Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


June 29, 1999


The opinion of the court was delivered by: Ambrose, District Judge.


Plaintiffs instituted this "public liability action" against Defendants claiming that radiation released from Defendants' nuclear fuel fabrication facility in Apollo caused them to develop cancer. After a jury trial, a verdict was entered in favor of all Plaintiffs and against both Defendants.

Pending is Defendants' Motion for Judgment as a Matter of Law, or in the Alternative, for a New Trial (Docket No. 355). After careful consideration of the parties' submissions and the record, the Motion for Judgment as a Matter of Law is denied and the Alternative Motion for a New Trial is granted for the following reasons.

A. Motion for Judgment as a Matter of Law.

(1) Evidence of violation of 10 C.F.R. § 20.106.

Turning first to Defendants' Motion for Judgment as a Matter of Law, Defendants argue that they are entitled to judgment as a matter of law because Plaintiffs produced no admissible evidence that the concentrations of uranium in the air violated 10 C.F.R. § 20.106.

Prior to trial, Defendants filed a Motion for Summary Judgment concerning this very issue. They argued that Plaintiffs had produced no evidence pre-trial that releases from the Apollo facility violated § 20.106 at the boundary of the restricted area and that, therefore, Plaintiffs would be unable to prove a violation of the federal standard of care, i.e., the limits imposed by § 20.106. In the Opinion denying Defendants' Motion for Summary Judgment, the Magistrate Judge (whose Opinion I adopted) pointed to internal documents from Defendants' files which created a genuine issue of material fact as to whether § 20.106 had been violated. At trial, these same documents and others were introduced, as well as other evidence, from which a jury could find a violation of the applicable standard of care.

10 C.F.R. § 20.106 provides as follows:

  a) Licensees "shall not possess, use, or transfer
  licensed material so as to release to an unrestricted
  area radioactive material in concentrations which
  exceed the limits specified in appendix B, Table II
  of this part, except as authorized pursuant to §
  20.302 or paragraph (b) of this section. For purposes
  of this section concentrations may be averaged over a
  period of not greater than one year."
  b) An application for a license amendment may include
  proposed limits higher than those specified in
  paragraph (a) of this section. The Commission will
  approve the proposed limits if the applicant
    1) That the applicant has made a reasonable effort
    to minimize the radioactivity contained in
    effluents to unrestricted areas; and
    2) That it is not likely that radioactive material
    discharged in the effluent would result in the
    exposure of an individual to concentrations of
    radioactive material in air or water exceeding the
    limits specified in Appendix "B," Table II of this
  c) An application for higher limits pursuant to
  paragraph (b) of this section shall include
  information demonstrating that the applicant has made
  a reasonable effort to minimize the radioactivity
  discharged in effluents to unrestricted areas . . .
  d) For the purposes of this section the concentration
  limits in Appendix "B," Table II of this part shall
  apply at the boundary of the restricted area. The
  concentration of radioactive material discharged
  through a stack, pipe or similar conduit may be
  determined with respect to the point where the
  material leaves the conduit. If the conduit
  discharges within the restricted area, the
  concentration at the boundary area may be determined
  by applying the appropriate factors for dilution,
  dispersion, or decay between the point of discharge
  and the boundary.
  During the trial, there was no lack of evidence from Plaintiffs' experts that Defendants had violated § 20.106. The testimony of Dr. Egilman, Mr. Franke and Dr. Makhijani repeatedly offered opinions that § 20.106 had been violated by Defendants. Dr. Egilman's expert report, produced pre-trial, contained numerous references to standard violations by Defendants. His testimony at trial echoed his pre-trial disclosures. N.T. (8/11) at pp. 146, 160, 166-69, 180, 184-84, 189-90. Mr. Franke testified to "totally insufficient" data compiled by Defendants both at the stacks and at the roof edges. He did however, see sufficient data to enable him to opine that § 20.106 was violated. N.T. (8/19) 6: 107, 113, 117, 120. Dr. Makhijani testified as to Defendants' noncompliance with the monitoring conditions of the license to operate the facility, the "sorely inadequate" data compiled by Defendants, and the likelihood of high release events that were not monitored. Nevertheless, he, too, stated that what data existed was sufficient to determine that Defendants violated § 20.106. N.T. (8/12) 2: 173.

Furthermore, Defendants' internal documents, produced pre-trial, were also introduced at trial as evidence that Defendants breached the applicable standard of care. Plaintiffs' Exhibit 13, a letter dated February 15, 1969, from the Atomic Energy Commission (AEC) to NUMEC, states that NUMEC's own data demonstrated release of radioactive materials through the stacks to unrestricted areas in amounts exceeding the limits of 10 C.F.R. § 20.106.

Plaintiffs' Exhibit 4, a letter from NUMEC Health and Safety Manager R.V. Barry to the AEC, admits a violation of § 20.106 "at the property line when the winds are from the south quadrant." Plaintiffs' Exhibits 47, 51, 52, 54, 55 and 56, are internal documents from Apollo plant officials written between August 1967 and March 1968, all of which indicate releases into unrestricted areas exceeding the limits of § 20.106.

The thrust of Defendants' arguments, therefore, is not that there was no evidence of violations of § 20.106, but, rather, as Plaintiffs point out, that there was no admissible evidence of such. Defendants argue that the only evidence introduced at trial related to measurements taken of emissions from the stacks into the restricted roof top area and that no measurements were taken at the boundary of the restricted area, the site governed by § 20.106. Defendants contend that the failure of Plaintiffs' experts to do a dispersion analysis renders their testimony relating to § 20.106 inadmissible. Notably, Defendants do not discuss the internal documents which express the conclusion that § 20.106 was violated based on measurements of stack emissions into unrestricted areas.

After reviewing again the testimony of Plaintiffs' experts and the exhibits introduced at trial relating to this issue, I conclude that Defendants' position is without merit. First of all, Defendants' main premise (that the rooftop of the facility is a restricted area) is not as clear as Defendants would have me believe. Plaintiffs have attached as Exhibit A to their Brief in Opposition to Defendants' Motion, a June 5, 1964 letter from the AEC to NUMEC which concludes that the roof area is an unrestricted area. If that is, in fact, the case, then there can be no question of the sufficiency of evidence at trial to support a conclusion that § 20.106 was violated. While it may be true that the NRC has clarified that limits for radioactive emissions apply at the boundary of the restricted area and not at stack discharge points, this assumes that the stack discharges into a restricted area. Nevertheless, the internal documents, the correspondence with the AEC and the testimony of Plaintiffs' expert witnesses all were sufficient admissible evidence and supported the jury's conclusion that § 20.106 was violated.

Furthermore, since it was without dispute that Defendants' monitoring was inadequate, at best, it would be most unfortunate if Plaintiffs were made to bear the burden of Defendants' past noncompliant action with regard to monitoring.

(2) Plaintiffs' Causation Expert Witnesses.

Defendants next argue that they are entitled to judgment as a matter of law because not one of Plaintiffs' three causation expert witnesses gave credible testimony that exposure to radiation was a substantial factor in bringing about Plaintiffs' cancers. Specifically, Defendants contend that because Plaintiffs' expert witnesses on causation did not base their testimony as to causation on the specific dose a Plaintiff might have received from the radiation emissions, the opinions on causation were given without sufficient foundation and were inadmissible as a matter of law.

As will be more fully discussed within, Plaintiffs' causation experts, Drs. Melius and Radford employed a differential diagnosis methodology in arriving at their opinions. Differential diagnosis is a methodology used to determine causation of a disease suffered by an individual, based on efforts to consider and exclude all possible alternate causes. As set forth by the Court of Appeals in Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802 (3d Cir. 1997) and In re Paoli Railroad Yard PCB Litig. ("Paoli II"), 35 F.3d 717 (3d Cir. 1994), the admissibility requirements of causation testimony in this case were met. Dr. Radford examined many factors in each Plaintiff's background. Additionally, he reviewed and used the information arrived at by Plaintiffs' dosimetry experts. As set forth more fully within, Radford's differential diagnosis evaluated all available information about each Plaintiff, determined the "most likely" diagnosis and tested the hypothesis by considering other possible diagnoses. His conclusions were scientifically reliable and sufficient to meet Plaintiffs' burden of establishing causation.

In the same manner, Dr. Melius also employed a differential diagnosis methodology. The arguments Defendants make about his testimony are essentially the same as those made about Dr. Radford and his opinions. Dr. Melius also relied on dose information provided by other experts; considered all factors relating to each Plaintiff which may have increased their susceptibility to the risks associated with radiation exposure; and eliminated other potential causes of Plaintiffs' cancers based on a thorough review and examination of all available data. This is what a differential diagnosis is and it was an appropriate and sound methodology on which this expert based his opinion.

While not as specific as the testimony of Drs. Radford and Melius, Dr. Egilman's testimony and expert opinions on general causation clearly "fit" the facts of this case. His opinions that radiation causes cancer and that there is no safe level of radiation exposure were helpful in assessing other expert opinions and were not inadmissible because they failed to address specific causation as to each Plaintiff.

(3) Reasonable Degree of Medical Certainty.

Finally, Defendants contend that they are entitled to judgment as a matter of law because the causation opinions of Drs. Radford and Melius were not given to a "reasonable degree of medical certainty." Defendants point to a question to Dr. Melius asking if his opinions were given with "reasonable medical scientific probability." N.T. (August 18) at p. 56. Dr. Radford was asked to opine on "what more likely than not caused the cancers in the eight people." N.T. (August 17) at pp. 153-54. Defendants point out other instances where Plaintiffs' experts gave opinions "based on reasonable medical probability, N.T. (August 17) at pp. 7, 58; based on reasonable medical scientific probability;" N.T. (August 18) at pp. 48, 49, 50; as to what "more likely than not" caused Plaintiffs' injuries, N.T. (August 17) at p. 153; and an opinion based on "more likely than not reasonable medical probability." N.T. (August 17) at p. 7.

Under Pennsylvania law, expert testimony need not be expressed in precisely the language used to enunciate the legal standard. Hoffman v. Brandywine Hosp., 443 Pa. Super. 245, 661 A.2d 397 (1995). In fact, a reviewing court is required to consider expert testimony in its entirety to determine whether an opinion has been expressed with a reasonable degree of medical certainty. McCann v. Amy Joy Donut Shops, 472 A.2d 1149, 1151, 325 Pa. Super. 340 (1984).

After reviewing the record and, in particular, the testimony of Drs. Radford and Melius as to causation, I find that their testimony, reviewed in the entirety, was given with the requisite degree of medical certainty. For example, Radford did use the term "reasonable medical certainty" to describe his opinion (N.T. 8/17 58-59, 152) and said he had "no real doubt" (N.T. 8/17, 7). Melius stated his opinions as "firm conclusions." (N.T. 8/18, 166.) Their testimony was sufficiently firm, certain and unequivocal on the issue of causation.

B. Motion for a New Trial.

Defendants have additionally argued that substantial errors were made with respect to the admission of evidence and jury instructions and that such errors require that a new trial should be granted. Reluctantly, considering the time, expense, effort and emotion already invested in this case by all involved, I find that the admission of certain evidence in the trial, as set forth within, requires that Defendants' Motion for a New Trial must be granted.

(1) Plaintiffs' Exhibits 37 and 38.

I begin with Defendants' argument that Plaintiffs' Exhibits P-37 and P-38 were inadmissible. Plaintiffs offered these exhibits in conjunction with the testimony of Dr. Melius to demonstrate an increase in cancer in Apollo as compared to surrounding communities.

Defendants have challenged the admission of these exhibits and the testimony concerning them on a number of bases. Defendants allege that, contrary to the mandate of Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure, the exhibits were not attached to or included in Melius' report nor were they referenced in any way therein and that, therefore, their admission at trial, constituted error requiring a new trial.

While Plaintiffs do not dispute that the exhibits were not attached to or included in the pretrial disclosures, Plaintiffs argued at trial, and presently, that Dr. Melius' report and his deposition testimony adequately alerted Defendants to the opinions he gave with respect to P-37 and P-38. Upon further review, I find now that I disagree with Plaintiffs and that the exhibits should not have been admitted into evidence at trial and Dr. Melius should not have been permitted to testify as to any analysis based on the data contained therein.

In 1996 the Pennsylvania Department of Health published the "Apollo-Parks Cancer Incidence Study 1984-92," a study conducted because of residents' concerns about the health of persons residing near the Apollo and Parks Township nuclear facilities. The study found the risk for all cancers "slightly elevated" in residents of communities within close proximity the Apollo nuclear facility and concluded that there was no elevation in the rates of cancers sensitive to radiation. The study was based on data from 1984-92, attached to the study in two tables (Table 7, comparing Apollo data with national norms and Table 8, comparing the same data with state norms). This data was validated by the author of the study, Dr. Eugene Weinberg, an epidemiologist with the Pennsylvania Department of Health. The study made no comparison between cancer rates in the Apollo area and areas surrounding that community. In validating the data, Dr. Weinberg reviewed each reported case of cancer and ascertained each specific place of residence.

During the testimony of Plaintiffs' experts, Dr. Radford and Dr. Melius, Plaintiffs' counsel offered testimony from those experts in conjunction with the two (2) exhibits, P-37 and P-38, which purported to show a marked excess of incidence of cancer in the Apollo community compared to surrounding communities. As the parties now agree, P-37 and P-38 are charts drawn from raw data contained in the State Health Data Center Statistics for 1990-94. Unlike the Department of Health Study, this raw data was not validated nor verified by Dr. Weinberg or anyone else for precise residence. As counsel for Defendants correctly point out, Exhibits P-37 and P-38 were not disclosed pre-trial, either in Plaintiffs' expert reports or at any deposition of Plaintiffs' experts.

Nevertheless, during Dr. Radford's testimony, P-37 and P-38 were displayed to the jury. Defendants objected and Plaintiffs responded that the information contained in the exhibits had been provided in Radford's report. After Plaintiffs' counsel's failure to provide support for their assertion that the information and data contained in P-37 and P-38 had ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.