926 F.2d 262 (3rd Cir. 1991), 89-1350, Hines v. Consolidated Rail Corp.

Docket Nº:89-1350.
Citation:926 F.2d 262
Party Name:Oscar HINES, Appellant, v. CONSOLIDATED RAIL CORPORATION v. GENERAL ELECTRIC COMPANY, Monsanto Company, and Penn Central Corporation.
Case Date:February 13, 1991
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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926 F.2d 262 (3rd Cir. 1991)

Oscar HINES, Appellant,




GENERAL ELECTRIC COMPANY, Monsanto Company, and Penn Central


No. 89-1350.

United States Court of Appeals, Third Circuit

February 13, 1991

Submitted Nov. 16, 1989.

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[Copyrighted Material Omitted]

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Allan Kanner, Allan Kanner & Associates, Philadelphia, Pa., for appellant.

David Richman, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appellee Consol. Rail Corp.

Harry A. Short, Jr., Liebert, Short & Hirschland, Philadelphia, Pa., John G. Kester, Williams & Connolly, Washington, D.C., for appellee General Elec. Co.

Michael H. Malin, James D. Shomper, White and Williams, Philadelphia, Pa., for appellee Monsanto Co.

Roger F. Cox, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for appellee Penn Central Corp.

Before HIGGINBOTHAM, and SCIRICA, Circuit Judges, and POLITAN, District Judge [*].


SCIRICA, Circuit Judge.

Oscar Hines filed suit against Consolidated Rail Corporation ("Conrail") under the Federal Employers' Liability Act, 45 U.S.C. Secs. 51-60 (1988) ("FELA"), alleging that negligent workplace exposure to Polychlorinated Biphenyls (PCBs) 1 and possibly other toxic chemicals during the course of his employment with Conrail caused him to develop bladder cancer and other ailments. Hines' case was transferred to the same district court judge deciding In re Paoli Railroad Yard PCB Litigation, 706 F.Supp. 358 (E.D.Pa.1988), rev'd, 916 F.2d 829 (3d Cir.1990), a related group of 21 cases consolidated for case management purposes.

Paoli involved 38 plaintiffs who alleged that their injuries resulted from exposure to PCBs either at or near the Paoli, Pennsylvania railyard, a maintenance facility for electric railcars. In contrast to this case, the plaintiffs in Paoli did not sue under FELA but instead in tort alleging that they were exposed to abnormally high levels of PCBs and that this exposure caused their injuries.

In Paoli, the district court appeared to exclude under Fed.R.Evid. 702, 703, and 403, or ascribe little weight to, most of plaintiffs' expert testimony on PCB exposure and causation and granted summary judgment for defendants. Yet the district court held that even if the excluded evidence were admitted, summary judgment would still be appropriate because of the absence of a genuine issue of material fact necessary to establish causation for a toxic tort under Pennsylvania law.

Thereafter, Conrail moved for summary judgment in this case on grounds similar to those presented in Paoli, contending, in particular, that the testimony of Hines' only expert witness, Harry Shubin, M.D., an internist, who had also testified in Paoli, was inadmissible under Fed.R.Evid. 702, 703, and 403. Furthermore, Conrail argued that even if Shubin's testimony were admissible, it would not support a prima facie case for causation because Shubin had not adequately established that Hines had been exposed to PCBs or that PCBs were a possible cause of Hines' medical problems. In response, Hines maintained that scientific evidence and judicial precedent established that PCBs are toxic, that Shubin's expert testimony demonstrated that Hines' injuries were due to PCB exposure, and that his case was different from Paoli because FELA actions are based on a

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more lenient standard of causation and negligence than ordinary tort actions.

The district court granted Conrail's motion for summary judgment in an order without opinion. 2 We held Hines' appeal C.A.V. pending our review of Paoli which we reversed and remanded.

Our reversal of Paoli was based on several factors, most particularly, the district court's failure to: 1) give plaintiffs a sufficient opportunity to present their arguments on evidentiary issues, 2) explain adequately the reasons for its rulings, 3) follow this court's established guidelines for evidentiary rulings governed by Fed.R.Evid. 702, 703, and 403, and 4) apply appropriately the test for the admissibility of novel scientific evidence under Fed.R.Evid. 702 and United States v. Downing, 753 F.2d 1224 (3d Cir.1985).

As we have noted, the district court did not supply an opinion in this case. Our analysis therefore will proceed on the reasons set forth by the district court in Paoli. On the basis of our opinion in Paoli, and additional arguments, we will reverse and remand.


Since 1964, Hines has been employed as a railway laborer, which included occasional work in the Paoli railyard. From 1964 to 1976 he was employed by the Pennsylvania Railroad and its successor, Penn Central; since 1976, by Conrail. Hines' work consisted primarily of maintaining railroad tracks both manually and with a regulator that sweeps material from the tracks and ties. During this time, Hines worked, ate, and slept in railyards and camps. In June, 1987, Hines was diagnosed as having bladder cancer. In addition, he developed chronic obstructive and restrictive lung disease and a number of other medical problems.

Hines contended that his injuries were due to his exposure to PCBs and other toxic chemicals during his work in railyards even though he had had only limited contact with the Paoli railyard. Shubin stated that this exposure resulted from the PCBs that were used as dielectric fluid in railroad car transformers and those that leaked onto track beds. Shubin also stated that Hines was affected by his inhalation of heavy dust contaminated with PCBs while he was operating a regulator. In general, then, Hines alleged that his injuries were the direct result of his employer's negligence in exposing him to PCBs from 1964 to the present and in failing to warn him of the presence of PCBs and their risks to his health.

Hines and the Paoli plaintiffs had comparable backgrounds. The Paoli plaintiffs claimed that their exposure to PCBs had resulted from having worked or resided near the Paoli railyard. Since the 1930s, the railyard, a regional maintenance facility for different rail companies, stored and disposed of PCBs that were used as dielectric fluid in the transformers on railroad cars. Thus, because PCBs have been used in the Paoli railcar transformers for decades, they "can be found in extremely high concentration at the railyard and in the ambient air and soil." Paoli, 916 F.2d at 835.

The five Paoli defendants were Monsanto Corporation, which is the country's leading manufacturer of PCBs; General Electric Company, which manufactures the transformers; Amtrak, which owned the railyard since 1976; Conrail, which operated the railyard between 1976 and 1983; the Southeastern Pennsylvania Transit Authority, which has operated the railyard since 1983; and the City of Philadelphia, which owns some of the facility's railroad cars.

The parallels between Paoli and this case will be analyzed with respect to the requirements of Fed.R.Evid. 702, 703, and

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403, and the more liberal standards of negligence and causation set forth under FELA. Although there were two FELA cases in Paoli, the FELA standard was not addressed. We emphasize that in the absence of a district court opinion, much of our discussion is based upon our projection of what the district court might have held had it followed its Paoli rationale.


  1. Evidence Submitted in Paoli

    In order to demonstrate that their personal injuries were attributed to their exposure to the PCBs in the Paoli railyard, the Paoli plaintiffs introduced, in addition to Shubin, a total of eight expert witnesses: Herbert Allen, Ph.D., a chemist; Deborah Barsotti, Ph.D., a toxicologist; Benjamin Calesnick, M.D., a pharmacologist; G. John DiGregorio, Ph.D., M.D., a clinical pharmacologist; William J. Nicholson, Ph.D., a physicist; Ian C.T. Nisbet, Ph.D., the president of a scientific consulting firm; Robert K. Simon, Ph.D., an industrial hygienist, toxicologist, and forensic analytic chemist; and Arthur Zahalsky, Ph.D., an immunologist. All experts had either an accredited Ph.D. or M.D., an established institutional affiliation, and scholarly expertise.

    Shubin's testimony alone was used for three plaintiffs. Shubin's conclusion that plaintiffs' illnesses and conditions that he had diagnosed were caused by their exposure to PCBs was based upon a number of different sources: his physical examination of the plaintiffs, their medical records and laboratory test results, "numerous published studies and reports," as well as information from the Environmental Protection Agency stating that PCB-contaminated soil had been removed from the residence of one of the plaintiffs.

    The other eight experts offered a wide range of testimony on the nature and extent of PCB exposure on plaintiffs in addition to the effect that such exposure may have on different injuries and ailments. The district court focused primarily on three sources which plaintiffs' experts used to support their testimony: 1) animal studies presumably showing the harmful effects of PCB exposure, 2) studies using data from the Yusho and Yu Cheng incidents in Japan and Taiwan, 3 and 3) experts' own opinions and research. We note the extent to which any particular test or testimony becomes relevant in our discussion of this case.

  2. Evidence Submitted in This Case

    In this case, Shubin reviewed information that was comparable to the information that he examined for his testimony in Paoli. Shubin's evaluation was derived from five different sources: 1) a medical examination of Hines, his personal and family histories; 2) various medical tests, including chest X-rays, pulmonary function studies, a coronary risk profile, arterial blood-gas studies, and a lab scan; 3) a laboratory report performed by National Medical Services that showed that Hines' "PCB fat level" was 1100 parts per billion while the norm was less than 1000 parts per billion; 4

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    4) reports...

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