# Petition for Writ of Certiorari — Redland Soccer Club, Inc. v. Department of the Army > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2362%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 516 U.S. 1071 ## Text 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