Brown v. Southeastern Pennsylvania Transportation Authority

113 F.3d 444, 27 Envtl. L. Rep. (Envtl. Law Inst.) 20941, 47 Fed. R. Serv. 302, 44 ERC (BNA) 1611, 1997 U.S. App. LEXIS 10823
CourtCourt of Appeals for the Third Circuit
DecidedMay 12, 1997
DocketNo. 95-2098
StatusPublished
Cited by1 cases

This text of 113 F.3d 444 (Brown v. Southeastern Pennsylvania Transportation Authority) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Southeastern Pennsylvania Transportation Authority, 113 F.3d 444, 27 Envtl. L. Rep. (Envtl. Law Inst.) 20941, 47 Fed. R. Serv. 302, 44 ERC (BNA) 1611, 1997 U.S. App. LEXIS 10823 (3d Cir. 1997).

Opinion

OPINION OF THE COURT

BECKER, Circuit Judge.

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, 513 U.S. 1190, 115 S.Ct. 1253, 131 L.Ed.2d 134 (1995) (“Paoli II”). The plaintiffs have lived for many years in the vicinity of the Paoli Railroad Yard (‘Ward”), 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,1 and hence we resolve them summarily.2

[450]*450We 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, — U.S. -, 116 S.Ct. 772, 133 L.Ed.2d 725 (1996). In affirming on this point, we malee 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. § 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.3 As of the [451]*451time 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 runoff. 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.

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In Re: Paoli Railroad Yard Pcb Litigation. Mabel Brown, Individually and on Behalf of All Others Similarly Situated v. Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. United States of America Roy F. Weston, Inc. And Oh Materials Company and General Electric Company and the Budd Company and Westinghouse Electric Corporation and Monsanto Co. Penn Central Corporation (d.c. Civil No. 86-Cv-02229). George Albert Burrell and Priscilla Etheridge Burrell, in Their Own Right, and George Albert Burrell and Priscilla Etheridge Burrell, as Parents and Natural Guardian of Amber Shardai Burrell, a Minor, and George Albert Burrell, as Parent and Natural Guardian of Andre Walker, a Minor, and Priscilla Etheridge Burrell, as Parent and Natural Guardian of Bobby George Albert Christian Burrell, a Minor v. Southeastern Pennsylvania Transportation Authority ("Septa") and National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. United States of America Monsanto Company General Electric Company the Budd Company Westinghouse Electric Corporation v. Penn Central Corporation (d.c. Civil No. 86-Cv-02235). K. Louise Jones, Administratrix of the Estate of Harvey N. Jones, Jr., Deceased and K. Louise Jones, as Personal Representative of Harvey N. Jones, Jr., and K. Louise Jones, in Her Own Right v. Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation ("Amtrak") Consolidated Rail Corporation ("Conrail") v. United States of America City of Philadelphia Monsanto Company General Electric Company the Budd Company and Westinghouse Electric Corporation Penn Central Corporation (d.c. Civil No. 86-Cv-05277). James Lament, Individually and on Behalf of All Others Similarly Situated v. Septa Amtrak and Conrail v. Penn Central Corporation United States of America: City of Philadelphia v. Monsanto Co. General Electric Co. The Budd Co. And Westinghouse Electric Corp. (d.c. Civil No. 86-Cv-05886). Christopher S. Brown Jacqueline Michell Brown, H/w v. Monsanto Company Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation Consolidated Rail Corporation ("Conrail") v. Penn Central Corporation United States of America City of Philadelphia General Electric Co. The Budd Company Westinghouse Electric Corporation (d.c. Civil No. 86-Cv-07414). Cathlene Brown v. Monsanto Company Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation ("Amtrak") Consolidated Rail Corporation ("Conrail") v. United States of America City of Philadelphia General Electric Company the Budd Company Westinghouse Electric Corporation v. Penn Central Corporation (d.c. Civil No. 86-Cv-07415). Craig A. Brown and Catherine D. Brown, H/w v. Monsanto Company Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. United States of America Penn Central Corporation and City of Philadelphia General Electric Co. The Budd Co. And Westinghouse Electric Corp. (d.c. Civil No. 86-Cv-07416). Margherita Barbetta v. Monsanto Company Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. United States of America and City of Philadelphia the General Electric Company and the Budd Company and Westinghouse Electric Corporation v. Penn Central Corporation (d.c. Civil No. 86-Cv-07417). Mary Retta Johnson v. Monsanto Company Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. United States of America City of Philadelphia and General Electric Company the Budd Company and Westinghouse Electric Corporation and Penn Central Corp. (d.c. Civil No. 86-Cv-07418). Celeste Brown v. Monsanto Company Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. United States of America City of Philadelphia and General Electric Company the Budd Company Westinghouse Electric Corporation (d.c. Civil No. 86-Cv-07419). Clemmon L. Brown v. Monsanto Company Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. United States of America City of Philadelphia and General Electric Company the Budd Company and Westinghouse Electric Corporation and Penn Central Corporation (d.c. Civil No. 86-Cv-07420). Cloyd H. Brown v. Monsanto Company Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. United States of America City of Philadelphia General Electric Company the Budd Company Westinghouse Electric Corporation Penn Central Corporation (d.c. Civil No. 86-Cv-07421). Curtis Brown v. Monsanto Company Southeastern Pennsylvania Transportation Authority ("Setpa") National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. United States of America City of Philadelphia General Electric Company and the Budd Company and Westinghouse Electric Company Penn Central Corp. (d.c. Civil No. 86-Cv-07422). John Ingram Sr. And Patricia Ingram, in Their Own Right and as Parents and Natural Guardians of John Ingram Jr. And April Ingram, in Her Own Right v. Southeastern Pennsylvania Transportation Authority ("Septa") and National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") and Monsanto Company ("Monsanto") and General Electric Company ("Ge") and City of Philadelphia ("Philadelphia") v. United States of America the Budd Company Westinghouse Electric Corporation Penn Central Corporation (d.c. Civil No. 86-Cv-07561). William Butler Theresa Butler Marvin L. Simpson Allen K. Simpson Karen R. Simpson Donald E. Simpson and Bryan M. Jackson v. Southeastern Pennsylvania Transportation Authority ("Septa") National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. United States of America City of Philadelphia Monsanta Company General Electric Company the Budd Company Westinghouse Electric Corporation Penn Central Corporation (d.c. Civil No. 87-Cv-02874). Matthew Cunningham and Bessie Cunningham v. Monsanto Company and Southeastern Pennsylvania Transportation Authority ("Septa") and National Railroad Passenger Corporation ("Amtrak") and Consolidated Rail Corporation ("Conrail") v. General Electric Company the Budd Company Westinghouse Electric Corporation Penn Central Corporation (d.c. Civil 87-Cv-05269). Margherita Barbetta, Mabel Brown, Cathlene Brown, Celeste Brown, Christopher Brown, Clemmon Brown, Cloyd Brown, Craig Brown, Curtis Brown, William Butler, Theresa Butler, Bessie Cunningham, John Ingram, Sr., John Ingram, Jr., April Ingram Robinson-Ray, Mary Retta Johnson, K. Louise Jones, Karen Simpson, Alan Simpson, Marvin Simpson, Donald Simpson, Bryan Jackson, George Burrell, Priscilla Burrell, Individually and as Natural Guardians for Amber Burrell and Monica Hilton and James Lament
113 F.3d 444 (Third Circuit, 1997)

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113 F.3d 444, 27 Envtl. L. Rep. (Envtl. Law Inst.) 20941, 47 Fed. R. Serv. 302, 44 ERC (BNA) 1611, 1997 U.S. App. LEXIS 10823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-southeastern-pennsylvania-transportation-authority-ca3-1997.