In re TMI Litigation, Nos. 96-7623

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation193 F.3d 613
Decision Date27 June 1997
Parties(3rd Cir. 1999) IN RE: TMI LITIGATION LORI DOLAN; JOSEPH GAUGHAN; RONALD WARD; ESTATE OF PEARL HICKERNELL; KENNETH PUTT; ESTATE OF ETHELDA HILT; PAULA OBERCASH; JOLENE PETERSON; ESTATE OF GARY VILLELLA; ESTATE OF LEO BEAM, APPELLANTS NO. 96-7623 IN RE: TMI LITIGATION ALL PLAINTIFFS EXCEPT LORI DOLAN, JOSEPH GAUGHAN, RONALD WARD, ESTATE OF PEARL HICKERNELL, KENNETH PUTT, ESTATE OF ETHELDA HILT, PAULA OBERCASH, JOLENE PETERSON, ESTATE OF GARY VILLELLA AND ESTATE OF LEO BEAM, APPELLANTS NO. 96-7624 IN RE: TMI LITIGATION ALL PLAINTIFFS; ARNOLD LEVIN; LAURENCE BERMAN; LEE SWARTZ APPELLANTS NO. 96-7625 /7624/7625 ARGUED:
Docket NumberNos. 96-7623

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193 F.3d 613 (3rd Cir. 1999)
IN RE: TMI LITIGATION
LORI DOLAN; JOSEPH GAUGHAN; RONALD WARD; ESTATE OF PEARL HICKERNELL; KENNETH PUTT; ESTATE OF ETHELDA HILT; PAULA OBERCASH; JOLENE PETERSON; ESTATE OF GARY VILLELLA; ESTATE OF LEO BEAM, APPELLANTS NO. 96-7623
IN RE: TMI LITIGATION
ALL PLAINTIFFS EXCEPT LORI DOLAN, JOSEPH GAUGHAN, RONALD WARD, ESTATE OF PEARL HICKERNELL, KENNETH PUTT, ESTATE OF ETHELDA HILT, PAULA OBERCASH, JOLENE PETERSON, ESTATE OF GARY VILLELLA AND ESTATE OF LEO BEAM, APPELLANTS NO. 96-7624
IN RE: TMI LITIGATION
ALL PLAINTIFFS; ARNOLD LEVIN; LAURENCE BERMAN; LEE SWARTZ APPELLANTS NO. 96-7625
Nos. 96-7623/7624/7625
U.S. Court of Appeals, Third Circuit
ARGUED: June 27, 1997
Opinion filed November 02, 1999

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (Civil No. 88-cv-01452) (District Judge: Honorable Sylvia H. Rambo)

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Arnold Levin, Esq. Laurence S. Berman, Esq. (Argued) Craig D. Ginsburg, Esq. Levin, Fishbein, Sedran & Berman 510 Walnut Street, Suite 500 Philadelphia, PA 19106

Lee C. Swartz, Esq. Hepford, Swartz & Morgan 111 North Front Street P.O. Box 889 Harrisburg, PA 17108 Attorneys for Appellants in No. 96-7623/7624/7625

Lou Tarasi, Esq. Tarasi & Johnson, P.C. 510 Third Avenue Pittsburgh, PA 15129 Of Counsel for Certain Appellants Identified in the Entry of Appearance in Appeal No. 96-7624/7625

Stephen A. Saltzburg, Esq. (Argued) Howrey Professor of Trial Advocacy, Litigation and Professional Responsibility George Washington Law School 720 20th Street, N.W. Washington, D.C. 20052 Of Counsel for Appellants in No. 96-7623/7624/7625

Daniel J. Capra, Esq. Reed Professor of Law Fordham University School of Law Lincoln Center 140 West 62nd Street New York, NY 10023 Of Counsel for Certain Appellants Identified in the Entry of Appearance in Appeal No. 96-7625

A.H. Wilcox, Esq. (Argued) Ellen K. Scott, Esq. (Argued) Eric J. Rothschild, Esq. (Argued) Pepper, Hamilton & Scheetz, Llp 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Lewis S. Kunkel, Jr., Esq. Thomas B. Schmidt, III, Esq. Pepper, Hamilton & Scheetz Llp 200 One Keystone Plaza North Front & Market Streets P.O. Box 1181 Harrisburg, PA 17108 Attorneys for Appellees in Nos. 96-7623/7624/7625

Reuben A. Guttman, Esq. Provost & Umphrey 1350 New York Avenue, N.W. Suite 1040 Washington, D.C. 20005

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Ned Miltenberg, Esq. Associate General Counsel Association of Trial Lawyers of America ("atla") 1050 31st Street, N.W. Washington, D.C. 20007 Amicus Curiae, Association of Trial Lawyers of America ("atla"), in Support of Appellants

Before: Greenberg and McKEE, Circuit Judges, and Greenaway, District Judge*

 TABLE OF CONTENTS
                I. INTRODUCTION 622
                II. PROCEDURAL HISTORY 623
                III. SCIENTIFIC BACKGROUND 629
                 A. Overview of Relevant Principles of Nuclear Physics 629
                 1. Atomic and Nuclear Structure 629
                 2. Radioactivity 632
                 3. Ionizing Radiation 634
                 4. Radiation Quantities and Units 636
                 5. Health Effects of Ionizing Radiation 638
                 i. Deterministic Effects 640
                 ii. Stochastic Effects 642
                 6. Radiation in the Environment 644
                 i. Natural Radiation 644
                 ii. Man-made Radiation 647
                IV. NUCLEAR ENGINEERING 648
                 A. Nuclear Reaction 648
                 B. The Operation of Nuclear Power Plant 651
                 C. Barriers to Release of Radioactive Materials into the Environment 655
                V. THE ACCIDENT AND ITS AFTERMATH 655
                 A. The Accident at TMI-2 655
                 B. Radioactive Materials Released to the Environment 657
                 C. Pathways of Exposure to Radioactive Materials 658
                VI. LEGAL DISCUSSION 659
                 A. The Trial Plaintiffs' Appeal 659
                 1. Background 659
                 2. Standards Governing the Admissibility of Scientific Evidence 662
                 3. Trial Plaintiffs' Dose Exposure Expert Witnesses 666
                 i. Ignaz Vergeiner 666
                 a. Qualifications 666
                 b. Vergeiner's Opinion. 667
                 c. Discussion and Conclusions 667
                 ii. Charles Armentrout and Victor Neuwirth 672
                 a. Qualifications 672
                 b. Armentrout's Observations and Experiences 672
                 c. Discussion and Conclusion 673
                 d. Neuwirth's Soil Sample Analyses and Armentrout's Dose
                 Estimates. 674
                 e. Discussion and Conclusion 675
                 iii. James Gunckel 677
                 a. Qualifications 677
                 b. Gunckel's Opinion 678
                 c. Discussion and Conclusions 680
                 iv. Vladimir Shevchenko 683
                 a. Qualifications 683
                 b. Shevchenko's Tree Study 684
                 c. Discussion and Conclusions 686
                 d. The Cytogenetic Analysis 688
                 e. Discussion and Conclusions 690
                 v. Gennady Kozubov 693
                

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 a. Qualifications 693
                 b. Kozubov's Opinion 693
                 c. Discussion and Conclusions 694
                 vi. Olga Tarasenko 695
                 a. Qualifications 695
                 b. Tarasenko's Opinion 695
                 c. Discussion and Conclusions 697
                 vii. Bruce Molholt 698
                 a. Qualifications 698
                 b. Molholt's Opinions 699
                 c. Discussion and Conclusions 701
                 viii. Sigmund Zakrzewski 704
                 a. Qualifications 704
                 b. Zakrzewski's Opinion 704
                 c. Discussion and Conclusions 705
                 ix. Theodor Sterling 706
                 a. Qualifications 706
                 b. Sterling's Opinion 706
                 c. Discussion and Conclusions 707
                 x. Steven Wing 708
                 a. Qualifications 708
                 b. Wing's Mortality Study 709
                 c. Discussion and Conclusions 710
                 d. Wing's Cancer Incidence Study 711
                 e. Discussion and Conclusions 712
                 xi. Douglas Crawford-Brown 713
                 a. Qualifications 713
                 b. Crawford-Brown's Opinion 714
                 c. Discussion and Conclusions 714
                 4. Effect of the Exclusion of Wing's Lung Cancer Testimony 716
                 5. Exclusion of Experts' Submissions as Untimely 717
                 6. Conclusion 722
                 B. The Non-Trial Plaintiffs' Appeal 723
                 C. The Monetary Sanctions Appeal 728
                 D. Reassignment Upon Remand 728
                VII. CONCLUSION 729
                
OPINION OF THE COURT

I. INTRODUCTION

These three appeals arise out of the nuclear reactor accident which occurred on March 28, 1979, at Three Mile Island in Dauphin County, Pennsylvania.1 Two of the appeals concern the personal injury claims of more than 2,000 Three Mile Island area residents who allege that they have developed neoplasms2 as a result of the radiation released into the environment as a result of the reactor accident. The first appeal is that of a group of ten trial plaintiffs who were selected by the parties after the District Court adopted the plaintiffs' case management order, which called for a "mini-trial" of the claims of a group of "typical" plaintiffs (the "Trial Plaintiffs"). The critical issue there is the

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trial plaintiffs' ability to demonstrate that they were exposed to doses of radiation sufficient to cause their neoplasms. Proof of that causation depended on the admissibility of the testimony of several experts that the Trial Plaintiffs retained. These experts attempted to testify about the amount of radiation released into the environment by the nuclear reactor accident, and thereby correlate the plaintiffs' neoplasms to that accident.

Defendants challenged the admissibility of the experts' testimony and the District Court was therefore required to hold extensive in limine hearings pursuant to its "gatekeeping" role under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Following those hearings, the court excluded the overwhelming majority of the Trial Plaintiffs' proposed expert testimony as to dose exposure. Following the exclusion of the dose exposure testimony, the defendants moved for summary judgment alleging that Trial Plaintiffs could not establish causation absent the excluded expert testimony regarding dose.

The District Court agreed and held that, as a result of its rulings under Daubert, Trial Plaintiffs were unable to connect their neoplasms to the TMI accident. Accordingly, the court granted summary judgment in favor of defendants and against the Trial Plaintiffs. In re TMI Litigation Consolidated Proceedings, 927 F. Supp. 834 (M.D. Pa. 1996). The District Court then reasoned that its Daubert rulings would be binding on all of the other plaintiffs, i.e., the Non-Trial Plaintiffs, if there were evidentiary issues common to all plaintiffs, Id. at 837. Therefore, the court therefore extended its Trial Plaintiff summary judgment decision to the Non-Trial Plaintiffs, and granted summary judgment to the defendants on all of the claims of the approximately 2,000 remaining TMI personal injury plaintiffs. The propriety of that extension is the subject of the second appeal.

The third and last appeal concerns the propriety of the District Court's imposition of monetary sanctions against certain of the plaintiffs' counsel for violations of pre-trial discovery requirements and orders. The sanctioned counsel have requested that the TMI personal injury litigation be reassigned to another trial Judge upon remand, if we reverse the District Court in either or both of the first two appeals.

For the reasons that follow, we will affirm the grant of summary judgment to the defendants on the claims of the Trial Plaintiffs (No. 96-7623). We will, however, reverse the grant of summary judgment to the defendants on the claims of the Non-Trial Plaintiffs (No. 96-7624), but we will affirm the imposition of monetary sanctions and deny the request for reassignment (No. 96-7625).

II. PROCEDURAL HISTORY3

On March 28, 1979, radioactive materials were released into the environment as the result of an accident which occurred at Unit 2 of the Three Mile Island nuclear power generating station in Dauphin County ("TMI-2"). Three Mile Island is a small island in the Susquehanna River, approximately fifteen miles downstream from Harrisburg, Pennsylvania. Following the accident, thousands of personal injury and other non-personal injury claims4 were filed against the owners and operators of the nuclear facility.5

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As noted, more than 2,000 plaintiffs filed claims for personal injuries6 purportedly caused by exposure to the radioactive materials released during the accident....

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  • EST. OF GEORGE v. LEAGUE OF CITIES & TOWNS, No. 08-374.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 15, 2010
    ...522 U.S. at 145-46, 118 S.Ct. 512 (evaluating reliability of epidemiological data based on statistical significance); In re TMI Litig., 193 F.3d 613, 711-12 (3d Cir.1999) (finding epidemiology study unreliable because results not statistically significant)). Indeed, the Daubert II court fou......
  • Funderburk v. S.C. Elec., Civil Case No.: 3:15-cv-04660-JMC
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 23, 2019
    ...opinions of the experts he relied upon" and not just show an "unblinking reliance" upon the opinions of other experts. In re TMI Lit. , 193 F.3d 613, 716 (3d Cir. 1999). This is so because "[a]n expert is not entitled to testify to opinions that rely on the opinion of another expert, simply......
  • United States v. Georgiou, Nos. 10–4774
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 20, 2015
    ...law[,] or an improper application of law to fact.’ ” Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.2008) (quoting In re TMI Litig., 193 F.3d 613, 666 (3d Cir.1999)). “A new trial should be ordered only when substantial prejudice has occurred,” United States v. Armocida, 515 F.2d 29, 4......
  • United States v. Georgiou, Nos. 10–4774
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 20, 2015
    ...law[,] or an improper application of law to fact.’ ” Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.2008) (quoting In re TMI Litig., 193 F.3d 613, 666 (3d Cir.1999) ).“A new trial should be ordered only when substantial prejudice has occurred,” United States v. Armocida, 515 F.2d 29, 4......
  • Request a trial to view additional results
617 cases
  • EST. OF GEORGE v. LEAGUE OF CITIES & TOWNS, No. 08-374.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 15, 2010
    ...522 U.S. at 145-46, 118 S.Ct. 512 (evaluating reliability of epidemiological data based on statistical significance); In re TMI Litig., 193 F.3d 613, 711-12 (3d Cir.1999) (finding epidemiology study unreliable because results not statistically significant)). Indeed, the Daubert II court fou......
  • Funderburk v. S.C. Elec., Civil Case No.: 3:15-cv-04660-JMC
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • July 23, 2019
    ...opinions of the experts he relied upon" and not just show an "unblinking reliance" upon the opinions of other experts. In re TMI Lit. , 193 F.3d 613, 716 (3d Cir. 1999). This is so because "[a]n expert is not entitled to testify to opinions that rely on the opinion of another expert, simply......
  • United States v. Georgiou, Nos. 10–4774
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 20, 2015
    ...law[,] or an improper application of law to fact.’ ” Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.2008) (quoting In re TMI Litig., 193 F.3d 613, 666 (3d Cir.1999)). “A new trial should be ordered only when substantial prejudice has occurred,” United States v. Armocida, 515 F.2d 29, 4......
  • United States v. Georgiou, Nos. 10–4774
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 20, 2015
    ...law[,] or an improper application of law to fact.’ ” Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.2008) (quoting In re TMI Litig., 193 F.3d 613, 666 (3d Cir.1999) ).“A new trial should be ordered only when substantial prejudice has occurred,” United States v. Armocida, 515 F.2d 29, 4......
  • Request a trial to view additional results

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