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LEVIN - 1704 v. GENERAL PUB. UTILS. CORP.

January 10, 1996

LEVIN - 1704 PLTFS; TARASI - 350 PLTFS; NEESON - 4 PLTFS; HYMAN - 1 PLTF; KNIGHT - 2 PLTFS; HAAZ - 2 PLTFS; MIRIN - 1 PLTF; DEVITO - 4 PLTFS; BOZARTH - 1 PLTF; WALWYN - 3 PLTFS; SHEIN - 2 PLTFS; HARRIS - 3 PLTFS, plaintiffs
v.
GENERAL PUBLIC UTILITIES CORP.; GENERAL PUBLIC UTILITIES CORPORATION; BABCOCK & WILCOX CO.; BABCOCK & WILCOX COMPANY; PENNSYLVANIA ELECTRIC COMPANY; JERSEY CENTRAL POWER & LIGHT CO.; METROPOLITAN EDISON COMPANY; J. RAY MCDERMOTT & COMPANY; MCDERMOTT INCORPORATED; CATALYTIC, INC.; RAYTHEON CONSTRUCTORS INC.; BURNS & ROE, INC.; BURNS AND ROE ENTERPRISES, INC.; DRESSER INDUSTRIES, INC.; DRESSER INDUSTRIAL VALVE AND INSTRUMENT DIVISION OF DRESSER INDUSTRIES, INC.; defendants; GEORGE COLBERT, unknown



The opinion of the court was delivered by: RAMBO

 On January 5, 1996, this court filed a lengthy opinion ruling on the bulk of Defendants' pending motion in limine to exclude Plaintiffs' expert testimony on dose. In that order, the court indicated that it would be filing its opinion with respect to Dr. Gennady Kozubov on January 8, 1996. The court was closed on January 8 due to a blizzard which paralyzed much of the east coast. The court will now rule on the admissibility of the proffered testimony of Dr. Kozubov. For a discussion of the factual and legal background of this memorandum, the parties should refer to this court's January 5, 1996 order. In re TMI, 1996 U.S. Dist. LEXIS 543, No. 88-1452 (M.D. Pa. January 5, 1995) (memorandum of law accompanying order granting in part Defendants' motion in limine). The court will proceed with its Daubert/Paoli II analysis.

 I. DAUBERT/PAOLI II ANALYSIS

 A. Is the Methodology Based Upon a Testable Hypothesis?

 The court understands Dr. Kozubov's hypothesis to be that trees in the TMI area were exposed to radiation during the TMI accident, and that damage from this exposure can be seen by examining the growth increments (rings) on the trees. Moreover, the Kozubov hypothesis includes an assumption that a dose can be inferred from the information obtained by examining the trees growth rings. At the hearing, Dr. Kozubov testified that his methodology, referred to as a "dendrometric analysis," had been patented in the former Soviet Union. To obtain a patent, Dr. Kozubov had to subject the methodology to rather rigorous review. (See Tr. at 1437.) Accordingly, the court finds that this factor weighs in favor of admitting the proffered testimony.

 At the hearing, Dr. Kozubov testified that his methodology had been discussed in two peer reviewed articles and that the methodology had been presented at two international conferences. (Tr. at 1437.) Defendants do not appear to dispute the contention that the methodology has been subject to at least minimal levels of peer review. This factor will weigh in favor of the admission of the proffered testimony.

 C. Were There Standards Controlling the Technique's Operation?

 According to Dr. Kozubov, "there are international standard operating procedures. . . . [and there are] national standards as far as dendrometric measurements are concerned. The standards define the methods of sample preparations, sample retrievals and sample analysis." (Tr. at 1438.) Defendants express concern that despite the existence of standards, the standards might not have been properly followed. Specifically, Defendants note that Dr. Kozubov did not give Professor Shevchenko specific instructions about how to select control trees. Further, it is unknown whether the control trees were taken from the same "urban" environment as the study trees. Finally, Defendants argue that Dr. Kozubov used weather information from the Harrisburg area and applied it to the control group of trees. The control group was located over seventy miles from Harrisburg. (2/17/95 Kozubov Rpt. at 6.) Testimony was presented at the hearing that weather conditions, among other things, would effect the growing patterns of trees. (Tr. at 1448-49; see McClenahen Rpt. at 2.) Thus, Defendants contend that by applying the Harrisburg weather data to the control group, Dr. Kozubov is failing to account for growth discrepancies that may be due to differing weather patterns in the area where the control group is located.

 The court is satisfied that while Dr. Kozubov might not have used every standard possible to control the operation of his technique, he did employ proper standards. Thus, although the court finds Defendants' arguments to have a degree of merit, this factor will not weigh against the admission of the proffered testimony.

 D. Is the Methodology Generally Accepted

 In his testimony, Dr. Kozubov was unable to characterize his methodology as generally accepted. His response to questioning on this subject was as follows:

 
Because the patent was received at the end of 1993, I cannot say that this method was tested worldwide. Plus, I have to say that fortunately, thank God, we didn't have enough places, locations in the world where we could test this method. There are only three or four sites worldwide where this methodology can be tested. So probably the term world acceptance, worldwide acceptance, would be the wrong one to use here. The Three Mile Island area is probably only the second location where we're trying and using this methodology.

 (Tr. at 1438.) Based upon Dr. Kozubov's testimony, the court finds that the dendrometric methodology is not generally accepted. The court, however, will not weigh this factor heavily against the admission of the proffered testimony. As Dr. Kozubov has indicated, it is likely that the methodology lacks general acceptance more because of the ...


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