609 F.3d 239 (3rd Cir. 2010), 08-4373, Sheridan v. NGK Metals Corp.

Docket Nº:08-4373, 08-4374.
Citation:609 F.3d 239
Opinion Judge:SCIRICA, Circuit Judge.
Party Name:Shirley SHERIDAN; James W. Zimmerman, on behalf of themselves and others similarly situated, Appellants v. NGK METALS CORPORATION; Cabot Corporation; Spotts, Stevens & McCoy, Inc. Gary Anthony, on behalf of himself and others similarly situated, Appellant v. Small Tube Manufacturing Corp., doing business as Small Tube Products Corp., Inc.; Admiral
Attorney:Ruben Honik, Esquire (Argued), Stephan Matanovic, Esquire, Golomb & Honik, Philadelphia, PA, Attorneys for Appellants. Thomas C. DeLorenzo, Esquire (Argued), Ronda K. O'Donnell, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, Attorneys for Appellee, NGK Metals Corporation...
Judge Panel:Before: SCIRICA, BARRY and SMITH, Circuit Judges.
Case Date:June 07, 2010
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 239

609 F.3d 239 (3rd Cir. 2010)

Shirley SHERIDAN; James W. Zimmerman, on behalf of themselves and others similarly situated, Appellants

v.

NGK METALS CORPORATION; Cabot Corporation; Spotts, Stevens & McCoy, Inc.

Gary Anthony, on behalf of himself and others similarly situated, Appellant

v.

Small Tube Manufacturing Corp., doing business as Small Tube Products Corp., Inc.; Admiral Metals, Inc.; Tube Methods, Inc.; Cabot Corporation, Individually and as successor in interest to Cabot Berylco, Inc., Kawecki Berylco Industries, Inc. and the Beryllium Corporation c/o C.T. Corporation Systems

v.

Ametek, Inc.; Brush Wellman Inc.; Millennium Petrochemicals Inc., formerly known as National Distillers and Chemical Corporation.

Nos. 08-4373, 08-4374.

United States Court of Appeals, Third Circuit.

June 7, 2010

Argued Jan. 11, 2010.

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Ruben Honik, Esquire (Argued), Stephan Matanovic, Esquire, Golomb & Honik, Philadelphia, PA, Attorneys for Appellants.

Thomas C. DeLorenzo, Esquire (Argued), Ronda K. O'Donnell, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, Attorneys for Appellee, NGK Metals Corporation.

Neil S. Witkes, Esquire (Argued), Kathleen B. Campbell, Esquire, Manko, Gold, Katcher & Fox, Bala Cynwyd, PA, Attorneys for Appellee, Cabot Corporation, Individually and as successor in interest to Cabot Berylco, Inc., Kawecki Berylco Industries, Inc. and the Beryllium Corporation c/o C.T. Corporation Systems.

Stephen J. Imbriglia, Esquire (Argued), Gibbons, Philadelphia, PA, Attorney for Appellee, Spotts, Stevens & McCoy, Inc.

Sharon F. McKee, Esquire, Kenneth J. Warren, Esquire, Hangley, Aronchick, Segal & Pudlin, Philadelphia, PA, Attorneys for Appellee, Small Tube Manufacturing Corp., d/b/a Small Tube Products Corp., Inc.

Rochelle M. Fedullo, Esquire, Wilson, Elser, Moskowitz, Edelman & Dicker, Philadelphia, PA, Attorney for Appellee, Admiral Metals, Inc.

Gregory W. Fox, Esquire, Stephen M. Hladik, Esquire, David C. Onorato, Esquire, Kerns, Pearlstine, Onorato & Hladik, Upper Gwynedd, PA, Attorneys for Appellee, Tube Methods, Inc.

John C. Goodchild III, Esquire, Morgan, Lewis & Bockius, Philadelphia, PA, Attorney for Appellee, Ametek, Inc.

Dennis R. Callahan, Esquire, Jennifer L. Weed, Esquire, Ward, Greenberg, Heller & Reidy, Conshohocken, PA, Jeffery D. Ubersax, Esquire (Argued), Michael A. Platt, Esquire, Jones Day, Cleveland, OH, Attorneys for Appellee, Brush Wellman, Inc.

Joseph M. Profy, Esquire, Blank Rome, Philadelphia, PA, Attorney for Appellee, Millennium Petrochemicals, Inc., f/k/a National Distillers and Chemical Corporation.

Before: SCIRICA, BARRY and SMITH, Circuit Judges.

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OPINION

SCIRICA, Circuit Judge.

This is a diversity case. In these putative class actions seeking medical monitoring, we determine whether, under Pennsylvania law, a person exposed to beryllium above background levels, absent sensitization, can be at a " significantly increased risk" of contracting chronic beryllium disease. There are two separate appeals. Plaintiffs in each case filed a putative class action lawsuit against multiple defendants, alleging negligence in connection with beryllium exposure and seeking a medical monitoring trust fund based on their increased risk of developing chronic beryllium disease. In the first action, No. 08-4374 (the " Anthony action" ), the District Court granted defendants' joint motion for summary judgment. In the second action, No. 08-4373 (the " Zimmerman action" ), the District Court addressed three separate legal issues-medical monitoring under Pennsylvania law, claim preclusion, and third-party liability-and issued final orders in favor of defendants. 1 As a consequence, neither action addresses the class certification issues. Plaintiffs appeal. We will affirm.

I.

A.

Both cases are based on exposure to beryllium, a steel-gray metal produced from naturally occurring beryl ore. Beryllium is an extremely stiff, light metal with a high melting point and excellent thermal and electrical conductivity. Because of these properties, beryllium is used as structural material for high-speed aircraft, missiles, space vehicles, and communications satellites. It is also used in radiation windows for x-ray tubes, and as a reflector and moderator in nuclear reactors. Although it is occasionally used as a pure metal, it is more commonly incorporated at low levels into alloys.

Beryllium is highly toxic, odorless, and tasteless. Inhaling beryllium particles can lead to scarring of the lungs, a condition known as chronic beryllium disease (" CBD" ). CBD occurs when the immune system mounts an attack against beryllium particles that have entered the body. The lung sacs become inflamed and fill with large numbers of white blood cells that accumulate wherever beryllium particles are found. The cells form balls around the particles called granulomas. Eventually, the lungs become scarred and lose their ability to transfer oxygen to the blood stream. This leads to shortness of breath, chronic cough, fatigue, fever, loss of appetite, and, potentially, death.

Although some scientific studies suggest there may be a relationship between the level of beryllium exposure and the likelihood of developing CBD, exposure itself appears to be insufficient because only persons who have a particular genetic " marker" -the Human Leukocyte Antigen (HLA)-DPB1 allele-can potentially recognize beryllium in the lungs as an antigen. This reaction is called beryllium sensitization (" BeS" ). The parties do not dispute that BeS is a necessary precursor to CBD. BeS itself causes no abnormal lung function and requires no treatment (i.e., it is asymptomatic). But when the reaction leads to the formation of granulomas in the lungs, BeS has progressed to CBD. Some studies show this temporal progression varies-the development of CBD in a sensitized

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person has ranged from months to several years. However, some sensitized individuals have not developed CBD, and a small percentage of them have become " desensitized."

Multiple studies have attempted to determine the percentage of the population that is genetically predisposed, or " susceptible," to CBD. The results so far are inconclusive and disputed. There are substantial disagreements between the expert opinions in these cases: Craig S. Glazer, M.D., M. S.P.H., F.C.C.P., an expert for plaintiff Gary Anthony, stated that 30-40% of the population has the genetic marker, while Lawrence H. Repsher, M.D., F.C.C.P., defendants' expert in the Anthony action, stated that only 1-3% of the overall population can become sensitized-that is, only this percentage has the genetic marker. And in another study, researchers found that 3-10% of workers exposed to occupational beryllium may develop CBD or BeS.2 Once a person is sensitized, the data also varies on the likelihood that person will develop CBD. While Dr. Glazer declared that more than 50% of individuals with BeS will develop CBD, another study found that 6-8% of persons with BeS develop CBD each year, but refused to speculate on the total progression rate from BeS to CBD.3

Because BeS is asymptomatic, scientists have developed tests to determine whether a person is sensitized. Although lung biopsies, chest x-rays, and computed axial tomography (CAT) scans of the chest can be used to diagnose BeS and CBD, the most common test for sensitization is the beryllium lymphocyte proliferation test (" BeLPT" ). Developed in its modern form in the 1980s, the BeLPT is performed by extracting lymphocytes from blood or lung lavage fluid and exposing them to beryllium. If the lymphocytes proliferate in response to beryllium, then the BeLPT is " positive," which means that the individual's immune system has begun to recognize beryllium as an antigen. Due to the risk of false positives, it is generally accepted that two positive blood BeLPTs, or one positive BeLPT performed on lung lavage fluid, are required to demonstrate sensitization. But a negative BeLPT result is not necessarily indicative of future results-the test only reflects a person's current reaction (or lack thereof) to beryllium.

In summary, the pathogenesis of CBD is as follows: (1) a person is exposed to beryllium; (2) based on exposure and one's genetic predisposition, he may develop BeS; and (3) that sensitization may (or may not) eventually lead to CBD. Although BeS is a necessary precursor to CBD, the progression rate from BeS to CBD is varied and uncertain, dependent on a multitude of factors, many of which are unknown.

B.

Beryllium was discovered in 1798, but its use in the United States can be traced back only to World War II and the Cold War era, when the United States government purchased significant quantities of the metal to produce weapons and aircraft, primarily from Brush Wellman and The Beryllium Company.4 Although the government's need for beryllium has declined,

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a private sector market has developed as manufacturers of metal-based products such as automobiles, golf clubs, bicycles, dental appliances, and computers have begun to use beryllium alloys.

As early as the 1940s, workers at beryllium plants were showing signs of CBD. Because the Atomic Energy Commission (" AEC" ) was the initial purchaser of beryllium, it developed the first safety guidelines for beryllium use. In 1949, it adopted a standard of 2 micrograms per cubic meter (‹ ‹ mu› › g/m 3) of air averaged over an eight-hour period. See Morgan v. Brush Wellman, Inc., 165 F.Supp.2d 704, 710-11 (E.D.Tenn.2001) (providing a brief...

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