ELR Citation: ELR 21026
No(s). 93-7829 (3d Cir. May 15, 1995)

The court reverses a district court grant of summary judgment for the government on two child plaintiffs' tort law claims that their illnesses were caused by exposure to toxic substances that the U.S. Army deposited at a landfill that was later converted into a soccer field on which they played. The court affirms, however, the district court's grant of summary judgment for the government on claims by three other groups of plaintiffs—township workers who converted the area into the field; residents living near the field; and persons, primarily children, who played soccer on the field—for medical monitoring based on alleged exposure to toxic substances at the site.

The court first holds in a footnote that the district court did not abuse its discretion when it denied plaintiffs class certification, and that the district court did not err in denying plaintiffs' motion for emergency relief relating to a discovery motion filed in a separate case. Addressing plaintiffs' claims for medical monitoring under the Federal Tort Claims Act (FTCA), the court notes that one of the factors plaintiffs must prove is that they were significantly exposed to a proven hazardous substance through the defendant's negligent actions. The court holds that their failure to produce evidence, in the form of blood or tissue tests, showing directly that they absorbed toxins from the field into their bodies is not fatal to their medical monitoring claims. Even without direct evidence, plaintiffs may still satisfy the "significant exposure" factor through expert testimony that they were exposed to the toxins at issue at levels significantly above background levels so as to require special tests or more frequent medical monitoring than medicine recommends for the general population. The court finds, however, that the record contains no expert opinion on whether either the township workers or the neighbors have been exposed to toxins to such an extent that they suffer such an increased risk of contracting a serious disease, and that supplemental medical testing is therefore reasonably required. The court holds that two of plaintiffs' expert's reports permit a reasonable fact finder to infer that adults and children using the soccer field for 33 hours or more were exposed to carcinogens and noncarcinogens that increased their risk of illness beyond the one in 1,000,000 benchmark the U.S. Environmental Protection Agency uses to measure significant risk. The court holds, however, that all plaintiff groups failed to introduce evidence that their exposure required a medical monitoring regimen different from that which normally would be recommended for them absent exposure. Plaintiffs' only expert report concerning the need for, and extent of, medical monitoring does not recommend special testing for any of the plaintiffs. Thus, the court affirms the district court's grant of summary judgment for the United States on the plaintiffs' medical monitoring claims.

The court holds that the district court did not err in granting summary judgment for the United States on plaintiffs' claim for damages for negligent infliction of emotional distress caused by their exposure to chemicals at the field. The record shows that none of the plaintiffs currently suffers a physical injury or a medically identifiable effect from such exposure, and absent some physical injury or impact, Pennsylvania law does not provide recovery for negligent infliction of emotional distress. In a footnote, the court affirms the district court's dismissal of plaintiffs' request for remedial action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Pennsylvania Hazardous Sites Cleanup Act (HSCA), because this remedy is not available against the United States under the FTCA. Thus, the court need not consider whether the district court correctly denied plaintiffs' motion for summary judgment on their claim of negligence per se against the United States.

The court holds that the district court correctly dismissed plaintiffs' CERCLA claims for response costs, including attorney fees, expert witness fees, and health risk assessment costs. In a footnote, the court notes that because plaintiffs failed to introduce the sufficient evidence to survive a summary judgment motion on their FTCA medical monitoring claim, it need not address whether plaintiffs could recover medical monitoring costs from the United States as response costs under CERCLA or the Pennsylvania HSCA. In the same footnote, the court also affirms the district court's dismissal of plaintiffs' request for attorney fees under CERCLA, in light of the U.S. Supreme Court's decision in Key Tronic Corp. v. United States, 24 ELR 20955 (1994). The court next holds that plaintiff's litigation costs are not response costs under any of CERCLA's definitions of the term. Plaintiffs' health risks assessment and expert testimony were designed to assess, for litigation purposes, what health risks, if any, plaintiffs were exposed to while using the field for recreation. The expert assessments were conducted long after the field was closed to recreational use and have nothing to do with any remedial or response action at the site. Thus, the district court did not err in determining that plaintiffs' costs are not response costs, because the costs are not monies expended to clean up sites or to prevent further releases of hazardous chemicals.

Turning to the two child plaintiffs' claims for medical monitoring, past and future medical expenses, pain and suffering, and emotional distress, the court notes that their case differs from the other plaintiffs in this action. The girl suffers from leukemia and the boy suffers from enlarged lymph nodes, whereas none of the other plaintiffs show any signs of physical injury from their exposure. Thus, these two plaintiffs have shown harm because their illnesses demonstrate an immediate need for medical monitoring beyond that recommended for the general population. The court holds that the district court should not have concluded that the children failed to show causation, as a matter of law, at this stage of the proceeding on the record before it. The court holds that these plaintiffs have introduced sufficient evidence to create a genuine issue of material fact as to each of the elements necessary to establish a tort claim for negligence under Pennsylvania law, including causation. The children's expert's opinion on the cause of their illnesses spoke with the "reasonable degree of medical certainty" Pennsylvania case law requires. Because their expert's opinion conflicts with the Army's expert's opinion regarding causation, there remains a genuinely disputed issue of material fact on this issue. Thus, the children's expert's report is enough to permit these plaintiffs to survive U.S. motion for summary judgment on the issue whether the children's present injuries, including any need for special medical monitoring, have been caused by their exposure to any toxic substances the Army may have deposited in the landfill under the field on which they played.

The court vacates the district court's order denying plaintiffs' motion to compel discovery of 139 documents for which the Army claimed the deliberative process privilege, because the district court did not sufficiently explain its rationale for holding the privilege applicable. On remand, the district court should demonstrate its adherence to the requisite two-step review of the Army's assertion of the privilege: Determining whether the communications are, in fact, privileged and balancing the parties' interests. The court holds that the district court did not err in rejecting plaintiffs' argument that the United States waived its privilege by subsequently disclosing five of the documents, because this inadvertent disclosure does not qualify as a voluntary waiver. The court also rejects plaintiffs' contention that the importance of the documents should be factored into the determination of whether the government waived its privilege.

Counsel for Appellants
Laurence W. Dague
Shumaker & Williams
3425 Simpson Ferry Rd., Harrisburg PA 17108
(717)763-1121

Counsel for Appellees
Wendy L. Weiss
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202)514-2000

Before Becker, Hutchinson, and Joyner,^* JJ.