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McMunn v. Babcock & Wilcox Power Generation Group, Inc.

United States District Court, W.D. Pennsylvania

February 27, 2014

MICHELLE McMUNN, Personal Representative of the Estate of EVA MYERS, et al., Plaintiffs,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. JESSI ANN CASELLA, et al., Plaintiffs,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. MICHAEL P. HUTH, et al., Plaintiffs,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. LINDA W. DILIK, Plaintiff,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. BONNIE AIKENS, et al., Plaintiffs,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. PATRICIA ALTIMIRE, et al., Plaintiffs,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. MARCIA BAUSTERT, et al., Plaintiffs,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. SANDRA L. AMENT, et al., Plaintiffs,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. ELIZABETH MITCHESON, et al., Plaintiffs,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. KAREN L. SKROUPA, as personal representative of HOWARD D. SKROUPA, deceased, Plaintiff,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. HEATHER LORRAINE BAYNAR, et al., Plaintiffs,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants.

MEMORANDUM OPINION

DAVID STEWART CERCONE, District Judge.

I. INTRODUCTION

The above captioned cases were referred to United States Magistrate Judge Robert Mitchell for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate Judges. In these actions, more than seventy-five (75) Plaintiffs allege that Defendants, Babcock & Wilcox Power Generation Group, Inc., B&W Technical Services, Inc. ("B&W") and Atlantic Richfield Co. ("ARC")(together "Defendants"), as successors in interest to Nuclear Materials Corporation ("NUMEC"), are responsible for the release of radioactive uranium from a nuclear processing facility located in Apollo, Pennsylvania and operated from approximately 1953 to 1983. Plaintiffs further allege that inhalation of radioactive uranium from the facility caused the Plaintiffs to develop cancer. Plaintiffs assert jurisdiction under the Price-Anderson Act (the "PAA"), 42 U.S.C. § 2210(n)(2), and the Atomic Energy Act (the "AEA"), 42 U.S.C. § 2011.

The PAA, as amended in 1988, created a federal cause of action for "public liability actions, " which is defined as "any suit asserting public liability." 42 U.S.C. § 2014(h). "Public liability" is defined as "any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation, " except for certain claims covered by workers' compensation, incurred in wartime or that involve the licensed property where the nuclear incident occurs. 42 U.S.C. § 2104(w). See In re TMI Litig., 193 F.3d 613, 625 n.9 (3d Cir. Pa. 1999).

In order to prove personal injuries caused by the release of radiation, the Third Circuit has previously held that plaintiffs must establish that:

(1) the defendants released radiation into the environment in excess of the levels permitted by federal regulations in effect in 1979, i.e., 0.5 rems (500 mrems) or 5 mSv; (2) the plaintiffs were exposed to this radiation (although not necessarily at levels prohibited by those regulations); (3) the plaintiffs have injuries; and (4) radiation was the cause of those injuries. See In re TMI, 67 F.3d 1103, 1119 (3d Cir. 1995), cert. denied, 516 U.S. 1154 (1996). [The Third Circuit] also held that the "exposure element requires that plaintiffs demonstrate they have been exposed to a greater extent than anyone else, i.e., that their exposure levels exceeded the normal background level." Id. (citation and internal quotations omitted).

In re TMI Litig., 193 F.3d at 659. By Order entered September 12, 2012, Plaintiffs' claims were limited to theories of exposure based upon the inhalation of enriched uranium released from the Apollo facility during its period of operation.

The parties filed eight (8) motions to exclude expert testimony, opinions and or reports pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Specifically, Defendants moved to exclude the opinions of Howard Hu, M.D., James Melius, M.D., Bernd Franke, Joseph Ring, Ph.D. and Donal Kirwan, and the Plaintiffs moved to exclude John Till, Ph.D., Christopher Whipple, Ph.D., Stanley Hayes, Fred A. Mettler, M.D. and John D. Boice, Jr. Following and two-day hearing and post-hearing briefing, the Magistrate Judge filed a Report and Recommendation ("R&R") on July 12, 2013, which recommended that: (1) Defendants' Motion to Exclude Expert Opinions of Mr. Bernd Franke and Joseph Ring, Ph.D., be granted; (2) Defendants' Motion to Exclude Expert Testimony and Opinions of Donal Kirwan be denied; (3) Defendants' Motion to Exclude Expert Opinions of Dr. Howard Hu be granted; (4) Defendants' Motion to Exclude Testimony of James Melius be granted; (5) Plaintiffs' Motion to Exclude the Opinions of Defendant Babcock & Wilcox's Retained Expert John E. Till Ph.D. be denied; (6) Plaintiffs' Motion to Exclude the Opinions of Defendant Babcock & Wilcox's Retained Experts Dr. Christopher Whipple and Stanley Hayes be denied; (7) Plaintiffs' Motion to Exclude Testimony and Report of Fred A. Mettler, Jr., M.D., M.P.H. be denied; and (8) Plaintiffs' Motion to Exclude Testimony and Studies of Dr. John D. Boice, Jr. be denied. Magistrate Judge Mitchell further recommended that, if this Court adopts the R&R, Plaintiffs be given 21 days from the date of the order to show cause why summary judgment should not be entered in Defendants' favor.

The Plaintiffs have filed Objections to Magistrate Judge Mitchell's R&R, the parties have filed briefs in support of their positions, and the matter is now before the Court.

II. STANDARD OF REVIEW

The Federal Magistrates Act provides two separate standards of judicial review of orders on matters referred to magistrate judges. See 28 U.S.C. § 636(b)(1). Under § 636(b)(1)(A), the Act permits district courts to "designate a magistrate judge to hear and determine any pretrial matters before the court, except..." 28 U.S.C. § 636(b)(1)(A). This Court reviews orders on matters referred to magistrate judges under subparagraph (A), generally described as "nondispositive", under a "clearly erroneous or contrary to law" standard. See 28 U.S.C. § 636(b)(1)(A); FED. R. CIV. P 72 (a); see also Haines v. Liggett Group, Inc., 975 F.2d 81, 91-92 (3d Cir. 1992).

A magistrate judge's decision is clearly erroneous "when, although there may be some evidence to support it, the reviewing court, after considering the entirety of the evidence, is left with the definite and firm conviction that a mistake has been committed." United States v. Gypsum Co., 333 U.S. 364, 395 (1948); see also Kounelis v. Sherrer, 529 F.Supp.2d 503, 518 (D.N.J. 2008); Lo Bosco v. Kure Engineering Ltd., 891 F.Supp. 1035, 1037 (D.N.J. 1995). A finding is contrary to law if the magistrate judge has misinterpreted or misapplied applicable law. Kounelis v. Sherrer, 529 F.Supp.2d at 518. The burden of demonstrating clear error rests with the appealing party. Id.

On review of matters arising under § 636(b)(1)(A), the court is not permitted to receive further evidence; it is bound by the clearly erroneous rule in reviewing questions of fact. Haines v. Liggett Group, Inc., 975 F.2d at 91. Further, under the clearly erroneous standard, a reviewing court will not reverse the magistrate judge's determination "even if the court might have decided the matter differently." Cooley v. Merski, 2008 U.S. Dist. LEXIS 50271, *3 (W.D. Pa. June 26, 2008) (citing Cardona v. General Motors Corp., 942 F.Supp. 968, 971 (D.N.J. 1996)).

When a district court considers "written objections" to the "proposed findings and recommendations" of the magistrate judge in dispositive matters, however, the district court is permitted to make a de novo determination of the proposed findings and recommendations, may accept, reject or modify, in whole or in part, the findings and recommendations, and "may also receive further evidence." See 28 U.S.C. § 636(b)(1)(B) & (C), FED. R. CIV. P 72 (b); see also Haines v. Liggett Group, Inc., 975 F.2d at 91.

Generally, discovery orders are treated as nondispositive matters. Haines v. Liggett Group, Inc., 975 F.2d at 92 (holding that "the proper standard for review for discovery orders is the clearly erroneous or contrary to law' standard."); In re Gabapentin Patent Lit., 312 F.Supp.2d 653, 662 (D.N.J. 2004). A ruling on a motion to preclude expert testimony, therefore, is a nondispositive disposition under 28 U.S.C. § 636(b)(1)(A). See Dalton v. McCourt Elec., LLC, 2013 U.S. Dist. LEXIS 176582 *3 n.1 (E.D. Pa. Dec. 17, 2013) (citing Stepney v. Gilliard, 2006 U.S. Dist. LEXIS 53722 (D.N.J. Aug. 3, 2006)). Moreover, a magistrate judge's ruling on discovery issues is accorded particular deference. Durkin v. Wabash Nat'l, 2013 U.S. Dist. LEXIS 140568, *6 (D.N.J. Sept. 30, 2013); Stayinfront, Inc. v. Tobin, 2006 U.S. Dist. LEXIS 80498, *6 (D.N.J. Nov. 3, 2006).

It is clear in this instance, that Plaintiffs' Daubert motions are nondispositive, therefore, the Court will apply the "clearly erroneous or contrary to law" standard. With regard to Defendants' motions, however, adoption of Magistrate Mitchell's recommendations is case-dispositive, and shall be reviewed de novo.

III. DISCUSSION

The motions before the Court implicate the admissibility standard for expert witnesses under Rule 702 of the Federal Rules of Evidence as elucidated by the Supreme Court in Daubert. In Daubert, the Supreme Court set forth parameters for determining when proffered expert testimony can be admitted into evidence. The Court held:

Proposed testimony must be supported by appropriate validation - i.e., "good grounds, " based on what is known. In short, the requirement that an expert's testimony pertaining to "scientific knowledge" establishes a standard of evidentiary reliability.

Daubert, 509 U.S. at 590. The Court concluded that Rule 702 "clearly contemplates some degree of regulation of the subjects about which an expert may testify." 509 U.S. at 589. Thus, the Court established a "gatekeeping role for the judge." Id. at 597. The Court wrote:

Faced with a proffer of expert scientific testimony, ... the trial judge must determine at the outset... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.

Id. at 592-593. Moreover, the Third Circuit has established that Rule 702 includes "three distinct substantive restrictions on the admission of expert testimony: qualifications, reliability and fit." United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001); Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000).

First, the witness must be a qualified expert, meaning that the witness must possess specialized expertise. Feit v. Great-West Life & Annunity Ins. Co., 460 F.Supp.2d 632, 636 (D.N.J. 2006). Courts have interpreted this requirement liberally, holding that a broad range of knowledge, skills, and training qualify an expert. In re TMI Litig., 193 F.3d 613, 664 (3d Cir. 1999).

Second, Rule 702 requires that the testimony be reliable. The Supreme Court instructed that an "expert's opinion must be based on the methods and procedures of science' rather than on subjective belief or unsupported speculation;' the expert must have good grounds' for his or her belief." In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir. 1994), cert. denied, 513 U.S. 1190 (1995) (quoting Daubert, 509 U.S. at 590)). The Court emphasized, however, that the "focus... must be solely on principles and methodology, not on the conclusions they generate." Daubert, 509 U.S. at 595. The issue, therefore, is whether the evidence should be excluded because the flaw is large enough that the expert lacks good grounds for his or her conclusion. In re Paoli R.R Yard PCB Litigation, 35 F.3d at 746. Further, an "expert's testimony must be accompanied by a sufficient factual foundation before it can be submitted to the jury." Elcock v. Kmart Corp., 233 F.3d at 754.

Daubert identified several factors that a district court should take into account in evaluating whether a particular scientific methodology is reliable. In re Paoli R.R Yard PCB Litigation, 35 F.3d at 742. The factors that Daubert and the Third Circuit have declared important include: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. In re Paoli R.R Yard PCB Litigation, 35 F.3d at 742 n.8. See also Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir. 2000), cert. denied, 532 U.S. 921 (2001); Elcock v. Kmart Corp., 233 F.3d at 745-746; In re TMI Litig., 193 F.3d 613, 664 (3d Cir. 1999).

Daubert makes clear that these factors do not constitute a "definitive checklist or test." Daubert, 509 U.S. at 593. A court's gatekeeping inquiry must be "tied to the facts" of a particular "case." Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999). "Whether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Id. at 153.

Moreover, the court's role as a gatekeeper "is not intended to serve as a replacement for the adversary system." See Crowley v. Chait, 322 F.Supp.2d 530, 536 (D. N. J. 2004) quoting FED. R. EVID. 702, Advisory Committee's Note. The Daubert Court recognized that jurors will have the capacity to distinguish "junk science" from the real thing. Accordingly, where an expert is expected to deliver "shaky" testimony, admission of the testimony may still be proper because "vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert, 509 U.S. at 596. The Third Circuit further commented on the reliability notion of Daubert, stating:

The evidentiary requirement of reliability is lower than the merits standard of correctness. Further, a court may determine that "good grounds" exist for the expert opinion to be offered, even though the judge may believe "better grounds" exist for an alternate conclusion or that a somewhat flawed methodology, if fixed, would lead to a different conclusion.

Allstate Ins. Co. v. Hamilton Beach/Proctor-Silex, Inc., 2008 U.S. Dist. LEXIS 63355 *12 (W.D. Pa. Aug. 19, 2008)(citing In re Paoli R.R Yard PCB Litigation, 35 F.3d at 744).

Finally, the expert's testimony must "fit" or "be relevant for the purposes of the case and must assist the trier of fact." Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quoting Schneider v. Fried, 320 F.3d 396, 405 (3d Cir. 2003)). The touchstone for admissibility under Rule 702, is helpfulness to the trier of fact. FED. R. EVID. 702 (a). However, while the standard for fitness is higher than bare relevance, it is not that high. In re Paoli R.R Yard PCB Litigation, 35 F.3d at 745. In order to assist the trier of fact in understanding the evidence or in determining an issue of fact, the scientific or other specialized knowledge must be logically connected to the questions at issue in the case. Id. at 742-743. In contrast, expert testimony based on assumptions that lack any factual support in the record are properly excluded. Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3d Cir. 2002); Elcock v. Kmart Corp., 233 F.3d at 756 n.13.

The proponent of the expert testimony bears the burden of establishing the reliability and admissibility of the expert's testimony by a preponderance of the evidence. See Daubert, 509 U.S. at 593 n. 10; In re TMI Litig., 193 F.3d at 663. Moreover, Rule 702 embodies a liberal policy of admissibility. Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008); In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 857 (3d Cir. 1990).

In the motions at issue, the qualifications of the experts are not disputed. The parties argue, however, that the testimony of the many experts is not based on reliable methodology and will not assist the trier of fact.

A. Plaintiffs' Experts

1. Howard Hu, M.D., M.P.H., Sc.D.

Dr. Hu, Plaintiffs' general causation expert, is a physician and an environmental and occupational epidemiologist who holds degrees as a Doctor of Science and Master of Public Health. In his report, Dr. Hu opines as follows:

(1) The Apollo nuclear plant emitted a mixture of radionuclides including highly enriched uranium, thorium and plutonium[1]. Radionuclides are known to increase the risk of developing cancer based on their property of emitting ionizing radiation in the form mainly of alpha and beta particles and their ability to be absorbed by the human body through inhalation and/or ingestion and widely distribute to tissues throughout the body.
(2) The ability of the specific radionuclides associated with the Apollo nuclear plant (highly enriched uranium, thorium and plutonium) to cause cancer is supported by their well-known emission of ionizing radiation as well as specific experimental and epidemiologic studies. The ionizing radiation from these radionuclides could be expected to have ...

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