On Appeal From the United States District Court For the Eastern District of Pennsylvania
Before: BECKER, NYGAARD, and ROTH, Circuit Judges.
Argued: September 16, 1996
This toxic tort case is before us for the third time. See In re Paoli Railroad Yard PCB Litig., 916 F.2d 829 (3d Cir. 1990) ("Paoli I"); In re Paoli Railroad Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994), cert. denied, 115 S. Ct. 1253 (1995) ("Paoli II"). The plaintiffs have lived for many years in the vicinity of the Paoli Railroad Yard ("Yard"), a railcar maintenance facility at which polychlorinated biphenyls ("PCBs") were used in profusion for over a quarter-century. They sued the corporations that have maintained the Yard and sold the PCBs, seeking to recover damages for a variety of physical ailments and for property damage. Plaintiffs now appeal from the judgment entered after an unfavorable jury verdict on the claims that remained for trial in the wake of the previous appeals.
Plaintiffs present a plethora of appellate issues, several of which are significant enough to justify still another published opinion: whether the district court abused its discretion in its exclusion of evidence offered by the plaintiffs regarding heat-degraded PCBs, and whether the court gave erroneous jury instructions dealing with the "significant exposure" element of the plaintiffs' medical monitoring and their property damage claims. The other questions presented are not of sufficient substance or difficulty to merit discussion here, especially given the length of our previous published opinions in the case, *fn1 and hence we resolve them summarily. *fn2
We resolve the remaining questions as follows:
(1) We will affirm the district court's exclusion of evidence offered by the plaintiffs regarding heat-degraded PCBs. The district court correctly determined that evidence related to heat-degraded PCBs fell within the ambit of its previous order excluding evidence related to plaintiffs' exposure to furans under Fed. R. Evid. 403, which was affirmed by this Court in Paoli II, 35 F.3d at 781-82. Furthermore, even if heat-degraded PCBs are a chemical substance distinct from furans, the district court did not abuse its discretion by excluding such evidence under Rule 403.
(2) We will affirm the district court's instructions on the "significant exposure" element of plaintiffs' medical monitoring claim. The court instructed the jury that plaintiffs must prove that they were exposed to PCBs at a level greater than that ordinarily encountered in everyday life. These instructions comport with this Court's description of the medical monitoring cause of action, the elements of which we explicated in Redland Soccer Club, Inc. v. Dept. of the Army, 55 F.3d 827 (3d. Cir. 1995), cert. denied, 116 S. Ct. 772 (1996). In affirming on this point, we make clear that Paoli II, 35 F.3d at 771 n.36, does not require a different result. We did remark in the Paoli II footnote that, in a personal injury or medical monitoring action, a plaintiff may be able to survive a motion for summary judgment, even if he or she was not exposed to a greater level of PCBs than was present in the background area; however, when making this statement, as the footnote makes clear, we were contemplating the unique situation in which defendants expose the entire population in a geographic area to high levels of contaminants, so that the level of contaminants that the plaintiff ordinarily encounters is extraordinarily high as a result of the defendants' traceable activities. Plaintiffs adduced no such evidence here.
(3) We will affirm the district court's instructions regarding the plaintiffs' property damage claims. We conclude that, when it instructed the jury that the property damage must be "actual," the district court did not improperly convey that the damage need be permanent in order to be compensable.
Because we resolve all issues in favor of the defendants, the judgment in their favor will be affirmed.
I. RELEVANT FACTS AND PROCEDURAL HISTORY
The background facts are stated comprehensively in Paoli II. For our present purposes we make only the following relatively brief account. The Paoli Railroad Yard has long stored and handled PCBs, which are fire-resistant insulating fluids used in railroad car transformers. In the mid-1980s, the EPA documented relatively high levels of PCBs in the soil in the Yard and the nearby water and land. As a result of litigation under the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Section(s) 9601, et. seq., Amtrak, Conrail, and SEPTA, all of which owned or operated the Yard at various times since 1976, entered into a series of consent decrees with the United States pursuant to which the PCB exposure in the Yard was monitored and controlled. In July 1992, the EPA issued a Record of Decision (ROD), which mandates extensive excavation and treatment of soils at the Yard and in the adjacent residential area, and erosion controls at the Yard. *fn3 As of the time of oral argument, the required soil excavation or treatment had not been completed.
The plaintiffs are individuals who have lived for many years in the vicinity of the Yard in areas identified by the EPA and by the railroad defendants' contractor as having experienced the most severe PCB-laden run-off. The plaintiffs have adduced evidence of significant levels of PCBs in the soil surrounding their homes, on which some of them played and in which some of them gardened. Plaintiffs also regularly traversed the Yard on foot, as they were given open access to the Yard prior to the mid-1980's.
In 1986, thirty eight plaintiffs brought suit in the District Court for the Eastern District of Pennsylvania against the owners and operators of the Yard, and against Monsanto Company, the manufacturer of PCBs in the United States, and General Electric Company, a manufacturer of railroad-car transformers in which the PCBs were used. Some plaintiffs sought recovery for present injuries allegedly caused by exposure to PCBs and other assorted chemicals from the Yard, including polychlorinated dibenzo furans ("furans") and polychlorinated dibenzo-p-dioxins ("dioxins"). Some plaintiffs brought claims for emotional distress caused by fear of future injury, and for medical monitoring designed to decrease the chances of future illness. Finally, some plaintiffs brought claims for the decrease in value of their property caused by the presence (or reputed presence) of PCBs on the land.
After our decision in Paoli I reversing the grant of summary judgment for the defendants on the grounds that the district court had not conducted an in limine hearing on evidentiary issues, plaintiffs submitted a list of expert witnesses, which included Melvyn Kopstein, Ph.D., who was proffered to testify about plaintiffs' exposure to PCBs from the Yard; Ian C.T. Nisbet, Ph.D., who was proffered to testify about plaintiffs' exposure to PCBs; and Janette Sherman, M.D., who was proffered to testify that PCBs had caused plaintiffs' injuries and that plaintiffs require medical monitoring to detect and treat future PCB-related illnesses. At the close of discovery, defendants moved in limine to exclude these experts' opinions under Fed. R. Evid. 702, 703, and 403. On the same grounds, the defendants also filed motions in limine to preclude the plaintiffs' experts from testifying about evidence concerning the harm of dioxins and furans (chemicals sometimes present in transformer fluids), and evidence concerning the "Yusho" incident in Japan and the "Yu Cheng" incident in Taiwan, in which many individuals suffered adverse effects after consuming rice oil contaminated with PCBs and furans. Defendants also moved for summary judgment on all of plaintiffs' claims.
After holding five days of in limine hearings, in which Drs. Kopstein, Nisbet, and Sherman testified for the plaintiffs and ten scientists testified for the defendants, the district court entered orders excluding the opinions of all but one of the plaintiffs' experts. The court also excluded under Rule 403 evidence concerning dioxins and furans, and the Yusho and Yu Cheng incidents. The court then granted summary judgment against the plaintiffs on both their personal injury and medical monitoring claims on the grounds that they had adduced no evidence of exposure to the PCBs, or of causation. The district court also granted summary judgment for the defendants on the plaintiffs' property damage claims on the grounds that plaintiffs could not prove that they had suffered permanent property damage in light of the EPA's proposed cleanup plan.
In Paoli II, we affirmed most aspects of the judgment, but we also reversed in part and remanded for further proceedings. In reviewing the admissibility of expert opinions, we applied the admissibility standards enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S. Ct. 2768 (1993), which the Supreme Court decided after the district court's rulings. We held that, as to all but two of the plaintiffs, the court did not abuse its discretion in excluding the testimony of plaintiffs' experts that PCBs had caused their (alleged) injuries. We reversed the district court's exclusion from evidence of Dr. Sherman's opinion with respect to the causation of injuries to Bessie Cunningham and Amber Burrell, two plaintiffs whom she actually examined and whose medical histories she took. 35 F.3d at 765-70. We also affirmed the district court's exclusion of expert opinion concerning the effect of dioxins and furans and testimony related to the Yusho and Yu Cheng incidents. We further held that, in the absence of Dr. Sherman's opinion on causation, the district court had properly granted summary judgment for defendants with respect to the personal injury claims of 31 of 33 plaintiffs (excluding Bessie Cunningham and Amber Burrell, leaving their tort claims for trial). Id. at 770-71.
We also held that the district court had erred in excluding as unreliable the opinions of experts who testified that plaintiffs needed medical monitoring as a result of their alleged exposure to PCBs. Id. at 789-91. Those opinions, we noted, were "not seriously challenged" by defendants in the in limine hearing, and passed Daubert muster. Id. at 795. Accordingly, we reversed the grant of summary judgment on the medical monitoring claims. Id.
Finally, we reversed the grant of summary judgment for the defendants with respect to plaintiffs' claim for diminution of property value. We predicted that Pennsylvania would allow recovery where the property sustains at least temporary physical damage, repairs will not restore the value of the property to the prior level, and there is some ongoing risk to land. In sum, the following claims remained in the litigation after Paoli II: the medical monitoring claims of 26 plaintiffs; the personal injury claims of two plaintiffs; and the property damage claims of ten plaintiffs. *fn4
Following Paoli II, and exercising its discretion under Federal Rule of Civil Procedure 42(b), the district court ordered that the trial would proceed in two phases. Phase I would involve the "issues of exposure, causation, medical monitoring, and property damages." If a jury returned a verdict favorable to the plaintiffs, Phase II would determine the defendants' liability for all claims, and the amount, if any, of punitive damages.
Prior to trial, defendants had moved in limine to exclude all the plaintiffs' evidence pertaining to heat-degraded PCBs and the heating process that produced them on the grounds: (1) that the evidence was covered by the court's prior order excluding evidence of dioxins and furans, which this Court affirmed in Paoli II; and (2) that, at all events, the evidence presented the same Rule 403 problems as had evidence of dioxins and furans. The court heard argument on the motion but reserved judgment until trial. During the course of testimony, plaintiffs proffered evidence on three separate occasions related to heat-degraded PCBs, which they alleged to be more toxic than "new PCBs" that had not been heated. In each instance, defendants challenged the evidence on the same grounds that they had advanced at the in limine hearing. In each instance, the court agreed with the defendants and ordered plaintiffs to refrain from referring to "heating" or heat-degraded PCBs.
After thirteen days of Phase I testimony, consisting primarily of expert opinion, the jury returned a verdict for defendants on all claims. In response to special interrogatories, the jury found that none of the plaintiffs had been "significantly exposed" to PCBs from the Yard; that plaintiffs Bessie Cunningham and Amber Burrell had not sustained injuries as a result of PCB exposure; and that PCBs from the Yard had not damaged the plaintiffs' properties. Phase II therefore never took place. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. Section(s) 1291. *fn5
Fed. R. Evid. 403 provides in pertinent part that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." In making a Rule 403 determination, the court must balance the genuine need for the challenged evidence against the risk that the information will confuse the jury and delay trial. United States v. Sriyuth, 98 F.3d 739, 747-48 (3d Cir. 1996).
A district court's decision to admit or exclude evidence is reviewed for abuse of discretion. Paoli II, 35 F.3d at 749. A ruling excluding evidence under Rule 403 is accorded particular deference, and, provided that the court has explained its ruling or the reasons for its ruling are "otherwise apparent from the record," United States v. Murray, 103 F.3d 310, 318 (3d Cir. 1997) (quoting United States v. Himmelwright, 42 F.3d 777, 781 (3d Cir. 1994)), it may not be reversed unless the determination is "arbitrary and irrational." Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 187 (3d Cir. 1990) (citing United States v. DePeri, 778 F.2d 963, 973-74 (3d Cir. 1985)); United States v. Long, 574 F.2d 761, 767 (3d Cir. 1978) ("If judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal.").
During the in limine process following the initial remand (Paoli II), plaintiffs proffered evidence about dioxins and furans, which they contend could have been produced at the Yard when PCB-containing transformer fluids were heated, and also evidence of the Yusho and Yu Cheng poisoning incidents in which furans may have caused injuries. Acting on defendants' motion, the district court excluded all evidence concerning these chemicals as irrelevant under Rule 401 and unduly confusing and prejudicial under Rule 403. Specifically, the district court noted that the evidence would require defendants to "defend against a substance to which the Plaintiffs cannot prove they were exposed; confuse and complicate the issues for trial ..., confuse and mislead the jury ..., result in undue delay and wasting of time consumed in the presentation of irrelevant evidence at trial; and prejudice the Defendants by permitting inflammatory evidence concerning substances such as dioxin as to which there is much public sensitivity and fear."
In Paoli II, we affirmed the district court's rulings. Although we found that the district court had impermissibly excluded the evidence as irrelevant under the lenient standard of Rule 401, we ruled that the court had not abused its discretion in ruling the evidence inadmissible under Rule 403. 35 F.3d at 781-84. In so holding, we took cognizance of the fact that there was evidence in the record that various heat-producing activities occurred at the Yard, and that dioxins and furans may have been produced as a result. However, we agreed with the district court that, in light of the paucity of the evidence that plaintiffs were exposed to dioxins and furans, admitting evidence about those chemicals would have required time-consuming mini-trials on the minimally relevant issues of plaintiffs' alleged exposure to the chemicals and the effects of that exposure. Id. at 783. We ...