ELR Citation: ELR 20989
No(s). s. 92-1995 et al (3d Cir. Aug 31, 1994)

The court affirms a district court's exclusion of most of the medical testimony of plaintiffs' experts in a toxic tort suit alleging that polychlorinated biphenyl (PCB) contamination at a Pennsylvania railroad yard caused personal injury to local residents. The court first holds that its review of the district court's factual findings requires a "hard look" to insure that the district court's exercise of discretion was sound and that it correctly applied the factors set forth in the U.S. Supreme Court's opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 23 ELR 20979 (1993). The court holds that the district court acted within its discretion in ruling that judicial economy, convenience, and fairness favor its retention of subject matter jurisdiction after plaintiffs dropped their Comprehensive Environmental Response, Compensation, and Liability Act claim, even though there is now no federal question jurisdiction or complete diversity. The court holds that the district court did not abuse its discretion in relying on the testimony of defendants' experts in excluding the testimony of plaintiffs' experts, even though defendants failed to designate their experts in accordance with the district court's time schedule, because plaintiffs had a significant opportunity to prepare for the testimony of defendants' experts and had extensive leeway at the in limine hearing to consult with their experts regarding any new arguments defendants' experts presented.

Turning to the admissibility of testimony by plaintiffs' experts, the court holds that under Fed. R. Evid. 702, the requirement of reliability, or "good grounds," extends to each step in an expert's analysis. Plaintiffs must demonstrate by a preponderance of the evidence that their experts' opinions are reliable. Under Rule 703, the trial judge must determine whether the experts had good grounds to find that the data underlying their testimony were reliable, and under Pennsylvania law the experts must testify with a reasonable degree of medical certainty. The court then reverses the district court's exclusion of plaintiffs' first medical expert as unqualified. Although she is arguably a poor clinician and less than fully credible, she was on the consulting staff of a hospital until 1988. Since then she has had extremely broad experience in the field of toxic substances, has written extensively in the field, and has consulted for the American Legion Science Panel. The fact that most of her work since 1976 has been for plaintiffs in litigation may undermine her credibility but does not eradicate her expertise. Although she apparently made substantive mistakes in her testimony, her testimony also demonstrated significant familiarity with the literature on PCBs, and many of the mistakes she made seem minor and unlikely to affect her ability to express an opinion. Under the liberal standard of Rule 702, the district court's decision that she was not qualified was an abuse of discretion. The court, however, upholds the district court's exclusion of immunological test results she relied on for some of her diagnoses, because plaintiffs do not defend the tests.

The court holds that the district court acted within its discretion in excluding the testimony of plaintiffs' medical experts that was based solely on self-reports of illness that plaintiffs prepared for litigation, and upholds the district court's exclusion of the testimony of plaintiffs' second medical expert because he did not examine plaintiffs or review their medical records and he admitted that without examining plaintiffs he could not state to a reasonable degree of medical certainty that they had been injured as a result of exposure to PCBs. In addition, he failed to explain his justification for assuming that all of the injuries plaintiffs checked off in their questionnaires were caused by PCBs. The court holds that plaintiffs' first medical expert had a reliable source of information that the plaintiffs on whose behalf she testified were ill, because she reviewed all of their medical records and she physically examined and took the medical histories of two of them. She also considered alternative causes for plaintiffs' illnesses in several instances. With respect to those plaintiffs whom she did not examine, she employed a sufficient number of standard diagnostic techniques that the district court should have presumed that her testimony was reliable.

The court next holds that the district court abused its discretion in excluding her testimony that PCBs caused headaches, arthritis/arthrlgia, and hypertension in the first plaintiff she examined, because defendants did not point to alternative causes that she failed to consider. The district court, however, properly excluded her testimony with respect to the first plaintiff's pregnancy losses and hysterectomy because she could provide no justification for eliminating alternative causes that defendants suggested, and this rendered her testimony inadmissible. The district court also properly excluded her testimony with respect to the first plaintiff's sinusitis because she seemed to place heavy reliance on unreliable immunological data. The district court abused its discretion in excluding her testimony regarding respiratory ailments in the second plaintiff she examined, because she pointed to a variety of data as justification for her conclusion when asked about a possible alternative cause. Although part of her differential diagnosis relied on tests that the district court excluded as unreliable, this was only a small part of the basis for her opinion. The district court properly excluded her testimony regarding the second plaintiff's skin condition because her testimony suggested that she made no effort to employ differential diagnosis to eliminate possible alternative causes of the skin abnormalities. The district court properly granted summary judgment on the second plaintiff's claim with respect to alleged reduced ankle reflexes because plaintiffs' medical expert was unwilling to say with a reasonable degree of medical certainty that PCBs were a significant factor in the condition. The district court properly excluded the expert's testimony with respect to other plaintiffs, whom she did not examine, because she did not advance a reliable explanation for ruling out alternative causes of their conditions. The court, however, reverses the district court's exclusion of her testimony under Fed. R. Evid. 403, because the district court inappropriately reasoned that the jury would give more probative weight to her testimony than it merited since she simply attributed all illnesses to PCBs and was evasive on cross-examination.

The court next holds that plaintiffs' expert on the extent of their exposure to PCBs is well-qualified, but upholds the district court's exclusion of this expert's recalculation of background levels, which involved multiplying one laboratory's results by a factor of two-and-one-half to three. The expert had found that the laboratory's results were two-and-one-half to three times lower than another laboratory for three unrelated samples. The court holds that a recalculation based on these samples is unreliable, because recalculation is not generally accepted, and recalculation based on comparing three samples is likely to lead to erroneous results. The court holds that the district court abused its discretion in excluding the expert's comparison of the first laboratory's data on PCBs in blood to a national study of PCBs in fat, because fat levels are a type of data experts often use to calculate blood levels, and calculating blood levels from fat levels is a reliable methodology. The court affirms the exclusion of the expert's calculation of plaintiffs' exposure to PCBs before 1986 based on tests a Canadian laboratory conducted in 1992. Many of the PCBs the Canadian laboratory found in plaintiffs' blood resulted from laboratory contamination. A qualified expert testified that the laboratory failed to perform many standard quality control techniques and that those it did perform cast substantial doubt on its results. The court reverses the exclusion of the remainder of the testimony of plaintiffs' expert on PCB exposure, because the district court provided no justification for excluding it.

The court reverses the district court's exclusion of the plaintiffs' evidence regarding animal studies on the health effects of PCBs, because the U.S. Environmental Protection Agency (EPA) has relied on animal studies to conclude that PCBs are a probable human carcinogen, animals react similarly to humans with respect to PCBs, epidemiological data is inconclusive, and some of the epidemiological data supports a finding of causation. The studies meet the relevance requirements of Rule 402 and the reliability requirements of Rules 403, 702, and 703, because they are testable, follow a generally accepted methodology, have been peer reviewed, and have been used for purposes outside of litigation. Also, defendants' experts acknowledge that they have some use. The district court abused its discretion in concluding that the probative value of the studies was substantially outweighed by unfair prejudice, because the district court did not say why expert reliance on animal studies is more prejudicial than any other scientific studies, and there is significant evidence in the record from sources such as EPA that animal studies are probative with respect to PCBs. The court affirms the district court's exclusion of testimony with respect to furans and dioxins, to which plaintiffs claim they were also exposed, because the district court was within its discretion in holding that the minimal relevance of this evidence was substantially outweighed by its potential for unfair prejudice. The court upholds the district court's exclusion of evidence concerning furan and PCB contamination of individuals in Japan and Taiwan, although the district court improperly excluded this evidence as irrelevant, because the district court was within its discretion in concluding that the prejudicial effect of this evidence is attended by unfair prejudice. The court upholds the district court's exclusion of evidence concerning furan and PCB contamination of individuals in Japan and Taiwan, although the district court improperly excluded this evidence as irrelevant, because the district court was within its discretion in concluding that the prejudicial effect of this evidence is attended by unfair prejudice. The court then reverses summary judgment with respect to the present injury claims of the two plaintiffs whom plaintiffs' first medical expert examined and affirms the district court's summary judgment against all the other personal-injury plaintiffs.

The court next holds that plaintiffs have presented sufficient evidence to survive summary judgment on their medical monitoring claims. The districtcourt abused its discretion by excluding the testimony of plaintiffs' first medical expert on medical monitoring based on her failure to understand certain terms. The court holds that plaintiffs' second medical expert could reliably testify about a patient's future risks without examining that patient, because a doctor need not testify that a plaintiff will become ill in the future in order to justify medical monitoring, and plaintiffs' second medical expert had sufficient data to conclude reliably that plaintiffs had been significantly exposed to PCBs. The court holds that the district court abused its discretion in excluding the second expert's specific proposals for medical monitoring even though he produced them late, because the prejudice to defendants is minimal. Defendants received the specifics of the proposals four months before the scheduled trial date and had abundant time to depose the expert. The district court also erred in finding that plaintiffs' violation of the scheduling order was willful and in bad faith. Finally, the court reverses the district court's summary judgment against plaintiffs on their property damage claims. EPA's normal practice of cleaning up property to the point where the risk is 1 in 1,000,000 creates a genuine issue of material fact as to whether a cancer risk of 1 in 100,000, which EPA estimates will exist after it cleans up this site, constitutes permanent damage. Also, where defendants have caused some (temporary) physical damage to plaintiffs' property, plaintiffs demonstrate that repair of this damage will not restore the value of the property to its prior level, and plaintiffs show that there is some ongoing risk to their land, plaintiffs can make out a claim for diminution of value of their property without showing permanent physical damage to their land.

[The district court's opinion is published at 23 ELR 20941. Related opinions are published at 19 ELR 20265, 21 ELR 20184, and 22 ELR 21517.]

Counsel for Appellants
Martin J. D'Urso, Joseph C. Kohn
Kohn, Nast & Graf
1101 Market St., Ste. 2400, Philadelphia PA 19107
(215) 238-1700

Counsel for Appellees
Roger F. Cox, Jerome R. Richter
Blank, Rome, Comisky & McCauley
Four Penn Center Plaza
10th & 13th Fls., Philadelphia PA 19103
(215) 569-5500

Before Becker, Roth, and Lewis, JJ.: