteet v. Dow

Chemical Co., 868 F.2d 1428, 1434 (Sth Cir.) (contrasting the

admission of expert testimony assumed arguendo to have been in error

with an evidentiary decision that is “manifestly erroneous”), cert.

denied, 493 U.S. 935 (1989).

a ae ai i a tt

sie

error,” not an "abuse of discretion.” See Petition For A

Writ of Certiorari (hereafter, "Petition”), at 12-13.

The first decision which, according to Petitioners,

exemplifies the "manifestly erroneous” line of cases is

United States v. Sepulveda, 15 F.3d 1161, 1183 (ist Cir.

1993). Of pertinent concern there was whether the trial

court’s concededly erroneous denial of a motion in limine

constituted reversible error.'' In resolving this question,

the court emphasized that trial judges have "substantial

discretion” in connection with the admission of opinion

evidence and, thus, their rulings are upheld unless

"manifestly erroneous.” Id. at 1183, quoting Salem v.

United States Lines Co., 370 U.S. 31, 35 (1962). That

Sepulveda did not announce a standard of review different

from the "abuse of discretion” standard is apparent when

one examines the four Fed.R.Evid. 702 cases on which the

court relied, see 15 F.3d at 1184: (1) United States v.

Angiulo, 897 F.2d 1169, 1189 (1st Cir.) (the district court

did not abuse its discretion in permitting expert testimony

as to defendants’ roles in a poker operation), cert. denied,

498 U.S. 845 (1990); (2) United States v. Ladd, 885 F.2d

954, 960 (ist Cir. 1989) (district court “acted well within

its discretion" in permitting expert testimony regarding the’

"idiom and workings of the heroin community"); (3)

'' The prosecution in Sepulveda sought to introduce the testimony

of a police commander with regard to the defendant’s intent to

distribute drugs. After a related motion in limine was denied, the

police commander began to testify. Cross-examination revealed, _

however, that his testimony was highly speculative. Accordingly, the

trial court granted a motion to strike his testimony and instructed the

jury in language described as “firm, clear, and to the point” to

disregard the commander’s testimony in its entirety. 5 F.3d at 1182-

83.

-10-

United States v. Angiulo, 847 F.2d 956, 975 (ist Cir.

1988) (the district court did not “abuse its discretion” in

admitting FBI agent’s testimony about defendants’

relationships with a criminal organization); cert. denied,

488 U.S. 852 & 488 U.S. 928 (1988); (4) United States v.

Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987) (court did

not "abuse [its] discretion” in permitting agent to testify as

a DEA expert on the practices and idiom of the cocaine

community). '

Petitioners’ argument that the Second Circuit

applies a "manifestly erroneous” standard is based upon

United States v. Daccarett, 6 F.3d 37 (2d Cir. 1993), cert.

denied sub nom. Creaciones Viviana Lida. v. United

States, 114 §.Ct. 1294, 1295, 1538 (1994). Primarily

concerned with the constitutionality of certain warrantless

seizures, this opinion quickly resolved the only evidentiary

dispute before it: whether opinion testimony from someone

identified only as a fact witness constituted unfair surprise.

In response, the Second Circuit simply noted, “Judge

Weinstein’s determination that this testimony would help

the jury was neither ’manifestly erroneous’ nor a ’clear

abuse of discretion.’" Jd. at 58. As in the First and every

other Circuit, these terms are used interchangeably in the

Second Circuit. See, e.g., United States v. Aminy, 15

'2 See also Williams v. Poulos, 11 F.3d 271, 282 (ist Cir. 1993)

(abuse of discretion is the standard); United States v. Echeverri, 982

F.2d 675, 680 (1st Cir. 1993) ("manifest abuse of the trial court’s

discretion"); Apostol v. United States, 838 F.2d 595, 599 (ist Cir.

1988) (finding no “abuse of discretion" after quoting "manifestly

erroneous” language from Salem); Forbro Design Corp. v. Raytheon

Co. , 532 F.2d 758, 762 (ist Cir. 1976) (citing Salem for the

proposition that the appropriate standard of review is an “abuse of

discretion").

<a.

F.3d 258, 261 (2d Cir. 1994) (trial court’s decisions to

admit testimony under Fed.R.Evid. 702 will be upheld

absent "manifest error or abuse of discretion").'°

Petitioners’ argument that the Fifth Circuit applies a

"manifestly erroneous” standard is based upon Rosado v.

_ Deters, 5 F.3d 119 (Sth Cir. 1993), quoting Christophersen

v. Allied-Signal Corp., 939 F.2d 1106 (Sth Cir. 1991) (en

banc; applying Frye), cert. denied, 112 S.Ct. 1280 (1992).

While both of these cases contain "manifestly erroneous"

language, both applied an abuse of discretion standard of

review. See Rosado, 5 F.3d at 124 (no “abuse of

discretion" in excluding accident reconstructionist’s opinion

because he could not identify its physical or mathematical

bases); Christophersen, 939 F.2d at 1115 (trial court had

not "abuse[d] its discretion” in excluding unreliable

medical testimony). '

'9 See also United States v. Quiroz, 13 F.3d 505, 513 (2d Cir.

1993) (no abuse of discretion found in admitting expert report);

Malarkey v. Texaco, Inc., 983 F.2d 1204, 1210 (2d Cir. 1993) (a

"manifestly erroneous” evidentiary decision is an abuse of the trial

court’s discretion); United States v. Onumonu, 967 F.2d 782, 786 (2d

Cir. 1992) (reviewing for an abuse of discretion means that “clearly

erroneous" evidentiary decisions are to be reversed). See generally

Sage Realty Corp. v. Insurance Co. of North America, 34 F.3d 124,

128 (2d Cir. 1994) (evidentiary determinations are upheld absent “an

abuse of discretion amounting to manifest error").

'* See also Carroll v. Morgan, 17 F.3d 787, 789-90 (Sth Cir.

1994) (trial judge’s decision to admit expert testimony is reviewed for

an abuse of discretion) (reh’g en banc denied, 26 F.3d 1117); Marcel

v. Placid Oil Co., 11 F.3d 563, 568 (Sth Cir. 1994) (same); Arleth v.

Freeport-Moran Oil & Gas Co., 2 F.3d 630, 635 (Sth Cir. 1993)

(same) (reh’g denied, 9 F.3d 105). See generally Davidson Oil

(continued...)

- 12.

Petitioners’ argument that the Sixth Circuit applies a

"manifestly erroneous" standard is based upon United

States v. Bonds, 12 F.3d 540, 544 (6th Cir. 1993), and

Cantrell v. GAF Corp., 999 F.2d 1007, 1014 (6th Cir.

1993), two decisions in which the appellate court was

presented with admitted or assumed evidentiary mistakes

and therefore emphasized the "manifestly erroneous”

language of Salem, 370 U.S. at 35. In Bonds, DNA

evidence had been admitted by the district court under the

Frye standards that were subsequently rejected in Daubert.

12 F.3d at 554-555. The court refused to reverse the

underlying criminal conviction because this admittedly

irregular evidentiary ruling did not constitute “manifest

error.” Id. at 554. At the same time, the court stated the

general rule: "We review the trial court’s admission of

testimony and other evidence under an abuse of discretion

standard." Id. Likewise, in Cantrell, the court refused to

overturn a judgment based in part on a doctor’s personal

observations linking laryngeal cancer to asbestos. 999

F.2d at 1012-13. Even if this testimony were erroneously

admitted, it did not constitute "manifest" error. Jd. at

1014. At the same time, the standard of review is that a

“trial court’s exercise of discretion” will not be disturbed.

Id.

'4(...continued)

Country Supply v. Klockner, Inc., 908 F.2d 1238, 1245 (Sth Cir.

1990).

'S See also United States v. Howard, 1994 U.S. App. LEXIS

31536 (6th Cir. Nov. 8, 1994) (admission of expert testimony “is

(continued...)

«She

Petitioners’ argument that the Seventh Circuit

applies a "manifestly erroneous” standard of review is

based upon Mars v. United States, 25 F.3d 1383 (7th Cir.

1994), a personal injury action brought under the Federal

Tort Claims Act. The Seventh Circuit affirmed a decision

(made by a magistrate judge) that the plaintiff's neck

injuries were pre-existing, not suffered in a collision with a

postal vehicle. In response to appellant’s argument that

this finding was based on unreliable expert evidence, Judge

Posner clarified the "mistaken dictum" in Cella v. United

States, 998 F.2d 418, 423 (7th Cir. 1993), which appeared

to state that courts of appeal review trial judges’

evidentiary decisions de novo. Mars, 25 F.3d at 1384.

Instead, trial judges’ evidentiary decisions are not reversed

unless "clearly erroneous." Jd. Pertinent Seventh Circuit

jurisprudence equates such an error with an abuse of

discretion. See, e.g., Wilson v. City of Chicago, 6 F.3d

1233, 1238 (7th Cir. 1993) (per Posner, J.) (new trial

warranted because certain evidentiary errors were not

“harmless” but, as to others, including medical testimony

challenged under Daubert, the "judge [did not] abuse[] his

discretion"); cert. denied, 114 S. Ct. 1844 (1994).'®

'S(, continued)

reviewed for abuse of discretion"); United States v. Nallie, 1994 U.S.

App. LEXIS 230 (6th Cir. Jan. 6, 1994) (same); Liggons v. Roehm

Gmbh, 1993 U.S. App. LEXIS 1335, *9 (6th Cir. Jan. 20, 1993)

(same). See also United States v. Bolton, 1994 U.S. App. LEXIS

4888, *6 (6th Cir. March 15, 1994) (describing standard as both

“manifest error” and abuse of discretion, holding no such abuse

existed).

'¢ See, e.g., Wallace v. Mulholland, 957 F.2d 333, 336 (7th Cir.

1992) (abuse of discretion review given to decisions to admit or

(continued...)

7:

2. Those Circuits Which The Petition

Acknowledges Apply An Abuse of

Discretion Standard Also Employ

"Manifestly Erroneous" Terminology.

Though Petitioners’ recognize that the Fourth,

Eight, Ninth, Tenth and District of Columbia Circuits

apply an "abuse of discretion” standard of review, they

erroneously suggest that this standard conflicts with the

decisions reviewed in §1 above. Yet, in each of the

following decisions, the court reviewed the admission or

exclusion of expert testimony under an "abuse of

discretion” standard while also quoting the "manifestly

erroneous” language of Salem v. United States Lines, 370

U.S. 31, 35 (1962)."”

In the Fourth Circuit, see, e.g., United States v.

Grandison, 780 F.2d 425, 433 (4th Cir. 1985); United

States v. MacDonald, 688 F.2d 224, 228 (4th Cir. 1982),

cert. denied, 459 U.S. 1103 (1983).

'*_ continued)

exclude expert testimony). See also Richardson v. Consolidated Rail

Corp., 17 F.3d 213, 218 (7th Cir. 1994) (because trial court has broad

discretion in admitting expert testimony, its decisions will only be

reversed if “manifestly erroneous"; admission of non-expert testimony

is likewise reviewed for an abuse of discretion; here, any error in

allowing doctors to testify was "“harmless”).

'’ See also General Ill. Electro Music Corp. v. Samick Music

Corp., 19 F.3d 1405, 1409 n.2 (Fed. Cir. 1994) (district court’s

decision to admit or exclude expert testimony are not disturbed absent

an abuse of discretion); Evans v. Mathis Funeral Home, Inc. , 996

F.2d 266 (1ith Cir. 1993) (same).

- 15 -

In the Eighth Circuit, see, e.g., United States v.

Bartley, 855 F.2d 547, 551 (8th Cir. 1988); Wilmington v.

J.I. Case Co., 793 F.2d 909, 919 (8th Cir. 1986).

In the Ninth Circuit, see, e.g., United States v

Rahm, 993 F.2d 1405, 1418 (9th Cir. 1993); Rogers v.

Raymark Industries, Inc. 922 F.2d 1426, 1429, 1431 (9th

Cir. 1991).

In the Tenth Circuit, see, e.g., United States v.

Simpson, 7 F.3d 186, 188 (10th Cir. 1993); Lusz Farms v.

Asgrow Seed Co., 948 F.2d 638, 647 (10th Cir. 1991).

In the District of Columbia Circuit, see, e.g.,

Coleman vy. Parkline Corp., 844 F.2d 863, 866 (D.C. Cir.

1988); United States v. Shorter, 809 F.2d 54, 57 (D.C.

Cir. 1987) cert. denied, 484 U.S. 817 (1987). Cf Morgan

v. District of Columbia, 824 F.2d 1049, 1069 (D.C. Cir.

1987) (whether expert testimony was required to prove

case also is a matter left to court’s discretion; it and related

decisions are sustained unless "clearly erroneous").

3. As Demonstrated In The Decision Below,

The Third Circuit Also Applies An Abuse

Of Discretion Standard.

In the decision presented for review, the Third

Circuit stated and repeatedly demonstrated that evidentiary

decisions are reviewed for an abuse of discretion -- the

same standard applied in all other circuits. In re Paoli

Railroad Yard PCB Litigation, 35 F.3d 717, 749-50 (3d

Cir. 1994). Thus, most of the trial court’s determinations

were upheld, including some thought to be erroneous. For

example, while litigants should be permitted to depose

=

opposing experts who testify at in limine hearings, the

Third Circuit "conclude[d] that the district court [ha]d not

abuse[d] its discretion in allowing experts, who had

provided affidavits, to testify at the in limine hearing

without being deposed.” /d. at 739. Further, with regard

to each of its other holdings under Fed.R.Evid. 403, 702

or 703, the Third Circuit made clear that it was reviewing

only for abuses of the trial judge’s discretion."

The Third Circuit carefully reviewed the support

for, and criticisms of, the opinions of Doctors Sherman

and DeGregorio in order to determine whether the district

court “abused its discretion” in concluding that their

causation methodologies were unreliable. Id. at 757-58,

759, 785. Ultimately, the court concluded that the district

court had “abused its discretion” in excluding those

opinions of these doctors which were based on "standard

diagnostic techniques” or which reasonably rebutted

defense experts’ causation theories. /d. at 760.

Conversely, "the district court acted within its discretion”

in excluding causation opinions thought to be based on

litigant self-reporting. Jd. at 762. The net effect of this

explicit "abuse of discretion” standard of review was to

affirm the exclusion of most of the causation evidence

offered in support of Respondents’ present bodily injury

claims. Jd. at 766-67, 771.

'§ See also DeLuca v. Merrell Dow Pharmaceuticals, Inc., 911

F.2d 941, 944 (3d Cir. 1990) (abuse of discretion is general standard);

Arnold v. Loose, 352 F.2d 959, 962 (3d Cir. 1965) (trial judge did not

“exceed his discretion” or make a “clearly erroneous” evidentiary

decision).

“ wt.

-t-

Even with regard to the trial judge’s inexplicable

conclusion that one of the nation’s leading PCB experts,

Ian C.T. Nisbet, Ph.D.,'? was unqualified to testify, the

Third Circuit "defer{ed] to the district court." Id. at 773.

Thus, when it considered "whether the district court [had]

acted within its discretion,” id. at 777, in excluding the

results of Eco-Logic, a laboratory on whose data Dr.

Nisbet had relied, the Third Circuit observed that the

laboratory’s methodology was essentially unchallenged and

that one of its chemists had “provided a fairly convincing

defense of [its] quality control measures" but held that the

district court "acted within its discretion” in excluding the

laboratory’s results. Jd. at 778. Cf. Bonds, 12 F.3d at

554-555 (purported errors by laboratories are generally left

for the jury to resolve). |

The Third Circuit noted that a similarly close call

was presented regarding the admissibility of evidence of

furans and dioxins, chemicals undoubtedly present at the

'* EPA's PCB effluent standards, 42 Fed. Reg. 6532 (1977), were

promulgated and upheld in large part on the basis of Dr. Nisbet’s

work. See Environmental Defense, 598 F.2d at 89 (relying upon the

“Criteria Document” prepared by Dr. Nisbet which surveyed, at EPA’s

request, the scientific literature on PCBs). Like the EPA and the D.C.

Circuit, the Third Circuit has recognized Dr. Nisbet to be “an

extremely well qualified" expert. Paoli iJ, 35 F.3d at 774; see also

id. at 771. Nevertheless, the district court "provide{d] no

justification” for excluding the vast majority of Dr. Nisbet's opinions.

Id. at 778 (emphasis added).

” The EPA also relies upon Eco-Logic to do PCB-related work

and has engaged it to provide Bay City, Michigan with a

thermochemical reactor designed to incinerate PCBs. See The

Philadelphia Inquirer, Oct. 6, 1992 at F1.

- 18 -

Paoli Railroad Yard and indisputably created when PCBs

are over-heated. (A4020). Nevertheless, the Third Circuit

held "that the district court acted within its discretion in

excluding this evidence under [Fed.R.Evid.] 403." Paoli

II, 717 F.3d at 783.

Likewise, the Third Circuit upheld the district

court’s exclusion of two human poisoning episodes

involving PCBs (the Yusho and Yu Cheng incidents) "as

substantive evidence,” id. at 765, even though it noted that

one of the Petitioners’ experts has testified that the Yusho

incident was among “the biggest developments” in the

history of the scientific investigation of PCBs. Jd. at 784.

More particularly, the Third Circuit "h[e]ld that the district

court was within its discretion” in excluding this clearly

relevant evidence under Fed.R.Evid. 403. Id. at 784.

The Third Circuit also instructed, as have other

Circuits since Daubert™', that while deferential, the abuse

of discretion standard of review is not toothless. Indeed,

particularly when they are based on a scientific record that

may be reviewed on appeal as readily as by the trial judge,

and when they are tantamount to grants of summary

judgment, evidentiary exclusions must be carefully

scrutinized (i.e., given a “hard look") so as to guard

against the types of abuses of discretion which the trial

court has repeatedly committed in this matter. 35 F.3d at

2! See Daubert v. Merrell Dow Pharmaceuticals, 1995 U.S. App.

LEXIS 12, at *8 (9th Cir. Jan. 4, 1995) (abuse of discretion standard

is to be applied).

. F

733, 750.” Such a prudent guideline is to be expected

from Judge Becker. It is praiseworthy, not "certworthy."

Petitioners’ failure to acknowledge the Third

Circuit’s repeated references to the Third Circuit’s "abuse

of discretion” standard is troublesome. Petitioners have

either misrepresented the decision below or mean to assert

that the Third Circuit simply did not do what it repeatedly

stated it was doing, i.e., reverse those trial court decisions

which constituted an abuse of discretion. In order to test

this latter assertion, it would be necessary for this Court to

repeat the detailed review of scientific testimony ably

conducted by the Third Circuit.” The result of this time-

consuming process would be unjustifiable delay and an °

entirely fact-bound opinion.

” Carefully reviewing for an abuse of discretion is completely

consistent with many comparable decisions. See, e.g., Simon v.

Shearson Lehman Bros., 895 F.2d 1304, 1310 (11th Cir. 1990);

EEOC v. State of Delaware DHSS, 865 F.2d 1408, 1413 (3d Cir.

1988); Kearns v. Keystone Shipping Co., 863 F.2d 177, 179 (ist Cir.

1988); Rosenfield v. Wellington Leisure Prods., 827 F.2d 1493, 1498

(11th Cir. 1987); deMars v. Equitable Life Assur. Soc. of U.S., 610

F.2d 55, 64-65 (1st Cir. 1979); Grove v. Dun & Bradstreet, Inc., 438

F.2d 433, 438 (3d Cir.), cert. denied, 404 U.S. 8981 (1971).

® Thus, while it purports to relate to a single legal issue, most of

the content of the instant Certiorari Petition is devoted to Petitioners’

novel views about the harmfulness of PCBs, and the competence of

any expert who would dare to voice a contrary opinion.

- 9.

This Court’s opinion in Daubert is not yet two

years old. Although there is, as we have shown, no

conflict among the Circuits on the appropriate standard of

review to apply to district courts’ decisions excluding

scientific expert testimony, it would in any event be too

early for this Court to grant certiorari to resolve any such

incipient conflict, even if there were one. The better

course would be for this Court to allow the Circuits

adequate time and experience in applying Daubert in a

variety of factual settings. If a true conflict does develop

after such experience, there will be no shortage of suitable

opportunities for the Court to grant review to resolve it.

CONCLUSION

The Petition for Writ of Certiorari should be

denied.

Harold E. Kohn

Counsel of Record

Joseph C. Kohn

Martin J. D’Urso

Diana Liberto

KOHN, NAST & GRAF, P.C.

1101 Market St., Suite 2400

Philadelphia, PA 19102

(215) 238-1700

anak

- 2i -

Arnold E. Cohen

KLEHR, HARRISON, HARVEY

BRANZBURG & ELLERS

1401 Walnut Street

Philadelphia, PA 19107

Attorneys for Respondents,

Patricia Ingram, et al.

D. Bruce Hanes

POWELL, O’SHEA, HANES &

MINEHART

1700 Market Street

Suite 3131

Philadelphia, PA 19103

(215) 972-8200

Attorneys for Respondents,

Christopher S. Brown, et al.

DATED: January 13, 1995

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