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FRIEDMAN v. F.E. MYERS CO.

January 10, 1989

BARRY FRIEDMAN, ET AL.
v.
F.E. MYERS CO. v. GENERAL ELECTRIC COMPANY and MONSANTO COMPANY



The opinion of the court was delivered by: NEWCOMER

 CLARENCE C. NEWCOMER, UNITED STATES DISTRICT JUDGE

 Before the court are the following motions: motion for summary judgment of F.E. Myers Co. (Myers); motion of Monsanto Company for summary judgment on causation or, in the alternative, motion in limine to preclude expert testimony; and motion of General Electric Company for summary judgment on causation or, in the alternative, motion in limine to preclude expert testimony; and General Electric's motion in limine to preclude testimony by plaintiffs' experts Rock, Furbish, and Fitzgerald.

 I. Factual Background

 This is a personal injury action arising out of plaintiffs' alleged exposure to polychlorinated biphenyls (PCBs). As alleged by plaintiffs, a submersible water pump manufactured by defendant F.E. Myers Co. was installed in a water well at their home in 1974. The pump contained a capacitor manufactured by defendant General Electric. The capacitor contained PCBs manufactured or sold by defendant Monsanto. During September 1986, plaintiffs ingested and showered in water from the well that tasted or felt "oily." Plaintiff Carol Pearl testified at her deposition that the water tasted oily, and that sometime later in the day after taking a shower in the oily water she felt "disoriented and dizzy." Myers Exh. B at 53, 57. Plaintiff Barry Friedman (Friedman) took a shower and afterwards noticed an oily feeling in his hair and on his skin. Myers Exh. A at 61. Plaintiff Edward Pearl also took a shower and noticed that the water was oily. Myers Exh. C at 19. Friedman and Carol Pearl later underwent medical tests which indicate that their bodies contain PCBs in concentrations exceeding the "normal" amounts. Plaintiffs' Exh. 7.

 Plaintiffs' amended complaint includes five counts, as follows: Count I is a negligence claim; Count II is a strict liability claim; Count III is a breach of warranty claim; Count IV is a concert of action claim asserting that Myers acted with other pump manufacturers and a trade association to disseminate false and misleading information about the dangers of PCBs in well pumps; and Count V alleges a civil conspiracy by Myers and the trade association to disseminate false and misleading information about the dangers of PCBs in well pumps.

 With regard to the injuries sustained, plaintiffs claim that:

 
as a proximate result of being exposed to these PCBs plaintiffs have sustained damage, suffering and losses both to their persons and to their property.
 
As a further and direct proximate result of defendant's conduct, plaintiffs, particularly plaintiff Carol Pearl, have undergone pain, mental anguish and emotional distress and will continue to do so, have experienced a severe anxiety, hysteria and fear, any or all of which has or will develop into a psychiatric condition due, inter alia, to the acquired knowledge that they were unknowingly exposed to PCBs and can contract, as a result therefrom, cancer.

 Amended Complaint, paras. 11-12. In a nutshell, then, plaintiffs claim to have suffered injury in the form of pain and suffering, emotional distress, and fear of developing cancer as a result of their alleged exposure to PCBs. *fn1"

 II. Summary Judgment Standard

 A trial court may enter summary judgment if, after a review of all evidentiary material in the record, there is no genuine issue as to any material facts, and the moving party is entitled to judgment as a matter of law. White v. Westinghouse Electric Co., 862 F.2d 56 (3d Cir. 1988); Bank of America Natl. Trust and Sav. Ass'n v. Hotel Rittenhouse Associates, 595 F. Supp. 800 (E.D. Pa. 1984). The evidence presented must be viewed in the light most favorable to the non-moving party. White, 862 F.2d at 59. Where no reasonable resolution of the conflicting evidence and inferences therefrom could result in a judgment for the non-moving party, the moving party is entitled to summary judgment. Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 883 (3rd Cir.), cert. denied, 454 U.S. 893, 70 L. Ed. 2d 208, 102 S. Ct. 390 (1981).

 The moving party has the initial burden of identifying evidence which it believes shows an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988). The moving party's burden may be discharged by demonstrating that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings and designate specific facts by use of affidavits, depositions, admissions or answers to interrogatories showing there is a genuine issue for trial. Celotex, 477 U.S. at 324. Moreover, when the nonmoving party bears the burden of proof, it must "'make a showing sufficient to establish [every] element essential to that party's case.'" Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp., 812 F.2d 141, 144 (3d Cir. 1987) (quoting Celotex, 477 U.S. at 322). Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." White, 862 F.2d at 59 (quoting Celotex, 477 U.S. at 322).

 III. Discussion

 A. Physical Injury Requirement

 There is generally no cause of action in tort until a plaintiff has suffered identifiable, compensable injury. Schweitzer v. Consolidated Rail Corp. 758 F.2d 936, 942 (3d Cir. 1985). As explained in a leading treatise:

 
Actual loss or damage resulting to the interests of another [is a necessary element of a negligence cause of action]. . . . The threat of future harm, not yet realized, is not enough. Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.

 W. Prosser and P. Keeton, Prosser and Keeton on Torts (5th ed. 1984) at 165 (footnotes omitted).

 In Schweitzer v. Consolidated Rail Corp. 758 F.2d 936 (3d Cir. 1985), former railroad employees sought to recover for asbestos-related injuries resulting from their employment. After citing the above treatise, the court concluded that mere exposure to asbestos did not give rise to a cause of action under generally applicable principles of tort law. Allowing a cause of action after mere exposure would mean that proof of damages would be highly speculative, the court stated; this, in turn, would likely result in "windfalls for those who never take ill and insufficient compensation for those who do." Id. at 942. "Requiring manifest injury as a necessary element of an asbestos-related tort action avoids these problems and best serves the underlying purpose of tort law: the compensation of victims who have suffered." Id. See also Deleski v. Raymark Indus., Inc., 819 F.2d 377 (3d Cir. 1987) (claim for negligent infliction of emotional distress not legally cognizable until plaintiff manifests physical injury caused by exposure to asbestos; similarly, plaintiff's claim that she is likely to contract cancer because of her exposure fails because Pennsylvania law does not permit recovery for the possibility of future harm caused by a tortious act); In re Paoli Railyard PCB Litigation, 706 F. Supp. 358 (E.D. Pa. 1988) (R.M. Kelly, J.) (the "possibility of future harm, fear of future harm, emotional distress, or the mere fact that [plaintiffs] have PCBs in their body" is insufficient to state a claim for risk of future harm; plaintiffs must show a present injury or health problem); Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985) (possibility of future harm is not admissible in action to recover for increased risk of contracting cancer as a result of exposure to asbestos; plaintiff must present competent, non-speculative evidence from which jury can reasonably determine the degree to which future consequences of a present injury are probable and, accordingly, what the amount of damages should be); Houston v. Texaco, Inc., 371 Pa. Super. 399, 538 A.2d 502 (1988) (landowners whose wells were contaminated by a neighbor's leaking gasoline storage tank could not recover under Pennsylvania law for negligently inflicted mental or emotional distress in the absence of attendant physical injuries); Berardi v. Johns-Manville Corp., 334 Pa. Super. 36, 482 A.2d 1067 (1984) (claim for alleged fear of contracting asbestosis diseases in the future dismissed when plaintiff could identify no physical injury or medically-identifiable effect linked to her exposure to asbestos); Cathcart v. Keene Indus. Insulation, 324 Pa. Super. 123, 471 A.2d 493 (1984) (claim for emotional distress was not legally cognizable unless and until plaintiff manifested physical injury caused by exposure to asbestos; mere ingestion of asbestos fibers ...


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