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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 95-2098

IN RE: PAOLI RAILROAD YARD PCB LITIGATION

MABEL BROWN, Individually and on behalf of all othe rs 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 oth ers similarly situated

v.

SEPTA; AMTRAK; and CONRAIL

v.

2PENN CENTRAL CORPORATION; UNITED STATES OF

AMERICA: CITY OF PHILADELPHIA

v.

MONSANTO CO.; GENERAL ELECTRIC CO.; 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)

3CRAIG 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.

4UNITED STATES OF AMERICA; THE 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)

5CLOYD 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.

6SOUTHEASTERN 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; MONSANTO 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.

7GENERAL ELECTRIC COMPANY; THE BUDD COMPANY;

WESTINGHOUSE ELECTRIC CORPORATION; PENN
CENTRAL CORPORATION (D.C. Civil No. 87-cv-05269)

Margherita Barbetta, Mabel Brown, Cathlene Brown, Celeste Brown, Christopher Brown, Clemmon Brown, Cl oyd Brown, Craig Brown, Curtis Brown, William Butler, T heresa Butler, Bessie Cunningham, John Ingram, Sr., John Ingram, Jr., April Ingram Robinson-Ray, Mary Retta Johnson, K. Louise Jones, Karen Simpson, Alan Simps on, Marvin Simpson, Donald Simpson, Bryan Jackson, Geor ge Burrell, Priscilla Burrell, individually and as nat ural guardians for Amber Burrell and Monica Hilton and James Lament, Appellants

On Appeal From the United States District Court For the Eastern District of Pennsylvania

Argued: September 16, 1996

Before: BECKER, NYGAARD, and ROTH, Circuit Judges

.

(Filed May 12, 1997)

JOSEPH C. KOHN, ESQUIRE MARTIN J. D'URSO, ESQUIRE (ARGUED) Kohn, Swift & Graf, P.C. 1101 Market Street, Suite 2400 Philadelphia, PA 19107

ARNOLD E. COHEN, ESQUIRE Klehr, Harrison, Harvey, Branzburg & Ellers
1401 Walnut Street Philadelphia, PA 19102

D. BRUCE HANES, ESQUIRE D. Bruce Hanes & Associates, P.C. 1700 Market Street, Suite 2632 Philadelphia, PA 19103

Attorneys for Appellants

8ROGER F. COX, ESQUIRE

JOHN J. MONSEES, ESQUIRE Blank, Rome, Comisky & McCauley
1200 Four Penn Center Philadelphia, PA 19103

Attorneys for Appellee - Southern Pennsylvania Transportation Authority

JOHN W. VARDAMAN, ESQUIRE STEVEN R. KUNEY, ESQUIRE (ARGUED) ROBERT J. SHAUGHNESSY, ESQUIRE PHILIP A. SECHLER, ESQUIRE STEPHEN D. SENCER, ESQUIRE Williams & Connolly 724 12th Street, N.W. Washington, DC 20005

STEPHEN M. McMANUS, ESQUIRE
McCormick & Priore
30-36 South 15th Street
Suite 1500 Philadelphia, PA 19102

Attorneys for Appellee - General Electric Company

ROBERT A. SUTTON, ESQUIRE Deputy City Solicitor Office of the City Solicitor
1600 Arch Street - 8th Floor Philadelphia, PA 19103

Attorneys for Appellee - The City of Philadelphia

9JEROME J. SHESTACK, ESQUIRE

BARRY M. KLAYMAN, ESQUIRE Wolf, Block, Schorr & Solis-Cohen Packard Building, 12th Floor
S.E. Corner 15th & Chestnut Sts. Philadelphia, PA 19102

Attorneys for Appellee - Westinghouse Electric Corporation

THOMAS M. GOUTMAN, ESQUIRE ROBERT TOLAND, II
White & Williams One Liberty Place
1650 Market Street
Suite 1800 Philadelphia, PA 19103

Attorneys for Appellee - Monsanto Company

OPINION OF THE COURT

BECKER, Circuit Judge

.

This toxic tort case is before us for the third tim e. See In re Paoli Railroad Yard PCB Litig. , 916 F.2d 829 (3d Cir. 1990) ("Paoli I"); In re Paoli Railroad Yard PCB Li tig. , 35 F.3d 717 (3d Cir. 1994), cert. denied , 115 S. Ct. 1253 (1995) ("Paoli II"). The plaintiffs have lived for many years in the vicinity of the Paoli Railroad Yard ("Yard"), a railcar maintenance facility at which polychlorinated biphe nyls ("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. Plain tiffs now appeal from the judgment entered after an unfavorab le jury
verdict on the claims that remained for trial in th e wake of the previous appeals.

Plaintiffs present a plethora of appellate issues, several of which are significant enough to justify still anoth er

10published opinion: whether the district court abuse d its

discretion in its exclusion of evidence offered by the plaintiffs regarding heat-degraded PCBs, and whethe r the court gave erroneous jury instructions dealing with the "significant exposure" element of the plaintiffs' m edical monitoring and their property damage claims. The ot her questions presented are not of sufficient substance or difficulty to merit discussion here, especially giv en the length of our previous published opinions in the ca se,1 and hence we resolve them summarily.2

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1. The district court has also published an opinion . See In re Paoli Railroad Yard PCB Litig. , 706 F. Supp. 358 (E.D. Pa. 1988). 2. We find the following claims of the plaintiffs t o be patently without
merit:

(1) the district court should have granted plaintif fs' motion seeking recusal pursuant to 28 U.S.C. § 455;

(2) the district court erred in excluding photograp hs of EPA employees wearing protective gear, evidence of reme dial efforts taken by the railroad, an EPA report relating to the Paol i site, and an internal memorandum written by an EPA staff member; and

(3) the district court erred in admitting the defen dants' untimely report regarding a trend analysis of real estate va lues.

Moreover, in Frankel v. Burke's Excavating, Inc. , 397 F.2d 167 (3d Cir. 1968), we explained that, if there are jury interro gatories that make it clear which issues the jury found dispositive, evid entiary arguments that relate to other matters cannot be the cause of any prejudice to the plaintiff. Frankel applies here. The jury resolved the plaintiffs' me dical monitoring claims in favor of the defendants on the threshold element of the claim -- whether the plaintiffs were significan tly exposed to PCBs. Because, as the succeeding discussion demonstrates, the plaintiffs have not demonstrated reversible error infecting the jur y's determination that they had not been significantly exposed to PCBs, we need not consider the plaintiffs' evidentiary objections that relate to other elements of their medical monitoring claim, including their contentio ns that:

(1) the district court erred in excluding Dr. Barso tti's deposition testimony;

(2) the court erred in limiting the rebuttal testim ony of plaintiffs' expert Dr. LeWitt and in excluding the rebuttal tes timony of plaintiffs' expert Dr. Nicholson; and

(3) the district court erred in admitting charts of fered by defendants' expert Dr. Whysner, and in excluding ch arts offered by plaintiffs' expert Dr. Nisbet.

Plaintiffs also challenge the district court's deci sion to bifurcate the
trial. We resolve this issue in favor of the defend ants infra at n.5.11We resolve the remaining questions as follows:

(1) We will affirm the district court's exclusion o f evidence offered by the plaintiffs regarding heat-d egraded 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 plaint iffs' exposure to furans under Fed. R. Evid. 403, which w as affirmed by this Court in Paoli II , 35 F.3d at 781-82. Furthermore, even if heat-degraded PCBs are a chemi cal substance distinct from furans, the district court did not abuse its discretion by excluding such evidence und er Rule
403.

(2) We will affirm the district court's instruction s on the "significant exposure" element of plaintiffs' medic al monitoring claim. The court instructed the jury tha t plaintiffs must prove that they were exposed to PCB s at a level greater than that ordinarily encountered in e veryday life. These instructions comport with this Court's description of the medical monitoring cause of acti on, the elements of which we explicated in Redland Soccer C lub, Inc. v. Dept. of the Army , 55 F.3d 827 (3d. Cir. 1995), cert.
denied , 116 S. Ct. 772 (1996). In affirming on this point , we make clear that Paoli II , 35 F.3d at 771 n.36, does not require a different result. We did remark in the Pa oli II footnote that, in a personal injury or medical moni toring 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 backg round area; however, when making this statement, as the f ootnote makes clear, we were contemplating the unique situa tion 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 t he
defendants' traceable activities. Plaintiffs adduce d no such
evidence here.

(3) We will affirm the district court's instruction s regarding the plaintiffs' property damage claims. W e conclude that, when it instructed the jury that the property damage must be "actual," the district court did not

12improperly convey that the damage need be permanent in order to be compensable.

Because we resolve all issues in favor of the defen dants, 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 followi ng relatively brief account. The Paoli Railroad Yard h as 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 level s of PCBs in the soil in the Yard and the nearby water a nd land. As a result of litigation under the Comprehensive Environmental Response Compensation and Liability A ct, 42 U.S.C. § 9601, et. seq., Amtrak, Conrail, and SE PTA, all of which owned or operated the Yard at various time s 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, th e 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 contr ols at the Yard.3 As of the time of oral argument, the require d soil excavation or treatment had not been completed.

The plaintiffs are individuals who have lived for m any years in the vicinity of the Yard in areas identifi ed by the EPA and by the railroad defendants' contractor as h aving experienced the most severe PCB-laden run-off. The plaintiffs have adduced evidence of significant lev els of PCBs in the soil surrounding their homes, on which some of them played and in which some of them gardened.

___________________________________________________ ______________

3. The ROD calls for: (1) the excavation and treatm ent of residential soil that contains PCBs in excess of 2 ppm; (2) the erec tion of new erosion
controls to further reduce water runoff from the Ya rd to nearby properties; and (3) prohibition of any future resid ential or agricultural use of the Yard. In 1992, the EPA noted that 35 res idential properties had composite samples that exceeded 5 ppm PCBs, eit her in the front or back yards or in the garden-soil.

13Plaintiffs also regularly traversed the Yard on foo t, as they

were given open access to the Yard prior to the mid -1980's.

In 1986, thirty eight plaintiffs brought suit in th e District Court for the Eastern District of Pennsylvania agai nst the owners and operators of the Yard, and against Monsa nto Company, the manufacturer of PCBs in the United Sta tes, and General Electric Company, a manufacturer of rai lroadcar transformers in which the PCBs were used. Some plaintiffs sought recovery for present injuries all egedly caused by exposure to PCBs and other assorted chemi cals from the Yard, including polychlorinated dibenzo fu rans ("furans") and polychlorinated dibenzo-p-dioxins (" dioxins"). Some plaintiffs brought claims for emotional distre ss caused by fear of future injury, and for medical mo nitoring 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 p resence)
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., w ho was proffered to testify about plaintiffs' exposure to PCBs from the Yard; Ian C.T. Nisbet, Ph.D., who was proffered to testify about plaintiffs' exposure to PCBs; and Jan ette Sherman, M.D., who was proffered to testify that PC Bs had caused plaintiffs' injuries and that plaintiffs req uire medical monitoring to detect and treat future PCB-related i llnesses. At the close of discovery, defendants moved in limi ne to exclude these experts' opinions under Fed. R. Evid. 702, 703, and 403. On the same grounds, the defendants a lso
filed motions in limine to preclude the plaintiffs' experts from testifying about evidence concerning the harm of dioxins and furans (chemicals sometimes present in transformer fluids), and evidence concerning the "Y usho" incident in Japan and the "Yu Cheng" incident in Ta iwan, in which many individuals suffered adverse effects after consuming rice oil contaminated with PCBs and furan s. Defendants also moved for summary judgment on all o f plaintiffs' claims.

14After holding five days of in limine hearings, in which Drs.

Kopstein, Nisbet, and Sherman testified for the pla intiffs and ten scientists testified for the defendants, th e district court entered orders excluding the opinions of all but one of the plaintiffs' experts. The court also excluded under Rule 403 evidence concerning dioxins and furans, an d the Yusho and Yu Cheng incidents. The court then grante d summary judgment against the plaintiffs on both the ir personal injury and medical monitoring claims on th e grounds that they had adduced no evidence of exposu re to the PCBs, or of causation. The district court also granted summary judgment for the defendants on the plaintif fs' property damage claims on the grounds that plaintif fs could not prove that they had suffered permanent property damage in light of the EPA's proposed cleanup plan.

In Paoli II , we affirmed most aspects of the judgment, but we also reversed in part and remanded for further proceedings. In reviewing the admissibility of expe rt opinions, we applied the admissibility standards en unciated in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 113 S. Ct. 2768 (1993), which the Supreme Court decided after the district court's rulings. We held that, as to all b ut two of the plaintiffs, the court did not abuse its discret ion in excluding the testimony of plaintiffs' experts that PCBs had caused their (alleged) injuries. We reversed the di strict court's exclusion from evidence of Dr. Sherman's op inion with respect to the causation of injuries to Bessie Cunningham and Amber Burrell, two plaintiffs whom s he actually examined and whose medical histories she t ook. 35
F.3d at 765-70. We also affirmed the district court 's exclusion of expert opinion concerning the effect o f dioxins and furans and testimony related to the Yusho and Y u Cheng incidents. We further held that, in the absen ce of Dr. Sherman's opinion on causation, the district court had properly granted summary judgment for defendants wi th respect to the personal injury claims of 31 of 33 p laintiffs (excluding Bessie Cunningham and Amber Burrell, lea ving their tort claims for trial). Id. at 770-71.

We also held that the district court had erred in excluding as unreliable the opinions of experts who testified that plaintiffs needed medical monitoring as a resu lt of

15their alleged exposure to PCBs. Id . at 789-91. Those

opinions, we noted, were "not seriously challenged" by
defendants in the in limine hearing, and passed Daubert
muster. Id. at 795. Accordingly, we reversed the grant of summary judgment on the medical monitoring claims. Id.

Finally, we reversed the grant of summary judgment for the defendants with respect to plaintiffs' claim fo r diminution of property value. We predicted that Pennsylvania would allow recovery where the propert y sustains at least temporary physical damage, repair s will not restore the value of the property to the prior level, and there is some ongoing risk to land. In sum, the fol lowing claims remained in the litigation after Paoli II : the medical monitoring claims of 26 plaintiffs; the personal in jury claims of two plaintiffs; and the property damage c laims of ten plaintiffs.4

Following Paoli II , and exercising its discretion under Federal Rule of Civil Procedure 42(b), the district court ordered that the trial would proceed in two phases. Phase I would involve the "issues of exposure, causation, medical monitoring, and property damages." If a jury return ed a verdict favorable to the plaintiffs, Phase II would determine the defendants' liability for all claims, and the a mount, if any, of punitive damages.

Prior to trial, defendants had moved in limine to exclude all the plaintiffs' evidence pertaining to heat-deg raded PCBs and the heating process that produced them on the grounds: (1) that the evidence was covered by the c ourt's prior order excluding evidence of dioxins and furan s, which
this Court affirmed in Paoli II ; and (2) that, at all events, the evidence presented the same Rule 403 problems a s had evidence of dioxins and furans. The court heard arg ument on the motion but reserved judgment until trial. Du ring the course of testimony, plaintiffs proffered evidence on three separate occasions related to heat-degraded PCBs, w hich they alleged to be more toxic than "new PCBs" that had not been heated. In each instance, defendants challenge d the evidence on the same grounds that they had advanced at

___________________________________________________ ______________

4. During the subsequent trial, the district court granted the motion for voluntary dismissal of the tenth property damage cl aim.

16the in limine hearing. In each instance, the court agreed

with the defendants and ordered plaintiffs to refra in from referring to "heating" or heat-degraded PCBs.

After thirteen days of Phase I testimony, consistin g primarily of expert opinion, the jury returned a ve rdict for defendants on all claims. In response to special interrogatories, the jury found that none of the pl aintiffs had been "significantly exposed" to PCBs from the Y ard; that plaintiffs Bessie Cunningham and Amber Burrell had not sustained injuries as a result of PCB exposure; and that PCBs from the Yard had not damaged the plainti ffs' properties. Phase II therefore never took place. Th is appeal followed. We have jurisdiction pursuant to 28 U.S.C . § 1291.5

___________________________________________________ ______________

5. The plaintiffs contend that the district court's bifurcation of the trial violated their right to trial by jury as guaranteed by the Seventh Amendment because the jury would have to make fores eeability determinations when considering the causation issue s of Phase I, whereas a different jury would have to make the sam e determinations when considering the negligence issues of Phase II. The record before us does not suggest that the district court actually c onsidered summoning a different jury to hear the trial of Phase II, sho uld Phase II have been necessary, and we fail to see why it would have. Mo reover, the jury found for the defendants on all counts in Phase I, and because we will affirm the district court here, a second jury will not be convened. Under these circumstances, the issue would appear to be m oot. At all events,
the district court acted within its discretion when it ordered the
bifurcation of the suit.

Fed. R. Civ. P. 42(b) authorizes district courts to bifurcate lawsuits into separate trials "in furtherance of convenience or to avoid prejudice," or when separate trials "will be conducive to exped ition and economy." 9 Charles Alan Wright, Arthur R. Miller, & Edward H . Cooper, Federal
Practice and Procedure § 2387 (1995). Severance of the question of liability from other issues can "reduce the length of trial, particularly if the severed issue[s] [are] dispositive of the case, and can also improve comprehension of the issues and evidence." Manual f or Complex Litigation, Third § 21.632, at 119 (West 1995). In the case at bar, the interests of judicial economy and convenience couns eled strongly in favor of severing the issues relating to plaintiffs ' exposure to PCBs and causation of their injuries from the issues of defe ndants' culpability. Phase I focused on plaintiffs' exposure to PCBs whi le Phase II would
have concerned whether the conduct of several railr oad operators and manufacturers caused that exposure. The trial of th e Phase I issues

17II. THE RULE 403 ISSUE

A.

Fed. R. Evid. 403 provides in pertinent part that "[a]lthough relevant, evidence may be excluded if i ts probative value is substantially outweighed by the danger of

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alone lasted three weeks and involved dozens of wit nesses. Resolution of
the Phase I issues obviated the need for a trial on the issues of the defendants' liability, which undoubtedly would have taken months and would have involved issues more complicated than th e Phase I trial, all at additional cost to the parties. Thus, bifurcatio n preserved judicial resources and reduced the expenses of the parties, and the district court did not abuse its discretion in ordering such a pro cess. See In re Bendectin Litig. , 857 F.2d 290, 309-314 (6th Cir. 1988) (issues of causation tried separately from issues of defendant 's tortious conduct); In re Beverly Hills Fire Litig. , 695 F.2d 207, 216-17 (6th Cir. 1982) (upholding severance of liability issues from causa tion issues).

Even if a second trial on the liability issues had been conducted before a different jury, the district court's bifurcation of the case would not appear to have offended the Seventh Amendment. The Seventh Amendment requires that, when a court bifurcates a case, it must "divide issues between separate trials in such a wa y that the same issue is not reexamined by different juries." In the Matt er of Rhone-Poulenc Rorer, Inc. , 51 F.3d 1293, 1303 (7th Cir.), cert. denied , 133 L.Ed.2d 122 (1995); McDaniel v. Anheuser-Busch, Inc. , 987 F.2d 298, 304-05 (5th Cir. 1993)("the Seventh Amendment guarantee of a trial b y the jury is the general right of a litigant to have only one jury p ass on a common issue of fact") (citations omitted). Plaintiffs argue tha t both Phase I causation issues and Phase II negligence issues would require the jury to make foreseeability determinations. We disagree. The fir st jury did not determine the foreseeability of plaintiffs' alleged or prospective injuries, and instead determined only whether the plaintiffs were exposed to PCBs and injured from that exposure. The district court did not instruct the jury on foreseeability, neither the plaintiffs nor the defendants requested an instruction on that issue, and the jury interrog atories did not refer to the foreseeability of the alleged harms. Nor does t he fact that certain evidentiary items might have been relevant to both phases of trial require us to reverse the district court on this point, for the Seventh Amendment "prohibition is not against having two juries revie w the same evidence, but rather against having two juries decide the sam e essential issues." In re Innotron Diagnostics , 800 F.2d 1077, 1086 (Fed. Cir. 1986).

18unfair prejudice, confusion of the issues, or misle ading the

jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." In m aking a Rule 403 determination, the court must balance the genuine need for the challenged evidence against th e risk that the information will confuse the jury and dela y trial. United States v. Sriyuth , 98 F.3d 739, 747-48 (3d Cir. 1996).

A district court's decision to admit or exclude evi dence is
reviewed for abuse of discretion. Paoli II , 35 F.3d at 749. A ruling excluding evidence under Rule 403 is accorde d particular deference, and, provided that the court has explained its ruling or the reasons for its ruling are "otherwise apparent from the record," United States v. Murray , 103 F.3d 310, 318 (3d Cir. 1997) (quoting United States v. Himmelwright , 42 F.3d 777, 781 (3d Cir. 1994)), it may not be reversed unless the determination is "ar bitrary and irrational." Bhaya v. Westinghouse Elec. Corp. , 922 F.2d 184, 187 (3d Cir. 1990) (citing United States v. DePeri

, 778 F.2d 963, 973-74 (3d Cir. 1985)); United States v. Long

, 574 F.2d 761, 767 (3d Cir. 1978) ("If judicial self -restraint is ever desirable, it is when a Rule 403 analysis o f a trial court is reviewed by an appellate tribunal.").

B.

During the in limine process following the initial remand (Paoli II ), plaintiffs proffered evidence about dioxins and furans, which they contend could have been produced at the Yard when PCB-containing transformer fluids wer e heated, and also evidence of the Yusho and Yu Cheng poisoning incidents in which furans may have caused injuries. Acting on defendants' motion, the distric t court excluded all evidence concerning these chemicals as irrelevant under Rule 401 and unduly confusing and prejudicial under Rule 403. Specifically, the distr ict court noted that the evidence would require defendants to "defend against a substance to which the Plaintiffs cannot prove they were exposed; confuse and complicate the issues for trial ..., confuse and mislead the jury ..., re sult in undue delay and wasting of time consumed in the presentat ion of irrelevant evidence at trial; and prejudice the Def endants by

19permitting inflammatory evidence concerning substan ces

such as dioxin as to which there is much public sen sitivity
and fear."

In Paoli II , we affirmed the district court's rulings. Although we found that the district court had impermissibly excluded the evidence as irrelevant u nder the lenient standard of Rule 401, we ruled that the cou rt had not abused its discretion in ruling the evidence
inadmissible under Rule 403. 35 F.3d at 781-84. In so holding, we took cognizance of the fact that there was evidence in the record that various heat-producing activities occurred at the Yard, and that dioxins and furans m ay have been produced as a result. However, we agreed with the district court that, in light of the paucity of the evidence that plaintiffs were exposed to dioxins and furans, admitting evidence about those chemicals would have required time-consuming mini-trials on the minimall y relevant issues of plaintiffs' alleged exposure to the chemicals and the effects of that exposure. Id. at 783. We also noted that furans and dioxins were alleged to be significantly more dangerous than PCBs and had rece ived negative publicity, and therefore "would have been too inflammatory for the jury," given their minimal rel evance. Id.

Notwithstanding our affirmance of the district cour t's prior orders, plaintiffs sought on remand to proffe r evidence of heat-degraded PCBs. Prior to trial, the district court heard argument from plaintiff regarding heat-degrad ed PCBs, but postponed judgment on admissibility. Plai ntiffs attempted to proffer evidence about heat-degraded P CBs several times during trial. First, the plaintiffs' engineering expert testified that fires at the Yard created"che micals ... present in heat degraded PCB transformer oils." The defendants objected that the testimony was an impermissible allusion to dioxins and furans, and t he district court sustained the objection. Plaintiffs made no proffer as to what additional testimony the witness would have given on the subject.

The issue arose a second time before the direct examination of plaintiffs' expert Dr. Nisbet. After the district court ruled that Dr. Nisbet could testify about inc reases in

20toxicity caused by the "weathering" of PCBs in the

environment, plaintiffs requested that Dr. Nisbet b e permitted to testify that "over-heated transformer fluid" existed in the dirt at the Yard. Defendants objecte d that the only significance of the overheating of PCB fluid w ould be the generation of dioxins and furans. Plaintiffs' o nly response was that "[t]here will be no mention of fu rans, no mention of dioxins." The court then instructed the plaintiffs not to "refer to heating." Plaintiffs did not repre sent what Dr. Nisbet would have said about heated PCB fluid, except that it was present in the dirt at the Yard.

The third episode arose after defendants questioned plaintiffs' expert Dr. Calesnick about the conclusi on contained in Dr. Nicholson's meta-analysis, which a nalyzed deaths among PCB-exposed workers, that PCBs "pose minimal harm to health." Plaintiffs requested that the jury be read another sentence from the same analysis sta ting that PCBs "may be contaminated with more toxic polychlorinated hydrocarbons (e.g. polychlorinated dibenzofurans, PCDFs)," a passage that plaintiffs i mply pertained to heat-degraded PCBs. The district court sustained defendants' objection to the evidence on the ground that the proffered text referred to contamin ants previously excluded by the court.6

Plaintiffs argue that the district court incorrectl y interpreted its previous order regarding furans and dioxins, affirmed by this Court in Paoli II , as mandating the exclusion of evidence pertaining to heat-degraded P CBs. According to the plaintiffs, although heat-degraded PCBs are of the same toxicity as dioxins and furans, the y are chemically distinct and remain part of the PCB fami ly. Furthermore, they contend that in order to explain the

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6. Plaintiffs contend that the "rule of completenes s" embodied in Fed. R. Evid. 106 compelled admission of the additional por tion of the text. Rule 106 requires admission of those portions of writing that "ought in
fairness to be considered." See United States v. So ures , 736 F.2d 87, 91 (3d cir. 1984). But the very premise of the distric t court's determination to exclude evidence of furans was that plaintiffs' case regarding the alleged toxicity of PCBs could fairly proceed without evidence relating to furans. As a result, Rule 106 did not independently require the admission of additional portions of the text.

21toxicity of heat-degraded PCBs they would not have needed

to refer in any way to dioxins and furans, and henc e that
the admission of such evidence would not constitute an end run around the court's previous ruling.

Plaintiffs further assert that the court's allegedl y improper evidentiary rulings significantly impaired their ability to fully identify the substances to which t hey were allegedly exposed, thereby undermining the pursuit of both their medical monitoring and tort recovery.

As we have seen, with regard to their medical monit oring claims, the plaintiffs failed to convince the jury that they were "significantly exposed to PCBs." Plaintiffs as sert, however, that because heat-degraded PCBs have far g reater carcinogenic potential than unheated PCB mixtures, had they been allowed to proffer the disputed evidence, they could have demonstrated that they were exposed to a kind of PCBs in an amount significant enough to warrant medical monitoring. Plaintiffs also submit that the defendants' experts, who testified that PCBs were n ot dangerous, relied largely on epidemiological studie s ofunheated, new PCB mixtures, rather than the heatdegraded PCBs to which plaintiffs allegedly were ex posed, which again limited their ability to demonstrate "s ignificant exposure."

Additionally, plaintiffs argue that the court's evi dentiary decisions impaired their ability to accurately pres ent their property damage claims. In order to recover for pro perty damage, the plaintiffs had to demonstrate that the remedial activities ordered by the EPA's ROD would not retur n the property to its former value. Plaintiffs contend th at heatdegraded PCBs do not dissipate as rapidly as new PC Bs, and, that had they been permitted to offer evidence of heatdegraded PCBs, they could have demonstrated that th e remediation ordered by the EPA would be insufficien t to neutralize the presence of heat-degraded PCBs at th e Yard, and that property damages were in order. As a resul t, plaintiffs suggest that the court's alleged errors were not harmless and provide a sound basis for reversal.

The defendants respond that heat-degraded PCBs are merely furans by another name, and that therefore t he

22exclusion of evidence of heat-degraded PCBs was ent irely

within the ambit of the court's prior ruling regard ing furans. Defendants further argue that the admission of such evidence would have posed its own Rule 403 dan gers of undue delay and confusion of the issues.

C.

As an initial matter, we are satisfied that the pla intiffs had ample opportunity to convince the jury that the y were exposed to PCBs of a more toxic variety than the "background" PCBs that they normally would have encountered in day-to-day life. Plaintiffs presente d evidence that they were exposed to Aroclor 1260 PCBs and to weathered Aroclor 1260. According to the plaintiffs ' evidence, the harmfulness of a PCB mixture is a fun ction of its persistence: those PCBs that are the most diffi cult to eliminate from our bodies and environment pose the greatest potential danger. PCB mixtures, the plaint iffs allege, are particularly persistent if they are man ufactured with a high degree of chlorination or with a high n umber of coplanar congeners. Plaintiffs proffered evidence t hat Aroclor 1260 compounds, even when new, contain the highest chlorine content of any PCB mixture commonl y used in this country. The chlorine content of a mix ture may also increase as a result of weathering, which is a process of selective retention or preferential bioaccumulat ion. In addition, coplanar congeners may be formed through incineration. Thus, plaintiffs argue, the chemical to which they were exposed was more toxic than other PCB
mixtures.

Not only did the plaintiffs have the opportunity to introduce evidence that they were exposed to PCBs o f a more toxic variety than the background PCBs that th ey normally would have encountered, but we are also sa tisfied that the evidence they were prevented from introduc ing would not have substantially altered their case, be cause they had the opportunity to put forward at trial th eir essential theory -- that the PCBs to which they wer e exposed were more toxic than the PCBs in the epidemiological literature. In this vein, Dr. Nisbe t testified that the estimates in defendants' tables, which wer e

23proffered as proof that PCBs were not toxic, were b ased on

analysis of PCBs of "a potency factor ... for the unweathered, the pure unweathered aroclors," while the scientific evidence regarding weathered PCBs "would [probably] be more hazardous." Thus, plaintiffs wer e able to present and reemphasize the theme of their argument -- that what they were exposed to was somehow more dangerous than that to which the background populat ion was exposed. They therefore had little genuine need for the
excluded evidence.

At all events, we are persuaded by the defendants' arguments and our independent analysis that the dis trict
court acted within its discretion when it excluded plaintiffs' evidence of heat-degraded PCBs. In a ruling affirme d by this Court, the district court had previously exclu ded evidence of dioxins and furans, and plaintiffs' pro ffer of evidence of heat-degraded PCBs appears to have been an attempt to evade that ruling by altering the vocabu lary. The only proffered basis for admission that plaintiffs offered the court during trial was that the witnesses would not utter the words "dioxin" or "furan." But this justificati on reads the affirmed prior order, which excluded "[a]ll Tes timony, Evidence or Statements to the Jury ... concerning D ioxins, Furans, Tin Tetraphenyl, and Epoxides," too narrowl y, for
the district court had excluded all evidence that c oncerns the offending chemicals.

The district court was not without basis for believ ing that heat-degraded PCBs are functionally dioxins by anot her name. For example, according to plaintiffs, heat-de graded PCBs have the same toxicity as dioxins. See Appellants' Reply Brief at 5. Additionally, in their deposition testimony, plaintiffs' experts treated heat-degraded PCBs as toxicologically equivalent to dioxins. For instance , Dr. Sherman testified that the literature on coplanar P CBs "likens them to the para dioxins." In addition, the record suggests that heat-degraded PCBs, like dioxins and furans, are waste products formed by the incineration of ne w PCBs.

Moreover, at oral argument before us, plaintiffs' c ounsel explained that heat-degraded PCBs are refered to as "dioxin-like" because they react to the same AH rec eptor that is exploited by dioxin molecules. Discussion o f the

24toxicity of coplanar PCBs at trial would thus likel y have

reintroduced the subject of dioxins in a slightly d ifferent guise. In sum, it appears to us that the district c ourt did not err in concluding that the plaintiffs' proffer, which was weakly made, was within the ambit of the court's pr ior ruling, which this Court has affirmed.7

D.

Finally, even if the evidence about heat-degraded P CBs was not precluded by the literal terms of the prior ruling, we are persuaded by the defendants' arguments that the
district court was within its discretion to make an independent ruling under Rule 403 excluding evidenc e of heat-degraded PCBs on the ground that its probative value was substantially outweighed by its tendency to cau se delay, confusion, and unfair prejudice.8 Such a ru ling

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7. Our ruling does not emanate from any pretense of scientific exactitude, and, unfortunately, the materials prese nted to this Court fail
to illuminate how dioxins and furans differ from he at-degraded PCBs, if in fact they do. Plaintiffs' briefs instead focus o n the differences between heat-degraded and unheat-degraded PCBs, and thus of fer little guidance as to the scope of the prior ruling. So then, despi te the similarities between dioxins and heat-degraded PCBs, subtle stru ctural differences may in fact exist so that it is possible that evide nce of heat-degraded PCBs may fall outside the scope of the court's prio r ruling regarding dioxins and furans. In fact, one comment made by de fense counsel seems to admit of the possibility that heat-degrade d PCBs differ materially from dioxins and furans. See Brief for Appellees General Electric Co., Southeastern Pennsylvania Transportat ion Authority, the City of Philadelphia, and Westinghouse Corp., at 14 ("evidence about coplanar congeners was not precluded by the literal terms of the court's prior rulings"). These possibilities, however, cann ot control our evidentiary ruling in view of the weakness of the p laintiffs' showing. Thus, because of the similarities between dioxins a nd heat-degraded PCBs mentioned above, we remain convinced that the district court did not abuse its discretion in considering evidence of heat-degraded PCBs to be within the ambit of its previous ruling.

8. While we normally require a district court to ma ke explicit its reasoning under Rule 403, this is an unusual situat ion. The district court did not make an explicit Rule 403 balancing b ecause it believed that the challenged evidence was properly excluded under its affirmed

25would find precedent in our initial ruling on the g eneral

subject, wherein we adverted to the necessity of mi ni-trials on the issues presented by the effort to demonstrat e exposure to and the impact of heat-degraded PCBs. S ee Paoli II , 35 F.3d at 781-84.

First, there is little evidence that plaintiffs' ex posure to heat-degraded PCBs was significant. There was no of fer of proof at trial that heat-degraded PCBs were found a t the Yard or in the soil of the nearby residences, or th at the temperatures to which PCB fluids were subjected at the Yard were sufficient to create those types of conge ners. In fact, a significant amount of soil sampling data fa iled to indicate that heat-degraded PCBs, as distinct from new PCBs, existed in the soil. In addition, the evidenc e at trial allowed the conclusion that plaintiffs had not sust ained

any abnormal exposure to PCBs, regardless of whether t hat exposure was with respect to heated or unheat-degra ded
PCBs.9

Moreover, the evidence that the plaintiffs allege w as impermissibly excluded from trial -- evidence of si gnificant exposure to heat-degraded PCBs -- was never proffer ed, and apparently was never adequately developed; thus , the

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prior order. For purposes of this appeal, we theref ore regard the required 403 balancing as implicit in the court's ruling. Se e Sheridan v. E.I.
DuPont de Nemours and Co. , 100 F.3d 1061, 1076 n.10 (3d Cir. 1996). In taking this action, we in no way suggest that th e district courts are relieved from their obligation to perform this weig hing process on the record. Although we are able to perform this balanc ing test here, other cases may require remand to the court or even a new trial. See Sriyuth

, 98 F.3d at 744 n.8 ("We take this occasion, once ag ain, to remind the district courts of their obligation to perform this weighing process on the record.").

9. All but one of the plaintiffs had their blood an alyzed for PCB content.
Five were found to have no detectable levels of PCB s in their blood. The highest level found among the others was 30 ppb in one plaintiff, a level that the laboratory conducting the analysis conside red to be within the normal reference range for PCBs in human blood. In contrast, workers involved in the manufacturing of PCB-containing ele ctrical equipment have been found to have blood levels averaging clos e to 400 ppb and measuring as high as 3500 ppb. (A2999).

26district court never had the opportunity to exclude it. Oral

argument on the present appeal was the first time t hat plaintiffs' counsel recounted how the plaintiffs wo uld have proven that they were exposed to heat-degraded PCBs : they intended to compare chromatograms, which measure th e concentration of PCBs, of the soil used at the Yard to a chromatogram of new, unheat-degraded PCBs. They the n would have compared the chromatograms of the PCBs a t the Yard to the chromatograms of the chemical remna nts found in plaintiffs' blood. The nature of the PCB m ixture found in a blood sample is determined by the "peaks " in a given chromatogram. If given the opportunity, plain tiffs
contend that Dr. Nisbet would have testified that t he chromatograms of plaintiffs' blood, which were prof fered at trial, recorded peaks attributable to heat-degraded mixtures
of Aroclor 1260 PCBs.

While oral argument provided new explanations of th e probative value of what plaintiffs intended to show at trial, and the evidence that they claim they would have introduced appears to differ from the evidence actu ally admitted at trial, we are not at liberty to conside r it. Instead, we are limited to a review of the record t hat was before the district court, and, as previously menti oned, the evidence actually before the district court did not suggest a difference in the type of PCBs measured in the plai ntiffs' blood. As such, we find persuasive defendants' cont entions that plaintiffs were little prejudiced by the exclu sion of evidence pertaining to heat-degraded PCBs and that such evidence was of minor probative value.

Finally, admitting evidence regarding heat-degraded PCBs would appear to require extensive mini-trials on pl aintiffs' exposure to these chemicals and the harm they cause

. Given the small probative value of the evidence, su ch a diversion would constitute "undue delay." In sum, u nder Fed. R. Evid. 403, the district court did not abuse its discretion in excluding the evidence concerning heatdegraded PCBs.

III. THE JURY INSTRUCTIONS

We turn to plaintiffs' challenge to the jury instru ctions regarding the medical monitoring and property damag e

27claims. Generally we review a district court's jury

instructions for abuse of discretion, although whet her the jury instructions misstate a legal standard is a qu estion over which we have plenary review. See United State s v. Coyle , 63 F.3d 1239, 1245 (3d Cir. 1995). We review the charge to ensure that "the charge, taken as a whole and viewed in the light of the evidence, fairly and ade quately submits the issues in the case to the jury." In re Merritt Logan, Inc. , 901 F.2d 349, 359 (3d Cir. 1990) (quoting Ayoub v. Spencer , 550 F.2d 164, 167 (3d Cir. 1977). In evaluating whether the district court satisfied thi s requirement, we must examine the charge in its enti rety and not limit ourselves to particular phrases in is olation. See Coyle , 63 F.3d at 1245.

A. The Medical Monitoring Claim Instructions

The jury rejected the plaintiffs' medical monitorin g claims, and plaintiffs now contend that the distric t court erred when it instructed the jury that, in order to find for plaintiffs, they must conclude that the plaintiffs had been exposed to a greater level of PCBs as a result of t he activities at the Yard than they would encounter no rmally in their day-to-day lives. In order to evaluate thi s contention, we must first provide some context. In Paoli I

, 916 F.2d at 852, this Court addressed the predicame nt of persons who are exposed to toxic chemicals but do n ot suffer from manifest physical injuries. We noted th at when these persons suffer instead from latent injuries, common law tort doctrine has often barred recovery because

, traditionally, "injury needed to be manifest before it could be compensable," and toxic torts often fail to conf orm "with the common law conception of injury." Id . at 850. In an effort to accommodate the potential injuries associ ated with the widespread use of toxic substances, we predicte d that the Pennsylvania Supreme Court would recognize medi cal monitoring claims by plaintiffs who have been expos ed to toxic substances but have not suffered manifest phy sical injuries, and would authorize a plaintiff to recove r the "quantifiable costs of periodic medical examination s necessary to detect the onset of physical harm." Id

. at 852. We noted that medical monitoring and traditional to rt

28claims are inherently distinct causes of action, an d that,

once an injury is manifest and detected, a plaintif f who has pursued a medical monitoring claim may also have a traditional tort action against the same defendant for the injury itself. Id. at 850 n.24.

1.

In Paoli I , we also set forth the elements we understand to be necessary to a successful medical monitoring claim under Pennsylvania law:

1. Plaintiff was significantly exposed to a proven hazardous substance through the negligent actions o f
the defendants.

2. As a proximate result of exposure, plaintiff suf fers a significantly increased risk of contracting a ser ious
latent disease.

3. The increased risk makes periodic examinations reasonably necessary.

4. Monitoring and testing procedures exist which make the early detection and treatment of the disea se possible and beneficial.

Id. at 852.

The first hurdle for a plaintiff pursuing of a medi cal monitoring claim is the need to demonstrate "signif icant exposure" to a proven hazardous substance. In the c ase at bar, the jury determined that the plaintiffs had no t been significantly exposed to PCBs, and therefore could not satisfy even the first of the four factors necessar y to a successful claim. As a result, we need only concern ourselves here with the jury charge as it relates t o the definition of "significant exposure."

2.

The district court initially instructed the jury on the "significant exposure" element as follows:

Each plaintiff must prove through competent expert testimony that he or she was significantly exposed to

29PCBs from the Paoli Railyard. The plaintiff must pr ove

that PCBs from the Paoli Yard actually entered his or her body in amounts significantly beyond what would enter a person's body in everyday life elsewhere in the Philadelphia area and in amounts sufficient to caus e the plaintiff to have a risk of future disease significantly greater than what he or she would hav e had without exposure.

After plaintiff objected to this formulation, the c ourt further instructed the jury that "the amount of PCBs that a nyone would be exposed to in the Philadelphia area, simpl y means ... greater than [the] normal background area in th is region."

The following day, in response to a question for clarification from the deliberating jury regarding the personal injury claims, the court again instructed the jury:

Exposure to PCBs i[s] sufficient if it causes significantly increased risk of contracting a serio us latent disease.... I instructed you that [plaintiff s] had to show that amounts were significantly beyond what ordinarily entered a person's body in every day lif e, elsewhere in the Philadelphia area.

And again, those -- the testimony with respect to t he exposure in this area of PCBs to everyone, is just one factor to be considered in determining whether or n ot they were significantly exposed to PCBs from the Pa oli Yard. So you would consider all of those circumstan ces in considering whether or not they were exposed.

Plaintiffs challenge the instruction that a showing of "significant exposure" required proof that they had been exposed to levels of PCBs greater than the normal background levels. But that part of the court's ins truction
was taken almost verbatim from Redland Soccer Club v. Department of Navy , 55 F.3d 827 (3d Cir. 1995), where we defined the term "significant exposure" to require that:

a plaintiff ... prove that he was exposed beyond wh at would normally be encountered by a person in everyd ay life , so that the plaintiff's risk of being injured fro m the exposure is greater, in some way, than the risks al l of us encounter in our everyday lives. ...

30Thus Paoli II requires plaintiffs to show not only that

their exposure to toxic substances is greater than normal background levels , but that the increased risk of injury from such exposure warrants medical monitoring against future illness beyond that which is recommended for everyone.

Id. at 846 & n.8 (emphasis added). In other words, med ical monitoring claimants must "show[ ] they were expose d to the toxins at issue at levels significantly above t heir normal background presence." Id. at 847. The court's instructions fairly and adequately set forth the "significant ex posure"
element as articulated in Redland Soccer . In fact, we perceive no discernable difference between Redland Soccer and the jury charge issued here in terms of the app licable standard; to that extent, plaintiffs' position appe ars to be a remonstrance against Redland Soccer , which the district court was constrained to follow (as are we, see Third Circuit Internal Operating Procedures § 9.1).

We also find persuasive the argument set forth by counsel for the defendants that, if anything, the d istrict court's charge suggested that plaintiffs' burden of proof on this element was lighter

than that mandated by Redland
Soccer . The court responded to the jury's request for clarification by modifying the previous day's charg e and stating that whether plaintiffs' exposure was above the background level was "just one factor" in determini ng significant exposure. However, Redland Soccer makes clear that the existence of above-background-level exposu re is not merely "one factor" in determining the signific ance of the exposure. Instead, proof of abnormal exposure i s an absolute prerequisite to a finding of significant e xposure.

3.

Faced with the foregoing analysis, plaintiffs invok e a footnote in Paoli II , 35 F.3d at 771 n.36, under which they contend that they could make out a viable medical monitoring claim "even if their exposure was within background levels," so long as the exposure stemmed from
defendants' PCBs and "was sufficient to result in t heir
illnesses." The footnote reads:

31We note that even if defendants are correct that

plaintiffs can only demonstrate exposure at levels within background, this would not necessarily justi fy the grant of summary judgment for defendants. For example, if everyone in the population had been exposed to substantial amounts of defendants' PCBs such that each individual had high PCB levels, each
individual would have PCB levels within the background but this would not justify a verdict for defendants. Normally, plaintiffs could not make out a viable claim if their exposure is within background
levels because there would be no reason to believe that their exposure was from the defendants' PCBs as opposed to other PCBs. However, to the extent that the plaintiffs can demonstrate that their exposure stem med
from the defendants' PCBs, they will have presented evidence sufficient to survive summary judgment eve n if their exposure was within background levels--so long as this exposure was sufficient to result in their
illnesses.10

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10. As we have noted above, plaintiffs submit that they were exposed to a more toxic type of PCB -- heat-degraded mixtures -- than they would have ordinarily encountered in their day-to-day exi stence, and that, even if they were not exposed to a greater quantity of PCBs than they ordinarily would have encountered, they were expose d to a risk of injury significant enough to warrant medical monitoring. P laintiffs contend that
Redland Soccer

does not counsel otherwise, for in defining "signi ficant exposure," Redland Soccerdid not require the jury to make amountbased comparisons of exposure to contaminants, but only to compare the nature and extent of the risk incurred through exposure. Thus, their argument continues, the court incorrectly required the jury to find that plaintiffs had been exposed to PCBs in an amount greater than that found in the Philadelphia area.

It is not inconceivable that a situation may arise in which the form of a contaminant is so toxic that exposure to it merit s medical monitoring, even if the exposed plaintiffs ordinarily encounter similar amounts of a
less toxic form of the same contaminant. But such i s not the case here, at least under the record, which is poorly develope d in this regard. The evidence is unclear as to whether the greater toxic ity of the heatdegraded PCBs stems from its persistence in the soi l, so that a plaintiff's exposure is simply of longer duration, or if it res ults in greater bodily impact. Plaintiffs' expert Dr. Nisbet testified tha t "in the process of

32Id.

According to plaintiffs', this footnote allows them to pursue a medical monitoring claim so long as they p roffer evidence that they were exposed to sufficient level s of defendants' PCBs to result in their illnesses, a pr offer which they claim to have made. Plaintiffs note that they offered expert and lay testimony explaining that their PCB exposure stemmed from the defendants' PCBs. Moreove r, they offered proof, to the extent allowed by the di strict court, that the PCBs to which they were exposed wer e more dangerous than those PCBs to which the population a s a whole was exposed.11 As a result, plaintiffs argue, the district court improperly instructed the jury that, in order to constitute "significant exposure," the plaintiff s must have been exposed to a greater amount of PCBs than the population as a whole.

Plaintiffs' reliance on the Paoli II footnote is misplaced.12

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weathering the most toxic, the most hazardous compo nents ... are preferentially retained, so that PCB mixtures becom e more hazardous as they move through the environment." But the testimo ny is susceptible to two different explanations. Of course, if the incre ased toxicity results in longer exposure, blood level measures already in th e record would take account of it. If it results in greater bodily impa ct, the record evidence is insufficient to give the jury guidance to support a n award based on that theory. In sum, although in another situation plain tiffs may be correct that a pure focus on amount of exposure may be a mi stake, plaintiffs' argument falls short on the record.

11. At oral argument, plaintiffs' counsel suggested that it was possible to discern from chromatograms whether the PCBs in the soil and plaintiffs' blood were remnants of heat-degraded PCBs or new PC Bs. Yet plaintiffs have never compared the level of heat-degraded PCBs resulting from the Yard to the level of heat-degraded PCBs that they n ormally encountered, which if greater would have conformed to the court' s definition of "significant exposure." As such, the court did not err in charging the jury that they may consider as one factor whether plaintiffs were exposed to a quantitatively different level of PCBs than was t he background population.

12. Defendants attempt to reconcile Redland Soccer and Paoli II on the ground that note 36 of Paoli II relates only to the plaintiffs' personal injury claims and not their medical monitoring clai ms. However, the footnote did not limit itself to plaintiffs' person al injury claims, and the text to which it is appended applies to both person al injury and medical monitoring claims.

33In Paoli II , the defendants moved for summary judgment as

to both personal injury and medical monitoring clai ms on the grounds that plaintiffs were unable to demonstr ate that they were exposed to PCBs at levels above the backg round levels to which members of the general population w ere exposed. In a footnote intended to supply doctrinal context to its prediction of Pennsylvania law, the panel ad mitted of the possibility that in the limited situation where "everyone in the population had been exposed to substantial a mounts
of defendants ' PCBs," plaintiffs could withstand summary judgment without demonstrating above-background lev els
of PCBs. Id. (emphasis added). Thus, in the Paoli II footnote, we identified a potential limited exception to the general requirement that plaintiffs demonstrate above-backg round level exposure, an exception that ensures that the most egregious polluters, those who cause abnormally hig h degrees of contaminants to permeate an entire geogr aphical area, do not escape medical monitoring liability by virtue of their own extraordinary malfeasance. The plaintiffs

, however, offer no proof that the background area in which they live was generally exposed to a high level of defendants' contaminants or that the background PCB level in the Philadelphia area emanated from the Paoli Ya rd. As a result, they must satisfy the general requirement
articulated in Redland Soccer of abnormal exposure to
PCBs.

Plaintiffs assert that Redland Soccer applies only where plaintiffs cannot demonstrate direct exposure to the defendants' toxic chemicals, and that in the case a t bar, direct evidence of contamination was offered, so th at the
Paoli II footnote and not Redland Soccer provides the applicable legal standard. However, this characteri zation of the relationship between Paoli II and Redland Soccer misses the mark. First, as previously iterated, it is the Paoli II footnote, not Redland Soccer , that is limited to a particular context, namely abnormally extensive contamination by a defendant. Second, neither Redland Soccer nor the jurisprudence of medical monitoring claims makes a
distinction between cases of direct and indirect ex posure. See, e.g. , Paoli I , 916 F.2d at 849-52; Paoli II , 35 F.3d at 771-78; Redland Soccer , 55 F.3d at 846-47. Instead, plaintiffs must prove that their exposure to contam inants

34exceeded that which they would normally encounter i n

their daily routines regardless of the nature of th e evidence offered in proof.

Redland Soccer

recognizes that the medical monitoring cause of action calls for a legal standard differen t from that of traditional torts because of the special nature of the claim. As we previously noted, medical monitoring c laims recognize a need for monitoring because of a signif icantly increased risk of contracting a disease. 55 F.3d at 846. The risk created by chemical exposure is not "significa ntly increased" unless it is greater than "the normal ri sks all of us encounter in our every day lives." Id. Only by requiring a plaintiff to show significant exposure in this wa y can a court ensure that the plaintiff suffers a need for medical monitoring that is greater than that required by al l other persons. Id. If levels of exposure within background levels were enough to create an entitlement to medical monitoring, a toxic tort defendant "would become a health care insurer for medical procedures routinely neede d to guard persons against some of the ordinary vicissit udes of
life. It would convert toxic torts into a form of s pecialized
health insurance." Id. at 846 n.8.13

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13. Plaintiffs also challenge the district court's instruction that they had to prove their exposure was greater than the backgr ound level "in the Philadelphia area" or "in this region." But the ref erences to the background level in the pertinent geographic area w ere entirely proper and necessary to give meaning to the principles set forth in Redland
Soccer

.

We note in this regard that there was sharply confl icting testimony about the amount of background exposure to PCBs. Dr . Whysner
testified for the defense that in the northeastern United States, including Pennsylvania, the background exposure is an amount sufficient to result in an average PCB level of 9.2 ppb in human blood. By contrast, plaintiffs' expert Dr. Nisbet opined that backgroun d exposure is an amount that results in a blood level of just 0.1 pp b. However, Dr. Nisbet derived that figure from a study of residents in ru ral South Carolina. He also acknowledged that background exposures tend to be higher in the northeast, including Pennsylvania, than in the coun try as a whole.

Against this background, the district court was cor rect to instruct the jury that what mattered was the background level of exposure in the specific region in which the plaintiffs resided. To instruct otherwise

35In sum, the district court acted within the ambit o f its

discretion when it instructed the jury that, in con formance
with Redland Soccer

and Paoli II , to be successful in their claim for medical monitoring, plaintiffs must demon strate that they were exposed to a greater level of PCB ex posure than they would ordinarily encounter in their daily life.

B. The Property Damage Instructions

Plaintiffs also contend that the district court imp roperly instructed the jurors with respect to their "stigma " property damage claims. The district court instructed the ju ry twice on plaintiffs' property damage claims. The court in itially
stated:

In order to recover damages for the loss in market value of their properties, each plaintiff must prov e by a preponderance of the evidence first that PCBs from the Paoli Railyard caused some actual physical damage t o the plaintiff's property. Second, that the plaintif fs prove that repairing that damage will not restore t he value of the property to the value it had prior to the damage.

After the court's initial jury charge, the jurors a sked whether stigma can be considered damage, "regardles s of any physical damage to the property." The court res ponded in pertinent part:

if you find that there was actual physical damage t o the property, even if it was temporary, the plainti ffs

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would have rendered meaningless this Court's requir ement that plaintiffs prove exposure beyond what would "normally be encou ntered by a person in everyday life," for the jury would have b een allowed to use
rural South Carolina or some other non-industrial r egion as its benchmark for the ordinary life of the residents su rrounding the Paoli Railyard. Finally, and at all events, plaintiffs ca nnot demonstrate prejudice from that instruction because, as noted a bove, the court later diluted the charge to state that the background lev el was "just one factor" in determining significant exposure. See, e .g. , United States v.
Garrett , 574 F.2d 778, 782 (3d Cir. 1978) (other parts of a charge can cure even a constitutionally defective instruction)

.

36would be entitled to recover for stigma damage. But

there must first have been actual physical damage t o the property in order to recover for stigma damage.

Plaintiffs assert that, because the court repeatedl y stated that the damage must be "actual," a term that plain tiffs contend means "permanent," it improperly failed to instruct the jurors that a stigma-based property damage clai m may be based on temporary

physical damage as authorized by
Paoli II .14

In Paoli II , 35 F.3d at 798, we ruled that an award of stigma damages requires proof of the following elem ents: "(1) defendants have caused some (temporary) physic al damage to plaintiffs' property; (2) plaintiffs demo nstrate that repair of this damage will not restore the val ue of the property to its prior level; and (3) plaintiffs sho w that there is some ongoing risk to their land."

The plaintiffs argue that the district court erred in instructing the jury to consider whether "actual" p roperty damage occurred under the Paoli II standard. However, as we stated above, what the court instructed the jury was that the plaintiffs need only demonstrate temporary physical damage; the court never instructed the jur y that the damage had to be permanent. The court's repeate d use of the word "actual" did not convey a different leg al standard to the jury. The dictionary defines "actua l" as "existing in reality or fact." Webster's New World Dictionary 14 (3d College ed. 1988). Thus, actual damage can b e either temporary or permanent. As a result, the jury was n ot improperly restricted to a finding of permanent dam age as a prerequisite to a finding for the plaintiffs. Mor eover, the court's use of the word "actual" was appropriate be cause Paoli II specifically requires proof of some real physical damage to plaintiffs' land, some damage that "exist s in fact," as opposed to damage caused by negative publ icity
alone.

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14. Plaintiffs complain that the court employed the term "actual" thirteen times during the course of instructing the jury on the property damage
claim. Because we determine that the word "actual" correctly communicates the legal standard at issue, the frequ ency with which the court employed the term is irrelevant.

37Moreover, plaintiffs never objected to the use of t he word "actual" at trial, and have therefore waived their right to object. Neely v. Club Med Management Servs., Inc. , 63 F.3d 166, 200 (3d Cir. 1995) (objections to jury charge waived if not made before closing argument or the closing of charging); Fed. R. Civ. P. 51. A narrow exception t o waiver exists where review is necessary to avoid a gross miscarriage of justice, Neely , 63 F.3d at 200 n.39, or if the error of the district court was plain, United State s v. Zehrbach , 47 F.3d 1252, 1260 n.6 (3d Cir.) (en banc), cert.
denied , 115 S. Ct. 1699 (1995). Because we conclude that the district court did not err in its instructions, we need not consider here the applicability of the exceptions t o waiver, though we observe that making the exceptions applic able here would be quite a "stretch."

Plaintiffs next contend that the district court imp roperly instructed the jurors to assume that the clean-up a ctivities set forth in the EPA's 1992 ROD will be implemented , see

supra n.3. The district court instructed the jurors:

If you find that plaintiffs' property suffered act ual physical damage as a result of the presence of PCBs from the Paoli Yard, in order for [a] plaintiff to recover, you must also find that the repair of that damage w ill not restore the value of the property to the value that it had prior to the damage.

In other words, to be entitled to recover, each plaintiff must prove to you that the clean up activ ities mandated by the [EPA] will not eliminate the stigma or the loss in value associated with the presence of P CBs on his or her property.

As of the time of oral argument, the clean-up activ ities ordered by the EPA some four years ago had not been implemented. As a result, plaintiffs contend, the j urors should not have been required to proceed on the bas is that
all of EPA's remedies would be implemented. At the ver y least, plaintiffs assign as error the court's failu re to give them notice as to the challenged instruction so tha t they might have offered evidence that the defendants had successfully resisted implementation of EPA's order s. While we are sympathetic to the plaintiffs' position, it does not

38provide grounds for reversal, for the district cour t's
instructions were not in error.

In Paoli II , we explained that, to recover for stigma property damages, plaintiffs must prove that "the s tigma associated with their land will remain in place aft er any physical damage to their land has been repaired," regardless of whether the repair is actually comple ted. 35 F.3d at 798, n.64. Thus, the district court's instr uction to the jury to consider whether the plaintiffs' proper ty would remain damaged after the EPA-mandated clean-up activities were completed followed from the nature of the plaintiffs' claims. The plaintiffs could have broug ht suit under different theories of recovery, such as for t emporary loss of use during remediation, but they did not. S ee Dennis
v. Ford Motor Co. , 471 F.2d 733, 736-37 (3d Cir. 1973) (recognizing claim for loss of use of commercial ve hicle under Pennsylvania law). They were in no way preclu ded from laying a foundation for such a claim, or offer ing factual evidence of whether the EPA clean-up will e ver be completed. But they did not do so, and it is not fo r the district court to assume sua sponte the responsibility at the close of trial to present plaintiffs' best approach to an issue to the jury.

Finally, plaintiffs note that three of the nine pro perty damage claimants sold their properties at a loss, a nd contend therefore they could not benefit from the r emedial activities mandated by the EPA, even if such activi ties are completed.15 As explained above, whether repairs ar e actually completed, and, whether they are completed prior to the sale of the properties in question, is legal ly irrelevant
to the success of the claim that was tried -- one f or stigma property damage. Plaintiffs were not precluded from presenting evidence that they suffered an interim l oss in property value prior to the remediation. Instead, t hey tried to persuade the jury that they suffered permanent p roperty damage, and the jury was not swayed. Thus, plaintif fs' claim of error in the property damage instructions must
fail.

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15. Plaintiffs' expert Ludwig testified that the th ree plaintiffs who had sold their properties prior to trial lost $63,000, $55,000, and $15,000 respectively.

39IV. CONCLUSION

It is not without a backward glance that we finally lay
this case to rest. Countless hours and immeasurable efforts have been dedicated to guaranteeing the plaintiffs proper pretrial proceedings and their fair day in court. Y et after two weeks of trial, the jury remained unconvinced o f the most basic of plaintiffs' claims. While some may ha ve found the verdict surprising, our analysis of the distric t court's proceedings has assured us that the verdict was not the result of reversible trial error. The judgment of t he district
court will therefore be affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

40