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IN RE PAOLI R.R. YARD PCB LITIG.

November 28, 1988

IN RE PAOLI RAILROAD YARD PCB LITIGATION; THIS DOCUMENT RELATES TO CIVIL ACTION NUMBERS: 86-2229 (MABEL BROWN
v.
SEPTA, et al.) 86-2235 (BURRELL v. SEPTA, et al.) 86-2669 (CUMMINS v. SEPTA, et al.) 86-4037 (COHEN & GARON v. SEPTA, et al.) 86-4723 (THOMPSON v. SEPTA, et al.) 86-5277 (JONES v. SEPTA, et al.) 86-5886 (LAMENT v. SEPTA, et al.) 86-7414 (CHRISTOPHER BROWN v. SEPTA, et al.) 86-7415 (CATHLENE BROWN v. SEPTA, et al.) 86-7416 (CRAIG BROWN v. SEPTA, et al.) 86-7417 (BARBETTA v. SEPTA, et al.) 86-7418 (JOHNSON v. SEPTA, et al.) 86-7419 (CELESTE BROWN v. SEPTA, et al.) 86-7420 (CLEMMON BROWN v. SEPTA, et al.) 86-7421 (CLOYD BROWN v. SEPTA, et al.) 86-7422 (CURTIS BROWN v. SEPTA, et al.) 86-7561 (INGRAM v. SEPTA, et al.) 87-0712 (KNIGHT v. SEPTA, et al.) 87-1190 (NARCISE v. SEPTA, et al.) 87-1258 (WILLIAMS v. SEPTA, et al.) 87-2874 (BUTLER v. SEPTA, et al.) 87-3227 (STANBACH v. SEPTA, et al.) 87-5269 (CUNNINGHAM v. SEPTA, et al.) 87-5304 (REID v. SEPTA, et al.)



The opinion of the court was delivered by: KELLY

 ROBERT F. KELLY, UNITED STATES DISTRICT JUDGE

 This memorandum is written in disposition of three summary judgment motions filed by the defendants in these actions.

 FACTS

 Since the 1930s, the twenty-three acre Paoli railyard has been a regional maintenance facility for various rail companies. The railyard was owned and operated by the Pennsylvania Railroad and its successor, the Penn Central Transportation Company, until 1976. Defendant Amtrak has owned the site since 1976. Between 1976 and 1983, the facility was operated by defendant, Conrail, as part of the commuter rail service that it operated during this period. Since 1983 defendant SEPTA has operated the railyard.

 Throughout this period, the various railroads stored, handled and disposed of PCBs (polychlorinated biphenyls) that were used as dielectric fluid in the transformers on railroad cars. Defendant City of Philadelphia owned some of these railroad cars. Defendant General Electric manufactured and supplied the electrical transformers that contained PCBs. Defendant Monsanto was the only company that produced PCBs for the American market.

 SEPTA no longer uses PCB fluid in its railcar transformers. However, the long-term presence and leakage of PCBs at the site caused various levels of PCB contamination at the yard and in the surrounding neighborhoods. The Environmental Protection Agency has implemented temporary measures designed to prevent the migration of PCBs through soil and water into residential and commercial areas adjacent to the yard. At the present time, the area is the site of a Superfund effort pursuant to 42 U.S.C. §§ 9606 and 9607 designed to remove the PCB contamination from the railyard and the surrounding neighborhood.

 PROCEDURAL HISTORY

 The plaintiffs in this action have all filed suit seeking "response costs" under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607(a), which brings this case within the federal question jurisdiction of this court. The plaintiffs in these cases with motions presently before the court have state law personal injury actions as pendent claims. Most of these plaintiffs are or were residents of the neighborhood surrounding the railyard. In three of the cases, workers at the yard or their estates are plaintiffs.

 The case management order stated that "all summary judgment motions to be made by defendants are to be filed by April 21, 1988." Because of the plaintiffs' failure to supply all of the discovery by the deadline of the case management order and because the court granted the defendants' motion to allow the deposition of plaintiffs' expert witnesses, this date was extended to July 8, 1988. The purpose of the case management order was to allow the plaintiffs to discover all that they said they needed to know in order to establish causation, to allow the defendants to discover from plaintiffs' experts the basis of their conclusion that defendants' actions caused plaintiffs' injuries, and to allow the defendants to seek summary judgment on the basis that plaintiffs' evidence produced in discovery was insufficient as a matter of law to prove that defendants caused plaintiffs' injuries.

 During the period of discovery under the case management order, the parties engaged in numerous disputes over discovery matters and some plaintiffs filed a motion to dismiss without prejudice.

 Because which experts a plaintiff has depends on which attorney represents that person, it is convenient to divide the plaintiffs into groups according to who represents them.

 In ten cases, plaintiffs are represented by Kohn, Savett, Klein and Graf, P.C. (Harold E. Kohn and Joseph C. Kohn) or Klehr, Harrison, Harvey, Branzburg, Ellers & Weir (Arnold E. Cohen and Charlotte Thomas). In nine of those cases, plaintiffs answered discovery with the reports of three experts:

 
1) Herbert Allen, Ph.D., a chemist, whose report stated that the area was highly contaminated by PCBs and that there was PCBs in the air and he calculated an amount of PCBs in the air.
 
2) Deborah Barsotti, Ph.D., a toxicologist, whose report stated general information about PCBs and then concluded that whatever injuries were claimed by plaintiffs to be caused by PCBs were caused by PCBs.
 
3) Arthur C. Zahalsky, Ph.D., an immunologist, who reported that PCBs caused immune system injuries in these plaintiffs.

 In the case of Cunningham v. SEPTA, 87-5269, the expert report was by Harry Shubin, M.D. who reported that a number of diseases of the two persons involved in the case were caused by PCBs.

 In the nine cases with D. Bruce Hanes as plaintiffs' attorney, G. John DiGregorio, M.D. reported that the plaintiffs have a fear of future harm and an increased risk of future harm. Dr. DiGregorio also stated that certain laboratory results, such as elevated triglycerides and cholesterol and such complaints as insomnia and irritability, were due to PCBs.

 Other plaintiffs made no response to discovery under the case management order.

 July 8, 1988 Defendants' Joint Motion for Summary Judgment on Causation

 July 8, 1988 Defendant's Joint Motion for Summary Judgment for Failure to Produce Evidence and under the Bar of Statute of Limitations

 July 8, 1988 Motion of Defendant, Septa, for Summary Judgment (Arguing that Pennsylvania law requires notice to a state agency six months after a cause of action accrues.)

 August 8, 1988 Answer of William Reid to Motion of SEPTA for Summary Judgment (Case NO. 87-5304 Lamb, Windle & McErlane, P.C., James C. Sargant, Attorney)

 August 8, 1988 Response of Plaintiffs to the Defendants' Joint Motion for Summary Judgment and Motion of the Plaintiffs for Leave to Amend their Complaint (Butler v. SEPTA, 87-2874, Motion for Failure to Produce Evidence. Wisler, Pearlstine, Talone, Craig & Garrity, Geoffrey L. Beauchamp and Kittredge, Kaufman & Donley. Joseph M. Donley and Kenneth A. Roos, Attorneys.)

 August 8, 1988 Plaintiffs' Response to Defendants' Joint Motion for Summary Judgment on Causation (Butler v. SEPTA, 87-2874)

 August 18, 1988 Defendants' Joint Response to Motion of Plaintiffs for Leave to Amend their Complaint (Butler v. SEPTA, 87-2874)

 August 22, 1988 Answer of William Reid to Defendants' Joint Motion for Summary Judgment for Failure to Produce Evidence and under the Bar of the Statute of Limitations (87-5304)

 August 22, 1988 Plaintiffs' Memorandum in Opposition to Defendants' Joint Motion for Summary Judgment on Causation (Kohn, Savett, Klein & Graf and Klehr, Harrison, Harvey, Branzburg, Ellers and Weir)

 August 22, 1988 Plaintiffs' Answer to Defendants' Joint Motion for Summary Judgment on Causation (D. Bruce Hanes)

 August 22, 1988 Plaintiffs' Memorandum in Opposition to SEPTA's Motion for Summary Judgment (D. Bruce Hanes)

 August 24, 1988 Plaintiffs' Answer to Defendants' Joint Motion for Summary Judgment for Failure to Produce Evidence and under the Bar of the Statute of Limitations (Kohn, Savett, Klein & Graf and Klehr, Harrison, Harvey, Branzburg, Ellers & Weir)

 August 24, 1988 Plaintiffs' Answer to Motion for Summary Judgment of Defendant SEPTA (Kohn, Savett, Klein & Graf and Klehr, Harrison, Harvey, Branzburg, Ellers & Weir)

 August 25, 1988 Defendant Monsanto Company's Memorandum in Reply to Plaintiff's Motion to Amend (Butler v. SEPTA, 87-2874)

 September 2, 1988 SEPTA's Reply Memorandum in Support of its Motion for Summary Judgment

 September 9, 1988 Plaintiffs' Surreply Memorandum in Opposition to SEPTA's Motion for Summary Judgment (Kohn, Savett- Klehr, Harrison)

 September 15, 1988 Defendants' memorandum in reply to plaintiffs answering memorandum on causation filed (D. Bruce Hanes plaintiffs)

 September 15, 1988 Defendants' reply memorandum in support of motion for summary judgment against Plaintiff William Reid (87-5304)

 September 15, 1988 Defendants reply brief to plaintiffs' memorandum in opposition to defendants' joint motion for summary judgment on causation (Kohn, Savett-Klehr, Harrison plaintiffs)

 September 15, 1988 Defendants' joint motion to strike portions of plaintiffs memorandum in opposition to defendants joint motion for summary judgment on causation (Kohn, Savett-Klehr, Harrison plaintiffs)

 September 23, 1988 Plaintiffs answer to defendants joint motion to strike portions of plaintiffs' memorandum in opposition to defendants' joint motion for summary judgment on causation (Kohn, Savett-Klehr, Harrison)

 September 30, 1988 Plaintiffs' sur-reply brief to defendants' reply brief to plaintiffs' memorandum in opposition to defendants' joint motion for summary judgment on causation (Kohn, Savett-Klehr, Harrison)

 STANDARD FOR GRANTING SUMMARY JUDGMENT

 Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be entered in favor of a moving party where it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The standard for granting summary judgment "mirrors the standard for a directed verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In response to a motion for summary judgment, the non-moving party must make a sufficient showing to establish a genuine issue of fact on those elements with respect to which it has the burden of proof. Celotex Corp. at 323.

 Of course, all justifiable inferences must be drawn in favor of the nonmovant, "credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict." Anderson v. Liberty Lobby at 255.

 Summary judgment is not precluded merely because a party has produced an expert to support its position. Merit Motors, Inc. v. Chrysler Corp., 187 U.S. App. D.C. 11, 569 F.2d 666, 673 (D.C. Cir. 1977); Flegenhauer v. Texaco, No. 85-3671 slip op. (E.D. Pa. Dec. 1, 1987) (Ditter, J.) An expert, who brings little more than his credentials and a subjective opinion, will not forestall entry of summary judgment in favor of the defendant. Viterbo v. Dow Chemical Co., 826 F.2d 420, 424 (5th Cir. 1987); In re Agent Orange Product Liability Litigation, 611 F. Supp. 1223, 1258-59 (E.D.N.Y. 1985).

 DISCUSSION

 Defendants' motions seek summary judgment on a variety of grounds. SEPTA's motion asserts that Pennsylvania law requires prospective plaintiffs to give a state agency notice of their claim within six months of the cause of action accruing, that these plaintiffs have failed to do so, and that failure to give this notice precludes suit under Pennsylvania law. The defendants filed a motion for summary judgment for failure to produce evidence and under the bar of the statute of limitations. This motion demands judgment against those plaintiffs who failed to produce evidence that defendants' actions caused them injury, and it asserts that discovery produced by some of the plaintiffs indicates that they thought they had been injured by PCBs from the Paoli railyard for as long as six years before they filed suit. The most complex motion is the motion of defendants asserting that no plaintiffs have offered sufficient evidence to prove that defendants caused them injury.

 The defendants first address the claims of the plaintiffs who claim they were exposed to PCBs by the defendants because they lived near the railyard -- the residential plaintiffs. The defendants assert that the plaintiffs' experts, who had given opinions, did not and could not reasonably dispute the Paoli Exposure Study of the Agency for Toxic Substances and Disease Registry (the ATSDR Study). The ATSDR is charged by law, 42 U.S.C. § 9604(i), with conducting health assessments of waste sites on the National Priorities List. If the health assessment indicates "a significant increased risk of adverse health effects in humans," the Administration is directed to initiate a health surveillance program for the exposed population.

 The ATSDR Study considered the people of the neighborhood according to three variables. The first was where, in the neighborhood, they lived. The neighborhood was divided into three areas according to the topological potential for soil exposure to PCBs from the railyard. The study found that those residents who lived in an area that had more PCBs in the soil did not have any more PCBs in their blood than the other areas.

 The second variable was whether PCBs in the blood increased as a function of the number of years spent living in the vicinity of the railyard. The study found no connection.

 The third variable studied was whether there was any relation between the amount of PCBs found in a resident's soil and the amount found in his or her blood. In order to make this determination, the study divided the residents of the railyard area into two groups. The first group was a randomly selected group from the neighborhood. The study termed this group the probability selected group. The second group was a group with the highest yard soil concentrations in the neighborhood. The study termed this group the pre-selected group. The study found that the residents with higher PCB levels in their yards did not have significantly higher PCB levels than those that had less.

 The study also concluded that the residents' PCB level did not differ significantly from the PCB level borne by the general population. The study stated that the geometric mean serum PCB concentration of populations having no known unusual source of PCB exposure range between 4.2 ppb (parts per billion) and 6.4 ppb. The geometric mean serum PCB concentration, in the probability selected group, was 4.3 ppb and in the preselected group, it was 5.3 ppb. Ninety-seven percent of the probability selected group had serum PCB concentrations of less than 20 ppb compared with 95 percent of the preselected group and 95 percent of the general United States population. The defendants state that all other studies done in the United States of populations living near PCB source sites have produced similar results. The defendants contend that this means that no expert can assert, in accordance with generally accepted scientific standards, that the residential plaintiffs have taken into their bodies PCBs originating at the Paoli railyard.

 The defendants further argue that the claims of all the plaintiffs, residential and occupational, are contrary to generally accepted scientific and medical opinion regarding PCBs.

 The defendants cite the Toxicological Profile for Selected PCBs (draft) (Nov. 1987) prepared by the ATSDR. The Toxicological Profile's Forward states:

 
This profile reflects our assessment of all relevant toxicological testing and information that has been peer reviewed. It has been reviewed by scientists from ATSDR, EPA, the Centers for Disease Control, and the National Toxicology Program. It has also been reviewed by a panel of nongovernment peer reviewers and was made available for public review. Final responsibility for the contents and views expressed in this toxicological profile resides with ATSDR.

 The Toxicological Profile concluded:

 
Occasional skin irritations, usually acnelike lesions and rashes, and liver effects are the only significant adverse health effects that have been observed in PCB-exposed workers. Workers experience PCB exposures that are much higher than those received by the general public. Adverse health effects have not been observed in people in the United States with nonoccupational exposure.

 Toxicological Profile, § 1.4 at p.2. In regard to the liver effects noted among PCB workers, the Profile states they "are inconsistent and not clearly associated with clinically detectable liver disease." The inconsistency may be due to the "fact that many of the studies . . . did not account for confounding variables." § 4.3.2.1.

 
In conclusion, various toxic effects of PBBs and PCBs have been described in laboratory animals. In humans, acute poisoning outbreaks have only occurred following exposure to a combination of PCBs and PCDFs. When humans were exposed only to PCBs or PBBs, the only observed acute effects have generally been minor. So far, no significant chronic health effects have been causally associated with exposure to PCBs or PBBs.

 Id. at 106.

 The defendants assembled a panel of medical doctors and scientists *fn1" with impressive credentials who filed a joint affidavit which states in part:

 
We have reviewed the extensive literature on PCBs and have found that no reasonable medical or scientific basis exists for concluding that chronic exposure to PCBs cause cancer, hypertension, cardiovascular diseases, elevations in serum triglycerides or cholesterol levels, liver disease, joint irritation, pancytopenia, post-operative humans.

 Defendants contend that nothing in the scientific literature, as generally accepted by the standards of the scientific community, contradicts any of these conclusions, so the plaintiffs are out of court.

 The defendants mean to exclude, by the phrase "generally accepted by the scientific community," studies in two categories: (1) animal studies and (2) studies resulting from the Yusho and Yu Cheng incidents.

 Rule 703 of the Federal Rules of Evidence controls the issue of what an expert is allowed to use as a basis for testimony. This Rule states:

 
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

 This Rule was interpreted by the Third Circuit Court of Appeals in the case In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (3d Cir. 1983). Factually, that case was very different from this litigation, however, it is the leading case in the Third Circuit on the issue of what constitutes a sufficient basis for an expert opinion. The court held: "The proper inquiry is not what the court deems reliable, but what experts in the relevant discipline deem it to be." Id. at 276. The trial court had excluded expert opinions of economists because they were based on data that were found to be inadmissible and unreliable. The Court of Appeals stated: "There are in the record unequivocal and uncontradicted affidavits from each of the experts that the data they relied on in forming their opinions were of a type reasonably relied upon by experts in their respective fields." Id. However, that is not the situation in the case now before the court. In this case, the defense experts unequivocally contradict the proposition that the results of animal studies can ever be the basis of a finding that a disease of a particular human being is more likely than not caused by a particular chemical. The defendants argue that animal studies are an appropriate method for regulatory agencies to determine whether or not there is any risk that a particular chemical might be a threat to public health but they are totally irrelevant in a tort case where the question is whether it is more likely than not that defendant caused plaintiff's injury.

 There are federal court cases on both sides of the question whether an expert should be permitted to testify as to the cause of human illness based upon the results of animal tests. The case of In re "Agent Orange" Product Liability Litigation, 611 F. Supp. 1221 (E.D. N.Y. 1985) is factually similar to this case because it involved experts willing to testify to the harmful effect of a chemical in the face of epidemiological studies that fail to show that harmful effect. In that case, Chief Judge Weinstein held that: "The animal studies are not helpful in the instant case because they involve different biological species. They are of so little probative force and are so potentially misleading as to be inadmissible. See Fed. R. Ev. 401-403. They cannot be an acceptable predicate for an opinion under Rule 703."

 In the recent case of Richardson v. Richardson-Merrell, Inc., 857 F.2d 823 (D.C. Cir. 1988) the circuit court affirmed the granting of judgment n.o.v. to the defendant drug company where the plaintiffs alleged that the drug Bendectin caused the minor plaintiff's birth defects. The court held that a jury verdict could not be reasonably based on the opinion of a medical doctor and former professor of pediatrics, pharmacology and toxicology who stated that the birth defects were caused by Bendectin and that his opinion was in turn based upon study of chemical structure, in vitro studies of the effect of Bendectin on animal tissues, and studies showing Bendectin caused birth defects in animals, even though he was an expert and stated that the epidemiological studies were "defective, inconclusive or both." This is very similar to what plaintiff's experts say about the PCB epidemiological studies. Both the District Court and Court of Appeals found conclusive the testimony of the defense expert that the epidemiological evidence showed Bendectin did not cause birth defects. The District Court, 649 F. Supp. 799(1986) found there was a scientific consensus that Bendectin has not been shown to cause birth defects, and stated:

 
That Dr. Done remains an unbeliever and was willing to testify to his disbelief "with reasonable medical certainty" does not mandate that this case be left as the jury decided it. Without a genuine basis "in or out of the record," even his expert "theoretical speculations" are insufficient to sustain the plaintiff's burden of proving, by a preponderance of the evidence, that Bendectin not only causes congenital defects generally, but that, in particular, it caused those limb reduction defects with which Carita Richardson was most unfortunately born.

 649 F. Supp. at 803, quoted by the Court of Appeals, 857 F.2d at 827. The court thus found that plaintiff's experts' disagreement with the epidemiological studies was not a sufficient basis for a verdict. There are a number of other cases that come to a similar conclusion regarding the admissibility of expert testimony based on animal studies, for example, Viterbo v. Dow Chemical Co., 826 F.2d 420 (5th Cir. 1987) and Lynch v. Merrell-National Laboratories, 646 F. Supp. 856 (D. Mass. 1986).

 To be sure, there are cases on the other side of this issue: Ferebee v. Chevron Chemical Co., 237 U.S. App. D.C. 164, 736 F.2d 1529 (D.C. Cir.), cert. denied 469 U.S. 1062, 83 L. Ed. 2d 432, 105 S. Ct. 545 (1984); Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741 (11th Cir. 1986); Villari v. Terminix International, Inc., 663 F. Supp. 727 (E.D. Pa. 1987) and slip. op. (August 9, 1988); Ramirez v. Richardson-Merrell, Inc., 85-1504 ...


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