38. Without regard to toxic exposure, a person has a 25 per cent chance of contracting cancer during his lifetime. Smith Testimony.
39. Employing Dr. Greeley's estimate, Plaintiffs' lifetime risk of contracting cancer increased because of their well-water exposure from 25 per cent to 25.03 per cent. Smith Testimony; Greeley Testimony.
40. Employing Dr. Smith's estimate, Plaintiffs' risk of contracting cancer because of their well-water exposure increased by approximately the same amount as if, for instance, they had each smoked seven packs of cigarettes, lived in New York City or Boston for 200 days or driven 500 miles each year. Smith Testimony.
41. Several of the chemicals in Plaintiffs' wells may cause non-cancerous diseases, although the risk was not quantified at trial. Testimony of Susan Daum, M.D. (hereafter "Daum Testimony").
42. It is preferable in medical monitoring to identify a particular organ or body structure most at risk of disease so that testing may be targeted appropriately. Testimony of Jessica Herzstein, M.D. (hereafter "Herzstein Testimony").
43. Plaintiffs' expert, Dr. Susan Daum, testified that Plaintiffs suffer an increased risk of contracting disease and that this increased risk makes medical monitoring appropriate. Her assessment of the risk is based on Dr. Greeley's risk assessment which, as noted, overstates the risk because of various false assumptions. Daum Testimony.
44. The four homes at issue in this case are now similarly situated to the other homes in Westfield Terrace; they receive their water from the municipal authority and the ground under the homes is likely contaminated. Testimony of Don Paul Shearer (hereafter "Shearer Testimony").
45. Plaintiffs' expert, Mr. Shearer, based his opinion of a diminution in the value of Plaintiffs' property entirely on the fact that, in selling the homes, Plaintiffs would have to disclose to potential buyers the fact that the wells and ground were contaminated. He did no specific analysis of the real estate market in the area. Shearer Testimony.
46. The Government's expert, James McGraw, performed two studies. One showed no change in the value of property in Westfield Terrace and noted that houses in the development had been sold recently. Another compared Westfield Terrace with another development and determined that the values of homes in Westfield Terrace actually increased after 1988. Testimony of James McGraw (hereafter "McGraw Testimony"); see also, Old York Road, Fairview Township, York County, Pennsylvania (McGraw Report), Government's Exh. 44.
47. Mr. McGraw interviewed other real estate brokers and they indicated to him that they did not regard the contamination as likely to affect the value of homes in Westfield Terrace. McGraw Testimony; McGraw Report.
48. It is unclear whether the buyers of the homes that were sold in Westfield Terrace knew of the contamination problem. McGraw Testimony.
49. There is no evidence that any of the Plaintiffs have attempted to sell their homes and been unsuccessful or received a price lower than market value. Hamacher Testimony; O'Neal Testimony; Testimony of John O'Donnell (hereafter "J. O'Donnell Testimony").
50. None of the Plaintiffs have expressed a desire or intent to sell their homes. Hamacher Testimony; V. O'Donnell Testimony; J. O'Donnell Testimony.
51. There is no evidence beyond Mr. Shearer's conjecture that the values of Plaintiffs' homes have been lessened by the contamination.
52. Plaintiffs have incurred the expense of paying for municipal water, although that expense is offset somewhat because they no longer use electricity to power well pumps.
CONCLUSIONS OF LAW
1. A federal district court considering common-law claims brought under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), is to apply the substantive law of the state in which the alleged transgression occurred. Richards v. United States, 369 U.S. 1, 9; 82 S. Ct. 585; 7 L. Ed. 2d 492 (1962). As it is undisputed that all actions complained of in this case took place in Pennsylvania, we will apply the law of the Commonwealth.
2. The well-established elements of negligence include (a) a duty or obligation recognized by law requiring the actor to conform to a certain standard of conduct; (b) a failure to conform to the standard required; (c) a causal connection between the failure and the resulting injury; and (d) actual injury resulting to the interest of another. Orner v. Mallick, 639 A.2d 491, 1994 Pa. Super. LEXIS 840, 1994 WL 101094 at *2 (Pa. Super. 1994).
3. Plaintiffs failed to offer testimony regarding the appropriate standard of care to which the Army should be held while the Government offered the uncontradicted testimony of Dr. Minear that NCAD toxic chemical handling was in accordance with then-existing industry standards. As a result, Plaintiffs have failed to prove by a preponderance of the evidence that the Army conduct at NCAD fell below an appropriate standard of care. There was, therefore, no direct negligence.
Negligence per se
4. Negligence per se may be demonstrated by proof that a defendant has violated a law or regulation whose purpose is found to be, at least in part (a) to protect a class of persons which includes the one whose interest is invaded, (b) to protect the particular interest which is invaded, (c) to protect that interest against the kind of harm that has resulted, and (d) to protect that interest against the particular hazard from which the harm results. Centolanza v. Lehigh Valley Dairies, 430 Pa. Super. 463, 635 A.2d 143, 149-50 (Pa. Super. 1993).
5. Plaintiffs point to several environmental statutes that they allege were violated by the Army's conduct that lead to their well contamination. As noted, reference to the testimony of both hydrogeological experts, Mr. Robelen and Ms. Hewitt, indicates that most of the NCAD was hydrogeologically remote from Plaintiffs' wells. Thus, any negligence at those remote sites could not be causally related to the contamination and will not be considered here. See, e.g., Plaintiffs' Revised Proposed Findings of Fact and Conclusions of Law No. 115 (relating to notices of violation from PADER regarding Tank 950).
6. In those instances in which Plaintiffs do point to alleged statutory violations in the area of the AMA, the instances did not involve either the activities that allegedly caused Plaintiffs' well contamination or the primary chemicals found in the wells. See, e.g., Plaintiffs' Revised Proposed Findings of Fact and Conclusions of Law Nos. 102-04 (relating to notices of violation by the EPA and the Pennsylvania Fish and Game Commission arising from the release through the AMA's stormwater sewers of phenols and toluene that caused a large fish kill). Because the rules at issue guard against hazards unrelated to well contamination, negligence per se is inapplicable under the standard of Centolanza.
7. The 1969 USAEHA Report indicating that certain discharges into the Marsh Run Creek violated Pennsylvania environmental laws (see Finding of Fact 26) did not refer to activities or violations that could have resulted in Plaintiffs' well contamination. Further, the environmental laws in question refer to preservation of aquatic life. Thus, negligence per se is inapplicable under the standard of Centolanza.
8. Plaintiffs have failed to prove by a preponderance of the evidence that the Army's conduct amounted to negligence per se. Centolanza v. Lehigh Valley Dairies, Inc., 430 Pa. Super. 463, 635 A.2d 143, 149-50 (Pa. Super. 1993).
Res Ipsa Loquitur
9. Negligence may be proven by a theory of res ipsa loquitur where there is evidence, inter alia, that the event is of a kind that does not ordinarily occur in the absence of negligence. Smick v. City of Philadelphia, 1994 WL 27896 at *2 (Pa. Commwlth Feb. 4, 1994).
10. As discussed, ante, it is possible for well contamination of the kind found in this case to occur in the absence of negligence; i.e., the migration happened even though the NCAD personnel did not fall below an appropriate standard of care. Therefore, res ipsa loquitur is not appropriate in this case.
11. Therefore, Plaintiffs have failed to prove by any of the proffered three theories that NCAD personnel were negligent.
12. Although it has not expressly done so, the Pennsylvania Supreme Court would recognize a cause of action for medical monitoring. In Re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 851 (3d Cir. 1990); see also, Merry v. Westinghouse Electric Corp., 684 F. Supp. 847 (M.D. Pa. 1988) (Caldwell, J.).
13. In order to prevail on a claim for medical monitoring, Plaintiffs must prove the following by a preponderance of evidence:
A. they were significantly exposed to a proven hazardous substance though the negligent actions of Defendants;
B. as a proximate result of exposure, the Plaintiffs suffer a significantly increased risk of contracting a serious latent disease;