testimony in Felgenhauer differ substantially from the circumstances here, in which plaintiffs' experts rely on numerous studies that have undertaken precisely the task of demonstrating a causal relationship between exposure to termiticides and the onset of cancer.
The defendant also refers to the decision in Viterbo v. Dow Chemical Co., 826 F.2d 420 (5th Cir. 1987), in which the court found that the plaintiffs' expert's opinion lacked objectivity because he formed his opinion without any scientific literature to support his claim of a causal relationship between plaintiff's symptoms and exposure to defendant's pesticide. Again, the circumstances of this case differ significantly, because the plaintiffs' experts rest their opinions on a wide body of scientific evidence on which experts in this field routinely rely.
The defendant's insistence that three Circuit courts have "unequivocably [sic] held . . . animal studies . . . unreliable in the scientific community as a predictor of effects in man" is simply unwarranted. Defendant's Memorandum in Support of Motion to Exclude Testimony and Reports, at 15. As pointed out above, the question of whether any particular animal study provides the kind of basis on which an expert in the field may reasonably rely requires an examination of the context in which the study is made. Thus, defendant's reference to Gulf South Insulation v. U.S. Consumer Product Safety Comm'n, 701 F.2d 1137 (5th Cir. 1983), is as inapposite as the references to the Agent Orange litigation and Lynch, discussed in Section I, because the court in Gulf South relied heavily on the fact that the expert's opinion was based on a single study involving only 240 rats. In contrast, plaintiffs' experts rely on numerous studies involving thousands of subjects as a basis for their contention that defendant's termiticides are probable human carcinogens.
The defendant's second argument to exclude testimony is that Pennsylvania law bars admission of speculative testimony concerning increased risk of future injury. Although defendant concedes that a doctor may offer a prognosis of a person already injured, Defendant's Memorandum, at 20 (citing Boyle v. Pennsylvania R.R. Co., 403 Pa. 614, 170 A.2d 865 (1961)), defendant asserts that plaintiffs have not yet suffered an injury or illness as a result of their alleged exposure to defendant's termiticides. Because plaintiffs do in fact claim to have already sustained health-related injuries, and represent that they will introduce independent evidence in support of that claim, their experts should not be barred from testifying about the medical risks plaintiffs face as a result of those alleged injuries. See Villari v. Terminix Int'l Inc., 663 F. Supp. 727, 735 (E.D. Pa. 1987).
Finally, the defendant contends that Dr. Kilgore may not testify as to the health of the plaintiffs because he is not a medical doctor. This claim is unsupported. While it is true that an expert must demonstrate special competence to present expert testimony, see, e.g., Aloe Coal Co. v. Clark Equip., 816 F.2d 110 (3d Cir.), cert. denied, 484 U.S. 852, 108 S. Ct. 156, 98 L. Ed. 2d 111 (1987), there is no per se rule that non-physicians are unqualified to testify about the medical condition of individuals exposed to chemicals. On its face, Dr. Kilgore's resume offers substantial support for the conclusion that Dr. Kilgore possesses sufficient skill, knowledge, and experience in toxicology to render an expert medical judgment. See Resume of Dr. Kilgore, Plaintiffs' Answer to Defendant's Motion to Exclude Certain Animal Experiments, Exhibit "A." If defendant wishes to challenge the sufficiency of Dr. Kilgore's credentials, defendant will have the opportunity to cross-examine Dr. Kilgore at trial before a final decision is made on Dr. Kilgore's status as an expert witness.
Accordingly, the defendant's second motion will be denied.
III. Motion to Preclude the Evidence of Terminix's Discontinuance of the Use of Aldrin, Chlordane and Heptachlor and the Evidence that these Termiticides Are No Longer Distributed in the United States
The defendant asserts that its voluntary choice to discontinue its use of certain termiticides constitutes a subsequent remedial measure, evidence of which is inadmissible under Fed.R.Evid. 407. The rule states:
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
A. Evidence of Terminix's Discontinuance of Use
The plaintiffs offer a number of arguments for allowing the introduction of evidence relating to the defendant's discontinuance of use. First, plaintiffs contend that the discontinuance was not voluntary, and hence the purposes underlying the exclusion of a defendant's remedial measures are not implicated. Second, plaintiffs argue that their anticipated uses of the evidence are not restricted by Fed.R.Evid. 407, because they do not plan to use the evidence to prove defendant's negligence. Finally, the plaintiffs urge that the motion should not be granted until it is clear that the evidence cannot be introduced for a permissible purpose under Fed.R.Evid. 407, such as to prove feasibility or to impeach defendant's witnesses. These arguments are not persuasive.
The strong policy justification underlying Fed.R.Evid. 407 -- the concern that permitting the introduction of evidence of remedial measures to show past negligence will deter efforts to remove potential hazards -- suggests that any exception to the rule should be crafted carefully so as to not deter possible corrective efforts. See, e.g., Werner v. Upjohn Co., Inc., 628 F.2d 848, 856 (4th Cir. 1980), cert. denied, 449 U.S. 1080, 66 L. Ed. 2d 804, 101 S. Ct. 862 (1981). This approach is consistent with the Third Circuit's practical reading of Fed.R.Evid. 407, as reflected in its decision to hold the rule applicable to products liability actions based on § 402A of the Restatement (Second) of Torts. See Josephs v. Harris Corp., 677 F.2d 985, 990-91 (3d Cir. 1982); Knight v. Otis Elevator Co., 596 F.2d 84, 91-92 (3d Cir. 1979). While it is true that the rule is hardly served by excluding evidence of a party acting under compulsion, it is also true that some remedial efforts would be deterred if a party was penalized for acting prior to such compulsion. Thus, the voluntariness of a remedial effort should be presumed absent a clear showing of coercion.
In this case, the defendant discontinued its use of termiticides containing chlordane and heptachlor at the same time that the Environmental Protection Agency was negotiating with Velsicol Chemical Corporation ("Velsicol"), a primary manufacturer of these termiticides, to discontinue their sale. See Environmental News, attached to Plaintiffs' Memorandum as Exhibit "G", at 3-4 (describing EPA's review of termiticide uses over the past decade). The defendant was under no legal obligation to discontinue its use of chlordane and heptachlor. Moreover, although the relevant regulatory agencies were contemplating the promulgation of stricter standards, they provided explicitly for the legal use of the termiticides at issue at the time of the defendant's decision. See Defendant's Reply Memorandum in Support of Motion to Exclude Evidence of Discontinuance of Use, at 2. Under such circumstances, allowing the plaintiff to introduce evidence of the defendant's discontinuance of use would run counter to the purposes of Fed.R.Evid. 407.
Plaintiffs also argue that Fed.R.Evid. 407 is inapplicable because they do not anticipate introducing evidence of defendant's discontinuance of use to prove negligence. Rather, they plan to introduce the evidence to prove the dangerousness of defendant's termiticides. Terminix's discontinuance of use, however, is not necessarily probative of the dangerousness of the product, and may well be excludable as irrelevant under Fed.R.Evid. 401. See C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5282, at 95-96 (1978) (discussing as one rationale underlying Fed.R.Evid. 407 the likelihood that a defendant's later conduct is not probative of the safety of his earlier conduct); cf. Dine v. Western Exterminating Co., Slip Op., Civil Action No. 86-1857 (D.D.C. March, 1988) (excluding as irrelevant agreement between EPA and Velsicol to cancel many registered uses of chlordane and heptachlor). In any case, the possibility that jurors would make the forbidden inference that Terminix's discontinuance constitutes an admission of its culpability with respect to its prior use of the termiticides cautions against admitting the testimony.
More importantly, the plaintiffs' assertion that the evidence can be used to show the dangerousness of the product without also implicating negligence on the part of the defendant is dubious. Negligence is certainly related to the dangerousness of the product with which one is dealing. The standard of care appropriate to the disposal of ordinary garbage unquestionably differs from the standard appropriate to the disposal of toxic waste. To the extent plaintiffs prove the dangerousness of the product through evidence of defendant's discontinuance of use, they also support their claim of defendant's negligence. This unavoidable inference suggests that the plaintiffs are in fact using the defendant's subsequent actions to prove negligence, exactly the purpose proscribed by Fed.R.Evid. 407.
Finally, plaintiffs argue that this court should not rule on this motion until it is clear whether the evidence can be used to show feasibility or to impeach defendant's witnesses, two permissible uses for evidence otherwise excludable under Fed.R.Evid. 407. If plaintiffs at some point demonstrate that the evidence can be offered for a purpose consistent with Fed.R.Evid. 407, they may seek to introduce it at that time. At the present time, I rule only that the evidence constitutes a subsequent remedial effort by Terminix, and that it may not be introduced to support plaintiffs' claim of the dangerousness of the termiticides.
B. Evidence that the Termiticides are No Longer Distributed in the United States
The defendants argue that evidence that the termiticides are no longer distributed in the United States should be excluded either as irrelevant under Fed.R.Evid. 401 or excessively prejudicial under Fed.R.Evid. 403.
Much of the evidence relating to the withdrawal of termiticides from the United States market has been excluded in other litigation. See Dine v. Western Exterminating Co., Slip Op., Civil Action No. 86-1857 (D.D.C. March 18, 1988) (holding that evidence of Velsicol's agreement with the EPA to cancel certain uses of chlordane and heptachlor was not probative of the carcinogenicity of these termiticides); Rabb v. Orkin Exterminating Co., 677 F. Supp. 424, 1987 U.S. Dist. LEXIS 13357, Civil Action No. 6:87-0174-3, 6:86-1879-3 (D. S.C. October 30, 1987) (upholding exclusion of evidence of the alleged withdrawal of chlordane-based products by Velsicol). The persuasive rationale behind these decisions is that evidence that some companies withdrew certain chemicals from the market, unaccompanied by proof that the companies based their withdrawals on knowledge of the chemicals' dangerousness, is unlikely to have much probative value. Proof of the chemicals' dangerousness requires much more direct evidence. Here, the plaintiffs intend to use expert testimony and animal studies to support their position concerning the carcinogenicity of the termiticides. Whatever additional support might be provided by the evidence that the termiticides are no longer used in the United States is outweighed by the substantial possibility that a jury would draw an unwarranted inference from the evidence.
Accordingly, the defendant's Motion to Preclude the Evidence of Terminix's Discontinuance of the Use of Aldrin, Chlordane, and Heptachlor and the Evidence that these Termiticides Are No Longer Distributed in the United States will be granted.
IV. Motion to Exclude Evidence on Failure to Warn
In their complaint, plaintiffs assert that the defendant should be held strictly liable under § 402A of the Restatement (Second) of Torts for its alleged failure to warn of the dangers associated with its termiticides. In this motion, the defendant seeks to exclude evidence relating to its alleged failure to warn. The defendant offers two arguments. First, the defendant claims that it cannot be deemed a seller or distributor of a product in plaintiffs' § 402A strict liability action because the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136 et. seq. (1982) ("FIFRA"), provides that a certified applicator who does not deliver any unapplied pesticides should not be viewed as a seller or distributor under the Act. The defendant maintains that Congress intended in this section to insulate certified applicators from strict liability under § 402A. The defendant's second argument is that FIFRA preempts any state law tort claim based on defendant's alleged failure to warn.
A. The Definition of "Seller" Under FIFRA
In ruling on defendant's Motion for Summary Judgment, Villari v. Terminix Int'l Inc., 663 F. Supp. 727 (E.D. Pa. 1987), this court found that Pennsylvania would allow the extension of strict products liability to a person who supplied a product in the course of performing a service. That opinion canvassed the sound policy reasons and precedent for allowing a supplier of a product in a "hybrid sale-service transaction" to be held strictly liable for product defects. See 663 F. Supp. at 730-31. The defendant now argues that Congress intended to preclude such liability by its language in § 136(e)(1) of FIFRA.
Section 136(e)(1) provides that
[A certified applicator is] any individual who is certified under section 136b of this title as authorized to use or supervise the use of any pesticide which is classified for restricted use. Any applicator who holds or applies registered pesticides, or use dilutions of registered pesticides consistent with subsection (ee) of this section, only to provide a service of controlling pests without delivering any unapplied pesticide to any person so served is not deemed to be a seller or distributor of pesticides under this subchapter.
The defendant contends that if Terminix is viewed as a non-seller under FIFRA, it cannot be viewed as a seller for the purposes of plaintiffs' § 402A action. Accordingly, defendant argues, the plaintiffs' strict liability action must fail, because liability under § 402A attaches only to those who have sold a product. See Defendant's Memorandum, at 8 (citing Kohr v. Johns-Manville Corp., 534 F. Supp. 256 (E.D. Pa. 1982)).
Although § 136(e)(1) does express Congress's intent to treat certain individuals who apply pesticides as non-sellers, it is apparent from other passages in § 136 that Terminix is not an individual within the meaning of the Act. Hence, FIFRA does not preclude plaintiffs' strict products liability action based on Terminix's alleged failure to warn.
The Act refers in various sections to both "persons" and "individuals." The drafters' decision to use one of the terms rather than the other, so as to indicate whether a requirement extends to a single individual or to a business, is deliberate throughout the statute. For example, § 136b, which governs the certification procedure, provides in pertinent part that
In any State in which the Administrator conducts a certification program, the Administrator may require any person engaging in the commercial application sale, offering for sale, holding for sale, or distribution of any pesticide one or more uses of which have been classified for restricted use to maintain such records
. . . as the Administrator may by regulation prescribe. . . . Such standards shall provide that to be certified, an individual must be determined to be competent with respect to the use and handling of pesticides . . . . (emphasis added)