ELR Citation: ELR 20184
No(s). s. 88-1973 et al (3d Cir. Sep 20, 1990)

The court reverses the district court's dismissal of a toxic tort suit brought by 38 persons who either worked in or lived adjacent to the Paoli railyard seeking damages for personal injuries allegedly suffered from exposure to polychlorinated biphenyls (PCBs) used at the railyard. Plaintiffs relied on various theories for recovery, including property damage, response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), common law tort, and the medical monitoring doctrine. The district court dismissed all claims except those for property damage and CERCLA response costs. In granting defendants' summary judgment motions, the district court excluded the bulk of plaintiffs' expert reports and testimony introduced to establish that they were subject to abnormally high levels of PCB exposure and that this exposure harmed them.

The court first finds that appellate jurisdiction is proper, since plaintiffs' notices of appeal appear to have served as functional equivalents of the requirements of Rule 3(c) of the Federal Rules of Appellate Procedure. The evidence showed that plaintiffs' notices in 10 referenced cases were not clearly insufficient, since they mentioned the docket numbers and surnames of the cases then before the district court. The court next turns to the viability of certain plaintiffs' medical monitoring claims, by which plaintiffs sought to recover the costs of periodic medical examinations that they contend are medically necessary to protect against the exacerbation of latent diseases brought about by their alleged exposure to PCBs. The court notes that it must predict whether the Pennsylvania Supreme Court would recognize such a claim, since neither that court nor the Pennsylvania Superior Court has decided whether a demonstrated need for medical monitoring creates a valid cause of action. The court first observes that an action for medical monitoring seeks to recover only the quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm, whereas an enhanced risk claim seeks compensation for the anticipated harm itself. The injury in an enhanced risk claim is the anticipated harm itself, whereas the injury in a medical monitoring claim is the cost of medical care that will hopefully detect that injury. The court finds that the appropriate inquiry is not whether it is reasonably probable that plaintiffs will suffer harm in the future, but rather, whether medical monitoring is, to a reasonable degree of medical certainty, necessary to properly diagnose the warning signs of disease. The court predicts that the Pennsylvania Supreme Court would recognize that a medical monitoring action could be premised on proof of exposure to hazardous substances. Thus, the court holds that such a cause of action may be established by proving that a plaintiff was significantly exposed to a proven hazardous substance through the negligent actions of a defendant, that plaintiff suffers an increased risk of contracting serious latent diseases as a proximate result, that such increased risks make periodic diagnostic medical examinations reasonably necessary, and that monitoring and testing procedures exist that make the early detection and treatment of the diseases possible and beneficial. Recognizing this tort does not require courts to speculate about the probability of future injury, but merely requires courts to ascertain the probability that the far less costly remedy of medical supervision is appropriate. Allowing plaintiffs to recover deters irresponsible discharge of toxic chemicals by defendants and encourages plaintiffs to detect and treat their injuries as soon as possible, both conventional goals of Pennsylvania's tort system.

The court next holds that the district court failed to properly lay a reviewable foundation for excluding plaintiffs' expert testimony under Federal Rules of Evidence 703, 702, and 403. The court first holds that the district court's exclusions under Rule 703 must be set aside because the district court failed to reveal what facts it relied on in concluding that plaintiffs' evidence was inadmissible under Rule 703. Further, it is not clear whether the district court was merely choosing between opinions or excluding plaintiffs' expert opinions on evidentiary grounds. The district court seems to have excluded the expert testimony on animal studies because it had convincing evidence that those studies were irrelevant, but made no definite ruling. The court next holds that the district court failed to provide plaintiffs with adequate process at the evidentiary stage to defend their submissions. Notwithstanding the complexity of the matter, and the voluminous nature of the expert opinions, the district court did not give the plaintiffs sufficient opportunity to explore the issues on which they were ultimately denied relief. The district court rejected plaintiffs' request for an in limine hearing, denied oral argument on the evidentiary issues and on the related summary judgment motion, and issued a case management order that arguably denied plaintiffs an adequate opportunity to discover the positions of defendants' experts. The court observes that plaintiffs should have been given an opportunity to be heard on the critical issues before being effectively dispatched from court, and an in limine hearing would have provided such an opportunity and would have been manageable.

The court next holds that the district court abused its discretion when it insisted that expert witnesses have a certain kind of degree or background in excluding portions of plaintiffs' expert testimony. Rule 702 and the accompanying advisory committee notes make clear that various kinds of knowledge, skill, experience, training, or education qualify an expert as such. The district court apparently thought that simply because some of plaintiffs' experts did not have the degree or training that would be most appropriate, the testimony must be excluded. Such a decision is inconsistent with the liberal language of Rule 702. The court next holds that the district court, while properly applying the novel scientific evidence standard to the testimony of one of plaintiffs' experts, provided inadequate analysis of that standard in excluding the expert's testimony. Plaintiffs' expert introduced testimony regarding a meta-analysis technique for combining the results of different epidemiological studies done by other scientists, and re-analyzing the combined data to see if the data render different results than the individual studies done with a smaller data sample. The court first notes that when a scientist's methodology is being attacked in contrast to the data relied on, the court must analyze the reliability of that methodology. However, the reliability requirement may not be used to exclude all evidence of questionable reliability. Because the Federal Rules of Evidence indicate a strong preference for admitting evidence having some potential for assisting the trier of fact and for dealing with the risk of error through the adversary process, courts must err on the side of admission in making reliability determinations. Since there is no evidence in this record that meta-analysis is inaccurate as a mode of analysis, the testimony was improperly excluded. Not only was there no hearing, in limine or otherwise, at which the bases for the opinion of the contesting experts could be evaluated, the experts were not even deposed, but rather submitted affidavits. The record indicates that the district court judged the credibility of the meta-analysis methodology by believing defendants' experts, who argued that the analysis of plaintiffs' experts was not reliable, and disbelieving plaintiffs' experts who said that it was reliable. Because credibility determinations are normally the province of the jury, it was improper for the district court to exclude this evidence. Thus, the district court's rejection of the medical monitoring claim must be reversed. The increased risk of the cancers that plaintiffs' expert documented is material to the factual dispute in this case, and if proven that plaintiffs are at an increased risk for these cancers because of exposure to defendants' products, may entitle plaintiffs to require defendants to bear the increased medical monitoring costs.

The court next holds that although defendants' attacks on certain of plaintiffs' other expert witnesses may have merit, there has been insufficient process to affirm attacks under Rule 703, and there has been an inadequate record development and fact-finding to affirm attacks under Rule 702. Moreover, although the district court suggested that it excluded all of these opinions of plaintiffs' experts under Rule 703 and 403, it is apparent that it did not conduct the careful balancing required by Rule 403. The court notes that while it declined to prescribe any mandatory procedures for trial courts to follow in an earlier opinion, it recognized that the most efficient procedure that district courts can use in an in limine hearing. The court concludes that because Rule 403 is a trial-oriented rule, the district court's precipitous Rule 403 determination, before plaintiffs had an opportunity to develop the record, was unfair and improper.

The court next holds that the district court improperly granted summary judgment, since a genuine issue of material fact would have been created if the evidence the district court excluded had instead been found admissible. A prima facie case would require a showing that defendants released PCBs into the environment, which is not in dispute. The second prong requires a showing that plaintiffs somehow ingested these PCBs into their bodies, but conflicting evidence was presented as to whether plaintiffs' exposure to PCBs exceeded the normal background level of PCB exposure in the United States. The conflict creates a genuine issue of material fact sufficient to withstand summary judgment. If a jury could reasonably believe plaintiffs' background level statistics, then there is ample evidence from which to conclude that the plaintiffs who lived adjacent to the railyard had a higher PCB level than usual because of that exposure. Moreover, genuine issues of material fact exist as to whether plaintiffs received an injury from this exposure. Because the district court appears to have applied the wrong standard to plaintiffs' medical monitoring claim, a genuine issue exists as to whether a jury could reasonably believe the testimony of plaintiffs' expert that medical surveillance was reasonably needed. Finally, the court holds that certain plaintiffs' motions to amend the complaint will not significantly prejudice defendants rights and thus the district court improperly denied that request. The district court, without explanation, summarily denied plaintiffs' motion for leave to amend their complaint to exclude the personal injury claims. There is no indication that defendants invested significant time into addressing plaintiffs' personal injury claims sufficient to prejudice them if plaintiffs' are allowed to amend on remand. Moreover, the court holds that although one defendant, an agency of Pennsylvania, was not given notice by plaintiffs within the time limits required under Pennsylvania law, that defendant has not shown prejudice sufficient to uphold the district court's grant of summary judgment in favor of the agency.

[The district court opinion is published at 19 ELR 20265.]

Counsel for Appellants
D. Bruce Hanes
Friedman & Hanes
4 Penn Ctr., Ste. 700, Philadelphia PA 19103
(215) 972-8200

James C. Sargent Jr.
Lamb, Windle & McErlane
24 E. Market St., P.O. Box 565, West Chester PA 19381
(215) 692-3322

Geoffrey L. Beauchamp
Wisler, Pearlstine, Talone, Craig & Garrity
515 Swede St., Norristown PA 19401
(215) 272-8400

Counsel for Appellees
Michael H. Malin, James D. Shomper, Jeanne Proko-Elkins
White & Williams
1234 Market St., Philadelphia PA 19107
(215) 854-7000

Roger F. Cox, Jerome R. Richter, George J. Krueger, Jay W. Eisenhofer
Blank, Rome, Comisky & McCauley
4 Penn Ctr. Plaza, Philadelphia PA 19103
(215) 569-5500