Petition for Writ of Certiorari — Redland Soccer Club, Inc. v. Department of the Army

Court, U.S.

FILED

95° 588 Oct 101995

QEFICE OF THE CLERK

No.

In the Supreme Court of the

United States

October Term, 1995

REDLAND SOCCER CLUB, INC. et al.,

Petitioners

vs

DEPARTMENT OF THE ARMY OF THE UNITED

STATES OF AMERICA

and

THE UNITED STATES OF AMERICA,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

SHUMAKER WILLIAMS, P.C.

LAURENCE W. DAGUE

Supreme Court I.D. #19715

Attorneys for Petitioners

3425 Simpson Ferry Road

Camp Hill, PA 17011-0088

(717) 763-1121

Murrelle Printing Co., Box 100, Sayre, Pa. 18840—{717) 888-2244

Questions Presented

STATEMENT OF QUESTIONS PRESENTED

FOR REVIEW

A. Should this Court grant certiorari to review the deci-

sion of the United States Court of Appeals for the Third Circuit

(hereinafter “Third Circuit”) creating a requirement that Pe-

titioners show that they need medical tests other than normally

recommended tests in order to maintain a common law tort

action seeking medical monitoring?

B. Should this Court grant certiorari to determine

whether the Third Circuit was entitled to affirm an entry of

summary judgment based upon an issue that was never raised

in either the district court or in the Third Circuit?

C. Should this Court grant certiorari to review the Third

Circuit’s decision that Respondents had not waived the “delib-

erative process privilege” as to five documents voluntarily

produced and to determine whether the Third Circuit erred

by failing to hold that the privilege was inapplicable to those

documents, that the District Court had erred in refusing to

allow Petitioners to utilize factual information contained in

those documents, and that the Respondents’ status as a tort-

feasor should be considered in balancing Petitioners’ interest

in obtaining discovery against Respondents’ interests?

D. Should this Court grant certiorari to review the Third

Circuit's decision that Respondent’s Touhy regulation was

properly applied to preclude Petitioners’ counsel from con-

tacting former Army employees regarding eyewitness obser-

vations concerning the usage, handling, and disposal of toxic

and hazardous materials eight or nine years prior to the con-

tacts and, if so, whether such an application violates Petition-

ers’ First and Fifth Amendment rights?

1

Questions Presented

E. Should this Court grant certiorari to review the Third

Circuit’s decision affirming the denial of class certification in

this case?

F. Should this Court grant certiorari to review the Third

Circuit's decision that Petitioners are not entitled to seek

damages for negligent infliction of emotional distress?

List of All Parties

LIST OF ALL PARTIES

In addition to REDLAND SOCCER CLUB, INC., the

following parties are Petitioners in this case: REDLAND

SOCCER CLUB, INC., BRETNI BRINK, a Minor, by

TAMARA BRINK, RYAN BRINK, a Minor, by TAMARA

BRINK, JOSEPH BRTALIK, CAROLE G. BRTALIK,

JOSEPH J. BRTALIK, BRIAN BRTALIK, WENDY

BRTALIK, a Minor, by JOSEPH and CAROLE G. BRTALIK,

THEODORE F. BURD, DIANE M. BURD, CHRISTO-

PHER T. BURD, a Minor, by THEODORE F. and DIANE

M. BURD, GREGORY C. BURD, a Minor, by THEODORE

F. and DIANE M. BURD, DEWITT J. CLINE, JR., JAN M.

CLINE, ERIC J. CLINE, a Minor, by DEWITT J., JR. and

JAN M. CLINE, JEROMY J. CLINE, a Minor, by DEWITT

J., JR. and JAN M. CLINE, RONALD W. DANNER,

DANIELLE M. DANNER, a Minor, by RONALD W. DAN-

NER, CRAIG A. DANNER, a Minor, by RONALD W. DAN-

NER, THEODORE J. ELLIOTT, FRANCES M. ELLIOTT,

TODD ELLIOTT, a Minor, by THEODORE J. and

FRANCES M. ELLIOTT, TRACEY ELLIOTT, a Minor, by

THEODORE J. and FRANCES M. ELLIOTT, STEVEN W.

HAAS, IRMA L. RODGERS-HAAS, ANTHONY M. RODG-

ERS, a Minor, by STEVEN W. HAAS and IRMA L. RODG-

ERS-HAAS, NICOLE C. RODGERS, a Minor, by STEVEN

W. HAAS and IRMA L. RODGERS-HAAS, LAWRENCE E.

HAGER, RUTH A. HAGER, SAMUEL HAGER, BEN-

JAMIN HAGER, a Minor, by LAWRENCE and RUTH

HAGER, SHAWN HAGER, a Minor, by LAWRENCE and

RUTH HAGER, EDWARD HOCKENBERRY, MARY L.

HOCKENBERRY, BRETT R. HOCKENBERRY, a Minor,

iii

List of All Parties

by EDWARD and MARY L. HOCKENBERRY, ROGER L.

HOCKENBERRY, PATRICIA D. HOCKENBERRY,

KERIC L. HOCKENBERRY, a Minor, by ROGER L. and

PATRICIA D. HOCKENBERRY, KODI B. HOCKEN-

BERRY, a Minor, by ROGER L. and PATRICIA D. HOCK-

ENBERRY, KLINT D. HOCKENBERRY, a Minor, by

ROGER L. and PATRICIA D. HOCKENBERRY, DAVID G.

HOOPER, PRISCILLA G. HOOPER, DAVID G. HOOPER,

II, JOHN H. KNAUB, DEBORAH J. KNAUB, DEREK J.

KNAUB, a Minor, by JOHN H. and DEBORAH J. KNAUB,

SEAN M. KNAUB, a Minor, by JOHN H. and DEBORAH J.

KNAUB, THOMAS R. KRAUSE, ROBERT A. KRAUSE, a

Minor, by THOMAS R. KRAUSE, RICHARD H. LEBO,

DONNA LEBO, TRISHA LEBO, a Minor, by RICHARD

and DONNA LEBO, KRISTINA LEBO, a Minor, by RICH-

ARD and DONNA LEBO, RALPH E. McCARTY, GALE P.

McCARTY, JOSHUA H. McCARTY, a Minor, by RALPH E.

and GALE P. McCARTY, LUCAS P. McCARTY, a Minor, by

RALPH E. and GALE P. McCARTY, JAMES P. MEYERS,

KIM MEYERS, SAMANTHA MEYERS, a Minor, by JAMES

and KIM MEYERS, BRETT MEYERS, a Minor, by JAMES

and KIM MEYERS, THOMAS M. MORROW, MEREDITH

S. MORROW, GREGORY M. MORROW, a Minor, by

THOMAS M. and MEREDITH S. MORROW, GEOFFREY

T. MORROW, a Minor, by THOMAS M. and MEREDITH S.

MORROW, JACK E. MUTH, KATHLEEN L. MUTH,

ROBERT C. MUTH, a Minor, by JACK and KATHLEEN L.

MUTH, JOHN A. NACE, JR., LINDA M. NACE, MI-

CHAEL NACE, a Minor, by JOHN A. and LINDA M. NACE,

ROBERT NACE, a Minor, by JOHN A. and LINDA M.

NACE, KENNETH E. NACE, PAMELA R. NACE,

JEREMY M. NACE, a Minor, by KENNETH E. and

PAMELA R. NACE, KEVIN E. NACE, a Minor, by KEN-

iv

;

List of All Parties

NETH E. and PAMELA R. NACE, MELISSA A. NACE, a

Minor, by KENNETH E. and PAMELA R. NACE, DEAN G.

NEWHOUSE, NORMA J. NEWHOUSE, MARTIN NE-

WHOUSE, ERIC NEWHOUSE, BENJAMIN NE-

WHOUSE, a Minor, by DEAN G. and NORMA J. NE-

WHOUSE, PETER P. O’NEILL, ALICE L. O’NEILL, PE-

TER O'NEILL, PATRICK O’NEILL, PAUL O’NEILL, PA-

TRICIA A. PALM, DYLAN T. BUCKWALTER, a Minor, by

PATRICIA A. PALM, MICHELLE A. BUCKWALTER, a

Minor, by PATRICIA A. PALM, ROBERT J. PONTIUS,

CINDY L. PONTIUS, JAY PONTIUS, a Minor, by ROBERT

]. and CINDY L. PONTIUS, DEBRA S. POPP, ANDREW J.

POPP, a Minor, by DEBRA S. POPP, THOMAS M. RADOS,

a Minor, by SONJA RADOS, WILLIAM P. REHM, JR.,

KIMBERLY A. REHM, DAVID A. REHM, a Minor, by

WILLIAM P., JR., and KIMBERLY A. REHM, ANDAR A.

REHM, a Minor, by WILLIAM P,, JR., and KIMBERLY A.

REHM, DEON J. REHM, a Minor, by WILLIAM P., JR., and

KIMBERLY A. REHM, MICHELLE D. REHM, a Minor, by

WILLIAM P., JR., and KIMBERLY A. REHM, KEN RIB-

BLE, SUSAN RIBBLE, SCOTT RIBBLE, a Minor, by KEN

and SUSAN RIBBLE, MARK RIBBLE, a Minor, by KEN and

SUSAN RIBBLE, NEVIN C. SHENCK, JR., LISA L.

SHENCK, NATHAN S. SHENCK, AARON M. SHENCK, a

Minor, by NEVIN C., JR., and LISA L.SHENCK, REBECCA

SHENCK, A Minor, by NEVIN C., JR., and LISA L.

SHENCK, BRADLEY SHIRK, RICHARD V. SPONG, SR..,

JULIA A. SPONG, RICHARD V. SPONG, JR., NATHAN M.

SPONG, JOELLE L. SPONG, BARRY L. STONE, MAT-

THEW D. STONE, COREY J. STROMAN, a Minor, by

LOWELL R. and DEBRA J. STROMAN, DONNA L.

SZOSZOREK, SHANNON M. SZOSZOREK, A Minor, by

DONNA L. SZOSZOREK, SHAYNA M. SZOSZOREK, a

Vv

List of All Parties

Minor, by DONNA L. SZOSZOREK, EUGENE K. TOR-

BEK, ERIK P. TORBEK, a Minor, by EUGENE K. TOR-

BEK, DONALD WILLIAMSON, ELIZABETH M. WIL-

LIAMSON, MICHAEL WILLIAMSON, a Minor, by DON-

ALD and ELIZABETH WILLIAMSON, WILLIAM B.

WIRT, PAMELA A. WIRT, CHRISTINE E. WIRT, KEVIN

M. WIRT, TIMOTHY B. WIRT, a Minor, by WILLIAM B.

and PAMELA A. WIRT, BRYAN C. WIRT, a Minor, by WIL-

LIAM B. and PAMELA A. WIRT, BURLIN COVERT,

JOSEPH DORWART, III, PATRICIA A. DORWART,

JOSEPH DORWART, IV, a Minor, by JOSEPH DORWART,

III, and PATRICIA DORWART, ALICIA DORWART, a Mi-

nor, by JOSEPH DORWART, III, and PATRICIA DOR-

WART, BRENT DORWART, a Minor, by JOSEPH DOR-

WART, III, and PATRICIA DORWART, JACK H.

HERSHBERGER, JR., JUNE HERSHBERGER, LARRY

SMART, CAROL SMART, JEFFREY SMART, a Minor, by

LARRY and CAROL SMART, CRYSTAL SMART, a Minor,

by LARRY and CAROL SMART, GLENN DILLER, DALE

KAHLER, ROBERT E. KANE, TERRENCE L. KEMBER-

LING, DAVID A. KUPP, E. ROBERT McCOLLUM, HER-

BERT D. MYERS, and WILBUR YORTY.

All Respondents are listed in the caption. None of the

parties have parent companies or wholly-owned subsidiaries.

TABLE OF CONTENTS

Statement of Questions Presented for Review .. .

Re ae ke eds bn a,

TA ine ad og sek alec bose es

Statement of Jurisdiction ..............

Constitutional Provisions Involved .........

SS ere

Reasons for Allowance of the Writ:

A. The Court Should Grant Certiorari To Review The

Decision Of The United States Court Of Appeals

For The Third Circuit (Hereinafter “Third

Circuit”) Creating A Requirement That

Petitioners Show That They Need Medical Tests

Other Than Normally Recommended Tests In

Order To Maintain A Common Law Tort Action

Seeking Medical Monitoring ..........

B. The Court Should Grant Certiorari To Determine

Whether The Third Circuit Was Entitled To

Affirm An Entry Of Summary Judgment Based

Upon An Issue That Was Never Raised In Either

The District Court Or In The Third Circuit . .

C. This Court Should Grant Certiorari To Review The

Third Circuit's Decision That Respondenis Had

vii

On Ww do

ll

19

Not Waived The “Deliberative Process Privilege”

As To Five Documents Voluntarily Produced And

To Determine Whether The Third Circuit Erred

By Failing To Hold That The Privilege Was

Inapplicable To Those Documents, That The

District Court Had Erred In Refusing To Allow

Petitioners To Utilize Factual Information

Contained In Those Documents, And That The

Respondents’ Status As A Tort-Feasor Should Be

Considered In Balancing Petitioners’ Interest In

Obtaining Discovery Against Respondents’

ERROR «65 ee oe 0 bieehinieue 6 wees 23

D. This Court Should Grant Certiorari To Review The

Third Circuit’s Decision That Respondent Army’s

Touhy Regulation Was Properly Applied To

Preclude Petitioners’ Counsel From Contacting

Former Army Employees Regarding Eyewitness

Observations Concerning The Usage, Handling,

And Disposal Of Toxic And Hazardous Materials

Eight Or Nine Years Prior To The Contacts And,

If So, Whether Such An Application Violates

Petitioners’ First And Fifth Amendment Rights 25

E. This Court Should Grant Certiorari To Review The

Third Circuit’s Decision Affirming The Denial Of

Class Certification In ThisCase ........ 27

F. This Court Should Grant Certiorari To Review The

Third Circuit’s Decision That Petitioners Are Not

Entitled To Seek Damages For Negligent

Infliction Of Emotional Distress ........ 28

Gonsities. 63350 Se 7 Se FS OS 29

Contents af Sante «a os a 6 etd 0 2 30

APPENDIX:

Memorandum, in the Superior Court of Pennsylvania,

No. 00338 Harrisburg 1994, Civil, No.

92-SU-0533901, Before: Cavanaugh, McEwen,

ORD TR, TE Fore Ee eas

Order, filed July 14,1995............

Dissenting Memorandum Statement by Del Sole, J.

Appeal from the United States District Court for the

Middle District of Pennsylvania (D.C. Civil Action

No. 90-cv-01072), Sur Petition for Panel

Rehearing, Present: Becker and Hutchinson,

Circuit Judges, and Joyner, District Judge, dated

tay tS MACS eee

Appeal from the United States District Court for the

Middle District of Pennsylvania (D.C. Civil Action

No. 90-cv-01072), Present: Becker and

Hutchinson, Circuit Judges, and Joyner,

Judgment, dated May 15,1995.........

United States Court of Appeals for the Third Circuit,

No. 93-7829, filed May 15,1995 ........

Appeal from the United States District Court for

the Middle District of Pennsylvania (D.C.

Civil Action No. 90-cv-01072), Present:

Becker and Hutchinson, Circuit Judges,

and Joyner, District Judge.........

Opinion of the Court, Hutchinson, Circuit Judge

Order, dated November, 1993, in the United States

District Court for the Middle District of

Pennsylvania, Civil Action No. 1:CV-90-1072 .

Background of this Order, dated November 16,

BO oe CLV ORO OSE a

13a

l4a

15a

16a

20a

27a

78a

79a

Memorandum, in the United States District Court for

the Middle District of Pennsylvania, Civil Action

No. 1:CV-90-1072, dated October 19,1993 . .

Order and Judgment, dated October 19, 1993

In the United States District Court for the Middle

District of Pennsylvania, Nos. 1:CV-90-1072 and

1:CV-90-1073, Order, dated March 4, 1993,

Background of the Order............

Memorandum, in the United States District Court for

the Middle District of Pennsylvaria, Civil Action

Nos. 1:CV-90-1072 and 1:CV-90-1073, dated

Jonuary SE, 20ee 458 6 hE ee Oa a

Order, dated January 29,1993 .........

Memorandum, in the United States District Court for

the Middle District of Pennsylvania, Civil Action

Nos. 1:CV-90-1072 and 1:CV-90-1073, dated

eee. Re eee

Order, dated September 15,1992 .......

In the United States District Court for the Middle

District of Pennsylvania, Civil Action Nos.

1:CV-90-1072 and 1:CV-90-1073, Order dated

August 13, 1992, Background of Order ... .

Memorandum, in the United States District Court for

the Middle District of Pennsylvania, Civil Action

No. 1:CV-91-289, dated June 23,1992... . .

Order, dated June 23,1992...........

Memorandum, in the United States District Court for

the Middle District of Pennsylvania, Civil Action

Nos. 1:CV-90-1072 and 1:CV-90-1073, dated

FOUUahty Ta, BE: + 4:2 8 AK Be

Order, dated February 12,1992 ........

x

82a

103a

105a

110a

1l3a

ll4a

123a

125a

127a

l14la

142a

152a

Memorandum, in the United States District Court for

the Middle District of Pennsylvania, Civil Action

No. 1:CV-90-1072, dated May 3,1991..... 154a

Order, dated May3,1991 ........... 160a

Memorandum, in the United States District Court for

the Middle District of Pennsylvania, Civil Action

No. 1:CV-90-1072, dated March 4,1991 ... 16la

Memorandum, in the United States District Court for

the Middle District of Pennsylvania, Civil Action

No. 1:CV-90-1072, dated January 14,1991 .. 172a

Order, dated January 14,1991 ......... 174a

TABLE OF AUTHORITIES

CASES:

Ayres v. Township of Jackson, 106 N.J. 557, 525 A.2d

ee Mg as ete eee NN ale 12

Behring International, Inc. v. Imperial Iranian Air

Force, 600 F.2d 657 (1983S) .......... 21

Box v. A & P Tea Co., 772 F.2d 1372 (1985) .... 21

Charbonnages De France v. Smith, 597 F.2d 406

a es 6 Sy wea Wee a8 8 21

Daigle v. Shell Oil Co., 972 F.2d 1527 (10th Cir.

RN cin eek Si wisdie tac a pie MURS ess 14

Day v. NLO, 851 F. Supp. 869 (S.D. Ohio 1994) . . . 12, 27

Elliott et al. v. United States of America (District Court

UG, SATION } oS 0G ne Wee We 4,8

Federal Deposit Insurance Corp. v. Laguarta, 939 F.2d

RUE RES 3 6 dia 0 ab 08 kali aceias 21

Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754 (1949) 20

xi

General Telephone Co. v. Falcon, 457 U.S. 147, 102

S.Ct. 2264, 72 L.Ed.2d 740 (1982)....... 27

Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141

CID vd sarin oad oid ea le eee 21

Hansen v. CCI Mechanical, Inc., 858 P.2d 970 (Utah

WO 6. ioe ee ee SS ea 14, 16, 17

Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719

(hee he eet hae HERS oes 20

In re Paoli R.R. Yard PCB Litigation, 916 F .2d 829

(8 Ce BOD ig ES PRE re 15

In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3rd

oe Ge Gre BAA ose. la icine ak see 16

John Deere Co. v. American National Bank, Stafford,

809 F.2d 1190 (5th Cir. 1987) ......... 21

Johnson v. Orr, 776 F.2d 75 (1985) ......... 20

Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct.

1031 (1948) fee eu ae lek ee ee 20

Malhotra v. Cotter & Co., 885 F.2d 1035 (7th Cir.

SOE: hiss ao ab ee ee 21

Meredith v. Allsteel, Inc., 11 F.3d 1354 (7th Cir.

TOR Oi ee Ye eae ae ee 21

Merry v. Westinghouse, 684 F. Supp. 847 (M.D. Pa

NR a’ ac cile oad Se Ce ease 15, 28

O.R.S. Distilling Co. v. Brown-Forman Corp., 972

PAa Gee 8 eR SGA wh 21

Paskaly v. Seale, 506 F.2d 1209 (1974) ....... 21

Potter v. Firestone Tire and Rubber Co., 6 Cal. 4th

965, 25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993) 13

Price v. U.S. Navy, 39 F.2d 1011 (9th Cir. 1994) . . 14

Redland Soccer Club, Inc. v. Department of the Army

of the United States, 55 F.3d 827 (3rd Cir. 1995) 2,3

xii

Robert C. O’Neal et al. v. Department of the Army et

al. (District Court No. 1:CV-90-1073) ....... 4,8

Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49

LES eGeeeeE viiics tke eee 19

TransAmerica Computer Co., Inc. v. International

Business Machines Corp., 573 F.2d 646 (9th Cir.

Se re a ne 8 Ke ee 23

United States Ex Rel Touhy v. Regan, 340 U.S. 462, 71

S.Ct. 416, 92 L.Ed.2d 417 (1951) ... i,9, 25, 26, 27

CODES

28 U.S.C.:

A as aa a or ae 2

Ea es ipa eee ean 3

TE NL ae 3

es 9

te as ah ee 3

42 U.S.C.::

IES ee eee 3

EE a a 3

tS eG wp ee ke 9

OTHER AUTHORITIES:

Army Regulation 32 C.F.R. §516.35(d)....... 9

Chapin: Comment, Toxic Torts, Public Health Data,

and the Evolving Common Law: Compensation

for Increased Risk of Future Injury, 13 J. Energy

Nat. Resources & Envtl. L. 129(1993) .... 12

Gara: Comments, Medical Surveillance Damages: Us-

ing Common Sense and the Common Law to Miti-

gate the Dangers Posed by Environmental Haz-

ards, 12 Harv. Envtl. L. Rev. 265 (1988) . . . 14, 15, 27

xiii

Pennsylvania Hazardous Sites Cleanup Act, 35 Pa. C.S.

ee yer hk ree rae 4

Restatement (Second) of Torts, §7 (1977) ..... 15

Senate Comm. on the Environment and Public Works,

97th Cong., 2d Sess., Injuries and Damages from

Hazardous Wastes—Analysis and Improvement of

Legal Remedies, pt. II app. A at 2 (Comm. Print

Wel i vee ee ae eee Re eee s3 11

Shulman: The Threat at Home—Confronting the

Toxic Legacy of the U.S. Military (Beacon Press,

WO se Ce esa ee ee 1]

Slagel: Note, Medical Surveillance Damages: A Solu-

tion to the Inadequate Compensation of Toxic

Tort Victims, 63 Ind. L.J. 849 (1988). . . 12, 14, 15, 27

UNITED STATES CONSTITUTION:

Pik Ri © as SS ew Sa eee oS 2,9

Fie NR eS TS re TE 2,9, 22

xiv

1

Petition for Writ of Certiorari

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1995

Redland Soccer Club, Inc., et al.,

Petitioners

v.

Department of the Army of the United States of America

and the United States of America,

Respondents

Oe ee

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

a

To the Honorable, the Chief Justive and Associate Justices

of the Supreme Court of the United States:

Petitioners, Redland Soccer Club, Inc., et al. re

pray that a Writ of Certiorari issue to review the Judgment of

the United States Court of Appeals for the Third Circuit

(hereinafter “Third Circuit”) entered on May 15, 1995, and

the subsequent denial of the Motion for Reconsideration on

July 13, 1995.

2

Opinions Below; Jurisdiction; Constitutional Provisions

REFERENCE TO THE OPINIONS DELIVERED IN

THE COURTS BELOW

The Third Circuit decision is reported as Redland Soccer

Club, Inc. v. Department of the Army of the United States, 55

F.3d 827 (3rd Cir. 1995). Decisions of the District Court were

reported at 835 F.Supp. 803 (M.D.Pa. 1993) and 801 F.Supp.

1432 (M.D.Pa. 1992). Those decisions and other decisions in

this case that have not been reported in any official or unofficial

reporter are included in the attached Appendix.

STATEMENT OF JURISDICTION

The Third Circuit's Judgment was entered on May 15,

1995, and reconsideration was denied on July 13, 1995. This

Court's jurisdiction to consider this Petition from the final

Judgment by the Third Circuit is invoked pursuant to 28

U.S.C. §1254.

CONSTITUTIONAL PROVISIONS INVOLVED

(a) Fifth Amendment, United States Constitution:

“No person shall be...deprived of life, liberty, or

property, without due process of law...”

(b) First Amendment, United States Constitution:

“Congress shall make no law respecting an estab-

lishment to religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press, or the right of the people peaceably to assemble,

and to petition the government for a redress of griev-

ances.”

3

Statement of the Case

STATEMENT OF THE CASE

Petitioners filed a timely Notice of Appeal to the Third

Circuit on December 23, 1993, from a final Judgment entered

by the United States District Court for the Middle District of

Pennsylvania (hereinafter “the District Court”) on November

29, 1993. Following the submission of briefs by the parties,

including the submission of supplemental memoranda re-

quested by the Third Circuit, oral argument was held on June

22, 1994. That appeal was from a decision, inter alia, of the

District Court entering summary judgment against Petition-

ers. (App. 82a; 835 F.Supp. 803).

The central issue upon which the Third Circuit affirmed

summary t (i.¢., a requirement of different medical

tests which is addressed in the first subsection of Reasons for

Allowance of the Writ below) was not raised by Respondents

in support of their Motion for Summary Judgment in the

not raised by the parties in the Third Circuit and was

not briefed or raised at oral argument. Rather, that issue was

raised sua sponte by the Third Circuit only in its decision.

The original Complaint in Redland Soccer Club, Inc. et

al., (District Court No. 1:CV-90-1072) was filed on June 7,

1990, by five Plaintiffs (Respondents herein) as a class action.

The District Court had n under 28 U.S.C. §§1331,

1346, and 2671 and r 42 U.S.C. §9613(b) and had sup-

lemental jurisdiction over state claims pursuant to 28 U.S.C.

1367. Petitioners’ Complaint stated causes of action under

the Federal Tort Claims Act (hereinafter “FTCA”) and under

the Comprehensive Environmental Response, Compensa-

tion, and Liability Act (hereinafter “CERCLA”), 42 U.S.C.

§9601 et seq., as well as claims under the Pennsylvania Haz-

4

Statement of the Case

ardous Sites Cleanup Act (hereinafter “HSCA”), 35 Pa. C.S.

§6020.101 et seq. Following the District Court's denial of a

Motion for Class Certification on March 4, 1991, and denial

of a Motion for Reconsideration on May 3, 1991, Plaintiffs filed

a First Amended Complaint which joined the 145 additional

Plaintiffs who are now Petitioners to this Court.

Two related cases were filed in the District Court. On

June 7, 1990, counsel for Petitioners filed a related action in

Robert C. O'Neal et al. v. Department of the Army et al.

(District Court No. 1:CV-90-1073). That action was consoli-

dated with the instant action for discovery and pre-trial pur-

poses. On February 26, 1991, separate Plaintiffs filed a Com-

plaint in Elliott et al. v. U States of America (District

Court No. 1:CV-91-0289) raising different claims but based on

essentially the same facts entailed in the instant action. The

Elliott action was consolidated with the instant action by Order

of the District Court of September 30, 1993. The Third Circuit

ultimately reversed and remanded the Elliott action but af-

firmed the entry of summary judgment in the instant action.

The factual background of these actions centers upon an

Army installation which (at most times relevant to this action)

was denominated the New Cumberland Army Depot (herein-

after “NCAD”) and a fourteen-acre tract which was ori

part of NCAD but subsequently became Marsh Run P

(hereinafter “the Park”). The tract was transferred by the Arm

to Fairview Township in 1976 and was converted into the P

by Fairview Township through grading and other work that

commenced in 1981. Soccer fields were placed within the Park

and were utilized for soccer practices and games from 1982

until August of 1987.

Four or five acres of the Park had been utilized as a

landfill by NCAD during a period from 1917 until at least the

mid-1950’s. In April of 1987, the Army commenced testing of

5

Statement of the Case

the Park as part of the Defense Environmental Restoration

Program. Following receipt of preliminary results from that

testing, the Army closed the Park on August 28, 1987, placed

a cordon pars fe and assumed possession and control of it.

Those preliminary results and other test results showed that

the Park had been contaminated by numerous toxic and haz-

ardous substances, including volatile organic compounds (e.g.

trichloroethylene, tetrachloroethylene, and methylene chlo-

ride), semi-volatile organic compounds (e.g., hexochloroben-

zene and pentochlorobenzene), including polycyclic aromatic

hydrocarbons (e.g., anthracene, benzo(a)anthracene, benzo

(a)pyrene, benzo(b)fluoranthene, benzo(g,h,i)paralene, and

benzo(k)fluoranthene), and metals (including arsenic, barium,

beryllium, cadmium, chromium, lead, mercury, nickel, sele-

nium, silver, thallium, and zinc).

Petitioners consist of three groups. The first is a group of

twelve residents who lived adjacent to the Park and utilized it

both prior and subsequent to its conversion into soccer fields.

In addition, that group regularly utilized Marsh Run Creek,

which borders the Park on the west and south, by wading and

fishing in it and by drinking water from it. The second group

consists of twelve Township employees who graded and lev-

elled ground to create the Park, working in the Park on

onal a full-time basis for approximately six months and

sporadically thereafter. The third group, consisting of all other

Petitioners, are children and adults who partici in soccer

activities at the Park, some of whom prepared the soccer fields

by hand-picking rocks and other debris from its soil before

grass was seeded.

Petitioners adduced both scientific and eyewitness testi-

mony showing that they had been exposed to and ingested

toxic and hazardous substances contaminating the Park and

Marsh Run Creek. Petitioners adduced both scientific and

medical testimony that their ingestion of toxic and hazardous

6

Statement of the Case

substances at the Park had caused them to suffer significantly

increased risks of serious health problems, including various

forms of cancer.

The contamination of the Park and Marsh Run Creek

resulted not only from the Army's landfilling activities but from

other sources. One of Petitioners’ expert witnesses presented

testimony concerning a number of additional sources at

NCAD that contributed toxic contaminants to the Park. One

of those sources of contamination was NCAD’s practice of

routinely discharging untreated industrial waste waters from

its operations into its stormwater sewer system which then

discharged those wastes into open ditches and thence

into Marsh Run Creek. In October and November oh wh

the Army's own Environmental Hygiene Agency that

several Pennsylvania standards for Marsh Run Creek were not

being met as a result of those discharges and recommended

that those discharges cease. However, those discharges were

continued by NCAD until at least September 25, 1974. Peti-

tioners adduced evidence to show that a number of activities

at NCAD which contributed contaminants to the Park and

Marsh Run Creek constituted violations of Executive Orders

directing the Army to comply with state environmental laws

sod sighiats a0%-auider afta kieade damn

NCAD was repeatedly informed that its operations be

changed to comply with environmental regulations and stat-

utes and was repeatedly cited for violating environmental laws.

Petitioners originally sought a number of forms of relief

under FTCA, CERCLA, and HSCA, including injunctive re-

lief, attorneys’ fees and expenses, and various monetary dam-

ages. Petitioners specifically sought recovery of

damages to pay for medical monitoring of Petitioners and

others and damages for emotional pain and suffering of Peti-

tioners.

7

Statement of the Case

On November 19, 1991, Respondents produced for in-

spection boxes and filing cabinets filled with documents.

Among the documents produced, Petitioners’ counsel discov-

ered a number of copies of a group of five documents in

different boxes and filing cabinets. ugh Petitioners’ coun-

sel designated those five documents for production, they were

not produced; rather, Respondents designated those five

documents as being among 139 documents that it was not

producing under the “deliberative process privilege.”

Petitioners received copies of the five documents only

under a Confidentiality Stipulation that the District Court

suggested the parties enter into, and those documents have

remained confidential since that time. Petitioners filed a Mo-

tion to Compel production of all 139 documents, but the

District Court denied that Motion YY an Order of August 13,

1992, which did not the five documents

that had previously been uced. When Petitioners sub-

sequently notified Respondents that those documents or the

facts sat Soxths within thous would be ‘teed ot 0 scheduled

—- Respondents notified Petitioners that they would

refuse to allow any questioning based upon the documents

themselves or the facts set forth therein.

Petitioners filed a second Motion to Compel, seeking the

utilization of those documents or the facts therein at deposi-

tions, and the critical importance of those documents to this

case was specifically argued, as follows:

Plaintiffs’ counsel believe that three of those five docu-

ments prove the following material facts: (1) that the Army

knewit robably contaminated Marsh Run Park with toxic

substances before the land was converted into a park; (2) that

Defendants knew that the presence of those toxic substances

raised a serious question as to whether the land should be used

for athletic activities; and (3) that Defendants failed to disclose

8

Statement of the Case

their knowledge to Fairview Township even though the Town-

ship had raised these questions prior to converting the land

into Marsh Run Park.

The District Court denied Petitioners’ second Motion to

Compel by Order of January 29, 1993.

The Third Circuit reversed in part and affirmed in part

the District Court Orders. It directed that the District Court

re-assess the applicability of the “deliberative process privi-

lege” to the 139 documents on remand in the Elliott action.

However, it affirmed the District Court's holding that the

roduction of the five documents had not waived that privi-

ege, and it failed to address the questions of whether the

privilege did apply to those five documents, whether Petition-

ers should hers boen allowed to utilize facts embodied in those

five documents, and whether Respondents’ status as a tort-fea-

sor should be considered in determining whether to apply that

privilege in this case.

The District Court denied a Motion for Emergency Re-

lief that had been filed by Petitioners by an Order of Novem-

ber 16, 1993. As part o trial preparation in the O’Neal

action (which, as aeeed Sibiu was consolidated with the

instant action for all pre-trial purposes), Petitioners had pro-

vided Respondents with a list of witnesses that identified

several former employees of NCAD as potential trial witnesses

for Petitioners. Specifically, those witnesses were

to about their eyewitness observations concerning the

routine handling, usage, and disposal of toxic and/or hazardous

substances at NCAD during the course of their employ-

ments—some eight to nine years earlier. Respondents’ coun-

sel contacted those witnesses, however, and informed them

that should not speak with Petitioners’ counsel unless

Respondents’ counsel approved of those contacts and unless

Respondents’ counsel was present during such contacts. Peti-

9

Statement of the Case

tioners’ Motion specifically alleged that Respondents’ instruc-

tions to Petitioners’ witnesses constituted tampering with

those witnesses and interference with Petitioners’ pre-trial

preparation.

The District Court denied Petitioners’ Motion, ruling

that the Respondents’ actions were justified by an Army Regu-

lation, 32 C.F.R. §516.35(d), which was valid under this Court’s

decision in United States Ex Rel Touhy v. Regan, 340 U.S. 462,

71 S.Ct. 416, 92 L.Ed.2d 417 (1951). The District Court failed

to address Petitioners’ arguments that (1) that regulation did

not apply because the testimony sought did not constitute

official information,” (2) that a Touhy regulation should not

bi applied in the context of litigation alleging wrongful con-

duct by the Government itself, and (3) that application of a

Touhy regulation in the context of this case violated the Peti-

tioners’ and eyewitnesses’ First Amendment rights and Peti-

tioners’ Fifth Amendment rights. The Third Circuit affirmed

the District Court's denial of Petitioners’ Motion for Emer-

gency Relief without addressing any of those issues. (App. 28a;

55 F.3d at 834 n.2).

On September 15, 1992, the District Court dismissed

without prejudice Plaintiffs’ claims under CERCLA and

HSCA on the basis that 42 U.S.C. §9613(h)(4) divested that

Court of jurisdiction over such claims. Petitioners then filed

an action in the Court of Common Pleas of York County,

Pennsylvania to pursue their HSCA claims. When the state

court entered summary judgment against Petitioners on the

same basis upo a which ry sami ep na Peti-

tioners filed an ‘atonal to the Pennsylvania Superior Court. On

July 14, 1995, the re nnsylvania Superior Court reversed the

entry of summary ent and remanded. (App. 12a). The

Superior Gace cho red but specifically declined to adopt

the Third Circuit’s decision in emcee case to the extent that that

10

Statement of the Case

decision created a requirement concerning different medical

testing. (App. 28a-29a).

In a decision of October 19, 1993, the District Court had

entered summary judgment against Petitioners’ common law

tort claims on the basis that Petitioners had failed to show

sufficient evidence that they had actually been to the

toxic contaminants in the Park's soil, but the Circuit

i with the District Court on that issue. (App. 55a-56a;

55 F.3d at 846). However, the Third Circuit ed that

ee on a basis that had not been raised, argued,

or briefed, as discussed above. In addition, the Third Circuit

affirmed the District Court’s entry of summary judgment

ainst Petitioners’ claim for damages for t infliction

of emotional distress on the basis that doors ee failed to

show that they currently suffer a “medically-identifiable ef-

fect” from their exposure to toxic contaminants at the Park.

(App. 59a; 55 F.3d at 848.)

1]

Reasons for Allowance of the Writ

REASONS FOR ALLOWANCE OF THE WRIT

A. The Court Should Grant Certiorari To Review The

Decision Of The United States Court Of Appeals For

The Third Circuit (Hereinafter “Third Circuit”)

Creating A Requirement That Petitioners Show That

They Need Medical Tests Other Than Normally

Recommended Tests In Order To Maintain A

Common Law Tort Action Seeking Medical

Monitoring

Courts throughout this country have struggled for more

than a dozen years to establish coherent and practical stand-

ards to os toxic tort cases. The need for such standards is

in light of the enormity of the underlying problem, since

ere are some fifty thousand (50,000) toxic waste sites in this

country. Senate Comm. on the Environment and Public Works,

97th Cong., 2d Sess., Injuries and Damages from Hazardous

Wastes—Analysis and Improvement of Legal Remedies, pt. II

app. A at 2 (Comm. Print 1982).

The of that problem is particularly great in relation

to the federal government. The military branches of the fed-

eral government, taken as a —— and have responsi-

bility for more toxic waste sites any other single group or

entity in this country. See Seth Shulman, The Threat at

Home—Confronting the Toxic Legacy of the U.S. Military

(Beacon Press, 1993), Base closing programs will not alleviate

this problem but, rather, will exacerbate it, as attempts to

convert or to convey military installations or land will result in

revelations of c toxic waste problems in instances where

the public has been e to toxins.

Establishing stan for toxic tort cases has been a

struggle because common law tort doctrines do not adequately

12

Reasons for Allowance of the Writ

address the injuries entailed in toxic tort cases. Ayres v. Town-

ship of Jackson, 106 N.J. 557, 579-87, 525 A.2d 287, 298-302,

309 (1987). The extreme seriousness of the injuries that may

result from toxic exposures, i.e., various cancers, must be

considered. Id. at 606, 525 A.2d at 312. Yet the inherent

difficulty is that diseases caused by toxic exposures are insidi-

ous and have long latency periods. See Allan T. Slagel, Note,

Medical Surveillance Damages: A Solution to the I

Compensation of Toxic Tort Victims, 63 Ind. L.J. 849 (n.2)

(1988) (hereinafter “Slagel”). For example, the latency period

for occupational cancers caused by exposure to arsenic is

estimated to be 25 years. Id. at 852 (n.15). Scientific uncer-

tainty about the precise etiology of cancers further complicates

the application of traditional tort principles. Id. Toxic tort cases

have been aptly described as follows:

“Typical hallmarks of a toxic exposure case include

(1) uncertainty about medical causation; (2) an inchoate

understanding of the etiology of cancer and other insidi-

ous diseases; ts) a long lead time between exposure and

disease manifestation in the toxic exposure victim, barring

many claims because of statutes of limitations; and (4) the

lack of an identifiable present injury, traditionally re-

quired under tort rules.” [footnotes deleted]

Kristen Chapin, Comment, Toxic Torts, Public Health Data,

and the Evolving Common Law: Compensation for Increased

Risk of Future Injury, 13 J. Energy Nat. Resources & Envtl.

L. 129, 129-30 (1993)(hereinafter “Chapin”.

A practical solution for the difficulties posed by toxic

exposure cases which has been utilized by a number of state

and federal courts is the awarding of costs for medical moni-

toring to the victims of such e s. The public policy

considerations which support such awards were summarized

pte v. NLO, 851 F. Supp. 869, 881 (S.D. Ohio 1994), as

ollows:

13

Reasons for Allowance of the Writ

There are a number of sound policy reasons for allowing

recovery of medical monitoring costs. Some have been clari-

fied in [Potter v. Firestone Tire and Rubber Co. , 6 Cal. 4th 965,

25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993)], which involved a

toxic landfill In that case the California Supreme Courts [sic]

listed for public policy considerations in granting medical

surveillance:

“First, there is an important public health interest in

fostering access to medical testing for individuals whose

e to toxic chemicals creates an enhanced risk of

disease, particularly in light of the value of early diagnosis

and treatment for many cancer patients.

Second, there is a deterrence value in recognizing

medical surveillance claims...

Third, ‘[t]he availability of a substantial remedy be-

fore consequences of the plaintiffs’ exposure are manifest

may also have the beneficial effect pf preventing or miti-

gating serious future illness and thus reduce the overall

costs to the responsible parties.’

Finally, societal notions of fairness and elementary

justice are better served by allowing recovery of medical

monitoring costs. That is, it would be inequitable for an

individual wrongfully exposed to dangerous toxins, but

unable to prove that cancer or disease is likely to have to

pay the expense of medical monitoring when such inter-

vention is clearly reasonable and necessary.”

Potter, 863 P.2d at 824 (citations omitted). Therefore, if the

plaintiffs can establish liability and an increased risk of disease,

they will be entitled to medical monitoring.

Under federal law, medical monitoring is a remedy that

is apparently available only in common law tort cases, since

every Court of Appeals that has addressed the issue has held

that medical monitoring is not available in private actions

14

Reasons for Allowance of the Writ

under CERCLA.’ See, e.g., Price v. U.S. Navy, 39 F.3d 1011,

1015 (9th Cir. 1994) and Daigle v. Shell Oil Co.,972 F.2d 1527,

1535 (10th Cir. 1992).

The importance of deterring conduct that causes expo-

sures to toxic substances has been emphasized by both courts

and commentators. Hansen v. CCI Mechanical, Inc., 858 P.2d

970, 980 (Utah 1993), Ind. LJ., supra at 869, and Leslie S.

Gara, Comments, Medical Surveillance Damages: Using Com-

mon Sense and the Common Law to Mitigate the Dangers

Posed by Environmental Hazards, 12 Harv. Envtl. L. Rev. 265, .

268 (1988)(hereinafter “Gara”). Awarding medical monitoring

may also prevent or at least minimize the consequences of toxic

exposures, actually preventing deaths in some cases and

thereby benefiting not only the victim/plaintiff but also the

defendant and society as a whole. Slagel, supra at 869-70. Such

awards may benefit the tort system and society “6 producing

additional knowledge and evidence concerning the develop-

ment of latent diseases. Gara, supra at 270. Furthermore,

awarding medical monitoring prevents manifest injustice to

victims who also suffer from economic disadvantage.

“A decision by courts to reject a cause of action for

medical surveillance damages will prove particularly

harsh for those who cannot afford medical surveillance

on their own. Those financially able to afford medical care

will heed scientific and medical advice and undergo pre-

cautionary testing regardless of a judicial remedy. Those

peape will bear monetary loss, while the tort system

suffers the casualty to its purposes of compensatory and,

in many cases, deterrent justice. However, the poor do

not have this option but are forced to ng fey the legal

system for redress at the price that they suffer the

' In contrast, the Pennsylvania Superior Court has held that medical moni-

toring is a remedy available under HSCA (App.. la-15a).

15

Reasons for Allowance of the Writ

indignity of allowing a possibly preventable or mitigatable

illness to develop.”

Id. at 269.

In light of the public policy considerations favoring medi-

cal acute the difficulties that courts have experienced in

creating relevant standards is, perhaps, surprising. However,

many courts pag 6 to recognize exposures to toxic

contaminants as leg cognizable ‘injries 63 Ind. L.J.,

supra at 859. The 35 Bats ga ( ) of Torts, §7 (1977)

defines the term “injury” as including the invasion of any

ey rotected interest.” err eger ihe an individual's right

o "bodily security” and the right to be free from negligent

invasion of that interest has ditionally been recognized. Id.

§1, Comment (a). Therefore, many courts, including the Third

Circuit itself, have recognized that an “injury” has occurred

where an individual has been exposed to and ingested toxic

contaminants and where that exposure has caused the individual

to suffer a significant increase in the risk of developing a serious

disease. In re Paoli R.R. Yard PCB , 916 F.2d 829, 852

(3rd Cir. 1990) and Merry v. W , 684 F. Supp. 847

(M.D. Pa. 1988). Nevertheless, the instant action amply demon-

strates that the Third Circuit has both experienced and created

problems in cases seeking medical monitoring.

The Third Circuit expressly found that Petitioners had

adduced evidence sufficient to permit a reasonable factfinder

to conclude that they had been exposed to and ingested

hazardous substances and that that exposure caused them to

suffer a significant increase in their risk of illness. (App. 57a;

55 F.3d at 847). However, the Third Circuit then created a

new standard by holding that toxic tort plaintiffs seeking

medical monitoring must show that a medical expert would

recommend special testing of them that is different from tests

recommended for the cael population. (App. 57a-58a; 55

F.3d at 848). Although the Court’s decision at one point

16

Reasons for Allowance of the Writ

characterizes this new standard as a requirement of a “differ-

ent medical monitoring regimen than that which would nor-

mally be recommended,” this case demonstrates that the

Court is actually requiring that the tests themselves, not the

“regimen,” be different. Id. Petitioners’ medical expert actu-

ally did recommend a different regimen, requiring that medi-

cal testing start at earlier ages and occur at greater frequency

than is recommended for the general population. Further-

more, the decision repeatedly emphasizes the types of tests

recommended, not the overall regimen of testing. (App. 43a-

44a and 58a; 55 F.3d at 841 and 848).

The Third Circuit’s rationale for creating this new stand-

ard is that no exposure to toxic substances can be found to

result in a significantly increased health risk unless a medical

doctor recommends tests that are different from those recom-

mended for the general population. (App. 54a; 55 F.3d at 846).

However, the Circuit did not cite any medical or scien-

tific support for that proposition, and no such support exists in

the record of this case. Rather, the Court cited Hansen, supra,

which had been cited by the Court in its earlier decision in In

re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3rd Cir. 1994)

sts II pee 53a-54a; 55 F.3d at liedly ). en pi r, neither

of those decisions expressly or im created any require-

pegs medical ne iret ens tests for the

ne seg Although the Third Circuit’s decision quotes

Hi concerning a plaintiff's requirement to

show a different medical monitoring regime, it conspicuously

neglects to cite the specific example given by Hansen to explain

what is required. (App. 53a-54a; Id.).

“For example, if the plaintiff is exposed to a toxic

substance in large quantities or for a long duration and

later is negligently exposed to the same substance in a

small quantity or for a short duration by the defendant,

there should be no recovery from the one causing the

17

Reasons for Allowance of the Writ

later exposure if it does not change the monitoring regime

that would have been appropriate to the plaintiff before

that exposure.”

Hansen, supra, at 980. Thus, it is only in this case that a new

standard has been created to require a showing that medical

tests are recommended that differ from medical tests generally

recommended by organizations such as the American Cancer

Society. The Third Circuit's newly created requirement is

erroneous. The rationale that a health risk cannot be deemed

significant unless different medical testing is recommended is

fallacious. The simple fact is that only a limited number of tests

have been devised for the detection of various cancers which

medical science finds both safe and efficacious. (App. 58a; 55

F.3d at 848). For example, if a group of workers is exposed to

asbestos at their work place, medical experts would undoubt-

edly recommend the performance of chest x-rays, because

chest x-rays are the best way of determining the effects of an

asbestos exposure, yet chest x-rays are recommended for the

general population. If a group of children is exposed to toxic

contaminants that might drastically increase their risk of suf-

fering leukemia, medical experts would recommend the per-

formance of complete blood count testing, even though such

testing is routinely performed. Once again, complete blood

counts are simply one of the best ways of testing for leukemia.

Thus, the fact that complete blood counts or chest x-rays are

recommended in those instances does not, to any degree

whatsoever, reflect the seriousness or significance of the health

risk that has been suffered.

The Third Circuit has not presented any rationale to

demonstrate how public policy would be served by its newly

created standard. Ce , the knowledge that medical moni-

toring will not be awarded unless victims can show the exist-

ence of medical testing which differs from tests normally

18

Reasons for Allowance of the Writ

recommended will substantially undermine any deterrent fac-

tor that may otherwise exist. The new requirement will not

foster the performance of medical testing that might prevent

or mitigate serious future illnesses. The requirement contra-

venes equitable considerations, since even a tort-feasor who

has been flagrantly negligent in disposing of toxic contami-

nants and, thereby, exposing members of the public to those

toxic contaminants, may escape liability for medical testing.

Moreover, that blanket requirement refuses to even consider

the financial ability of the victims to pay for medical testing.

The American Cancer Society recommends that adults

routinely undergo sigmoidoscopies to detect early signs of

colon cancer, and such tests were recommended for Petition-

ers. Yet the record in this case fails to disclose what percentage

of the population follows that recommendation. The record

fails to reflect what percentage of the population does not follow

that recommendation not because of the unpleasantness involved

in the procedure, but because the expense involved prevents or

deters them. Certainly, the record in this case is devoid of any

consideration as to whether the individual Petitioners can afford

such testing. Even if they could, however, the other public policy

considerations di above should prevent the imposition of

such costs upon the Petitioners and should require that the

Respondents, as wrongdoers who exposed the Petitioners to toxic

contamination, pay for such testing.

The Third Circuit’s decision in this case may reflect

judicial concern that marginal or even frivolous cases may be

initiated. Certainly, a requirement that plaintiffs have a cur-

rent “injury” to pursue a tort claim is designed to prevent

marginal or frivolous claims. Nevertheless, in the toxic tort

setting there are other and better ways of weeding out weak

claims. Plaintiffs are ired to introduce rt scientific

testimony establishing they have suffered a significant

exposure to contaminants that are toxic in that they have been

shown to cause serious, latent diseases such as cancer. Plain-

19

Reasons for Allowance of the Writ

tiffs are further required to introduce medical and/or scientific

evidence showing that that exposure has significantly in-

creased their risk of suffering such an illness. To recover the

costs of medical monitoring, plaintiffs must also introduce

medical testimony to show that a specific regimen of medical

testing should be done to prevent or mitigate those illnesses.

If plaintiffs meet all of those standards, their claim will be

neither —* nor frivolous, and the Third Circuit’s newly

created standard is unnecessary.

This Court has not passed upon the standards that should

apply in toxic tort cases seeking an award of medical monitor-

ing. Such standards are an important question of jurispru-

dence throughout this country in light of the struggling over

those standards that has occurred to date and in light of the

likelihood that the prevalence of toxic waste sites in this

country will generate an increasing number of lawsuits. Fur-

thermore, a review of such standards is particularly appropri-

ate because claims against branches of the military are likely

to increase in light of the number of toxic waste sites created

and controlled by branches of the military.

B. The Court Should Grant Certiorari To Determine

Whether The Third Circuit Was Entitled To Affirm An

Entry Of Summary Judgment Based Upon An Issue

That Was Never Raised In Either The District Court

Or In The Third Circuit

This Court has vested the Courts of Appeals with discre-

tion in determining when they may consider and resolve issues

that are raised for the first time on appeal. Singleton v. Wulff,

428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976).

Nevertheless, that discretion is not unlimited. Thus, in Single-

ton, supra, the Court reversed the decision of a Court of

Appeals to the extent that it considered an issue that had not

20

Reasons for Allowance of the Writ

been considered by the trial court. Id. In Fountain v. Filson,

336 U.S. 681, 683, 69 S.Ct. 754, 755 (1949), this Court re-

versed a judgment of the Court of Appeals which had, in effect,

granted summary judgment based upon an issue never raised

in the trial court to a who had not filed a motion for

summary judgment. affirming a Court of Appeals in

v. Silas Mason Co., 334 U.S. 249, 256, 68 S.Ct. 1031,

1034 (1948), this Court noted that the hearing of disputed

facts, sorting of documents, ascertaining the form and mean-

ing of the case, ower oh facts and drawing inferences from

facts should primarily toa ¥5 at In Hormel

v. Hel agus on 556, 61 gat 19, 721 (1941), this

Court s

‘deal an appellate court does not give consid-

eration to issues not raised below. For our procedural

scheme contemplates that parties shall come to issue in

the trial forum vested with authority to determine ques-

tions of fact. This is essential in order that parties may

have the opportunity to offer all the evidence they believe

relevant to the issues which the trial tribunal is alone

competent to decide; it is equally essentially in order that

litigants may not be surprised on appeal by final decision

there of issues upon which they have had no opportunity

to introduce evidence.”

Thus, this Court has emphasized the importance of af-

fording parties a full and fair opportunity to be heard on all

issues.

The Courts of Appeals may have somewhat different

views conce dhe aitunt of Gnvethcsn velted ta Gham. In

icular, the Circuit appears to view its discretion in

broad terms. Thus, in Johnson v. Orr, 776 F.2d 75,

83 n.7 (1985), the Third Circuit ‘noted that it could affirm a

decision of a district court on the basis of any issue, so long as

the record supports the resolution of that sien. citing its prior

21

Reasons for Allowance of the Writ

decisions in Guthrie v. Jane Collieries, Inc., 722 F.2d

1141, 1145 n.1(1983) and Be International, Inc. v. Impe-

rial Iranian Air Force, 699 F.2d 657, 666 n.7 (1983). Other

Courts of Appeals appear to have narrower views of their

discretion.

In Charbonnages De France v. Smith, 597 F.2d 406, 416

n.9 (1979), the Fourth Circuit noted that it could affirm a

district court's t of summary judgment on alternative

unds only if those grounds had been presented both to the

istrict court and on appeal so that the non-moving party had

a fair opportunity to contest those grounds. In Federal t

Insurance Corp. v. Laguarta, 939 F.2d 1231, 1240 (1991), the

Fifth Circuit held that it was not st 0 to affirm a summary

judgment on grounds that were neither raised below by the

moving nor even raised sua sponte by the District Court.

The Seventh Circuit reached the same holding in Box v. A &

P Tea Co., 772 F.2d 1372, 1376 (1985). And see Meredith v.

Allsteel, Inc., 11 F.3d 1354, 1359 (7th Cir. 1993). In O.R.S.

Co. v. Brown-Forman Corp.,°972 F.2d 924, 926

(1992) the Eighth Circuit held that a party could not assert a

new ent in an from a motion for su -

ment. ha Paskaly v. , 506 F.2d 1209, 1211 n.4 AK

Ninth sai tunseee en eraeded vane soa to Gea ied

a summary ent on ground support e reco

caly if the pesties hed hed an opportunity to discuss thet

ground in their briefs.

Courts of Appeal have also restricted the ability of district

courts to enter summary ts on issues which had not

been raised. In }. Co. v. American National

Bonk, Sta ord, 809 F.2d = 1192 (5th ir. 1987), the C Court

a summary ent must reve re a

district court relies as not advanced by the moving

party as a basis for summary judgment. In Malhotra v. Cotter

& Co., 885 F.2d 1035, 1310 (7th Cir. 1989), the Court noted

that a party opposing a motion for summary judgment is not

22

Reasons for Allowance of the Writ

uired to respond to any issue that the movin could

rea raised but did not. : atic

In the instant case, the Third Circuit affirmed the entry

of summary judgment against Petitioners on an issue that had

never been raised in the District Court, i.e., whether Petition-

ers’ medical expert had recommended medical tests that are

not Rises, 9 for the general population. Furthermore,

that issue was never raised in any of the briefs submitted to

the Third Circuit. In fact, that issue was not even raised by the

parties or by the Court itself at oral argument. Thus, Petition-

ers were never given an opportunity to address that issue.

That issue cannot be viewed as being solely a question of

law; rather, nie iene eee etre As discussed

above, there are serious and legal questions concernin

whether that issue should have been adopted as a stan

requirement. For example, there is an issue about whether the

fact that different medical tests were not recommended actu-

does reflect the seriousness or significance of the health

risk experienced. There is a factual question as to whether

of toe Batitonsns thal des Adantiek suena We on

testing done. There is a factual consideration concerning the

precise extent to which the monitoring regimen recom-

mended by Petitioners’ expert differs in commencement and

frequency from that recommended for the general population.

The concept that a party must be given the opportunity

to be heard on any issue and particularly on any issue that

forms the basis for an adverse | t is one which has been

by this Court most Courts of Appeal. That

concept is not a procedural technicality. The aoe yey

to be on such an issue is a matter of ntal due

process. Thus, the Third Circuit’s consideration of the issue

concerning different medical tests without affording Petition-

ers an opportunity to be heard on that issue constitutes a clear

error, an abuse of discretion, a denial of Petitioners’ rights to

due process under the Fifth Amendment, and a disregarding

23

Reasons for Allowance of the Writ

of this Court's prior decisions. Thus, if this Court does not

grant certiorari to review the underlying issue of whether the

medical monitoring standard created by the Third Circuit is

erroneous, it shoell grant review of the Third Circuit’s raising

of that issue.

C. This Court Should Grant Certiorari To Review The

Third Circuit’s Decision That Respondents Had Not

Waived The “Deliberative Process Privilege” As To

Five Documents Voluntarily Produced And To

Determine Whether The Third Circuit Erred By

Failing To Hold That The Privilege Was Inapplicable

To Those Documents, That The District Court Had

Erred In Refusing To Allow Petitioners To Utilize

Factual Information Contained In Those Documents,

And That The Respondents’ Status As A Tort-feasor

Should Be Considered In Balancing Petitioners’

Interest In Obtaining Discovery Against

Respondents’ Interest

The Third Circuit’s decision affirming the District

Court’s determination that Respondents had not waived the

“deliberative process privilege” their disclosure of five

documents was “ rtent” does not review any of the facts

concerning the production of those documents nor does it

in what way that production was “inadvertent.” (App.

75a-76a; 55 F.3d at 856). Rather, it simply cites the decision

in TransAmerica Computer Co., Inc. v. International Business

Machines Corp., 573 F.2d 646 (9th Cir. 1978). Id. However,

TransAmerica turned upon the fact that IBM had been re-

quired to produce approximately 17 million pages of docu-

ments within a three month period in accelerated discovery

proceedings that had been ordered by the district court.

24

Reasons for Allowance of the Writ

TransAmerica, supra at 647-48. The appellate court’s conclu-

sion that the production of some specific documents wase

“compelled” was carefully analyzed and arrived at. Id.

In the instant case, as discussed above, multiple copies of

the five documents in question were voluntarily produced by

Respondents at a production of documents that had been

requested by Petitioners in the course of normal discovery

rocedures. Those multiple copies were located in different

xes and filing cabinets. No showing was ever made by

Respondents that were under any “compulsion” or that

their production of those documents constituted excusable

inadvertence. If a governmental assertion that a voluntary

production of documents was merely “inadvertent” is accepted

at face value by courts without consideration of the precise

circumstances and without an of what constitutes an

excusable “inadvertence,” then the principle that a govern-

ment can waive such privileges is nugatory.

The Third Circuit also failed to address the question of

whether the deliberative process subspecies of executive privi-

lege 0H I to the five documents in question. As

discussed , three of those five documents constituted

critical evidence that the Army knew the Park had probably

been contaminated with toxic substances but failed to disclose

that knowledge even when Fairview Township made an in-

uiry. Yet the Third Circuit never considered whether the

Fea actually contained “ ‘confidential deliberations of

law or policymaking, reflecting opinions, recommendations or

advice.’ ” (App. 70a; 55 F.3d at 853 [citations omitted]). What

“deliberations of law or policy-making” was going on at the

time those three documents recorded events concerning com-

munications between the Army and the Township?

The Third Circuit also to address issue of

whether Petitioners’ counsel, being aware of facts recorded in

the documents from having read them at the production, was

entitled to utilize those facts in other discovery, even if the

25

Reasons for Allowance of the Writ

documents themselves were privileged. Extending the “delib-

erative process privilege” to cover not only deliberations them-

selves but wee 2 factual matters (for example, that a Township

representative spoke to a specific representative of the Army

on a specific date about a specific subject matter) extends that

privilege in an unprecedented fashion.

Finally, the Third Circuit erred in its decision concerning

the privileged status of those documents by failing to consider

that under the circumstances of this case the Respondents

should be viewed as tort-feasors. In fact, the very documents

that the District Court held to be privileged were some of the

best evidence of Respondents’ tortious conduct. Thus, the

Third Circuit erred by failing to consider that issue, to hold

that the interests of the Petitioners in utilizing those docu-

ments clearly outweighed any interest that the Respondents

have as tort-feasors in withholding them, and to reverse the

District Court’s decision on this issue.

D. This Court Should Grant Certiorari To Review The

Third Circuit’s Decision That Respondent Army’s

Touhy Regulation Was Properly Applied To Preclude

Petitioners’ Counsel From Contacting Former Army

Employees Regarding Eyewitness Observations

Concerning The Usage, Handling, And Disposal Of

Toxic And Hazardous Materials Eight Or Nine Years

Prior To The Contacts And, If So, Whether Such An

Application Violates Petitioners’ First And Fifth

Amendment Rights

The Third Circuit summarily rejected Petitioners’ -

ment that the District Court see te 8 denying their Fk ol

for Emergency Relief. (App. 28a; 55 F.3d at 834 n.2). Thus,

the Third Circuit did not address any of the arguments that

had been raised in the District Court or on appeal by Respon-

26

Reasons for Allowance of the Writ

dents concerning why the Army’s Touhy regulation could not

lawfully be faa de to prevent eyewitnesses from communi-

cating with Petitioners’ counsel without the agreement and

participation of Army representatives.

As noted above, these events unfolded on the eve of trial.

The witnesses had knowledge concerning how they them-

selves and others had actually handled, used, and disposed of

toxic or hazardous substances at NCAD eight or nine years

earlier. The witnesses were civilian employees whose a

were not highly ranked, supervisory positions. Nevertheless,

neither the District Court nor the Circuit Court ever ad-

dressed the issue of whether the testimony sought from those

eyewitnesses constituted “official information” which fell

within the Army's Touhy n.

Petitioners raised a number of other issues on appeal. For

example, Petitioners raised the issue of whether a Touhy

lation could properly be applied to individuals who had

held somewhat menial positions only years earlier. Peti-

tioners argued that no court had ever upheld the usage of a

Touhy regulation to preclude a private litigant from obtaining

relevant and probative eyewitness testimony in a case

the Government g that the Government itself

guilty of tortious conduct. Petitioners that the District

Court abused its discretion by denying the Motion for Emer-

gency Relief without affording the Petitioners a hearing or

even an opportunity to submit a brief in support of that

Motion. Petitioners argued that to allow the Government to

apply a Touhy n to prevent communications between

eyewitnesses and counsel under the circumstances of this case

violated Petitioners’ and the eyewitnesses’ rights to freely

associate under the First Amendment and violated Petitioners’

rights to due process under the Fifth Amendment.

The Third Circuit's failure to address any of the argu-

ments on this matter that had been raised by Petitioners

the effect of extending this Court’s decision in Touhy, supra,

27

Reasons for Allowance of the Writ

beyond anything intended by this Court and beyond the

bounds of reason. The effect of the Third Circuit's refusal to

consider those arguments is to allow the Government to apply

a Touhy regulation to preclude a private litigant from contact-

ing any former emp of the Government concerning any

fi matters, of the nature of those factual mat-

ters and regardless of the remoteness in time of the employ-

ment, even where the litigant has adduced evidence that the

Government has engaged in tortious conduct.

E. This Court Should Grant Certiorari To Review The

Third Circuit’s Decision Affirming The Denial Of

Class Certification In This Case

The Third Circuit summarily rejected Petitioners’ argu-

ment that the District Court had abused its discretion by

denying class certification of this action. (App. 27a-28a; 55

F.3d at 834 n.2). The utilization of a class action mechanism is

particularly important in the context of toxic tort litigation.

Slagel, supra at 856 and Gara, supra at 297-98. Federal courts

have certified class actions seeking medical monitoring. Day,

supra at 883, citing General Telep Co. v. Falcon, 457 U.S.

147, 159, 102 $.Ct. 2364, 2371, 72 L.Ed.2d 740 (1982).

In the instant case the District Court denied class certi-

fication on the basis that Petitioners would be red to

prove their exposure to toxic substances on an individual basis.

However, as commentators have su numerous com-

mon issues exist in cases seeking monitoring that can

be more efficiently and appropriately dealt with on a class-

wide basis. Slagel and Gara, supra. In the instant case, for

oa, all questions concerning the Respondents’ liability

(.e., their tortious conduct) could be dealt with on a class-wide

basis. Scientific and medical testimony concerning what expo-

sures occurred from engaging in various activities at the Park

28

Reasons for Allowance of the Writ

and which durations of activities would create a significant

health risk could more efficiently and appropriately be dealt

with on a class-wide basis. In fact, the only individual consid-

eration is the precise amount of time that each Petitioner spent

engaging in which activities at the Park.

Court has not decided the question of whether the

class action mechanism should be u in toxic tort cases

seeking medical monitoring to promote the efficiency of the

judicial process as well as justice to the victims of toxic expo-

sures. For the reasons discussed in the first subsection of these

Reasons for Allowance of the Writ the granting of certiorari to

consider this issue would be wholly salutary and consistent

with public policy.

F. This Court Should Grant Certiorari To Review The

Third Circuit’s Decision That Petitioners Are Not

Entitled To Seek Damages For Negligent Infliction Of

Emotional Distress

The Third Circuit affirmed the District Court’s dismissal

of Petitioners’ claims for infliction of emotional distress on the

sremborriinenawenstary pring hyo yor Oper

physical injury or impact. (App. 58a; 55 F.3d at 848). In M

D Weabaghorss Gieiax COn sagas tao Ona Dent he

that a physical impact sufficient to justify damages for emo-

tional and suffering was established where it was shown

that p had inhaled, ingested, and absorbed hazardous

substances. The Third Circuit attempts to distinguish that case

on a basis that does not exist. (App. 58a-59a; 55 F.3d at 848).

to justify a claim for infliction of emotional distress is com-

pletely consonant with common law and, more importantly, is

29

Reasons for Allowance of the Writ

completely consonant with the-public policy considerations

discussed above. Thus, the Third Circuit’s rejection of such a

holding constitutes the imposition of a standard ap licable to

toxic tort litigation which is consonant with its sae created

standard for medical monitoring. Therefore, if this Court

grants certiorari to review the first question identified in this

Petition, it should also review this correlative issue.

CONCLUSION

This Court should grant certiorari to review the second

question identified above because the decision of the Third

Circuit decides a federal question in a way that conflicts with

— decisions of this Court and conflicts with decisions

oO

other Courts of . This Court should grant review of

the fourth — it conflicts with the applicable

decision of this Court. This Court should grant certiorari to

review the other questions presented above because they

constitute important questions of federal law that have not

been, but should be, settled by this Court.

Respectfully submitted,

SHUMAKER WILLIAMS, P.C.

LAURENCE W. DAGUE

RAJA G. RAJAN

DAVID R. BRESCHI

Attorneys for Petitioners

Dated: October 10, 1995

30

Certificate of Service

CERTIFICATE OF SERVICE

I, Laurence W. Dague, Esquire, of the law firm of Shu-

maker Williams, P.C., hereby certify that on this date a true

and correct copy of the foregoing Petition for Writ of Certio-

rari was served on the following persons:

Solicitor General

Department of Justice

Washington, D.C. 20530

John T. Stahr

Environment and Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026-3986

J. Adam Bain, Esquire

Torts Branch, Civil Division

U.S. Department of Justice

Box 340, Ben Franklin Station

Washington, D.C. 20044

SHUMAKER WILLIAMS, P.C.

LAURENCE W. DAGUE

Dated: October 10, 1995

i.

4

Vy

la

Appendix

J. A17035/95

IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 00338 Harrisburg 1994

REDLAND SOCCER CLUB, INC.,

RICHARD V. SPONG, SR.,

RICHARD V. SPONG, JR., ET AL,

Appellants

v.

DEPARTMENT OF THE ARMY AND

DEPARTMENT OF DEFENSE,

Appellees

Appeal from the Order Entered May 5, 1994, in

the Court of Common Pleas of York County,

Civil, No. 92-SU-05339-01

BEFORE: CAVANAUGH, McEWEN, and DEL SOLE, JJ.

MEMORANDUM:

FILED JUL 14 1995

This appeal has been taken by appellants, Redland Soccer

Club, Inc., et al, from an order which granted summary

ju nt in favor of appellees, the Department of the Army

and the nt of Defense of the United States of

America, and dismissed all of the claims presented by appel-

lants. We reverse in part and remand.

Marsh Run Park (hereinafter “the Park”) consists of

approximately 14 acres that were originally part of the New

Cumberland Army Depot (hereinafter “NCAD”), an installa-

tion owned by the United States Army. Four or five acres of

2a

Appendix

the park had been utilized as a landfill by NCAD during a

period from 1917 to at least the mid-1950s. The Army trans-

ferred ownership of the Marsh Run tract to Fairview Township

in 1976, having covered the landfill with a layer of soil and coal

ashes prior to the transfer.

The 14-acre tract was converted intv a Park by Fairview

Township through grading and other work that commenced in

1981 and was accomplished by Township employees. Soccer

fields, which were placed within the area of the former landfill,

were utilized for soccer practices and games from 1982 until

August of 1987, when the Army commenced testing of the

= as part of the Defense Environmental Restoration Pro-

The e Army closed the Park on August 28, 1987, placed a

canis around it, and assumed possession and control of the

area following receipt of the preliminary results from the

Defense Environmental Restoration Program testing. The

Army conducted a remedial investigation and feasibility study

from 1988 through 1990 pursuant to CERCLA!, to determine

the nature and extent of the contamination and to evaluate

alternatives for remedial action. The Army, in June of 1991,

issued a record of decision under Section 104 of CERCLA, 42

U.S.C. §9604, selecting a cleanup remedy consisting of a

vacuum extraction process to remove soil contaminants, and a

ground water treatment system, with a total projected cost of

5.5 million dollars.

pellants, 152 individuals who consist of three groups

who had contact with the landfill area,’ filed an action in U.S.

District Court for the Middle District of Pennsylvania on June

Act, 42, U.S.C. §§0601 et seq

arabe nye = neg who lived adjacent to the Park, while the

second consists a one Toi ho graded the 14-acre

cmsnt to Soins Goa Sik bet apis llants, are

adden gal ald dls saleasied te enear aie te primarily

through practicing, playing, and/or coaching soccer.

3a

Appendix

7, 1990, seeking class certification and requesting, inter alia,

the establishment of a medical monitoring trust fund pursuant

to the provisions of CERCLA, the Federal Tort Claims Act,

and the Pennsylvania Hazardous Sites Cleanup Act, 35

P.S.§§6020.101 et seq. (hereinafter “HSCA”). Class certifica-

tion was denied by the district court by order dated March 4,

1991. The district court subsequently granted judgment on the

pleadings in favor of appellees on the claim of appellants for

medical monitoring, holding that such costs are not recover-

able response costs under CERCLA. The district court, how-

ever, denied appellees’ motion for judgment on the pleadings

as to the claim of appellants for medical monitoring costs

under the HSCA, finding that Section 702(a)(5) of the HSCA

specifically designated medical monitoring costs as response

costs and that Section 702(a)(3) provided for a private cause

of action to recover such costs. Subsequently, the district court,

by order dated September 15, 1992, dismissed without preju-

dice all of the claims of appellants for injunctive relief and held

that attorneys’ fees and expert witness’ fees were not recover-

able costs under CERCLA or under the HSCA. See: Redland

Soccer Club Inc. v. Department of the Army, 835 F.Supp. 803,

809-810 (M.D. Pa. 1993), aff'd. on other grounds, F.3d

(3rd Cir; 1995).

Appellants then filed an appeal to the Third Circuit Court

of Appeals from the order of September 15, 1992, and filed

the instant action in the Court of Common Pleas of York

County on November 24, 1992, uant to the provisions of

the HSCA, alleging that they "ae ae exposed to and ingested

the toxic and hazardous substances contaminating the Park

and Marsh Run Creek. Appellants alleged in their complaint

that their e to those toxic and hazardous substances in

the Park and in Marsh Run Creek had resulted in significant

health risks to them, and sought (1) creation of a medical

monitoring fund for the payment of costs related to future

4a

Appendix

health examinations necessitated by the alleged exposure to

toxic substances, (2) an injunction soaiitien tea Army to take

remedial action in compliance with the provisions of the

HSCA, (3) monetary damages, and (4) response costs, attor-

neys’ fees, and expert witness’ fees. Appellants also sought

class certification for the aforementioned three groups of

plaintiffs.

The trial court denied class certification by order dated

October 15, 1993, and, subsequently, on April 28, 1994,

granted the motion of appellees for summary judgment as to

the claim for medical monitoring, and held that appellants’

request for injunctive relief was moot given the grant of

summary judgment, and dismissed the claim for attorneys’

fees and a jury trial.

Appellants request that we reverse and remand, arguing

that:

1. Summary judgment was improperly entered as

there were disputed issues of material fact;

2. Attorneys’ fees are recoverable in private actions

under the HSCA;

3. Jury trials are available under the HSCA; and

4. The trial court committed reversible error when

it denied class certification.

The distinguished Judge John C. Uhler has ably discussed

and correctly rejected the of error concerning the

denial of class certification and the absence of a right to a jury

trial under the HSCA, and as a result, it would be purposeless

for this Court to elaborate upon that discussion. We find

ourselves constrained to disagree, however, with the conclu-

sion of the trial court concerning the recovery of attorneys’ and

witness’ fees under the HSCA and the propriety of the entry

of summary judgment at this stage of the proceedings.

Sa

Appendix

Appellants argue that the court misapplied the appropri-

ate standard of review in ruling upon the motion for summary

judgment. Rule 1035(b) provides that summary judgment

“shall be rendered if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affi-

davits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judg-

ment as a matter of law” (emphasis supplied). Rule 1035(d)

provides that “when a motion bor summary judgment is made

and supported as provided in this rule, an adverse party may

not rest upon the mere allegations or denials of his pleadings,

but his response, by affidavits or as otherwise provided in this

rule, must set forth specific facts showing that there is a

genuine issue for trial.”

“The moving party has the burden of proving the nonex-

istence of any genuine issue of material fact. Thompson Coal

Co. v. Pike Coal Co., 448 Pa. 198, 202-204, 412 A.2d 466,

468-469 (1979). The record must be viewed in the light most

favorable to the nonmoving , and all doubts as to the

existence of a genuine issue of material fact must be resolved

against the moving .” Marks v. Tasman, 527 Pa. 132, ,

589 A.2d 205, 206 (1991). Accord: Commonwealth, Dept. of

Environmental Resources v. Bryner, 149 Pa.Super.59,_, 613

A.2d 43, 45 (1992).

Appellants persuasively argue that the holding of Nanty-

Glo precludes the entry of summary judgment against them

since there is a disputed issue of material fact as to the actual

of each of the appellants to the toxic chemicals

disposed of by the a in the landfill and by discharge

into Marsh Run Cree

Since Bremmer, there have been numerous cases

addressing the Nanty-Glo doctrine in the context of sum-

mary judgments. See, e.g., Penn Center House, Inc. v.

6a

Appendix

Hoffman, supra; Thompson Coal Co. v. Pike Coal Co.,

supra; Johnson v. Johnson, supra; Garcia v. Savage, su-

pra; Troy v. Kampgrounds of America, Inc., supra. A

review of these cases demonstrates that there is an inher-

ent three-step process involved in determining whether

the Nanty-Glo rule applies so as to preclude a grant of

summary judgment. Initially, it must be determined

whether the plaintiff has alleged facts sufficient to estab-

lish a prima facie case. If so, the second step is to deter-

mine whether there is any discrepancy as to any facts

material to the case. Finally it must be tose Ara

whether, in granting summary judgment, the trial court

has usurped improperly the role of the jury by resolving

any material issues of fact.

It is only when the third stage is reached that Nanty-

Glo comes into play. Thus, it is true that Nanty-Glo

precludes summary judgment where the moving party

relies solely upon testimonial affidavits and depositions

of his witnesses to resolve material issues of fact. How-

ever, if there are no material issues of fact, or if the

non-moving party has failed, in the first instance, to allege

facts sufficient to make out a prima facie case, then

summary judgment may be granted properly, even if the

moving party has only set forth the leetiags and depo-

sitions of his witnesses in support thereof. Hence the

language of Pa.R.C.P. 1035, which-_provides that “[a]fter

the pleadings are closed, but within such time as not to

delay trial, any party may move for summary judgment

on the pleadings and any depositions, answers to inter-

rogatories, admissions on file and supporting affidavits.”

Pa.R.C.P. No. 1035(a). Error only occurs if the moving

party, in relying upon the testimonial affidavits of his

witnesses, is attempting to resolve a material issue of fact,

7a

Appendix

or more importantly, is attempting to demonstrate the

lack of any material issues of fact by asserting that the

testimony of his witnesses is uncontradicted.

If there are no material issues of fact in dispute, and

plaintiff has failed to allege facts sufficient to make out a

prima facie case, as a matter of law, then summary judg-

ment may be granted properly. Such was the result

reached by our supreme court in Thompson Coal Co. v.

Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). When

confronted with appellant's argument that the trial court

erred in granting summary judgment, in light of Brem-

mer, supra, and Nanty-Glo, supra, the court concluded:

We have no credibility issue here. Assuming every-

thing that appellants argue is accepted as pristine truth,

appellants fail to make out a prima facie case as a matter

of law, not as a matter of fact.

Thompson Coal Co., 488 Pa. at 213-14, 412 A.2d at 474.

Dudley v. USX Corporation, 414 Pa.Super. 160, , 606 A.2d

916, 920 (1992), allo. denied, 532 Pa. 663, 616 A.2d 985 (1992)

(footnote omitted). Accord: Thompson v. Anderson, 429

Pa.Super. 532, , 632 A.2d 1349, 1350-1351 (1993).

Thus, only where the facts alleged by the plaintiffs, when

taken as true, are insufficient as a matter of law to establish a

prima facie case, may summary judgment be properly entered.

The trial court in the instant case, relying upon a single expert

report contained in a record running to in excess of one

thousand pages, held:

... the Risk Assessment provides a risk characterization

based on an estimated time of exposure. It, however, does

not show for the purposes of a cause of action under

HSCA for medical monitoring that the plaintiffs in this

case were significantly exposed to a hazardous substance.

8a

Appendix

The trial court then held that appellants had failed to allege

facts sufficient to prove the actual exposure to hazardous

substances necessary to establish a prima facie case for medical

monitoring under the HSCA and granted the motion of appel-

lees for summary judgment. This was error. Appellants have

alleged actual exposure and the documents produced in oppo-

sition to the motion for summary judgment establish that

numerous issues of disputed fact concerning the nature and

extent of that exposure exist. The evidence, moreover, is such

that expert testimony is necessary in order for the court to

properly evaluate the many test results and reports produced

by the parties. This type of inquiry is not appropriate in ruling

on a motion for summary judgment, where the obligation of

the court is simply to ascertain if the facts, as alleged by the

plaintiffs, are sufficient as a matter of law, if found to be true,

to establish a cause of action. Our review of the record compels

the conclusion that the facts as alleged by appellants are

sufficient to establish a prima facie case under the HSCA.

On May 15, 1995, the Third Circuit, although affirming

the order which dismissed the federal action filed by appel-

lants, also found that appellants had produced sufficient evi-

dence of exposure to avoid the entry of summary judgment:

... there is enough evidence to create a genuine issue of

material fact as to whether persons using the Park for

thirty-three hours or more had enough exposure to car-

cinogens and non-carcinogenic toxins to create a signifi-

cant risk to their health.

Redland Soccer Club Inc. v. Department of the Army,

F.3d , (3rd Cir; No. 93-7829; filed May 15, 1995) (slip op.

at p. 43). The Circuit Court, in affirming the dismissal of the

federal claims of all of the instant appellants, except the

9a

Appendix

Elliotts, relied upon rulings made in prior decisions of that

Court.

The Third Circuit in In re Paoli R.R. Yard PCB Litigation,

916 F.2d 829, 851 (3rd Cir. 1990) (Paoli I) had earlier con-

cluded that, presented with the issue, the Pennsylvania Su-

preme Court would recognize a cause of action for medical

monitoring, and set forth a four-part test to ascertain when

medical monitoring would be appropriate:

1. The plaintiff was significantly exposed to a proven

hazardous substance through the negligent actions of the

defendant. |

2. As a proximate result of exposure, the plaintiff

suffers a significantly increased risk of contracting a seri- —

ous latent disease.

3. That the 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.

In re Redland Soccer Club, supra, 916 F.2d at 852.

Subsequently, the Third Circuit, in In Re Paoli R.R. Yard

Litigation, 35 F.3d 717 (3rd Cir. 1994) (Paoli II) adopted the

ruling of the Utah Supreme Court in Hansen v. CCI Mechani-

cal, Inc., 858 P.2d 970 (Utah 1993) and held:

In order for a plaintiff to show significant exposure

that causes a significantly increased risk to plaintiff of

contracting a serious disease that makes periodic testing

reasonably necessary, we think that a plaintiff must:

prove that by reason of the exposure to the toxic substance

caused by the defendant's negligence, a reasonable phy-

sician would prescribe for her or him a monitoring regime

10a

Appendix

different from the one that would have been prescribed

in the absence of that particular exposure. This is because

under this cause of action, a plaintiff may recover only if

the defendant's wrongful acts increased the plaintiff's

incremental risk of incurring the harm produced by the

toxic substance enough to warrant achange in the medical

monitoring that otherwise would be prescribed for that

plaintiff.

The court continued: [I]f a reasonable physician

would not prescribe it for a particular plaintiff because

the benefits of the monitoring would be outweighed by

the costs, which may include, among other things, the

burdensome frequency of the monitoring procedure, its

excessive price, or its risk of harm to the patient, then

recovery would not be allowed.

In re Paoli R.R. Yard Litigation, supra, 35 F.3d at 788, quoting,

Hansen v. CCI Mechanical, Inc., supra, 858 P.2d at 980.

The Third Circuit Court in Redlands, supra, applying

Paoli I and II, concluded that

“Significant exposure,” therefore, refers to an

sure which, either by duration or harm, is sufficient to

cause a significantly increased risk, which in turn is suffi-

cient to require a monitoring regime different from that

normally required in the absence of such an exposure.

Redlands, supra, F.3d at (slip op. at 34) (emphasis

supplied).

The Circuit Court then affirmed the entry of summary

judgment as to all plaintiffs other than the Elliotts based on

that Court's conclusion that appellants “had failed to show that

their exposure made any medical monitoring tests or exami-

nations necessary or desirable other than those that health care

professionals recommend for people who have had no expo-

lla

Appendix

sure to any of the toxic substances that might be found at the

Park.” Id.

Since we are not bound by federal court decisions inter-

preting state law, we decline to adopt the “different monitoring

regime” rule devised by the Utah Supreme Court in Hansen

v. CCI Mechanical, Inc., supra, as we find the rule is not a

necessary element of a cause of action under the Pennsylvania

Hazardous Sites Cleanup Act. Thus, since appellants pro-

duced sufficient evidence to create a genuine issue of material

fact regarding actual exposure to hazardous substances, sum-

mary judgment may not properly be entered on this record.

Appellants also argue that the trial court erred in conclud-

ing that attorneys’ fees are not recoverable in private actions

under Section 1115 of the HSCA. Section 1115 provides:

§6020.1115. Citizen suits

(a) General Rule.—A person who has experienced

or is threatened with personal injury or property damage

as a result of a release of a hazardous substance may file

a civil action against any person to prevent or abate a

violation of this act or of any order, regulation, standard

or approval issued under the act.

(b) Jurisdiction.—The courts of common pleas shall

have jurisdiction over any actions authorized under this

section. No action may be commenced under this section

prior to 60 days after the plaintiff has given notice to the

department, to the host municipality and to the alleged

violator of this act, or of any regulations or orders of the

department under this act; nor may such action be com-

menced when the department has commenced and is

diligently prosecuting a civil or criminal action in a court

of the United States or a state to require compliance with

the statute, permit, standard, regulation, condition, re-

12a

Appendix

quirement prohibition or order. In any such civil action

commenced by the department, any person may inter-

vene as a plaintiff as a matter of right. The court may grant

any equitable relief; may impose a civil penalty urider

section 1104; and may award litigation costs, including

reasonable attorney and witness fees, to the prevailing or

substantially prevailing party whenever the court deter-

mines such an award is appropriate.

(c) Departmental intervention—The department

may intervene as a matter of right in any action authorized

under this section.

35 P.S. §6020.1115(b)(footnote omitted)(emphasis supplied).

Contrary to the conclusion of the trial court, we believe

the emphasized portion of subsection (b) of the Act refers to

citizens’ suits and not solely to actions instituted by the gov-

ernment. We, therefore, reverse that portion of the order of

April 28, 1994, which dismissed the claims of appellants for

attorneys’ and witness’ fees and remand for proceedings con-

sistent with the foregoing.

Order reversed in part and affirmed in part. Case re-

manded. Jurisdiction relinquished.

DEL SOLE, J., FILES A DISSENTING MEMORAN-

DUM STATEMENT.

13a

Appendix

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 00338 Harrisburg 1994

REDLAND SOCCER CLUB, INC.,

RICHARD V. SPONG, SR.,

RICHARD V. SPONG, JR., ET AL,

Appellants

Vv.

DEPARTMENT OF THE ARMY AND

DEPARTMENT OF DEFENSE,

Appellees

Appeal from the Order Entered May 5, 1994, in

the Court of Common Pleas of York County,

Civil, No. 92-SU-05339-01

BEFORE: CAVANAUGH, McEWEN, and DEL SOLE, JJ.

FILED JUL 14 1995

DISSENTING MEMORANDUM STATEMENT BY DEL

SOLE, J.

My review of the record causes me to conclude that the

trial court was correct in determining that no evidence exists

of record to raise a factual issue that the plaintiffs were exposed

to any actual chemical hazard. Therefore, I dissent and would

affirm on the basis of the opinion and analysis of Judge John

C. Uhler.

l4a

Appendix

DEPARTMENT OF THE ARMY OF THE UNITED

STATES OF AMERICA

and THE UNITED STATES OF AMERICA,

Appellees

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 90-cv-01072)

SUR PETITION FOR PANEL REHEARING

PRESENT: BECKER and HUTCHINSON, Circuit

Judges, and JOYNER, District Judge°®

The petition for panel rehearing filed by appellants in the

above captioned matter having been submitted to the judges

who participated in the decision of this court, and no je

who concurred in the decision having asked for rehearing, the

petition for panel rehearing is denied.

By the Court,

/s/William D. Hutchinson

Circuit Judge

DATED JUL 13 1995

* Hon. J. Curtis Joyner, United States District Judge for the Eastern District

of Pennsylvania, sitting by designation.

15a

Appendix

DEPARTMENT OF THE ARMY OF THE UNITED

STATES OF AMERICA

and THE UNITED STATES OF AMERICA,

Appellees

mee from the United States District Court

or the Middle District of “poop: or

(D.C. Civil Action No. 90-cv-01072)

Present: Becker and Hutchinson, Circuit Judges, and

er®

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the Middle District of Penn-

sylvania and was argued by counsel on June 22, 1994.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said District

Court entered on November 30, 1993, be, and the same is

hereby affirmed with to the dismissal of claims of the

Neighbors, the Soccer Plaintiffs and the Township Workers.

The order of said District Court granting the United States

summary judgment on Todd and Tracey Elliotts’ claims is

hereby reversed and the cause is remanded for further pro-

ceedings consistent with the opinion of this Court. The parties

shall each bear their own costs. All of the above in accordance

with the opinion of this Court.

ATTEST: /s/P. Douglas Sisk

Clerk

Dated: May 15, 1995

No. 93-7829

Certified as a true copy and issued in lieu

of a formal mandate on July 21, 1995.

Teste: /s/P. Douglas Sisk

Clerk, U.S. Court of Appeals for the Third Circuit.

16a

Appendix

Filed May 15, 1995

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 93-7829

REDLAND SOCCER CLUB, INC., BRETNI BRINK, a

Minor by TAMARA BRINK, RYAN BRINK, a Minor, by

TAMARA BRINK, JOSEPH BRTALIK, CAROLE G.

BRTALIK, JOSEPH J. BRTALIK, BRIAN BRTALIK,

WENDY BRTALIK a Minor, by JOSEPH and CAROLE G.

BRTALIK, THEODORE F. BURD, DIANE M. BURD.

CHRISTOPHER T. BURD, a Minor, by THEODORE F.

and DIANE M. BURD, GREGORY C. BURD, a Minor, by

THEODORE F. and DIANE M. BURD, DEWITT }.

CLINE, JR., JAN M. CLINE, ERIC J. CLINE, a Minor, by

DEWITT J., JR. and JAN M. CLINE, JEROMY J. CLINE,

a Minor, by DEWITT J., JR. and JAN M. CLINE,

RONALD W. DANNER, DANIELLE M. DANNER, a

Minor, by RONALD W. DANNER, CRAIG A. DANNER,

a Minor, by RONALD W. DANNER, THEODORE J.

ELLIOTT, FRANCES M. ELLIOTT, TODD ELLIOTT, a

Minor, by THEODORE J. and FRANCES M. ELLIOTT,

TRACEY ELLIOTT, a Minor, by THEODORE J. and

FRANCES M. ELLIOTT. STEVEN W. HAAS, IRMA L.

RODGERS-HAAS, ANTHONY M. RODGERS, a Minor,

by STEVEN W. HAAS and IRMA L. RODGERS-HAAS,

NICOLE C. RODGERS, a Minor, by STEVEN W. HAAS

and IRMA L. RODGERS-HAAS, LAWRENCE E.

HAGER, RUTH A. HAGER, SAMUEL HAGER,

BENJAMIN HAGER, a Minor, by LAWRENCE and

17a

Appendix

RUTH HAGER, SHAWN HAGER, a Minor, by

LAWRENCE and RUTH HAGER, EDWARD

HOCKENBERRY, MARY L. HOCKENBERRY, BRETT

R. HOCKENBERRY, a Minor, by EDWARD and MARY

L. HOCKENBERRY, ROGER L. HOCKENBERRY,

PATRICIA D. HOCKENBERRY, KERIC L.

HOCKENBERRY, a Minor, by ROGER L. and PATRICIA

D. HOCKENBERRY, KODI B. HOCKENBERRY, a

Minor by ROGER L. and PATRICIA D.

HOCKENBERRY, KLINT D. HOCKENBERRY, a Minor,

by ROGER L. and PATRICIA D. HOCKENBERRY,

DAVID G. HOOPER, PRISCILLA G. HOOPER, DAVID

G. HOOPER, II, JOHN H. KNAUB, DEBORAH J.

KNAUB, DEREK J. KNAUB, a Minor, by JOHN H. and

DEBORAH J. KNAUB, SEAN M. KNAUB, a Minor, by

JOHN H. and DEBORAH J. KNAUB, THOMAS R.

KRAUSE, ROBERT A. KRAUSE, a Minor, by THOMAS

R. KRAUSE, RICHARD H. LEBO, DONNA LEBO,

TRISHA LEBO, a Minor, by RICHARD and DONNA

LEBO, KRISTINA LEBO, a Minor, by RICHARD and

DONNA LEBO, RALPH E. McCARTY, GALE P.

McCARTY, JOSHUA H. McCARTY, a Minor, by RALPH

E. and GALE P. McCARTY, LUCAS P. McCARTY, a

Minor, by RALPH E. and GALE P. McCARTY, JAMES P.

MEYERS, KIM MEYERS, SAMANTHA MEYERS, a

Minor, by JAMES and KIM MEYERS, BRETT MEYERS,

a Minor, by JAMES and KIM MEYERS, THOMAS M.

MORROW, MEREDITH S. MORROW, GREGORY M.

MORROW, a Minor, by THOMAS M. and MEREDITH S.

MORROW, GEOFFREY T. MORROW, a Minor, by

THOMAS M. and MEREDITH S. MORROW, JACK E.

MUTH, KATHLEEN L. MUTH, ROBERT C. MUTH, a

Minor, by JACK and KATHLEEN L. MUTH, JOHN A.

18a

Appendix

NACE, JR., LINDA M. NACE, MICHAEL NACE, a

Minor, by JOHN A. and LINDA M. NACE, ROBERT

NACE, a Minor, by JOHN A. and LINDA M. NACE,

KENNETH E. NACE, PAMELA R. NACE, JEREMY M.

NACE, a Minor, by KENNETH E. and PAMELA R.

NACE, KEVIN E. NACE, a Minor, by KENNETH E. and

PAMELA R. NACE, MELISSA A. NACE, a Minor, by

KENNETH E. and PAMELA R. NACE, DEAN G.

NEWHOUSE, NORMA J. NEWHOUSE, MARTIN

NEWHOUSE, ERIC NEWHOUSE. BENJAMIN

NEWHOUSE, a Minor, by DEAN G. and NORMA J.

NEWHOUSE, PETER P. O'NEILL, ALICE L. O'NEILL,

PETER O'NEILL, PATRICK O'NEILL, PAUL O'NEILL,

PATRICIA A. PALM, DYLAN T. BUCKWALTER, a

Minor, by PATRICIA A. PALM, MICHELLE A.

BUCKWALTER, a Minor, by PATRICIA A. PALM,

ROBERT J. PONTIUS, CINDY L. PONTIUS, JAY

PONTIUS, a Minor, by ROBERT J. and CINDY L.

PONTIUS, DEBRA S. POPP, ANDREW J. POPP, a Minor,

by DEBRA S. POPP, THOMAS M. RADOS, a Minor, by

SONJA RADOS, WILLIAM P. REHM, JR., KIMBERLY

A. REHM, DAVID A. REHM, a Minor, by WILLIAM P.,

JR., and KIMBERLY A. REHM, ANDAR A. REHM, a

Minor, by WILLIAM P., JR., and KIMBERLY A. REHM,

DEON J. REHM, a Minor, by WILLIAM P., JR., and

KIMBERLY A. REHM, MICHELLE D. REHM, a Minor,

by WILLIAM P., JR., and KIMBERLY A. REHM, KEN

RIBBLE, SUSAN RIBBLE, SCOTT RIBBLE, a Minor, by

KEN and SUSAN RIBBLE, MARK RIBBLE, a Minor, by

KEN and SUSAN RIBBLE, NEVIN C. SHENCK, JR..,

LISA L. SHENCK, NATHAN S. SHENCK, AARON M.

SHENCK, a Minor, by NEVIN C., JR., and LISA L.

SHENCK, REBECCA SHENCK, A Minor, by NEVIN C.,

19a

Appendix

JR., and LISA L. SHENCK, BRADLEY SHIRK,

RICHARD V. SPONG, SR., JULIA A. SPONG, RICHARD

V. SPONG, JR., NATHAN M. SPONG, jOELLE L.

SPONG, BARRY L. STONE, MATTHEW D. STONE,

COREY J. STROMAN, a Minor, by LOWELL R. and

DEBRA J. STROMAN, DONNA L. SZOSZOREK,

SHANNON M. SZOSZOREK, A Minor, by DONNA L.

SZOSZOREK, SHAYNA M. SZOSZOREK, a Minor, by

DONNA L. SZOSZOREK, EUGENE K. TORBEK, ERIK

P. TORBEK, a Minor, by EUGENE K. TORBEK,

DONALD WILLIAMSON, ELIZABETH M.

WILLIAMSON, MICHAEL WILLIAMSON, a Minor, by

DONALD and ELIZABETH WILLIAMSON, WILLIAM

B. WIRT, PAMELA A. WIRT, CHRISTINE E. WIRT,

KEVIN M. WIRT, TIMOTHY B. WIRT, a Minor, by

WILLIAM B. and PAMELA A. WIRT. BRYAN C. WIRT, a

Minor, by WILLIAM B. and PAMELA A. WIRT, BURLIN

COVERT, JOSEPH DORWART, III, PATRICIA A.

DORWABT, JOSEPH DORWART, IV, a Minor, by

JOSEPH DORWART, III, and PATRICIA DORWART,

ALICIA DORWART, a Minor, by JOSEPH DORWART,

III, and PATRICIA DORWART, BRENT DORWART, a

Minor, by JOSEPH DORWABRT, III, and PATRICIA

DORWART, JACK H. HERSHBERGER, JR., JUNE

HERSHBERGER, LARRY SMART CAROL SMART,

JEFFREY SMART, a Minor, by LARRY, and CAROL

SMART, CRYSTAL SMART, a Minor, by LARRY and

CAROL SMART, GLENN DILLER, DALE KAHLER,

ROBERT E. KANE, TERRENCE L. KEMBERLING,

DAVID A. KUPP, E. ROBERT McCOLLUM, HERBERT

D. MYERS, and WILBUR YORTY,

Appellants

20a

Appendix

V.

DEPARTMENT OF THE ARMY OF THE UNITED

STATES OF AMERICA and THE UNITED STATES

OF AMERICA,

Appellees

Appeal from the United States District Court for the

Middle District of Pennsylvania

(D.C. Civil Action No. 90-cv-01072)

Argued: June 22, 1994

PRESENT: BECKER and HUTCHINSON, Circuit

Judges, and JOYNER, District Judge*

(Filed May 15, 1995)

Laurence W. Dague, Esquire

(Argued)

Glenn R. Davis, Esquire

Raja G. Rajan, Esquire

Shumaker & Williams

P.O. Box 88

Harrisburg, PA 17108

Attorneys for Appellants Redland Soccer

Club, Inc., Bretni Brink, a Minor, by

Tamara Brink, Ryan Brink, a Minor, by

Tamara Brink, Joseph Brtalik, Carole G.

Brtalik, Joseph J. Brtalik, Brian Brtalik,

Wendy Brtalik, a Minor, by Joseph and

*Hon. J. Curtis Joyner, United States District Judge for the Eastern District

of Pennsylvania, sitting by designation.

2la

Appendix

Carole G. Brtalik, Theodore F. Burd,

Diane M. Burd, Christopher T. Burd, a

Minor, by Theodore F. and Diane M.

Burd, Gregory C. Burd, a Minor, by

Theodore F. and Diane M. Burd,

Dewitt J. Cline, Jr., Jan M. Cline, Eric J.

Cline, a Minor, by Dewitt J., Jr. and Jan

M. Cline, Jeromy J. Cline, a Minor, by

Dewitt J., Jr. and Jan M. Cline, Ronald

W. Danner, Danielle M. Danner, a

Minor, by Ronald W. Danner, Craig A.

Danner, a Minor, by Ronald W. Danner,

Steven W. Haas and Irma L.

Rodgers-Haas, Anthony M. Rodgers, a

Minor, by Steven W. Haas and Irma L.

Rodgers-Haas, Nicole C. Rodgers, a

Minor, Steven W. Haas and Irma L.

Rodgers-Haas. Lawrence E. Hager,

Ruth A. Hager, Samuel Hager,

Benjamin Hager, a Minor, by Lawrence

and Ruth Hager, Shawn Hager, a Minor,

by Lawrence and Ruth Hager, Edward

Hockenberry, Mary L. Hockenberry,

Brett R. Hockenberry, a Minor, by

Edward and Mary L. Hockenberry,

Roger L. Hockenberry, Patricia D.

Hockenberry, Keric L. Hockenberry, a

Minor, by Roger L. and Patricia D.

Hockenberry, Kodi B. Hockenberry, a

Minor, by Roger L. and Patricia D.

Hockenberry, Klint D. Hockenberry, a

Minor, by Roger L. and Patricia D.

Hockenberry, David G. Hooper,

22a

Appendix

Priscilla G. Hooper, David G. Hooper,

II, John H. Knaub, Deborah J. Knaub,

Derek J. Knaub, a Minor, by John H.

and Deborah J. Knaub, Sean M. Knaub,

a Minor, by John H. and Deborah J.

Knaub, Thomas R. Krause, Robert A.

Krause, a Minor, by Thomas R. Krause,

Richard H. Lebo, Donna Lebo, Trisha

Lebo, a Minor, by Richard and Donna

Lebo, Kristina Lebo, a Minor, by

Richard and Donna Lebo, Ralph E.

McCarty, Gale P. McCarty, Joshua H.

McCarty, a Minor, by Ralph E. and Gale

P. McCarty, Lucas P. McCarty, a Minor,

by Ralph E. and Gale P. McCarty, James

P. Meyers, Kim Meyers, Samantha

Meyers, a Minor, by James and Kim

Meyers, Brett Meyers, a Minor, by

James and Kim Meyers, Thomas M.

Morrow, Meredith S. Morrow, Gregory

M. Morrow, a Minor, by Thomas M. and

Meredith S. Morrow, Geoffrey T.

Morrow, a Minor, by Thomas M. and

Meredith S. Morrow, Jack E. Muth,

Kathleen L. Muth, Robert C. Muth, a

Minor, by Jack and Kathleen L. Muth,

John A. Nace. Jr., Linda M. Nace,

Michael Nace, a Minor, by John A. and

Linda M. Nace, Robert Nace, a Minor,

by John A. and Linda M. Nace, Kenneth

E. Nace, Pamela R. Nace, Jeremy M.

Nace, a Minor, by Kenneth E. and

Pamela R. Nace, Kevin E. Nace, a

23a

Appendix

Minor, by Kenneth E. and Pamela R.

Nace, Melissa A. Nace, a Minor, by

Kenneth E. and Pamela R. Nace, Dean

G. Newhouse, Norma J. Newhouse,

Martin Newhouse, Eric Newhouse,

Benjamin Newhouse, a Minor, by Dean

G. and Norma J. Newhouse, Peter P.

O’Neill, Alice L. O’Neill, Peter O’Neill,

Patrick O’Neill, Paul O’Neill, Patricia A.

Palm, Dylan T. Buckwalter, a Minor, by

Patricia A. Palm, Michelle A.

Buckwalter, a Minor, by Patricia A.

Palm, Robert J. Pontius, Cindy L.

Pontius, Jay Pontius, a Minor, by Robert

J. and Cindy L. Pontius, Debra S. Popp,

Andrew J. Popp, a Minor, by Debra S.

Popp, Thomas M. Rados, a Minor, by

Sonja Rados, William P. Rehm, Jr.,

Kimberly A. Rehm, David A. Rehm, a

Minor, by William P., Jr., and Kimberly

A. Rehm, Andar A. Rehm, a Minor, by

William P., Jr., and Kimberly A. Rehm,

Deon J. Rehm, a Minor, by William P.,

Jr., and Kimberly A. Rehm, Michelle D.

Rehm, a Minor, by William P., Jr., and

Kimberly A. Rehm, Ken Ribble, Susan

Ribble, Scott Ribble, a Minor, by Ken

and Susan Ribble, Mark Ribble, a

Minor, by Ken and Susan Ribble, Nevin

C. Shenck, Jr., Lisa L. Shenck, Nathan

S. Shenck, Aaron M. Shenck, a Minor,

by Nevin C., Jr., and Lisa L. Shenck,

Rebecca Shenck, a Minor, by Nevin C.,

24a

Appendix

Jr., and Lisa L. Shenck, Bradley Shirk,

Richard V. Spong, Sr., Julia A. Spong,

Richard V. Spong, Jr., Nathan M. Spong,

Joelle L. Spong, Barry L. Stone,

Matthew D. Stone, Corey J. Stroman, a

Minor, by Lowell R. and Debra J.

Stroman, Donna L. Szoszorek, Shannon

M. Szoszorek, a Minor, by Donna L.

Szoszorek, Shayna M. Szoszorek, a

Minor, by Donna L. Szoszorek, Eugene

K. Torbek, Erik P. Torbek, a Minor, by

Eugene K. Torbek, Donald Williamson,

Elizabeth M. Williamson, Michael

Williamson, a Minor, by Donald and

Elizabeth Williamson, William B. Wirt,

Pamela A. Wirt, Christine E. Wirt,

Kevin M. Wirt, Timothy B. Wirt, a

Minor, by William B. and Pamela A.

Wirt, Bryan C. Wirt, a Minor, by

William B. and Pamela A. Wirt, Burlin

Covert, Joseph Dorwart, III, Patricia A.

Dorwart, Joseph Dorwart, IV, a Minor,

by Joseph Dorwart, III, and Patricia

Dorwart, Alicia Dorwart, a Minor, by

Joseph Dorwart, III, and Patricia

Dorwart, Brent Dorwart, a Minor, by

Joseph Dorwart, III, and Patricia

Dorwart, Jack H. Hershberger, Jr., June

Hershberger, Larry Smart, Carol Smart,

Jeffrey Smart, a Minor, by Larry and

Carol Smart, Crystal Smart, a Minor, hy

Larry and Carol Smart, Glenn Diller,

Dale Kahler, Robert E. Kane, Terrence

25a

Appendix

L. Kemberling, David A. Kupp,

E. Robert McCollum, Herbert D.

Myers, and Wilbur Yorty

Louis B. Tarasi, Jr. Esquire

Jean A. Manifesto, Esquire

(Argued)

Tarasi & Johnson

510 Third Avenue

Pittsburgh, PA 15219

Attorneys for Appellants

Theodore J. Elliott, Frances M. Elliott,

Todd Elliott, a Minor, by Theodore J.

and Frances M. Elliott, Tracey Elliott, a

Minor, by Theodore J. and Frances M.

Elliott

Lois J. Schiffer, Esquire

Acting Assistant Attorney General

Environmental & Natural Resources

Divisi

Frank W. Hunger, Esquire

Assistant Attorney General Civil Division

David M. Barasch, Esquire

United States Attorney

Kim Daniels, Esquire

Assistant United States Attorney

J. Patrick Glynn, Esquire

Director

David S. Fishback, Esquire

Assistant Director

John T. Stahr, Esquire

(Argued)

P.O. Box 23985

26a

Appendix

L’Enfant Plaza Station

Washington, DC 20026-3986

Attorneys for Appellee United States of

America

Wendy L. Weiss, Esquire

(Argued)

Adam Bain, Esquire

Wagner Jackson, Esquire

Torts Branch, Civil Division

U.S. Department of Justice

Box 340, Ben Franklin Station

Washington, DC 20044

Brett P. Scott, Esq.

United States Department of Justice

1331 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Attorneys for Appellee United States

Department of the Army

27a

Appendix

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellants are three groups of plaintiffs whose separate

actions were consolidated by the district court because they all

claimed they were harmed by exposure to toxic wastes appel-

lee, the United States Army (“Army”), had deposited in lands

once a part of the New Cumberland Army Depot (“Depot”).

In all three cases, plaintiffs sought class certification, but the

_ district court denied class certification.' One group of plaintiffs

consists of workers for the township (“Township Workers”)

who converted the area the Army used as a landfill into a soccer

field after the Army had transferred it to the township that

adjoins the Depot. The second group consists primarily of

residents living near the landfill (the “ eo Plaintiffs”).

The third group are persons, primarily children, who played

soccer (the “Soccer Plaintiffs”) on the field created on the site

of the Army’s landfill. This third group includes two children

of the Elliott family, Todd and Tracey (the “Elliotts”). Tracey

suffers from leukemia and Todd from enlarged lymph nodes.

Except for the Elliotts, the primary relief all parties seek

is siaest monitoring. They appeal the district court’s final

order for the Army on all their claims, which was entered

following orders granting the Army's motions for summary

judgment. Their appeals raise several important issues. Ulti-

mately, we will the orders of the district court with

respect to all appellants re the Elliotts, the only plaintiffs

who have been able to produce evidence of actual harm by

medical evidence showing the Elliott children are suffering

from conditions that require medical attention beyond the

medical services everyone in the general population should

cai, ay Pel REI Ty eee ig sed to any

toxic substances the Army had deposited in the affected lands. eet

28a

Appendix

have. Our reasons, which differ somewhat from those of the

district court, follow.’

I. Factual History

A. The History of Marsh Run Park

1. NCAD’s Use of the Land as a Landfill

The New Cumberland Army Depot is located just east of

the Harrisburg Airport on about 974 acres of land, between

the Pennsylvania Turnpike to the south and some railroad

tracks and the Seasuaeian River to the north. From 1917

until the mid-1950's, the Depot used a fourteen-acre tract of

land in its extreme southeastern part as a landfill to dispose of

various wastes. The former landfill is bordered by a railroad

embankment and the Susquehanna River to the north and by

Marsh Run Creek (“Creek”) and an access road on the south.

A drainage pipe carrying storm water from the Depot once

emptied out onto the western part of the tract. When the

land was closed in the mid-1950's, Depot employees cov-

summarily of two of the arguments appellants raise on

sopea: We ie hushd dat char eapenanh diet ea Gentes eae eed Geet

» stuanthad, Shsdioredamaneniiahy annie matte imaaaen

class certification. We also reject ama keys

in denying Plaintiffs’ Motion for erm

filed in a separate case. O’Neal v. States, No. a No. LCV-OG10TS (order

16, 1, 15), Th it ot had ond ON wih he nt cn

discovery purposes. It the Depot correctly to

plaintiffs’ counsel from contacting conten Come eae aes oe

sal sekng rman 32 C.F.R. §516.35(d)

from present or former pr, sed

make the appoprate Department of Beene nel. tes

heoaas te tie ie noite United States ex rel. Ti Fas. cee trlntan

462 (1951). The Undod States this order is not because it was

entered in a separate case not the Court in these appeals. Because O’Neal

was consolidated with Redland for discovery the United States also argues

that the motion was untimely because discovery had ended and judgment

had been entered in Redland on all issues but one when the court “Plaintifts’

Motion for Emergency discovery in

Smad eomaetndionta sgeepelipercer ber deg ne fap on horny Ae

merit.

29a

Appendix

ered the debris with eighteen inches of dirt taken from the

bank of the Creek and then spread coal ashes over the landfill’s

surface, adding another six to seven inches of cover. The

Depot's perimeter fence was moved westward so that the land,

then known as Marsh Run Field, was no longer within the

fence. The Depot remains adjacent to the west end of Marsh

Run Field.

2. Transfer of the Land to Fairview Township and Con-

version Into a Soccer Field

In 1970, an executive order directed the Army to identify

and dispose of its excess acreage. The Depot identified its

former landfill as excess and engaged in negotiations with

adjoining Fairview Township (“Township”) officials to transfer

the former landfill to the Township for use as a public recrea-

tional area, which would include soccer fields. The land was

formally transferred to the Township in 1976. According to

both Army officials and Township employee, E. Robert

McCollum (“McCollum”), it was common e that the

area was once used as a landfill by the Depot. In the tract

was commonly referred to as “Pineapple Junction” because of

old canned goods that were known to have been disposed of

there. No one from the Depot or the Army informed the

Township that the landfill contained potentially hazardous or

toxic substances. Whether the Army knew the landfill was

contaminated before the transfer is a point of contention.*

ee ce, ee Ona ee ened

in holding government's process privilege justified the Army's

refusal to disclose or discuss certain internal records. We discuss that issue infra in

slatplity digleda en vos Sox te sting, Wo este ave, Svorer, at

reasons for its We note there, however, that this

related not to the nature or toxicity of the substances the Army

in the landfill, the subject of other discovery and extensive but rather to the

Army's knowledge of their presence. That knowledge, or lack of it, seems to us to

have little relevance to the ” medical claim. See also infra

footnote 20. We are thus np ey home ipeeg: arn aaemeienged

refusing discovery, as opposed to the fully to explicate its rationale, is

30a

Appendix

In 1981, the Township began excavating and leveling the

site, now known as ve 4 Run Park (“Park”), for use as a

soccer field. The soccer field was completed in 1982 and was

used by the Redland Soccer Club from 1982 until the Park was

closed on August 2, 1987.

3. The Park Closure and Tests for Contamination

In the 1960's and 1970's environmental concerns intensi-

fied in this nation. New laws and regulations reflected this

growing concern, and the Army began investigating how

wastes were disposed of at its facilities. The Depot was in-

cluded. In 1972, the United States Army Environmental Hy-

giene Agency did a study on the Depot's wastewater dis-

charges’ effect on local streams and waters, including the

Susquehanna River and the Creek, a stream which flows

through the whole southern end of the Depot. This study

concluded that the Depot's discharges had no apparent dele-

terious impact on the Susquehanna River, but that they did

have “a significant, adverse impact” on the plant and animal

life in the part of the Creek lying within the Depot's bounda-

ries. In June of 1978, the Army recommended that the waters

of the Creek within the Depot be closed to recreational use

because low levels of polychlorinated biphenyls (“PCBs”) had

been detected in them.

Most of the environmental studies done at the Depot

thereafter focused on lands within the Depot and excluded the

closed landfill, which was no longer Depot property. In Se

tember of 1977, Depot officials eicwened a document ind

cating a one-pound container of potassium cyanide, a toxic

substance, had been buried in landfill. Depot officials

contacted the Township and asked for permission to dig it up

erroneous, does not materially affect the parties’ medical monitoring claims, which

are the subject of the claims of all plaintiffs except the Elliotts, who also claim

standard tort damages, including damages for pain and suffering.

3la

Appendix

and remove it. Depot officials were unable to locate any other

documents detailing the contents of the landfill, and to date

all its contents have not been identified.‘

a. Woodward-Clyde Soil Testing Report Dated July, 1987

In 1986, the United States Army Corps of Engineers

(“Corps”) hired Woodward-Clyde Consultants (“Woodward-

Clyde”) to perform soil testing at the former landfill to see

whether any contamination existed there. This was done pur-

suant to the Defense Environmental Restoration Account

(“DERA”), a program established under 10 U.S.C.A. §2701 et

seq. (West 1983), to investigate and remedy environmental

contamination at former Department of Defense sites. The

testing was done in March of 1987 when the field was still

being used by the Redland Soccer Club.

The parameters of the study were determined by the

Corps. Woodward-Clyde installed three monitoring wells sur-

rounding, but not on, the landfill. It dug five test pits: one in

the cut area on the northern edge of the Park to obtain

background soils, one in the area of the cyanide canister burial

and the remaining three on the field itself. The test pits in the

field were four to five feet in depth. Two samples were re-

moved from each pit, one near the surface and one at mid-

depth. Surface soil samples were also taken, but not from the

soccer field area. Groundwater was sampled in the monitoring

4. A United States Army Environmental H Agency Interim Final

Report (Draft) dated December 14-17, 1987, Contamination

ser cy bh wes grtcbies Het ve bag “damaged canned goods” as the

major item for disposal along “damaged, out-of-specification or empty con-

tainers from such materials as napalm thickener (aluminum soaps),

decontaminating agent noncorrosive, mlreeney RB solution DS-2) (sic),

bleaches, and acetylene tetrachloride or chlo-

rinated aniline in a cient partite bieder)” Aopen ” Appellants’Appendix (“App.”) at

yey athe solvents, fuels and lating solutions may also have been

of in the landfill. ,

32a

Appendix

wells, surface water was sampled at two locations along the

site’s boundaries and samples were obtained from in or near

the Creek.

The testing demonstrated a “significant presence of con-

taminants in some areas” of the Park and contamination in

most of the soil and sediment samples. Test pit soil samples

contained o contaminants and all surface soils contained

elevated levels of petroleum hydrocarbons. Groundwater sam-

ples contained elevated concentrations of metals. Woodward-

Clyde recommended further testing, including testing of the

surface soils from the playing fields and oes neers areas

“where fill is visible at the Surface.” Appellants’ Appendix

(“App.”) at 950a. Following receipt of the Woodward-Clyde

report, the Army and the Township, by mutual agreement,

closed the Park to further public use a the Army repossessed

the land in order to conduct additional testing.

b. Corps’ Public Health Evaluation Dated June 1988

On May 25, 1988, nine months after the Park was closed

to public use, the Corps sampled surface soils from seven areas

on the soccer fields and one off site in an effort to determine

whether the surface soils of the former landfill presented

possible human health hazards. The samples were analyzed

for the presence of volatile organic compounds (“VOCs”),

pal ye! 2x organics, PCBs, metals and cyanide. In four of

rea: slecasians to ease adcrainaatias eacuee

“PAHs”) were detected. Lead was the only metal de-

rm at levels significantly above those found in the off-site

sample. The report considered exposure pathways of dust

inhalation, skin contact and inadvertent in n of soil by

hand-to-mouth contact. The Corps that the sam-

pling results showed “no apparent increase in health risk to the

ildren playing at Marsh Run Park” because the concentra-

tions of contaminants were within the acceptable limits pro-

33a

Appendix

by the United States Environmental Protection Agency

(“EPA”).

c. EPA Soil and Groundwater Sampling Report Dated

July 29, 1988

On June 11, 1988, the Army determined that the former

landfill was an appropriate site for a remedial investigation

study, which was also to be performed by the Corps as part of

the Defense Environmental Restoration P . Mean-

while, EPA officials also decided to conduct soil and ground-

water sampling at the Park and make a detailed magnetic

survey. Surface samples were taken by EPA on June 22 and

23, 1988 at ten on-site locations, stratified soil samples at three

locations and groundwater samples at three on-site monitoring

wells. EPA concluded that the Park’s surface soils were con-

taminated with lead and PAHs, its subsurface soils with lead

and VOCs and its groundwater with VOCs. The magnetic

mag Puree three possible drum burial sites in the former

landfill.

d. EA Engineering Remedial Investigation Report Dated

January 1990

In conducting its remedial investigation, the Corps con-

tracted with EA Engineering, Science and Technology, Inc.

(“EA Engineering”). EA En rin to identi

tential aia of Secoeer arg ie be epee and <A x

of site contamination and any immediate offsite impact to

ground water, surface water and air, and to assess downstream

ground water and surface water for human health and envi-

ronmental risks. EA Engineering sampled waters from four

nearby residential wells on August 31, 1989. It sampled ground

water and soils from monitoring wells in two separate phases

in February and August of 1989. The record does not contain

the entire EA Engineering Remedial Investigation Report,

and it does not indicate when EA Engineering took the Creek

34a

Appendix

surface water and sediment samples it analyzes in the Report.

EA Engineering did not sample the Park’s surface soils but

instead used the results of the Corps’ and EPA’s surface soils

testing in May of 1988. EA Engineering did not sample the

waste fill itself but analyzed the surface soil and groundwater

samples results to determine what contaminants might be

flowing out from the waste fill.

EA Engineering concluded that the site was contami-

nated with PAHs but that the PAHs were not unique to the

site. It concluded the site was also contaminated with trace

metals including barium, lead, copper and silver. It also deter-

mined the fill was a potential source of VOCs. It found VOCs

in the bedrock aquifer beneath the site and determined the

source of this contamination was probably the fill. It found

low-level VOCs i to the Creek u from and

adjacent to the Park, but could not co whether this

contamination was resulting from ground water flowing from

the fill or from some other source. EA Engineering also

concluded the trace metals were emanating partially from the

fill and some other source. It found no contamination in any

of the residential wells, all of which are hydraulically upgradi-

ent from the Park.

EA Engineering concluded that any contaminated

ground water from the site would migrate north towards the

Susquehanna River or flow into the adjacent Creek and that

no residences are in the predicted migration path. It also

concluded that the Creek's surface waters upstream from the

Park contained low-level volatile contaminants trichloro-

ethane and 1,1,2,2-tetrachloroethane, and that the upstream

sediments contained low-level PAHs. The Creek's waters ad-

jacent to and downstream from the Park contained low-level

volatiles of trichloroethane and 1,2-dichlorothene. EA Engi-

neering concluded that the source of these compounds was

somewhere upstream, unrelated to the Park and that dust from

35a

Appendix

the surface soils was not a significant ee pathway be-

cause the field, when tested, was covered by dense grass.

As for human health risk, EA Engineering concluded that

“the past use of Marsh Run Field as a soccer field ... resulted

in very little risk to the children using the field.” App. at 1251a.

It concluded that there would be potential health risk from any

ingestion of on-site ground water, but that such ingestion

would be highly improbable because it was unlikely any resi-

dential use would be made of the site in the future. Finally,

EA Engineering concluded there was no risk to any of the

nearby residents because their wells were not contaminated

and would not become contaminated in the future. As for

residents who may have eaten fish from the Creek, it con-

cluded there was no carcinogenic risk.

B. The Township Worker Plaintiffs

. + Township worker plaintiffs consist of seven individu-

als w..o either performed the excavation and levelling work

while the former landfill was being converted into a soccer

field or who mowed the grass and performed maintenance

work at the Park after the field was constructed. Their depo-

sition testimony and affidavits can be summarized as follows.

Sometime in 1980 or 1981, Fairview Township Engineer

Robert G. Hartman (“Hartman”), was assigned the task of

landscaping the former landfill for recreational use as a soccer

field. He conducted a topographical and perimeter survey with

a field crew. The Township Workers then excavated and lev-

elled the land over a four month period during the summer of

1981.

When the Gar aa Workers first arrived at the site, it

was covered by brush and trees and was swampy in some areas.

The Township Workers cleared the brush and trees and also

removed what little topsoil was present at the site, which they

_ put aside for later use. As they began to grade the site and

36a

Appendix

move earth from a higher section of land to the north, near the

railroad tracks, to a lower section to the south in order to level

the ground, they began to unearth “junk,” including several

barrels of white powder, drums, canisters, broken glass, old

coffee mugs, utensils, cans, wood, a railroad rail and gas masks.

One of the Township Workers recalled someone digging test

holes into the junk area and taking samples from them. No one

recalled any Army personnel being on site at any time during

the work. As excavation continued, the junk was covered up

and used as part of the fill for the lower area. The Township

Workers estimated that a cap of an average of three feet of dirt

from the higher area near the railroad embankment was placed

over the junk. After the fill was levelled, the Township Workers

placed on-site topsoil and topsoil from off-site over the fill to

a depth of two to six inches. The field was then seeded. The

Township Workers testified they inhaled dust, waded through

dirt and debris, sat in the dirt and ate their lunch there over

the four-month period. One Township Worker recalled that

his eyes burned or stung while he was running the grader and

tearing up new soil and that the burning did not stop until the

newly torn up soil was reburied.

During the excavation and leveling work, some of these

same Township Workers constructed a . are swale to sa

rect water flowing out of a pipe carrying storm acs agen

out of the Depot. During excavation for the swale, the ese

ship Workers exposed groundwater. Some of the oe

Workers performed repairs on a bridge over the Creek an

removed debris from the Creek.

A Township Worker named David A. Kupp (“Kupp”) was

responsible for mowing the field after it was A ts A He

mowed once a week for ly five hours, Kupp re-

called the field as dry pays ser sparsely Heck with and

remembered the mower kicking up dirt and dust from the

surface of the field about 20% of the time. He also spent

37a

Appendix

several hours painting ‘»e bridge over the Creek while he

stood on the banks and .ucks and in the waters of the Creek.

None of the Township Workers are currently suffering

from any physical ailment that they claim is the result of their

exposure. There is no evidence in the record that any of them

have been examined for health problems related to their

exposure at the Park or that any doctor has personally in-

formed them that they have an increased heal risk because

of exposure to toxic substances while working at the Park.

C. The Neighbor Plaintiffs

The Neighbor Plaintiffs are twelve residents living in the

immediate vicinity of the Park and the Creek, plus some

relatives who regularly visited them. Some testified i in deposi-

tions or affidavits that they waded in the Creek, fished in it and

ate fish they caught there. Several testified they hunted in the

former landfill area and ate pheasant, rabbit, squirrel or turtle

they caught or shot there. Most of the Neighbors used the Park

for walking or other forms of exercise.

On May 8, 1988, the D ent of Environmental

Resources (“DER”) tested residential wells for trace metals

and VOCs and found none of the wells were contaminated.

One Neighbor, however, testified that her well water was

tested in yr sr em 1 kd and found to contain high

concentrations o diaakile including lead. Another

TScaahivoe tested har es war cid a ull water tot

a health risk but contained traces of contaminants. He ahi

family stopped drinking from it. None of the Neighbors are

currently suffering from any illness as a result of their

sure, nor have any been personally advised xe lg

they have an increased health risk as a result 0 such exposure.

D. The Soccer Plaintfffs

The remaining 128 plaintiffs are members of the Redland

Soccer Association (“Redland”), adults and children who used

38a

Appendix

the Park on a regular basis from 1982 to 1987 for soccer

activities, and members of their immediate families who were

with them during activities at the Park. Some of the Soccer

Plaintiffs testified they helped build the soccer field in 1982,

picking rocks and moving dirt around the field and then raking

and seeding it, setting goalposts and lining the field in order

to get it ready for play in 1983. This took five or six weekends

with about six hours work per day.

One of the Soccer Plaintiffs coached a team for Redland.

He testified that his team, boys sixteen years old and under,

practiced two to three hours, three times each week at the Park

and Sn One ee ee eee He also

coached a team for boys fourteen years of age and under. That

team also practiced three times each week and played a game

once every weekend during the season. Half of this team’s

games and practices were p at the Park.

Soccer's spring season started in April of each year and

ended in early June. Its fall season began in mid-August and

ended in mid-November. Practices were canceled if it rained,

but games were played no matter what the weather conditions

were. If water was on the field, someone would shovel the

ee a thane sy ty ay cg Ny piaig. a

seve rs into the drainage ran

length SCta oe ee ee

wet. Each practice started with calisthenics.

The record contains excerpts from the depositions of two

of the soccer players. One of them, a goalie, testified he often

fell in the dirt around the goal area, sometimes face down in

puddles one to two inches deep. He also testified he some-

times got dirt in his mouth that he had to spit out. Both players

testified at times they went into the Creek to retrieve balls.

None of the players except Todd Elliott and his sister, Tracy

[sic] Elliott are alleging that they are currently suffering from

39a

Appendix

any ailment as a result of their exposure or that they have been

peeps advised by a doctor that they have an increased

ealth risk due to their exposure.

E. The Elliott Plaintiffs —

The Elliott plaintiffs include soccer player Todd Elliott

and his ger sister, Tracey Elliott, as well as their parents.

Todd p soccer at the Park and Tracey, while attending

practices and games at the Park, skipped stones in a stagnant

creek near the field, sat on the grass and ate food, crawled and

ran on the field and walked through a mud-filled gully near

the parking area. The Elliotts allege that as a result of Todd's

and $ exposure to contaminants at the Park, Tracey is

sufferin acute lymphocytic leukemia and Todd suffers

from aaa lymph so and an increased risk of cancer.°

F. The Parties’ Expert Reports®

1. Plaintiffs’ Risk Assessment

The plaintiffs rely primarily on a report by Richard S.

Greeley, Ph.D. (“Dr. Greeley”) of R.E. Wright Associates, Inc.

entitled “Public Health Risk Assessment of a Soccer Field

Near the New Cumberland Army Depot, Fairview Township,”

dated January 24, 1992 (“Plaintiffs’ Risk Assessment”). The

Plaintiffs’ Risk Assessment is limited to a study of the health

risks for children and adults making use of the former landfill

5. The Elliotts are also plaintiffs in an action the Three Mile Island

nuclear and allege their illnesses were caused by its release of radiation in

March of 1978. See Brinser v. Metropolitan Edison Co., No. 481-S-88 (Pa. Commw.

yen ote o appeal do not dispute the admissability of

6. Because the parties on not any ot

the expert reports, we do not address the experts’ qualifications or the of

their or data, as otherwise required under our decisions In re Paoli

Railroad Yard PCB Litigation, 35 F.3d 717, 742-49 (3d Cir. 1994) (“Paoli II”), cert.

denied, General Electric Co. o. Ingram, 1995 WL 75508 (Feb. 27, 1995), and In re

Paoli Railroad Yard PCB Litigation, 916 F.2d 829, 855-859 (3d Cir. 1990) (“Paoli

r).

40a

Appendix

as a soccer field. It does not address any health risks to the

Township Workers from their excavation work or to the Neigh-

bors from their recreational use of the Creek and their inges-

tion of fish and animals from the Creek and Park or water from

residential wells.

The Plaintiffs’ Risk Assessment contains the following

summary:

Surface soil samples and soil samples from excava-

tion of test pits on the soccer field have shown that volatile

and semi-volatile organic compounds and inorganic

chemical compounds are present in the soil. Some of

these compounds are carcinogenic and others can cause

adverse non-carcinogenic health effects. The assessment

considered health risks arising from four primary path-

ways of exposure of the soccer players, referees and

coaches to contaminant chemicals in the soil: (1) ingestion

of contaminated soil; (2) ingestion of contaminated water

on or near the field; (3) inhalation of contaminated dust;

and (4) dermal contact with the contaminated soil or

water.

The risk assessment was conducted based on U.S.

Environmental Protection Agency risk assessment guid-

ance documents.

The results of the calculations indicate that partici-

pation in games or practices at the soccer field for periods

of time greater than 33 hours results in significant health

risks for both children and adults.

The primary chemicals contributing to these risks

are the inorganic chemicals arsenic and lead, and the base

neutral polycyclic aromatic hydrocarbon benzo(a)pyrene.

Other inorganic chemicals, polycyclic aromatic hydrocar-

4la

Appendix

bons, and semi-volatile organic compounds contribute

lesser percentages to the risks.

App. at 2909a. The Report also states that increased risk may

arise from absorption of chemicals through a cut, abrasion or

perspiration, increased amounts of volatiles and dusts in the

air during play and ingestion of contaminated soil or water

during rough play when a player's face comes in contact with

the ground.

In arriving at his conclusion that adults and children using

the field for soccer play or practice for more than thirty-three

hours were to a significant health risk, Dr. Greeley

relied on EPA’s risk assessment procedure which consists of

four steps: (1) data collection, evaluation and identification of

chemicals of concern; (2) exposure assessment; (3) toxicity

assessment and (4) risk ioaecseaiues Risk characterization

involves, among other things, the calculation of carcinogenic

risks, which are stated in terms of “risk per million” and is

arrived at by multiplying the calculated “increased risk of

cancer” by 1,000,000.’ For each pray of exposure, Dr.

Greeley added together the cancer risks for each of the car-

nic chemicals found at the site to derive an increased

cinoge

risk of cancer for each pathway. He then totalled the risks for

each pathway to arrive at a total “increased risk of cancer,”

7. No one points to any demographic, epidemiologic or any other type of

pidlmcwine mage ty seed 9 ody eeu ed oorarale

determination to which we must defer in deciding plaintiffs’ statutory

ro : U.S.A. Inc. v. Natural Resources cor ay 897

we i Fane ee Basten eons 6 't of Navy, 966 F.2d 747 (1992).

geragt wey tah it be: fen ob We note,

Sonne tie dbcieisedeocuageas diliketenes standard tort risk-utility

ee eT a toxic substance becomes

a hazard.

42a

Appendix

which he defined as an increased risk of cancer due to exposure

at the site against everyone's everyday risk of getting cancer.

Using the EPA guideline that treats an increased cancer

risk which is greater than one in a million as “si t” and

a similar guideline for non-carcinogenic health risks, Dr.

Greeley concluded that children or adults playing or practicing

soccer at the Park for thirty-three hours or more had an

increased risk of cancer of one in a million and an increased

risk of non-carcinogenic health problems of three in a million

(children) saheuel one in a million (adults). Children who played

or practiced soccer at the Park for the maximum calculated

exposure time of 1,350 hours had an increased risk of cancer

of sixty-five in a million and of non-carcinogenic health risks

of thirty-eight in a million. Adults with the maximum calcu-

lated time had an increased risk of cancer of forty-six

i so at a non-carcinogenic increased health risk of

eleven in a million.

In preparing his report, Dr. Greeley relied on the soil and

groundwater she pre tet by Woodward Cds in

March of 1988. Dr. Gree also considered the soil and

dwater sampling from the Corps’ study per-

rete g tient! het tenon dard: Cpe

of 1988, but he decided to rely solely

renal Lec of 'ase aicednaitadey Gt Ga aadeaicicer

field soil, as well as the difficulty in attempting to correlate

samples taken at different depths at different times by differ-

ent sampling personnel.” App. at 2921a. He reasoned that the

Woodkenst-Clyele ied joes tie Sci resentative of the

three, and its sampling was performed the soccer field

was still in use. He however, that Woodward-

Clyde o three test pits within the immediate area of the

former lan new the socear Rel ane inatine muanpios wore

not from the surface but were “ ‘near-surface’ ” samples and

composite samples over the four-foot depth of the test pits.

43a

Appendix

Therefore, he concluded “[t]he actual concentrations of the

chemicals of concern in the soil to which the soccer players

and adults were exposed may vary more or less from the values

selected for this risk assessment.” App. at 2960a. He also

considered and rejected additional exposure routes via inges-

tion or contact with the sediments in the marsh area adjacent

to the soccer field and the surface water of the Creek because

the concentrations of chemicals there were either below the

detection limits of the testing method used or no larger than

the concentrations in the test pit soils.

2. Plaintiffs’ Medical Monitoring Report

The plaintiffs also rely on a report by Susan M. Daum,

M.D. (“Dr. Daum”) entitled “Medical Surveillance for Indi-

viduals Exposed to Hazardous Waste on Land Known as

‘Marsh Run Park’ in Fairview, Pennsylvania near the ‘New

Cumberland Army Depot’ ” (“Medical Monitoring Report”)

dated May 2, 1993. App. at 3006a. There, Dr. Daum states she

relies on Dr. Greeley’s Risk Assessment and agrees with Dr.

Greeley that risk levels above one times the und rate

of one case per million is medically significant. She refers to

“the which occurred from the ... Depot and waste

site, whether through well water, or recreational

activities on/in contaminated soil,” as having a risk estimate

above one in a million but does not state where she obtained

the risk estimate for well water exposure, in light of the fact

that Dr. Greeley did not address well-water exposure in his

Risk Assessment. App. at 3010a. Ultimately, Dr. Daum con-

cludes that

the examinations [she recommends] ... are not out of the

ordinary, but consist of the usual adult medical examina-

tions recommended for all adults with the adult risk of

cancer in our society from those carcinogen exposures

which are already prevalent. It is because of the increased

44a

Appendix

risk of the exposures at the Marsh Run area, however, that

such examinations become more urgent, and access to

such examinations should not be left to vicissitudes of

employment, health insurance contract, or other individ-

ual economic difficulties so prevalent in current health

care delivery.

App. at 3008a. Therefore, Dr. Daum did not recommend any

specialized tests for any of the plaintiffs but did recommend

routine physical examinations and preventative programs.

3. Plaintiffs’ Contributing Contaminants Report

Finally, the plaintiffs rely on a report by Richard C.

Cronce, Ph.D. (“Dr. Cronce”) of R.E. Wright Associates, Inc.

entitled “Evaluation Contributions of Contaminants to the

Fairview Township Soccer Field” ion ae Contami-

nants on ae ) dated May 19, 1993. App. at Hata Bae bah The

purpose of the report is “; dbicciohine mene Lame

of migration of tesalined compounds to oe

soccer field, thus exposing persons on the field to

adverse health effects from these chemicals.” Id. rd “ora In

preparing his rt, Dr. Cronce reviewed the various Army

an sg. hew tt. and also performed a “site walkover” to

observe present on-site conditions. Id. at 3044. [sic] The report

concludes that periodic additions of contaminants to the sur-

face eh cheered field are 02 edb result afin

overlan of discharge waters a drainage pi

cent to the field, erosion of top soil which is real “a

underlyin g layer of coal ash and movement of the se Ary

peers, e landfill up to the surface soil either by VOCs

moving up pore space in the soil or semi-volatile

organic compounds moving u as a result of urba-

tion, or physical soil BPE occurs as or insects

dig or burrow in the ground. Finally, Dr. Cronce concluded

‘tine:

44

45a

Appendix

that because some of the topsoil used on the field originated

from a point along the Creek it was probably contaminated.

Dr. Cronce did not perform any soil testing to confirm his

hypotheses. He believed, however, that “[t]he presence of

these contaminants on the existing surface has been docu-

mented and, therefore, the contribution of these contaminants

from these various processes is highly likely.” Id. at 3049a.

4. Elliott Plaintiffs’ Expert Report

Finally, the record contains the affidavit of Peter W.

Wright, M.D. (“Dr. Wright”), dated April 23, 1992 regardin

plaintiff Tracy [sic] Elliott’s acute lymphocytic leukemia an

— Todd Elliott's enlarged lymph nodes. While preparing

is report, Dr. Wright reviewed Tracy [sic] and Todd Elliotts’

medical records as well as extensive scientific and medical

literature regarding the causes of cancer and acute leukemias

in particular. He concluded, “based on a reasonable degree of

medical certainty, [that] the chemicals ... found at Marsh Run

Park are known to cause cancer, and some have been specifi-

cally implicated with acute leukemias, such as that which has

affected Tracy [sic] Elliott. App. at 2233a-34a. Dr. Wright

further opined that “the acute lymphocytic leukemia of Tracey

Elliott is related to her exposure to the [certain] chemi-

cals[_ _]” [and that] “Todd Elliott, ... due to his sure to

the [these] chemicals, is himself at increased risk of cancer.”

Id.

5. Defendants’ Expert Reports

The defendants present a number of expert reports re-

futing plaintiffs’ experts’ conclusions and assumptions. Jessica

Herzstein, M.D., M.P.H. (“Dr. Herzstein”), a physician spe-

cializing in occupational and environmental health, reviewed

the Plaintiffs’ Risk Assessment and the three soil sample

performed in 1987 and 1988. She concluded that no

monitoring was necessary because the plaintiffs’ ex-

46a

Appendix

cess risk for cancer was extremely low and the risks of such

tests outwei the benefits. Dr. Herzstein also produced an

affidavit ing Dr. Daum’s Medical Monitoring Report

and refuting its conclusion that medical monitoring was nec-

essary for the same reasons given in her initial report. Defen-

dants also produced an expert report by Martyn T. Smith,

Ph.D. (“Dr. ESmith"), a toxicology specialist, who also critiqued

Plaintiffs’ Risk Assessment and concluded that the actual

excess cancer risk posed to the Soccer Plaintiffs was zero. Dr.

Smith also concluded that Plaintiffs’ Risk Assessment was

flawed in the following respects: (1) it utilized unrealistic

weather conditions; (2) it assumed an exceptio intake

of eee Senet eee eee ts soil

taken three to five feet below the surface; (4) it failed

tot into account normal background levels of contaminants

and (5) it used rodent studies for carcinogenic potency values,

which are upper bound estimates of human potencies. Dr.

Smith also produced an affidavit negating Dr. Greeley’s re-

sponse to his critique of the Plaintiffs’ Risk Assessment.

James H. Jandl, M.D. (“Dr. Jandl”), a specialist in blood

and blood disorders, reviewed Elliott's medical records

as well as the existing literature research in the fields of

coastueliany walk aa and concluded that there is no

ee

rere h posters fa ck. He stated

as tes cel taiduas eas GM aba of leukemia is exposure

to ionizing radiation. He also revicved Todd Eliot's rredica

records and concluded Todd has no medical problem with

respect to his enlarged lymph nodes.

Roger Minear (“Minear”), Director of the Institute for

Environmental Studies at the University of Illinois and Profes-

sor of Civil Engineering, conducted a detailed review of the

available documents concerning the Army's use of the land as

a landfill as weil as the various soil studies and remedial

47a

Appendix

investigations reports undertaken by EPA and the Army and

pertinent literature. He concluded that the landfill has not

caused surface contamination at the soccer field and that

plaintiffs’ use of the subsurface soil test results to represent

the surface conditions on the soccer field was not realistic or

scientifically defensible. He also prepared a report critiquing

Dr. Cronce’s Contributing Contaminants Report, concluding

that Dr. Cronce’s hypothesized transportations of contami-

nants to the field has not been confirmed by any of the soil

ac, <2

, defendants rely on a report by Marilyn A. Hewitt,

PG. Hew’ a certified professional geologist and former

Pennsylvania DER hydrogeologt Hewitt reviewed Plaintiffs’

ecy teas Assessment, as we soil test reports ms other

environmental investigation reports at the Park, photo-

graphs, depositions and co dence. She co sdleied that

the exposure assumptions in the Plaintiffs’ Risk Assess-

ment were not consistent with pes fie EPA protocols for

evaluating human exposure to contaminants when the use of

the contaminated property is recreational, such as a soccer

field. She found the Plaintiffs’ Risk Assessment was erroneous

primarily because it utilized test results from soils as deep as

piel ocssapt aliases whereas the standard EPA pro-

tocol called for use of surface soil samples no more than one

foot deep. She also found the Risk Assessment failed to aver-

age the concentrations of contaminants in the soil samples and

calculated the health risks using the maximum concentrations

of contaminants, also contrary to standard EPA protocol.

Therefore, she concluded that the Plaintiffs’ Risk Assessment

contained an inflated estimate of the health risks associated

with the soccer field. She also examined Dr. Cronce’s Contrib-

ee ee ee Report and, using the available soil testing

refuted Dr. Cronce’s assumptions regarding contami-

nants being contributed from other contaminated areas of the

48a

Appendix

Creek or Depot. She refuted Dr. Cronce’s conclusion that the

surface soils were contaminated by upward rt by voli-

tization of contaminants within the landfill based on the “in-

significant” concentrations of such chemicals in the soils at the

Park. App. at 3223a. Finally, Hewitt refuted Dr. Cronce’s

assumption that pedoturbation had caused mixing of the sur-

face soils with the contaminated subsurface soils based on the

fact that the surface soils were tested after the field had been

closed for use as a soccer field.

Both Dr. Greeley and Dr. Cronce submitted affidavits

responding to defendants’ experts’ critiques of their reports.

II. Procedural History

On June 7, 1990, five of the plaintiffs filed a class action

complaint (“Redland complaint”) seeking (1) injunctive relief

and money damages under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C.A. §2671 et seg. (West 1994), for remedial

action, medical monitoring and emotional distress (“Redland

FTCA Plaintiffs”); (2) injunctive relief and response costs

under the Comprehensive Environmental Response, Com-

pensation, and Liability Act (“CERCLA”), 42 U.S.C.A. §9601

et seq. (West Supp. 1994), in the form of remedial action,

medical monitoring and reimbursement of plaintiffs’ litigation

costs; (3) injunctive relief under the Pennsylvania Hazardous

Sites Cleanup Act (“HSCA”), 35 Pa. Cons. Stat. §6020.101 et

seq. (West 1993), in the form of remedial action, monetary

damages and reimbursement of plaintiffs’ litigation costs and

(4) monetary damages for diminution of the Neighbors’ p

erty values based on trespass. On February 26, 1991,

Elliotts filed a complaint under the FTCA alleging negligence

and seeking monetary damages for past and future medical

expenses, pain and suffering, medical monitoring and litiga- _

tion costs. The district court consolidated these cases on

September 30, 1993.

49a

Appendix

The district court denied class certification for the Soccer

Plaintiffs, Neighbors and Township Workers on March 4,

1991. After the plaintiffs’ motion for reconsideration was

denied on May 3, 1991, they filed an amended complaint

joining an additional one hundred forty-five plaintiffs (collec-

tively “Redland Plaintiffs”) on August 26, 1991.

On December 12, 1991, the United States moved to

dismiss plaintiffs’ claims for medical monitoring and injunctive

relief pursuant to Federal Rule of Civil Procedure 12(b)(6).

On February 12, 1992, the district court granted the motion

in part, and dismissed the Redland Plaintiffs’ request for a

medical monitoring fund under CERCLA. The court also

dismissed all of the Redland Plaintiffs’ FTCA claims request-

ing injunctive relief.

On March 27, 1992, the United States moved for dismiss-

al of the Elliotts’ complaint and for summary judgment. On

June 23, 1992, the district court granted the motion in part and

entered summary judgment in favor of the United States on

all claims except medical monitoring, which it then left for

trial.

On June 4, 1992, the United States moved for summary

judgment or, in the alternative, partial summary j ent on

edi Redland complaint. On arene ry = the

district court granted the motion in part and dismissed the

Redland plaintiffs’ citizen suits under CERCLA and HSCA

claims for lack of subject matter jurisdiction. The court also

granted summary ju t to the United States and dis-

missed the Redland Plaintiffs’ claims for attorneys’ fees and

experts’ fees under CERCLA and for attorneys’ fees under the

HSCA. The court did not address the Redland Plaintiffs’

entitlement to expert fees under HSCA. The court denied the

United States’ request for partial summary judgment based on

50a

Appendix

sovereign immunity, and denied the motion in all other re-

spects.

On January 25, 1993, the United States moved to dismiss

the Redland Plaintiffs’ FTCA claims for lack of subject matter

jurisdiction and, in a separate motion, asked, for summary

judgment on all of the plaintiffs’ claims for medical monitoring

and emotional distress, including the Elliotts’ medical moni-

toring claim. On June 1, 1993, all plaintiffs moved for partial

summary judgment. On October 19, 1993, the district court

denied the United States’ motion to dismiss but granted its

motion for summary judgment on all plaintiffs’ medical moni-

toring and emotional distress claims and entered judgment

against plaintiffs on those claims. It therefore denied plaintiffs’

motion for partial summary judgment.

During the proceedings in the district court, the parties

became embroiled in a number of discovery disputes which

the district court resolved in the United States’ favor and which

plaintiffs now challenge on appeal. These include (1) an order

dated January 14, 1991 denying plaintiffs’ motion to compel

discovery and sustaining the United States’ objections to sev-

eral interrogatories; (2) an order dated August 13, 1992 deny-

ing plaintiffs’ motion to compel the production of one hundred

thirty-nine documents and sustaining the United States’ asser-

tion of the Deliberative Process Privilege; (3) an order dated

January 29, 1993 denying plaintiffs’ motion to compel the

production of five documents and sustaining th= United

States’ assertion of the Deliberative Process Privilege; (4) an

order dated March 4, 1993 granting the United States’ motion

for a protective order concerning plaintiffs’ notices of deposi-

tion and (5) an order dated November 16, 1993 denying

plaintiffs’ motion for emergency relief concerning defense

counsel's contact with former Army employees who were

potential witnesses for the plaintiffs.

Sla

Appendix

On November 29, 1993, the court entered final judgment

in favor of the United States and against the plaintiffs. On

December 23, 1993 plaintiffs filed a timely notice of appeal.

III. Jurisdiction and Standard of Review

The district court had subject matter jurisdiction pursu-

ant to 28 U.S.C.A. §§1331, 1346 (West 1993) and 28 U.S.C.A.

§2671 (West 1994), as well as CERCLA, 42 U.S.C.A. §9613(b)

(West 1983). It had supplemental jurisdiction over the plain-

tiffs’ state law claims pursuant to 28 U.S.C.A. §1367 (West

1993). We have appellate jurisdiction pursuant to 28 U.S.C.A.

§1291 (West 1993).

In reviewing an order granting summary judgment, we

exercise plenary review. Viewing the facts in the light most

favorable to the nonmoving party, we look to see if there was

a genuine issue of material fact; and, if not, whether the

moving party was entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50 (1986); In re Paoli R.R. Yard PCB Litigation, 916

F.2d 829, 860 (3d Cir. 1990) (“Paoli I”).

We review de novo the district court's determination that

the Redland Plaintiffs were not entitled to response costs

under CERCLA and HSCA, including a health risk assess-

ment, expert fees, attorney fees and other costs. See United

States v. Hardage, 982 F.2d 1436, 1446 (10th Cir. 1992).

Finally, we generally review the court's discovery rulings for

abuse of discretion. See Marroquin Manriquez v. I.N.S., 699

F.2d 129, 134 (3d Cir. 1983), cert. denied, 467 U.S. 1259

(1984). Nevertheless, we exercise de novo review over the

standards the district court used in exercising its discretion.

We find an abuse of discretion only if there is either an

interference with a substantial right or a gross abuse that could

result in fundamental unfairness at trial. Id. (citations omit-

ted). :

52a

Appendix

IV. Plaintiffs’ Claims Under FTCA

A. Medical Monitoring

We will first address the Redland FTCA Plaintiffs’ argu-

ment that they presented sufficient evidence to the district

court to withstand a motion for summary judgment on their

FTCA claim that the Army's negligence entitles them to medi-

cal monitoring. In Paoli I, supra, we concluded that the Penn-

sylvania Supreme Court would se. ore a cause of action for

medical monitoring for plaintiffs have been exposed to

various toxic substances. See Paoli I, 916 F.2d at ‘859. In so

concluding, we set forth four factors a plaintiff must prove in

order to recover:

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.

3. That increased risk makes periodic examinations

reasonably necessary.

4. Monitoring and testing procedures exist which

make the early detection and treatment of the disease

possible and beneficial.

Id. We stated that these factors must be proven by competent

expert testimony. Id. (citation omitted). We did not, however,

define the term “significantly exposed” or state what details an

expert must testify to in order to establish it.

We recently revisited this issue in In re Paoli Railroad

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

cert. denied, General Electric Co. v. Ingram, 1995 WL 75508

(Feb. 27, 1995). There, we noted a New Jersey Supreme Court

decision which held that plaintiffs seeking recovery for medi-

53a

Appendix

cal plea. must “ ‘have .. . experienced direct and hence

- = a toxic substancel. |” Id. at 787 (quoting

Theer v. Thora tte rey Co., 628 A.2d 724, 733 (N.J. 1993).

Theer tld 0 a laine who was exposed to asbestos while

laundering bar husband's clothes could not bring a medical

monitoring claim because, in part, “it was too difficult to

quantify her exposure.” Id. We noted our uncertainty regard-

ing the impact of Theer, but believed Pennsylvania courts

would not adopt such a narrow view of the cause of action. We

reasoned that “[s]omeone indirectly exposed to one chemical

might have as much risk of disease as someone directly ex-

posed to another chemical[.}” Id. at 787-88. Accordingly, we

declined to adopt a “per se rule requiring direct exposure,

actual injury, and testimony about an individual's particular

level of exposure.” Id. at 788.

Nevertheless, we predicted that the Pennsylvania Su-

preme Court would set some limits on a medical monitoring

claim, and we therefore adopted the Utah Supreme Court's

holding in Hansen v. CCI Mechanical, Inc., 858 P.2d 970, 980

(Utah 1993). We stated that:

In order for a plaintiff to show significant exposure

that causes a significantly increased risk to plaintiff of

contracting a serious disease that makes periodic testing

reasonably necessary, we think that a plaintiff must:

prove that by reason of the exposure to the toxic substance

caused by the defendant's negligence, a reasonable phy-

sician would prescribe for her or him a monitoring regime

different from the one that would have been prescribed

in the absence of that particular exposure. This is because

under this cause of action, a plaintiff may recover only if

the defendant's wrongful acts increased the plaintiff's

incremental risk of incurring the harm produced by the

toxic substance enough to warrant a change in the medical

54a

Appendix

monitoring that otherwise would be prescribed for that

plaintiff.

Hansen v. CCI Mech., Inc., 858 P.2d 970, 980 (Utah

1993). The court continued:

[If a reasonable physician would not prescribe it for

a particular plaintiff because the benefits of the monitor-

ing would be outweighed by the costs, which may include,

among other things, the burdensome frequency of the

monitoring procedure, its excessive price, or its risk of

harm to the patient, then recovery would not be allowed.

Id. at 788. “Significant exposure,” therefore, refers to an

exposure which, either by duration or harm, is sufficient to

cause a significantly increased risk, which in turn is sufficient

to require a monitoring regime different from that normally

required in the absence of such an exposure.

Here, in order to establish the first Paoli I factor of

significant exposure, the district court reasoned that plaintiffs

must show by clear evidence that they were actually exposed

to toxins. The district court noted that “[t]here is, of necessity,

a degree of ion in a medical monitoring case. How-

ver, ... the allowable conjecture should be in regard to the

amount or future effect of the exposure, not whether there

was exposure at all.” Redland Soccer Club Inc. v. Dep't of

Navy, No. 90-1072, slip op. at 14-15 (M.D. Pa. Oct.

This text is long and has been trimmed here. Open the source document for the complete record.