Abuan v. General Elec. Co.

• Decision Date: 26 August 1993
• Docket Number: 92-15662,Nos. 92-15476,s. 92-15476
• Citation: 3 F.3d 329
• Parties: , Prod.Liab.Rep.(CCH)P 13,632 Bartolome E. ABUAN, et al., Plaintiff-Appellant, v. GENERAL ELECTRIC CO.; Monsanto Company, Defendants-Appellees. Bartolome E. ABUAN, et al., Plaintiff-Appellee, v. GENERAL ELECTRIC CO., Defendant, and Monsanto Company, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 329

3 F.3d 329

62 USLW 2168, Prod.Liab.Rep.(CCH)P 13,632

Bartolome E. ABUAN, et al., Plaintiff-Appellant, v. GENERAL ELECTRIC CO.; Monsanto Company, Defendants-Appellees.

Bartolome E. ABUAN, et al., Plaintiff-Appellee, v. GENERAL ELECTRIC CO., Defendant, and Monsanto Company, Defendant-Appellant.

Nos. 92-15476, 92-15662.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 15, 1993.

Decided Aug. 26, 1993.

Alan C. Milstein, Leon H. Rose, Sherman, Silverstein, Kohl, Rose & Podolsky, Pennsauken, NJ, for appellants-cross-appellees.

Steven R. Kuney, Mark A. Grannis, Williams & Connolly, Washington, DC, and John E. Moore, Thomas L. Roberts, Moore, Ching, Boertzel & Lawlor, Agana, Guam, for appellee General Elec. Co.

Charles F. Preuss, Vernon I. Zvoleff, Preuss, Walker & Shanagher, Jose H. Garcia, Bronson, Bronson & McKinnon, San Francisco, CA, and J. Bradley Klemm, Klemm, Blair, Sterling & Johnson, Agana, Guam, for appellee-cross-appellant Monsanto Co.

Appeal from the United States District Court for the District of Guam.

Before: WALLACE, Chief Judge, and D.W. NELSON and O'SCANNLAIN, Circuit Judges.

D.W. NELSON, Circuit Judge:

In May of 1987, an electrical transformer ruptured at the Piti Power Plant on the United States Naval Base in Guam, releasing a variety of toxic chemicals. Appellant Bartolome Abuan and a similarly situated class of plaintiffs ("Plaintiffs") sued General Electric Company ("GE") and Monsanto Company ("Monsanto") for injuries arising from the accident. The district court granted defendants' motions for summary judgment. Plaintiffs appeal from the grant of summary judgment, and Monsanto cross-appeals the district court's denial of its motion to dismiss for lack of personal jurisdiction. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Until the late 1970's, Monsanto manufactured chemicals known as polychlorinated biphenyls ("PCBs"). GE purchased PCBs from Monsanto in order to produce Pyranol, a fire-resistant dielectric fluid, which GE then used as insulation in electrical transformers and other devices. In 1949, GE sold one of its transformers to the Navy and delivered it to Guam, where it was used at the Piti Power Plant. The junction box on the transformer ruptured on May 26, 1987, releasing its contents and allegedly exposing Plaintiffs to PCBs and other toxic chemicals. The Navy immediately instituted a cleanup program using local workers. Following the incident, the Navy established a medical surveillance program for workers who might have been exposed to the spill. ¹ Plaintiffs include workers who were allegedly exposed to the chemicals during the accident or the cleanup.

The Guam legislature subsequently authorized funding for suits by the workers against the United States, GE, and Monsanto. PCB Recovery Fund Act of 1989, Pub.L. No. 20-32, 9 Guam Sess.Laws 166. The legislature also enacted the Toxic Substances Exposure Compensation Act ("TSECA"), 10 Guam Code.Ann. Sec. 41101-07, to facilitate recovery for individuals injured by exposure to toxic substances. Plaintiffs brought suit against GE and Monsanto, alleging that they had been exposed to PCBs, dioxins, and furans as a result of the accident and requesting relief on grounds of negligence and outrageous conduct, strict products liability, breach of warranty, civil conspiracy, and violations of TSECA. ²

A class was certified on October 16, 1989. Monsanto's motion to dismiss for lack of personal jurisdiction was denied on April 20, 1990, Abuan v. General Elec. Co., 735 F.Supp. 1479 (D.Guam 1990), and we denied Monsanto's petition for an interlocutory appeal. The district court entered a Scheduling Order on October 1, 1990, which provided:

4. By January 31, 1991, each claimant shall file and serve on defendants all medical and scientific opinions of experts, based on a reasonable degree of medical or scientific certainty and expressed in report form, supporting each claimant's claim that he or she was exposed to a sufficient level of PCBs, PCDFs and/or dioxins as a result of the Piti Power Plant incident to require future medical monitoring of said claimant and that such exposure placed claimant at increased risk of future injury, illness or disease.

Several claimants were subsequently dismissed for failing to be deposed or to answer interrogatories.

Defendants brought three separate summary judgment motions against the remaining class members. The district court granted the first two motions, finding that Plaintiffs had failed to demonstrate: (1) sufficient evidence of exposure which placed them at an increased risk of future illness, injury, or disease; and (2) present physical injury, which was an essential element of Plaintiffs' common law claims. ³ Plaintiffs timely appealed, and Monsanto timely cross-appealed.

ANALYSIS

We review a district court's grant of summary judgment de novo. F.D.I.C. v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992).

"The evidence must be viewed in the light most favorable to the nonmoving party to determine whether there are any genuine issues of material fact for trial, and whether the district court correctly applied the relevant substantive law." Id. Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The analysis in this case is complicated by the fact that there are no reported Guam cases on point. However, where "there is a substantial body of legal authority under which affirmance is indicated, and in the absence of any indication that the local courts would reject that authority," we may affirm. Chase Manhattan Bank, N.A. v. Gems-By-Gordon, Inc., 649 F.2d 710, 713 (9th Cir.1981). For this reason, we will look to the current trends in toxic tort jurisprudence to guide our analysis.

The district court found that Plaintiffs had failed to comply with the requirements of paragraph four of the Scheduling Order in that they had not introduced expert opinions, based on a reasonable degree of medical or scientific certainty, that they had been exposed to a sufficient level of toxic substances to succeed on their claims. The district court found that Plaintiffs' expert reports failed to comply with relevant legal standards and "admittedly ma[de] no attempt to indicate that any individual plaintiff was exposed to a sufficient level of toxins to justify future medical monitoring or conclude that a plaintiff faced an increased likelihood of future injury, illness, or disease due to exposure." In short, the district court found that Plaintiffs failed to introduce expert evidence sufficient to demonstrate the requisite proximate cause. After reviewing the reports, we agree.

I. Expert Opinions

Before we turn to the sufficiency of the evidence regarding exposure, a brief summary of the expert reports is required. Plaintiffs rely heavily on the reports of Dr. Robert J. Rutman, a professor of biochemistry and molecular biology, and Dr. Ronald Brecher, a toxicologist. Additional information regarding exposure was contained in the GAO Report.

Dr. Rutman submitted a cursory two-page preliminary report stating that in his opinion the Plaintiffs had been exposed to PCBs, PCDFs, PCDDs and/or CBs as a result of the accident, had an increased risk of future injury or illness, and required medical monitoring to detect possible adverse effects. Dr. Rutman's final report explained the potential toxic effects of exposure to the chemicals contained in transformer oils. He described in general terms the conditions of exposure at the Plant, but did not address the relative exposures of the different members of the plaintiff class.

All cases of exposure to these carcinogenic chemicals inexorably lead to physical injury taking the form of present cellular damage to the genetic material (DNA). In my opinion, the available data show, to a reasonable degree of scientific certainty, that the Plaintiffs have sustained such physical injury to their cells. It is also my opinion that the exposures sustained by Plaintiffs and responsible for this physical damage have significantly increased their risk of cancer, birth defects and other toxic effects, such [as] hepatic dysfunction and abnormal immune system function.

An appropriate regimen of regular medical surveillance based on a scientifically designed schedule of examination and testing would seem to be fully justified....

In his deposition, Dr. Rutman testified that he was "interested in producing ... [a] ballpark statement of whether these people had seen a negligible amount of chemical contamination or something which was substantial and therefore had to be considered. I would not even begin to say that that told me what the actual exposure was." He also opined that "we would reduce the cancer rate by something close to 50 percent if there were adequate monitoring of the entire population for early cancer ..." (emphasis added).

Dr. Brecher's report described the results of various samples taken at the Plant after [I]t is probable that anyone involved in the cleanup operation, or other related duties in the Piti Power Plant, from the time of the incident until December 28, 1987 or later was exposed to any chemicals present in the transformer oil. This exposure would have occurred both through inhalation and through the skin.

the accident, as well as the possible toxic effects of such exposure. Dr. Brecher stated:

Dr. Brecher's report broke the plaintiff class into several categories. Each section reiterated how the individual plaintiffs claimed to have been exposed to chemicals from the transformer, and almost every section concluded:

Based on the foregoing, my review of the plaintiffs' answers to interrogatories, questionnaires, personal statements and other documents...