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In re In re Paoli R.R. Yard PCB Litig.

ELR Citation: 27 ELR 20941
Nos. 95-2098, 113 F.3d 444/(3d Cir., 05/12/1997) admissibility of expert testimony

The court affirms a district court decision to exclude expert testimony involving heat-degraded polychlorinated biphenyls (PCBs), and affirms the district court's jury instructions, in a suit in which plaintiff-appellants sought to recover damages allegedly caused by PCB runoff from a railroad yard next to their homes. The court first holds that the district court acted within its discretion when it excluded plaintiff-appellants' evidence of heat-degraded PCBs, which plaintiff-appellants contended could have been produced at the railroad yard when PCB-containing transformer fluids were heated. In a previous ruling, the district court excluded evidence of dioxins and furans and was not without basis for believing that heat-degraded PCBs are functionally dioxins by another name. The court next holds that even if the proffered evidence was not precluded by the prior ruling, the district court acted within its discretion by holding that under Fed. R. Evid. 403, the evidence should be excluded because its probative value was substantially outweighed by its tendency to cause delay, confusion, and unfair prejudice. The court then holds that the district court acted within its discretion by instructing the jury that to be successful in their claim for medical monitoring costs, plaintiff-appellants must demonstrate that they were exposed to a greater amount of PCB contamination than they would ordinarily encounter in their daily lives. The medical monitoring cause-of-action calls for a legal standard different from that of traditional torts because of the special nature of the claim. The claim requires a showing of a need for monitoring because of a significantly increased risk of contracting a disease. The risk created by the chemical exposure is not significantly increased unless it is greater than the normal risks all people encounter in their daily lives. The court also holds that by instructing jurors that plaintiff-appellants' property damage must be "actual," the district court did not improperly convey to jurors that a stigma-based property damage claim may not be based on temporary physical damage. The district court instructed the jury that plaintiff-appellants need only demonstrate temporary physical damage; it never instructed the jury that the damage had to be permanent. The district court's repeated use of the word "actual" did not convey a different legal standard.

[Related cases are published at 19 ELR 20265, 21 ELR 20184, 22 ELR 21517, 23 ELR 20941, and 25 ELR 20613.]

Counsel for Appellants
Joseph C. Kohn, Martin J. D'Urso
Kohn, Swift & Graf
1101 Market St., Ste. 2400, Philadelphia PA 19107
(215) 238-1700

Counsel for Appellee
Steven R. Kuney
Williams & Connolly
725 12th St. NW, Washington DC 20005
(202) 434-5000

Before: BECKER, NYGAARD, and ROTH, Circuit Judges.