The opinion of the court was delivered by: Ambrose, District Judge.
OPINION and ORDER OF COURT
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
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.
(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
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
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
(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
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'
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 ...