In re Paoli RR Yard PCB Litigation, Civ. A. No. 86-2229
| Citation | 706 F. Supp. 358 |
| Decision Date | 28 November 1988 |
| Docket Number | Civ. A. No. 86-2229,86-4037,87-3227,87-1258,87-5269 and 87-5304.,86-7414,86-7561,87-0712,86-2669,86-2235,86-7415 to 86-7422,87-1190,87-2874,86-5886,86-5277,86-4723 |
| Parties | In re PAOLI RAILROAD YARD PCB LITIGATION. Mabel BROWN v. SEPTA, et al. BURRELL v. SEPTA, et al. CUMMINS v. SEPTA, et al. COHEN & GARON v. SEPTA, et al. THOMPSON v. SEPTA, et al. JONES v. SEPTA, et al. LAMENT v. SEPTA, et al. Christopher BROWN v. SEPTA, et al. Cathlene BROWN v. SEPTA, et al. Craig BROWN v. SEPTA, et al. BARBETTA v. SEPTA, et al. JOHNSON v. SEPTA, et al. Celeste BROWN v. SEPTA, et al. Clemmon BROWN v. SEPTA, et al. Cloyd BROWN v. SEPTA, et al. Curtis BROWN v. SEPTA, et al. INGRAM v. SEPTA, et al. KNIGHT v. SEPTA, et al. NARCISE v. SEPTA, et al. WILLIAMS v. SEPTA, et al. BUTLER v. SEPTA, et al. STANBACH v. SEPTA, et al. CUNNINGHAM v. SEPTA, et al. REID v. SEPTA, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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Arnold E. Cohen, Charlotte E. Thomas, Klehr, Harrison, Harvey, Branzburg, Ellers & Weir, Joseph C. Kohn, Kohn, Savett, Klein & Graf, D. Bruce Hanes, Philadelphia, Pa., James C. Sargent, Lamb, Windle & McErlane, West Chester, Pa., Geoffrey L. Beauchamp, Wisler, Pearlstine, Talone, Craig & Garrity, Norristown, Pa., Joseph M. Donley and Kenneth A. Roos, Kittredge, Kaufman & Donley, Philadelphia, Pa., for plaintiffs.
Roger F. Cox, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for SEPTA.
David Richman, Pepper, Hamilton & Sheetz, Philadelphia, Pa., for Conrail.
Richard A. Kraemer, Margolis, Edestein, Scherlis, Sarowitz & Kraemer, Philadelphia, Pa., for Amtrak.
Michael H. Malin, White & Williams, Philadelphia, Pa., for Monsanto.
Harry A. Short, Liebert, Short, Fitzpatrick & Hirshland, Philadelphia, Pa., for G.E.
Denise D. Colliers, Deputy City Sol., Philadelphia, Pa., for City of Philadelphia.
This memorandum is written in disposition of three summary judgment motions filed by the defendants in these actions. FACTS
Since the 1930s, the twenty-three acre Paoli railyard has been a regional maintenance facility for various rail companies. The railyard was owned and operated by the Pennsylvania Railroad and its successor, the Penn Central Transportation Company, until 1976. Defendant Amtrak has owned the site since 1976. Between 1976 and 1983, the facility was operated by defendant, Conrail, as part of the commuter rail service that it operated during this period. Since 1983 defendant SEPTA has operated the railyard.
Throughout this period, the various railroads stored, handled and disposed of PCBs (polychlorinated biphenyls) that were used as dielectric fluid in the transformers on railroad cars. Defendant City of Philadelphia owned some of these railroad cars. Defendant General Electric manufactured and supplied the electrical transformers that contained PCBs. Defendant Monsanto was the only company that produced PCBs for the American market.
SEPTA no longer uses PCB fluid in its railcar transformers. However, the long-term presence and leakage of PCBs at the site caused various levels of PCB contamination at the yard and in the surrounding neighborhoods. The Environmental Protection Agency has implemented temporary measures designed to prevent the migration of PCBs through soil and water into residential and commercial areas adjacent to the yard. At the present time, the area is the site of a Superfund effort pursuant to 42 U.S.C. §§ 9606 and 9607 designed to remove the PCB contamination from the railyard and the surrounding neighborhood.
The plaintiffs in this action have all filed suit seeking "response costs" under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607(a), which brings this case within the federal question jurisdiction of this court. The plaintiffs in these cases with motions presently before the court have state law personal injury actions as pendent claims. Most of these plaintiffs are or were residents of the neighborhood surrounding the railyard. In three of the cases, workers at the yard or their estates are plaintiffs.
On July 28, 1987, the defendants in this action moved that the court issue a case management order. The defendants argued that all of the plaintiffs had failed to answer expert interrogatories or to provide any discovery to substantiate their claim that PCBs released by the defendants had caused them personal injury. The defendants argued that the discovery process should be held in abeyance until the plaintiffs demonstrated that they had injuries caused by defendants' release of PCBs. The plaintiffs answered that there should be no halt in the general discovery process and that information held by the defendants would be useful to them in proving that defendants caused them injury. On September 24, 1987, the court issued a case management order that allowed the plaintiffs a ninety (90) day period in which to engage in discovery efforts "directed to reveal the quantity and nature of the PCBs used at the Paoli railyard and the health effects on defendants' employees of exposure to PCBs," which information the plaintiffs had asserted would allow their experts to give an opinion as to causation. After that, the defendants were to have ninety (90) days in which to engage in discovery "directed to reveal whether the plaintiffs have suffered personal injury and whether the injury is caused by exposure to PCBs caused by the defendants."
The case management order stated that "all summary judgment motions to be made by defendants are to be filed by April 21, 1988." Because of the plaintiffs' failure to supply all of the discovery by the deadline of the case management order and because the court granted the defendants' motion to allow the deposition of plaintiffs' expert witnesses, this date was extended to July 8, 1988. The purpose of the case management order was to allow the plaintiffs to discover all that they said they needed to know in order to establish causation, to allow the defendants to discover from plaintiffs' experts the basis of their conclusion that defendants' actions caused plaintiffs' injuries, and to allow the defendants to seek summary judgment on the basis that plaintiffs' evidence produced in discovery was insufficient as a matter of law to prove that defendants caused plaintiffs' injuries.
During the period of discovery under the case management order, the parties engaged in numerous disputes over discovery matters and some plaintiffs filed a motion to dismiss without prejudice.
Because which experts a plaintiff has depends on which attorney represents that person, it is convenient to divide the plaintiffs into groups according to who represents them.
In ten cases, plaintiffs are represented by Kohn, Savett, Klein and Graf, P.C. (Harold E. Kohn and Joseph C. Kohn) or Klehr, Harrison, Harvey, Branzburg, Ellers & Weir (Arnold E. Cohen and Charlotte Thomas). In nine of those cases, plaintiffs answered discovery with the reports of three experts:
In the case of Cunningham v. SEPTA, 87-5269, the expert report was by Harry Shubin, M.D. who reported that a number of diseases of the two persons involved in the case were caused by PCBs.
In the nine cases with D. Bruce Hanes as plaintiffs' attorney, G. John DiGregorio, M.D. reported that the plaintiffs have a fear of future harm and an increased risk of future harm. Dr. DiGregorio also stated that certain laboratory results, such as elevated triglycerides and cholesterol and such complaints as insomnia and irritability, were due to PCBs.
Other plaintiffs made no response to discovery under the case management order.
As contemplated by the case management order, a number of summary judgment motions and answers thereto were filed by the parties and these are listed below:
July 8, 1988 Defendants' Joint Motion for Summary Judgment on Causation
July 8, 1988 Motion of Defendant, Septa, for Summary Judgment (Arguing that Pennsylvania law requires notice to a state agency six months after a cause of action accrues.)
August 8, 1988 Answer of William Reid to Motion of SEPTA for Summary Judgment (Case NO. 87-5304 Lamb, Windle & McErlane, P.C., James C. Sargant, Attorney)
August 8, 1988 Response of Plaintiffs to the Defendants' Joint Motion for Summary Judgment and Motion of the Plaintiffs for Leave to Amend their Complaint
August 8, 1988 Plaintiffs' Response to Defendants' Joint Motion for Summary Judgment on Causation (Butler v. SEPTA, 87-2874)
August 18, 1988 Defendants' Joint Response to Motion of Plaintiffs for Leave to Amend their Complaint (Butler v. SEPTA, 87-2874)
August 22, 1988 Answer of William Reid to Defendants' Joint Motion for Summary Judgment for Failure to Produce Evidence and under the Bar of the Statute of Limitations (87-5304)
August 22, 1988 Plaintiffs' Memorandum in Opposition to Defendants' Joint Motion for Summary Judgment on Causation (Kohn, Savett, Klein & Graf and Klehr, Harrison, Harvey, Branzburg, Ellers and...
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