1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-12-1997

In Re Paoli Railroad v.

Precedential or Non-Precedential:

Docket 95-2098

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Recommended Citation

"In Re Paoli Railroad v." (1997). 1997 Decisions. Paper 101.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/101
Filed May 12, 1997 

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 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. 

 2 
PENN 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) 

 3 
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. 

 4 
UNITED 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) 

 5 
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. 

 6 
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; 

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. 

 7 
GENERAL 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, 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,

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

 8 
ROGER 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

 9 
JEROME 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 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, 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 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 

 10 
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 

_________________________________________________________________ 

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 to be patently without 

merit: 

(1) the district court should have granted plaintiffs' motion seeking 

recusal pursuant to 28 U.S.C. § 455; 

(2) the district court erred in excluding photographs of EPA 

employees wearing protective gear, evidence of remedial efforts taken 

by the railroad, an EPA report relating to the Paoli site, and an 

internal memorandum written by an EPA staff member; and 

(3) the district court erred in admitting the defendants' untimely 

report regarding a trend analysis of real estate values. 

Moreover, in Frankel v. Burke's Excavating, Inc., 397 F.2d 167 (3d Cir. 

1968), we explained that, if there are jury interrogatories that make it 

clear which issues the jury found dispositive, evidentiary arguments that 

relate to other matters cannot be the cause of any prejudice to the 

plaintiff. Frankel applies here. The jury resolved the plaintiffs' medical 

monitoring claims in favor of the defendants on the threshold element of 

the claim -- whether the plaintiffs were significantly exposed to PCBs. 

Because, as the succeeding discussion demonstrates, the plaintiffs have 

not demonstrated reversible error infecting the jury'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 contentions that: 

(1) the district court erred in excluding Dr. Barsotti's deposition 

testimony; 

(2) the court erred in limiting the rebuttal testimony of plaintiffs' 

expert Dr. LeWitt and in excluding the rebuttal testimony of 

plaintiffs' expert Dr. Nicholson; and 

(3) the district court erred in admitting charts offered by 

defendants' expert Dr. Whysner, and in excluding charts offered by 

plaintiffs' expert Dr. Nisbet. 

Plaintiffs also challenge the district court's decision to bifurcate the 

trial. We resolve this issue in favor of the defendants infra at n.5. 
 11 
We 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, 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 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

 12 
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 time 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 run-off. 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. 

_________________________________________________________________ 

3. The ROD calls for: (1) the excavation and treatment of residential soil 

that contains PCBs in excess of 2 ppm; (2) the erection of new erosion 

controls to further reduce water runoff from the Yard to nearby 

properties; and (3) prohibition of any future residential or agricultural 

use of the Yard. In 1992, the EPA noted that 35 residential properties 

had composite samples that exceeded 5 ppm PCBs, either in the front or 

back yards or in the garden-soil. 

 13 
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 railroadcar 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. Nisbet, Ph.D., who was proffered to 

testify about plaintiffs' exposure to PCBs; and Janette 

Sherman, M.D., who was proffered to testify that PCBs had 

caused plaintiffs' injuries and that plaintiffs require medical 

monitoring to detect and treat future PCB-related illnesses. 

At the close of discovery, defendants moved in limine to 

exclude these experts' opinions under Fed. R. Evid. 702, 

703, and 403. On the same grounds, the defendants also 

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 "Yusho" 

incident in Japan and the "Yu Cheng" incident in Taiwan, 

in which many individuals suffered adverse effects after 

consuming rice oil contaminated with PCBs and furans. 

Defendants also moved for summary judgment on all of 

plaintiffs' claims. 

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

Kopstein, Nisbet, and Sherman testified for the plaintiffs 

and ten scientists testified for the defendants, the 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, and the 

Yusho and Yu Cheng incidents. The court then granted 

summary judgment against the plaintiffs on both their 

personal injury and medical monitoring claims on the 

grounds that they had adduced no evidence of exposure to 

the PCBs, or of causation. The district court also granted 

summary judgment for the defendants on the plaintiffs' 

property damage claims on the grounds that plaintiffs 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 expert 

opinions, we applied the admissibility standards enunciated 

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 but two of 

the plaintiffs, the court did not abuse its discretion in 

excluding the testimony of plaintiffs' experts that PCBs had 

caused their (alleged) injuries. We reversed the district 

court's exclusion from evidence of Dr. Sherman's opinion 

with respect to the causation of injuries to Bessie

Cunningham and Amber Burrell, two plaintiffs whom she 

actually examined and whose medical histories she took. 35 

F.3d at 765-70. We also affirmed the district court's 

exclusion of expert opinion concerning the effect of dioxins 

and furans and testimony related to the Yusho and Yu 

Cheng incidents. We further held that, in the absence of Dr. 

Sherman's opinion on causation, the district court had 

properly granted summary judgment for defendants with 

respect to the personal injury claims of 31 of 33 plaintiffs 

(excluding Bessie Cunningham and Amber Burrell, leaving 

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 result of 

 15 
their 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 for 

diminution of property value. We predicted that 

Pennsylvania would allow recovery where the property 

sustains at least temporary physical damage, repairs will 

not restore the value of the property to the prior level, and 

there is some ongoing risk to land. In sum, the following 

claims remained in the litigation after Paoli II: the medical 

monitoring claims of 26 plaintiffs; the personal injury 

claims of two plaintiffs; and the property damage claims 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 returned a 

verdict favorable to the plaintiffs, Phase II would determine 

the defendants' liability for all claims, and the amount, if 

any, of punitive damages. 

Prior to trial, defendants had moved in limine to exclude 

all the plaintiffs' evidence pertaining to heat-degraded PCBs 

and the heating process that produced them on the 

grounds: (1) that the evidence was covered by the court's 

prior order excluding evidence of dioxins and furans, which 

this Court affirmed in Paoli II; and (2) that, at all events, 

the evidence presented the same Rule 403 problems as had 

evidence of dioxins and furans. The court heard argument 

on the motion but reserved judgment until trial. During the 

course of testimony, plaintiffs proffered evidence on three 

separate occasions related to heat-degraded PCBs, which 

they alleged to be more toxic than "new PCBs" that had not 

been heated. In each instance, defendants challenged 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 claim. 

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

with the defendants and ordered plaintiffs to refrain from 

referring to "heating" or heat-degraded PCBs. 

After thirteen days of Phase I testimony, consisting 

primarily of expert opinion, the jury returned a verdict for 

defendants on all claims. In response to special 

interrogatories, the jury found that none of the plaintiffs 

had been "significantly exposed" to PCBs from the Yard; 

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 plaintiffs' 

properties. Phase II therefore never took place. This 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 foreseeability 

determinations when considering the causation issues of Phase I, 

whereas a different jury would have to make the same determinations 

when considering the negligence issues of Phase II. The record before us 

does not suggest that the district court actually considered summoning 

a different jury to hear the trial of Phase II, should Phase II have been 

necessary, and we fail to see why it would have. Moreover, 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 moot. 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 expedition 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 for Complex

Litigation, Third § 21.632, at 119 (West 1995). In the case at bar, the 

interests of judicial economy and convenience counseled strongly in 

favor of severing the issues relating to plaintiffs' exposure to PCBs and 

causation of their injuries from the issues of defendants' culpability. 

Phase I focused on plaintiffs' exposure to PCBs while Phase II would 

have concerned whether the conduct of several railroad operators and 

manufacturers caused that exposure. The trial of the Phase I issues 

 17 
II. THE RULE 403 ISSUE 

A. 

Fed. R. Evid. 403 provides in pertinent part that 

"[a]lthough relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger of 

_________________________________________________________________ 

alone lasted three weeks and involved dozens of witnesses. 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 the Phase I trial, all 

at additional cost to the parties. Thus, bifurcation preserved judicial 

resources and reduced the expenses of the parties, and the district court 

did not abuse its discretion in ordering such a process. 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 causation 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 way that the same issue 

is not reexamined by different juries." In the Matter 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 by the jury is the 

general right of a litigant to have only one jury pass on a common issue 

of fact") (citations omitted). Plaintiffs argue that both Phase I causation 

issues and Phase II negligence issues would require the jury to make 

foreseeability determinations. We disagree. The first 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 interrogatories did not refer to 

the foreseeability of the alleged harms. Nor does the 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 review the same evidence, 

but rather against having two juries decide the same essential issues." 

In re Innotron Diagnostics, 800 F.2d 1077, 1086 (Fed. Cir. 1986). 

 18 
unfair prejudice, confusion of the issues, or misleading the 

jury, or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence." In making a 

Rule 403 determination, the court must balance the 

genuine need for the challenged evidence against the risk 

that the information will confuse the jury and delay trial. 

United States v. Sriyuth, 98 F.3d 739, 747-48 (3d Cir. 

1996). 

A district court's decision to admit or exclude evidence is 

reviewed for abuse of discretion. Paoli II, 35 F.3d at 749. A 

ruling excluding evidence under Rule 403 is accorded 

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 "arbitrary 

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 of 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 were 

heated, and also evidence of the Yusho and Yu Cheng

poisoning incidents in which furans may have caused

injuries. Acting on defendants' motion, the district court 

excluded all evidence concerning these chemicals as

irrelevant under Rule 401 and unduly confusing and 

prejudicial under Rule 403. Specifically, the district 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 ..., result in undue 

delay and wasting of time consumed in the presentation of 

irrelevant evidence at trial; and prejudice the Defendants by 

 19 
permitting inflammatory evidence concerning substances 

such as dioxin as to which there is much public sensitivity 

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 under the 

lenient standard of Rule 401, we ruled that the court 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 may 

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 minimally 

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 received 

negative publicity, and therefore "would have been too 

inflammatory for the jury," given their minimal relevance. 

Id.

Notwithstanding our affirmance of the district court's 

prior orders, plaintiffs sought on remand to proffer evidence 

of heat-degraded PCBs. Prior to trial, the district court 

heard argument from plaintiff regarding heat-degraded 

PCBs, but postponed judgment on admissibility. Plaintiffs 

attempted to proffer evidence about heat-degraded PCBs 

several times during trial. First, the plaintiffs' engineering 

expert testified that fires at the Yard created"chemicals ... 

present in heat degraded PCB transformer oils." The

defendants objected that the testimony was an 

impermissible allusion to dioxins and furans, and the 

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 increases in 

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

environment, plaintiffs requested that Dr. Nisbet be 

permitted to testify that "over-heated transformer fluid" 

existed in the dirt at the Yard. Defendants objected that the 

only significance of the overheating of PCB fluid would be 

the generation of dioxins and furans. Plaintiffs' only 

response was that "[t]here will be no mention of furans, no 

mention of dioxins." The court then instructed the plaintiffs 

not to "refer to heating." Plaintiffs did not represent 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 conclusion 

contained in Dr. Nicholson's meta-analysis, which analyzed 

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 stating 

that PCBs "may be contaminated with more toxic 

polychlorinated hydrocarbons (e.g. polychlorinated 

dibenzofurans, PCDFs)," a passage that plaintiffs imply 

pertained to heat-degraded PCBs. The district court

sustained defendants' objection to the evidence on the 

ground that the proffered text referred to contaminants 

previously excluded by the court.6 

Plaintiffs argue that the district court incorrectly 

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 PCBs. 

According to the plaintiffs, although heat-degraded PCBs 

are of the same toxicity as dioxins and furans, they are 

chemically distinct and remain part of the PCB family. 

Furthermore, they contend that in order to explain the 

_________________________________________________________________ 

6. Plaintiffs contend that the "rule of completeness" embodied in Fed. R. 

Evid. 106 compelled admission of the additional portion of the text. Rule 

106 requires admission of those portions of writing that "ought in 

fairness to be considered." See United States v. Soures, 736 F.2d 87, 91 

(3d cir. 1984). But the very premise of the district 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. 

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

to refer in any way to dioxins and furans, and hence 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 allegedly 

improper evidentiary rulings significantly impaired their 

ability to fully identify the substances to which they were 

allegedly exposed, thereby undermining the pursuit of both 

their medical monitoring and tort recovery. 

As we have seen, with regard to their medical monitoring 

claims, the plaintiffs failed to convince the jury that they 

were "significantly exposed to PCBs." Plaintiffs assert, 

however, that because heat-degraded PCBs have far greater 

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 not 

dangerous, relied largely on epidemiological studies of 

unheated, new PCB mixtures, rather than the heatdegraded PCBs to which plaintiffs allegedly were exposed, 

which again limited their ability to demonstrate "significant 

exposure." 

Additionally, plaintiffs argue that the court's evidentiary 

decisions impaired their ability to accurately present their 

property damage claims. In order to recover for property 

damage, the plaintiffs had to demonstrate that the remedial 

activities ordered by the EPA's ROD would not return the 

property to its former value. Plaintiffs contend that heatdegraded PCBs do not dissipate as rapidly as new PCBs, 

and, that had they been permitted to offer evidence of heatdegraded PCBs, they could have demonstrated that the 

remediation ordered by the EPA would be insufficient to 

neutralize the presence of heat-degraded PCBs at the Yard, 

and that property damages were in order. As a result, 

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 the 

 22 
exclusion of evidence of heat-degraded PCBs was entirely 

within the ambit of the court's prior ruling regarding 

furans. Defendants further argue that the admission of 

such evidence would have posed its own Rule 403 dangers 

of undue delay and confusion of the issues. 

C. 

As an initial matter, we are satisfied that the plaintiffs 

had ample opportunity to convince the jury that they 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 presented 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 function of 

its persistence: those PCBs that are the most difficult to 

eliminate from our bodies and environment pose the 

greatest potential danger. PCB mixtures, the plaintiffs 

allege, are particularly persistent if they are manufactured 

with a high degree of chlorination or with a high number of 

coplanar congeners. Plaintiffs proffered evidence that 

Aroclor 1260 compounds, even when new, contain the 

highest chlorine content of any PCB mixture commonly 

used in this country. The chlorine content of a mixture may 

also increase as a result of weathering, which is a process 

of selective retention or preferential bioaccumulation. 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 of a 

more toxic variety than the background PCBs that they 

normally would have encountered, but we are also satisfied 

that the evidence they were prevented from introducing 

would not have substantially altered their case, because 

they had the opportunity to put forward at trial their 

essential theory -- that the PCBs to which they were 

exposed were more toxic than the PCBs in the 

epidemiological literature. In this vein, Dr. Nisbet testified 

that the estimates in defendants' tables, which were 

 23 
proffered as proof that PCBs were not toxic, were based 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 were 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 population 

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 district 

court acted within its discretion when it excluded plaintiffs' 

evidence of heat-degraded PCBs. In a ruling affirmed by 

this Court, the district court had previously excluded 

evidence of dioxins and furans, and plaintiffs' proffer of 

evidence of heat-degraded PCBs appears to have been an 

attempt to evade that ruling by altering the vocabulary. 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 justification reads 

the affirmed prior order, which excluded "[a]ll Testimony, 

Evidence or Statements to the Jury ... concerning Dioxins, 

Furans, Tin Tetraphenyl, and Epoxides," too narrowly, for 

the district court had excluded all evidence that concerns

the offending chemicals. 

The district court was not without basis for believing that 

heat-degraded PCBs are functionally dioxins by another 

name. For example, according to plaintiffs, heat-degraded 

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 PCBs 

"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 new PCBs. 

Moreover, at oral argument before us, plaintiffs' counsel 

explained that heat-degraded PCBs are refered to as

"dioxin-like" because they react to the same AH receptor 

that is exploited by dioxin molecules. Discussion of the 

 24 
toxicity of coplanar PCBs at trial would thus likely have 

reintroduced the subject of dioxins in a slightly different 

guise. In sum, it appears to us that the district court did 

not err in concluding that the plaintiffs' proffer, which was 

weakly made, was within the ambit of the court's prior 

ruling, which this Court has affirmed.7 

D. 

Finally, even if the evidence about heat-degraded PCBs 

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 evidence of 

heat-degraded PCBs on the ground that its probative value 

was substantially outweighed by its tendency to cause 

delay, confusion, and unfair prejudice.8 Such a ruling 

_________________________________________________________________ 

7. Our ruling does not emanate from any pretense of scientific 

exactitude, and, unfortunately, the materials presented to this Court fail 

to illuminate how dioxins and furans differ from heat-degraded PCBs, if 

in fact they do. Plaintiffs' briefs instead focus on the differences between 

heat-degraded and unheat-degraded PCBs, and thus offer little guidance 

as to the scope of the prior ruling. So then, despite the similarities 

between dioxins and heat-degraded PCBs, subtle structural differences 

may in fact exist so that it is possible that evidence of heat-degraded 

PCBs may fall outside the scope of the court's prior ruling regarding 

dioxins and furans. In fact, one comment made by defense counsel 

seems to admit of the possibility that heat-degraded PCBs differ 

materially from dioxins and furans. See Brief for Appellees General 

Electric Co., Southeastern Pennsylvania Transportation 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, cannot control our 

evidentiary ruling in view of the weakness of the plaintiffs' showing. 

Thus, because of the similarities between dioxins and 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 make explicit its 

reasoning under Rule 403, this is an unusual situation. The district 

court did not make an explicit Rule 403 balancing because it believed 

that the challenged evidence was properly excluded under its affirmed 

 25 
would find precedent in our initial ruling on the general 

subject, wherein we adverted to the necessity of mini-trials 

on the issues presented by the effort to demonstrate 

exposure to and the impact of heat-degraded PCBs. See

Paoli II, 35 F.3d at 781-84. 

First, there is little evidence that plaintiffs' exposure to 

heat-degraded PCBs was significant. There was no offer of 

proof at trial that heat-degraded PCBs were found at the 

Yard or in the soil of the nearby residences, or that the 

temperatures to which PCB fluids were subjected at the 

Yard were sufficient to create those types of congeners. In 

fact, a significant amount of soil sampling data failed to 

indicate that heat-degraded PCBs, as distinct from new 

PCBs, existed in the soil. In addition, the evidence at trial 

allowed the conclusion that plaintiffs had not sustained 

any abnormal exposure to PCBs, regardless of whether that 

exposure was with respect to heated or unheat-degraded 

PCBs.9 

Moreover, the evidence that the plaintiffs allege was 

impermissibly excluded from trial -- evidence of significant 

exposure to heat-degraded PCBs -- was never proffered, 

and apparently was never adequately developed; thus, the 

_________________________________________________________________ 

prior order. For purposes of this appeal, we therefore regard the required 

403 balancing as implicit in the court's ruling. See 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 the district courts are 

relieved from their obligation to perform this weighing process on the 

record. Although we are able to perform this balancing 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 again, 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 analyzed for PCB content. 

Five were found to have no detectable levels of PCBs in their blood. The 

highest level found among the others was 30 ppb in one plaintiff, a level 

that the laboratory conducting the analysis considered to be within the 

normal reference range for PCBs in human blood. In contrast, workers 

involved in the manufacturing of PCB-containing electrical equipment 

have been found to have blood levels averaging close to 400 ppb and 

measuring as high as 3500 ppb. (A2999). 

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

argument on the present appeal was the first time that 

plaintiffs' counsel recounted how the plaintiffs would have 

proven that they were exposed to heat-degraded PCBs: they 

intended to compare chromatograms, which measure the 

concentration of PCBs, of the soil used at the Yard to a 

chromatogram of new, unheat-degraded PCBs. They then 

would have compared the chromatograms of the PCBs at 

the Yard to the chromatograms of the chemical remnants 

found in plaintiffs' blood. The nature of the PCB mixture 

found in a blood sample is determined by the "peaks" in a 

given chromatogram. If given the opportunity, plaintiffs 

contend that Dr. Nisbet would have testified that the 

chromatograms of plaintiffs' blood, which were proffered at 

trial, recorded peaks attributable to heat-degraded mixtures 

of Aroclor 1260 PCBs. 

While oral argument provided new explanations of the 

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 actually 

admitted at trial, we are not at liberty to consider it. 

Instead, we are limited to a review of the record that was 

before the district court, and, as previously mentioned, the 

evidence actually before the district court did not suggest a 

difference in the type of PCBs measured in the plaintiffs' 

blood. As such, we find persuasive defendants' contentions 

that plaintiffs were little prejudiced by the exclusion 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 plaintiffs' 

exposure to these chemicals and the harm they cause. 

Given the small probative value of the evidence, such a 

diversion would constitute "undue delay." In sum, under 

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 instructions 

regarding the medical monitoring and property damage 

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

instructions for abuse of discretion, although whether the 

jury instructions misstate a legal standard is a question 

over which we have plenary review. See United States 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 adequately 

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 this 

requirement, we must examine the charge in its entirety 

and not limit ourselves to particular phrases in isolation. 

See Coyle, 63 F.3d at 1245. 

A. The Medical Monitoring Claim Instructions 

The jury rejected the plaintiffs' medical monitoring 

claims, and plaintiffs now contend that the district court 

erred when it instructed the jury that, in order tofind for 

plaintiffs, they must conclude that the plaintiffs had been 

exposed to a greater level of PCBs as a result of the 

activities at the Yard than they would encounter normally 

in their day-to-day lives. In order to evaluate this 

contention, we must first provide some context. In Paoli I, 

916 F.2d at 852, this Court addressed the predicament of 

persons who are exposed to toxic chemicals but do not 

suffer from manifest physical injuries. We noted that 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 conform "with 

the common law conception of injury." Id. at 850. In an 

effort to accommodate the potential injuries associated with 

the widespread use of toxic substances, we predicted that 

the Pennsylvania Supreme Court would recognize medical 

monitoring claims by plaintiffs who have been exposed to 

toxic substances but have not suffered manifest physical 

injuries, and would authorize a plaintiff to recover the 

"quantifiable costs of periodic medical examinations 

necessary to detect the onset of physical harm." Id. at 852. 

We noted that medical monitoring and traditional tort 

 28 
claims are inherently distinct causes of action, and that, 

once an injury is manifest and detected, a plaintiff 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 of 

the defendants. 

2. As a proximate result of exposure, plaintiff suffers 

a significantly increased risk of contracting a serious 

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 disease 

possible and beneficial. 

Id. at 852. 

The first hurdle for a plaintiff pursuing of a medical 

monitoring claim is the need to demonstrate "significant 

exposure" to a proven hazardous substance. In the case at 

bar, the jury determined that the plaintiffs had not been 

significantly exposed to PCBs, and therefore could not 

satisfy even the first of the four factors necessary to a 

successful claim. As a result, we need only concern

ourselves here with the jury charge as it relates to 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 

 29 
PCBs from the Paoli Railyard. The plaintiff must prove 

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 cause 

the plaintiff to have a risk of future disease 

significantly greater than what he or she would have 

had without exposure. 

After plaintiff objected to this formulation, the court further 

instructed the jury that "the amount of PCBs that anyone 

would be exposed to in the Philadelphia area, simply means 

... greater than [the] normal background area in this 

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 serious 

latent disease.... I instructed you that [plaintiffs] had to 

show that amounts were significantly beyond what 

ordinarily entered a person's body in every day life, 

elsewhere in the Philadelphia area. 

And again, those -- the testimony with respect to the 

exposure in this area of PCBs to everyone, is just one 

factor to be considered in determining whether or not 

they were significantly exposed to PCBs from the Paoli 

Yard. So you would consider all of those circumstances 

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 instruction 

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 what

would normally be encountered by a person in everyday

life, so that the plaintiff's risk of being injured from the 

exposure is greater, in some way, than the risks all of 

us encounter in our everyday lives. ... 

 30 
Thus 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, medical 

monitoring claimants must "show[ ] they were exposed to 

the toxins at issue at levels significantly above their normal 

background presence." Id. at 847. The court's instructions 

fairly and adequately set forth the "significant exposure" 

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 applicable 

standard; to that extent, plaintiffs' position appears 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 district 

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 charge and 

stating that whether plaintiffs' exposure was above the 

background level was "just one factor" in determining 

significant exposure. However, Redland Soccer makes clear 

that the existence of above-background-level exposure is 

not merely "one factor" in determining the significance of 

the exposure. Instead, proof of abnormal exposure is an 

absolute prerequisite to a finding of significant exposure. 

3. 

Faced with the foregoing analysis, plaintiffs invoke 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 their 

illnesses." The footnote reads: 

 31 
We note that even if defendants are correct that 

plaintiffs can only demonstrate exposure at levels 

within background, this would not necessarily justify 

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 stemmed 

from the defendants' PCBs, they will have presented 

evidence sufficient to survive summary judgment even 

if their exposure was within background levels--so long 

as this exposure was sufficient to result in their 

illnesses.10 

_________________________________________________________________ 

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 existence, and that, even 

if they were not exposed to a greater quantity of PCBs than they 

ordinarily would have encountered, they were exposed to a risk of injury 

significant enough to warrant medical monitoring. Plaintiffs contend that 

Redland Soccer does not counsel otherwise, for in defining "significant 

exposure," Redland Soccer did 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 merits medical monitoring, 

even if the exposed plaintiffs ordinarily encounter similar amounts of a 

less toxic form of the same contaminant. But such is not the case here, 

at least under the record, which is poorly developed in this regard. The 

evidence is unclear as to whether the greater toxicity of the heatdegraded PCBs stems from its persistence in the soil, so that a plaintiff's 

exposure is simply of longer duration, or if it results in greater bodily 

impact. Plaintiffs' expert Dr. Nisbet testified that "in the process of 

 32 
Id.

According to plaintiffs', this footnote allows them to 

pursue a medical monitoring claim so long as they proffer 

evidence that they were exposed to sufficient levels of 

defendants' PCBs to result in their illnesses, a proffer 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. Moreover, 

they offered proof, to the extent allowed by the district 

court, that the PCBs to which they were exposed were more 

dangerous than those PCBs to which the population as 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 plaintiffs 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 

_________________________________________________________________ 

weathering the most toxic, the most hazardous components ... are 

preferentially retained, so that PCB mixtures become more hazardous as 

they move through the environment." But the testimony is susceptible to 

two different explanations. Of course, if the increased toxicity results in 

longer exposure, blood level measures already in the record would take 

account of it. If it results in greater bodily impact, the record evidence is 

insufficient to give the jury guidance to support an award based on that 

theory. In sum, although in another situation plaintiffs may be correct 

that a pure focus on amount of exposure may be a mistake, 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 PCBs. Yet plaintiffs 

have never compared the level of heat-degraded PCBs resulting from the 

Yard to the level of heat-degraded PCBs that they normally 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 the 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 claims. However, the 

footnote did not limit itself to plaintiffs' personal injury claims, and the 

text to which it is appended applies to both personal injury and medical 

monitoring claims. 

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

to both personal injury and medical monitoring claims on 

the grounds that plaintiffs were unable to demonstrate that 

they were exposed to PCBs at levels above the background 

levels to which members of the general population were 

exposed. In a footnote intended to supply doctrinal context 

to its prediction of Pennsylvania law, the panel admitted of 

the possibility that in the limited situation where "everyone 

in the population had been exposed to substantial amounts 

of defendants' PCBs," plaintiffs could withstand summary 

judgment without demonstrating above-background levels 

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-background 

level exposure, an exception that ensures that the most 

egregious polluters, those who cause abnormally high 

degrees of contaminants to permeate an entire geographical 

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 Yard. 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 at bar, 

direct evidence of contamination was offered, so that the 

Paoli II footnote and not Redland Soccer provides the 

applicable legal standard. However, this characterization 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 exposure. 

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 contaminants 

 34 
exceeded that which they would normally encounter in 

their daily routines regardless of the nature of the evidence 

offered in proof. 

Redland Soccer recognizes that 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. As we previously noted, medical monitoring claims 

recognize a need for monitoring because of a significantly 

increased risk of contracting a disease. 55 F.3d at 846. The 

risk created by chemical exposure is not "significantly 

increased" unless it is greater than "the normal risks all of 

us encounter in our every day lives." Id. Only by requiring 

a plaintiff to show significant exposure in this way can a 

court ensure that the plaintiff suffers a need for medical 

monitoring that is greater than that required by all 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 needed to 

guard persons against some of the ordinary vicissitudes of 

life. It would convert toxic torts into a form of specialized 

health insurance." Id. at 846 n.8.13 

_________________________________________________________________ 

13. Plaintiffs also challenge the district court's instruction that they had 

to prove their exposure was greater than the background level "in the 

Philadelphia area" or "in this region." But the references to the 

background level in the pertinent geographic area were entirely proper 

and necessary to give meaning to the principles set forth in Redland

Soccer. 

We note in this regard that there was sharply conflicting 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 background exposure is an 

amount that results in a blood level of just 0.1 ppb. However, Dr. Nisbet 

derived that figure from a study of residents in rural South Carolina. He 

also acknowledged that background exposures tend to be higher in the 

northeast, including Pennsylvania, than in the country as a whole. 

Against this background, the district court was correct 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 

 35 
In sum, the district court acted within the ambit of its 

discretion when it instructed the jury that, in conformance 

with Redland Soccer and Paoli II, to be successful in their 

claim for medical monitoring, plaintiffs must demonstrate 

that they were exposed to a greater level of PCB exposure 

than they would ordinarily encounter in their daily life. 

B. The Property Damage Instructions 

Plaintiffs also contend that the district court improperly 

instructed the jurors with respect to their "stigma" property 

damage claims. The district court instructed the jury twice 

on plaintiffs' property damage claims. The court initially 

stated: 

In order to recover damages for the loss in market 

value of their properties, each plaintiff must prove by a 

preponderance of the evidence first that PCBs from the 

Paoli Railyard caused some actual physical damage to 

the plaintiff's property. Second, that the plaintiffs 

prove that repairing that damage will not restore the 

value of the property to the value it had prior to the 

damage. 

After the court's initial jury charge, the jurors asked 

whether stigma can be considered damage, "regardless of 

any physical damage to the property." The court responded 

in pertinent part: 

if you find that there was actual physical damage to 

the property, even if it was temporary, the plaintiffs 

_________________________________________________________________ 

would have rendered meaningless this Court's requirement that plaintiffs 

prove exposure beyond what would "normally be encountered by a 

person in everyday life," for the jury would have been allowed to use 

rural South Carolina or some other non-industrial region as its 

benchmark for the ordinary life of the residents surrounding the Paoli 

Railyard. Finally, and at all events, plaintiffs cannot demonstrate 

prejudice from that instruction because, as noted above, the court later 

diluted the charge to state that the background level 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). 

 36 
would be entitled to recover for stigma damage. But

there must first have been actual physical damage to 

the property in order to recover for stigma damage.

Plaintiffs assert that, because the court repeatedly stated 

that the damage must be "actual," a term that plaintiffs 

contend means "permanent," it improperly failed to instruct 

the jurors that a stigma-based property damage claim 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 elements: 

"(1) defendants have caused some (temporary) physical 

damage to plaintiffs' property; (2) plaintiffs demonstrate 

that repair of this damage will not restore the value of the 

property to its prior level; and (3) plaintiffs show 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" property 

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 jury that 

the damage had to be permanent. The court's repeated use 

of the word "actual" did not convey a different legal 

standard to the jury. The dictionary defines "actual" as 

"existing in reality or fact." Webster's New World Dictionary

14 (3d College ed. 1988). Thus, actual damage can be either 

temporary or permanent. As a result, the jury was not 

improperly restricted to a finding of permanent damage as 

a prerequisite to a finding for the plaintiffs. Moreover, the 

court's use of the word "actual" was appropriate because 

Paoli II specifically requires proof of some real physical 

damage to plaintiffs' land, some damage that "exists in 

fact," as opposed to damage caused by negative publicity 

alone. 

_________________________________________________________________ 

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 frequency with which the 

court employed the term is irrelevant. 

 37 
Moreover, plaintiffs never objected to the use of the 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 to 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 States 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 to waiver, 

though we observe that making the exceptions applicable 

here would be quite a "stretch." 

Plaintiffs next contend that the district court improperly 

instructed the jurors to assume that the clean-up activities 

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 actual 

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 will 

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 activities 

mandated by the [EPA] will not eliminate the stigma or 

the loss in value associated with the presence of PCBs 

on his or her property. 

As of the time of oral argument, the clean-up activities 

ordered by the EPA some four years ago had not been

implemented. As a result, plaintiffs contend, the jurors 

should not have been required to proceed on the basis that 

all of EPA's remedies would be implemented. At the very 

least, plaintiffs assign as error the court's failure to give 

them notice as to the challenged instruction so that they 

might have offered evidence that the defendants had

successfully resisted implementation of EPA's orders. While 

we are sympathetic to the plaintiffs' position, it does not 

 38 
provide grounds for reversal, for the district court's 

instructions were not in error. 

In Paoli II, we explained that, to recover for stigma 

property damages, plaintiffs must prove that "the stigma 

associated with their land will remain in place after any 

physical damage to their land has been repaired," 

regardless of whether the repair is actually completed. 35 

F.3d at 798, n.64. Thus, the district court's instruction to 

the jury to consider whether the plaintiffs' property would 

remain damaged after the EPA-mandated clean-up 

activities were completed followed from the nature of the 

plaintiffs' claims. The plaintiffs could have brought suit 

under different theories of recovery, such as for temporary 

loss of use during remediation, but they did not. See Dennis

v. Ford Motor Co., 471 F.2d 733, 736-37 (3d Cir. 1973) 

(recognizing claim for loss of use of commercial vehicle 

under Pennsylvania law). They were in no way precluded 

from laying a foundation for such a claim, or offering 

factual evidence of whether the EPA clean-up will ever be 

completed. But they did not do so, and it is not for 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 property 

damage claimants sold their properties at a loss, and 

contend therefore they could not benefit from the remedial 

activities mandated by the EPA, even if such activities are 

completed.15 As explained above, whether repairs are 

actually completed, and, whether they are completed prior 

to the sale of the properties in question, is legally irrelevant 

to the success of the claim that was tried -- one for stigma 

property damage. Plaintiffs were not precluded from

presenting evidence that they suffered an interim loss in 

property value prior to the remediation. Instead, they tried 

to persuade the jury that they suffered permanent property 

damage, and the jury was not swayed. Thus, plaintiffs' 

claim of error in the property damage instructions must 

fail. 

_________________________________________________________________ 

15. Plaintiffs' expert Ludwig testified that the three plaintiffs who had 

sold their properties prior to trial lost $63,000, $55,000, and $15,000 

respectively. 

 39 
IV. 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. Yet after 

two weeks of trial, the jury remained unconvinced of the 

most basic of plaintiffs' claims. While some may have found 

the verdict surprising, our analysis of the district court's 

proceedings has assured us that the verdict was not the 

result of reversible trial error. The judgment of the district 

court will therefore be affirmed. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 40