Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-12-1997

In Re Paoli Railroad v.
Precedential or Non-Precedential:

Docket 95-2098




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Recommended Citation
"In Re Paoli Railroad v." (1997). 1997 Decisions. Paper 101.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/101


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Filed May 12, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 95-2098

IN RE: PAOLI RAILROAD YARD PCB LITIGATION

MABEL BROWN, Individually and on behalf of all others
similarly situated

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY ("SEPTA"); NATIONAL RAILROAD
PASSENGER CORPORATION ("AMTRAK"); AND
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; ROY F. WESTON, INC.;
and OH MATERIALS COMPANY; and GENERAL ELECTRIC
COMPANY; and THE BUDD COMPANY; and
WESTINGHOUSE ELECTRIC CORPORATION; and
MONSANTO CO.; PENN CENTRAL CORPORATION
(D.C. Civil No. 86-cv-02229)

GEORGE ALBERT BURRELL; and PRISCILLA ETHERIDGE
BURRELL, in their own right, and GEORGE ALBERT
BURRELL and PRISCILLA ETHERIDGE BURRELL, as
parents and natural guardian of AMBER SHARDAI
BURRELL, a minor, and GEORGE ALBERT BURRELL, as
parent and natural guardian of ANDRE WALKER, a
minor, and PRISCILLA ETHERIDGE BURRELL, as parent
and natural guardian of BOBBY GEORGE ALBERT
CHRISTIAN BURRELL, a minor

v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY ("SEPTA"); and NATIONAL RAILROAD
PASSENGER CORPORATION ("AMTRAK") and
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; MONSANTO COMPANY;
GENERAL ELECTRIC COMPANY; THE BUDD COMPANY;
WESTINGHOUSE ELECTRIC CORPORATION

v.

PENN CENTRAL CORPORATION
(D.C. Civil No. 86-cv-02235)

K. LOUISE JONES, ADMINISTRATRIX OF THE ESTATE
OF HARVEY N. JONES, JR., DECEASED; and K. LOUISE
JONES, AS PERSONAL REPRESENTATIVE OF HARVEY N.
JONES, JR., and K. LOUISE JONES, IN HER OWN RIGHT

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY ("SEPTA"); NATIONAL RAILROAD
PASSENGER CORPORATION ("AMTRAK"); CONSOLIDATED
RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; CITY OF PHILADELPHIA;
MONSANTO COMPANY; GENERAL ELECTRIC COMPANY;
THE BUDD COMPANY; and WESTINGHOUSE ELECTRIC
CORPORATION; PENN CENTRAL CORPORATION
(D.C. Civil No. 86-cv-05277)

JAMES LAMENT, individually and on behalf of all others
similarly situated

v.

SEPTA; AMTRAK; and CONRAIL

v.

                  2
PENN CENTRAL CORPORATION; UNITED STATES OF
AMERICA: CITY OF PHILADELPHIA

v.

MONSANTO CO.; GENERAL ELECTRIC CO.; BUDD CO.;
and WESTINGHOUSE ELECTRIC CORP.
(D.C. Civil No. 86-cv-05886)

CHRISTOPHER S. BROWN;
JACQUELINE MICHELL BROWN, h/w

v.

MONSANTO COMPANY; SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY ("SEPTA"); NATIONAL
RAILROAD PASSENGER CORPORATION; CONSOLIDATED
RAIL CORPORATION ("CONRAIL")

v.

PENN CENTRAL CORPORATION; UNITED STATES OF
AMERICA; CITY OF PHILADELPHIA; GENERAL ELECTRIC
CO.; THE BUDD COMPANY; WESTINGHOUSE ELECTRIC
CORPORATION
(D.C. Civil No. 86-cv-07414)

CATHLENE BROWN

v.

MONSANTO COMPANY; SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY ("SEPTA"); NATIONAL
RAILROAD PASSENGER CORPORATION ("AMTRAK");
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; CITY OF PHILADELPHIA;
GENERAL ELECTRIC COMPANY; THE BUDD COMPANY;
WESTINGHOUSE ELECTRIC CORPORATION

v.

PENN CENTRAL CORPORATION
(D.C. Civil No. 86-cv-07415)

              3
CRAIG A. BROWN; and CATHERINE D. BROWN, h/w

v.

MONSANTO COMPANY; SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY ("SEPTA"); NATIONAL
RAILROAD PASSENGER CORPORATION ("AMTRAK"); AND
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; PENN CENTRAL
CORPORATION; and CITY OF PHILADELPHIA; GENERAL
ELECTRIC CO.; THE BUDD CO.; and WESTINGHOUSE
ELECTRIC CORP.
(D.C. Civil No. 86-cv-07416)

MARGHERITA BARBETTA

v.

MONSANTO COMPANY; SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY ("SEPTA"); NATIONAL
RAILROAD PASSENGER CORPORATION ("AMTRAK"); and
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; and CITY OF
PHILADELPHIA; THE GENERAL ELECTRIC COMPANY;
and THE BUDD COMPANY; and WESTINGHOUSE
ELECTRIC CORPORATION

v.

PENN CENTRAL CORPORATION
(D.C. Civil No. 86-cv-07417)

MARY RETTA JOHNSON

v.

MONSANTO COMPANY; SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY ("SEPTA"); NATIONAL
RAILROAD PASSENGER CORPORATION ("AMTRAK") and
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

              4
UNITED STATES OF AMERICA; THE CITY OF
PHILADELPHIA; and GENERAL ELECTRIC COMPANY;
THE BUDD COMPANY; and WESTINGHOUSE ELECTRIC
CORPORATION; and PENN CENTRAL CORP.
(D.C. Civil No. 86-cv-07418)

CELESTE BROWN

v.

MONSANTO COMPANY; SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY ("SEPTA"); NATIONAL
RAILROAD PASSENGER CORPORATION ("AMTRAK"); and
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; CITY OF PHILADELPHIA;
and GENERAL ELECTRIC COMPANY; THE BUDD
COMPANY; WESTINGHOUSE ELECTRIC CORPORATION
(D.C. Civil No. 86-cv-07419)

CLEMMON L. BROWN

v.

MONSANTO COMPANY; SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY ("SEPTA"); NATIONAL
RAILROAD PASSENGER CORPORATION ("AMTRAK"); and
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; CITY OF PHILADELPHIA;
and GENERAL ELECTRIC COMPANY; THE BUDD
COMPANY; and WESTINGHOUSE ELECTRIC
CORPORATION; and PENN CENTRAL CORPORATION
(D.C. Civil No. 86-cv-07420)

              5
CLOYD H. BROWN

v.

MONSANTO COMPANY; SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY ("SEPTA"); NATIONAL
RAILROAD PASSENGER CORPORATION ("AMTRAK"); and
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; CITY OF PHILADELPHIA;
GENERAL ELECTRIC COMPANY; THE BUDD COMPANY;
WESTINGHOUSE ELECTRIC CORPORATION; PENN
CENTRAL CORPORATION
(D.C. Civil No. 86-cv-07421)

CURTIS BROWN

v.

MONSANTO COMPANY; SOUTHEASTERN PENNSYLVANIA
TRANSPORTATION AUTHORITY ("SETPA"); NATIONAL
RAILROAD PASSENGER CORPORATION ("AMTRAK"); and
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; CITY OF PHILADELPHIA;
GENERAL ELECTRIC COMPANY; and THE BUDD
COMPANY; and WESTINGHOUSE ELECTRIC COMPANY;
PENN CENTRAL CORP.
(D.C. Civil No. 86-cv-07422)

JOHN INGRAM SR. and PATRICIA INGRAM, in their own
right and as parents and natural guardians of JOHN
INGRAM JR.; and APRIL INGRAM, in her own right

v.

               6
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY ("SEPTA"); and NATIONAL RAILROAD
PASSENGER CORPORATION ("AMTRAK"); and
CONSOLIDATED RAIL CORPORATION ("CONRAIL"); and
MONSANTO COMPANY ("MONSANTO"); and GENERAL
ELECTRIC COMPANY ("GE"); and CITY OF PHILADELPHIA
("PHILADELPHIA")

v.

UNITED STATES OF AMERICA; THE BUDD COMPANY;
WESTINGHOUSE ELECTRIC CORPORATION; PENN
CENTRAL CORPORATION
(D.C. civil No. 86-cv-07561)

WILLIAM BUTLER; THERESA BUTLER; MARVIN L.
SIMPSON; ALLEN K. SIMPSON; KAREN R. SIMPSON;
DONALD E. SIMPSON; and BRYAN M. JACKSON

v.

SOUTHEASTERN PENNSYLVANIA TRANSPORTATION
AUTHORITY ("SEPTA"); NATIONAL RAILROAD
PASSENGER CORPORATION ("AMTRAK"); and
CONSOLIDATED RAIL CORPORATION ("CONRAIL")

v.

UNITED STATES OF AMERICA; CITY OF PHILADELPHIA;
MONSANTO COMPANY; GENERAL ELECTRIC COMPANY;
THE BUDD COMPANY; WESTINGHOUSE ELECTRIC
CORPORATION; PENN CENTRAL CORPORATION
(D.C. Civil No. 87-cv-02874)

MATTHEW CUNNINGHAM; and BESSIE CUNNINGHAM

v.

MONSANTO COMPANY; and SOUTHEASTERN
PENNSYLVANIA TRANSPORTATION AUTHORITY ("SEPTA")
and NATIONAL RAILROAD PASSENGER CORPORATION
("AMTRAK"); and CONSOLIDATED RAIL CORPORATION
("CONRAIL")

v.

              7
GENERAL ELECTRIC COMPANY; THE BUDD COMPANY;
WESTINGHOUSE ELECTRIC CORPORATION; PENN
CENTRAL CORPORATION
(D.C. Civil No. 87-cv-05269)

Margherita Barbetta, Mabel Brown, Cathlene Brown,
Celeste Brown, Christopher Brown, Clemmon Brown, Cloyd
Brown, Craig Brown, Curtis Brown, William Butler, Theresa
Butler, Bessie Cunningham, John Ingram, Sr., John
Ingram, Jr., April Ingram Robinson-Ray, Mary Retta
Johnson, K. Louise Jones, Karen Simpson, Alan Simpson,
Marvin Simpson, Donald Simpson, Bryan Jackson, George
Burrell, Priscilla Burrell, individually and as natural
guardians for Amber Burrell and Monica Hilton and
James Lament,
Appellants

On Appeal From the United States District Court
For the Eastern District of Pennsylvania

Argued: September 16, 1996

Before: BECKER, NYGAARD, and ROTH, Circuit Judges.

(Filed May 12, 1997)

JOSEPH C. KOHN, ESQUIRE
MARTIN J. D'URSO, ESQUIRE
 (ARGUED)
Kohn, Swift & Graf, P.C.
1101 Market Street, Suite 2400
Philadelphia, PA 19107

ARNOLD E. COHEN, ESQUIRE
Klehr, Harrison, Harvey,
Branzburg & Ellers
1401 Walnut Street
Philadelphia, PA 19102

D. BRUCE HANES, ESQUIRE
D. Bruce Hanes & Associates, P.C.
1700 Market Street, Suite 2632
Philadelphia, PA 19103

Attorneys for Appellants

                   8
ROGER F. COX, ESQUIRE
JOHN J. MONSEES, ESQUIRE
Blank, Rome, Comisky & McCauley
1200 Four Penn Center
Philadelphia, PA 19103

Attorneys for Appellee -
Southern Pennsylvania
Transportation Authority

JOHN W. VARDAMAN, ESQUIRE
STEVEN R. KUNEY, ESQUIRE
 (ARGUED)
ROBERT J. SHAUGHNESSY,
 ESQUIRE
PHILIP A. SECHLER, ESQUIRE
STEPHEN D. SENCER, ESQUIRE
Williams & Connolly
724 12th Street, N.W.
Washington, DC 20005

STEPHEN M. McMANUS, ESQUIRE
McCormick & Priore
30-36 South 15th Street
Suite 1500
Philadelphia, PA 19102

Attorneys for Appellee -
General Electric Company

ROBERT A. SUTTON, ESQUIRE
Deputy City Solicitor
Office of the City Solicitor
1600 Arch Street - 8th Floor
Philadelphia, PA 19103

Attorneys for Appellee -
The City of Philadelphia

                   9
JEROME J. SHESTACK, ESQUIRE
BARRY M. KLAYMAN, ESQUIRE
Wolf, Block, Schorr & Solis-Cohen
Packard Building, 12th Floor
S.E. Corner 15th & Chestnut Sts.
Philadelphia, PA 19102

Attorneys for Appellee -
Westinghouse Electric Corporation

THOMAS M. GOUTMAN, ESQUIRE
ROBERT TOLAND, II
White & Williams
One Liberty Place
1650 Market Street
Suite 1800
Philadelphia, PA 19103

Attorneys for Appellee -
Monsanto Company

OPINION OF THE COURT

BECKER, Circuit Judge.

This toxic tort case is before us for the third time. See In
re Paoli Railroad Yard PCB Litig., 

(3d Cir.
1990) ("Paoli I"); In re Paoli Railroad Yard PCB Litig., 

(3d Cir. 1994), cert. denied, 

(1995) ("Paoli II"). The plaintiffs have lived for many years in
the vicinity of the Paoli Railroad Yard ("Yard"), a railcar
maintenance facility at which polychlorinated biphenyls
("PCBs") were used in profusion for over a quarter-century.
They sued the corporations that have maintained the Yard
and sold the PCBs, seeking to recover damages for a variety
of physical ailments and for property damage. Plaintiffs now
appeal from the judgment entered after an unfavorable jury
verdict on the claims that remained for trial in the wake of
the previous appeals.

Plaintiffs present a plethora of appellate issues, several of
which are significant enough to justify still another

                     10
published opinion: whether the district court abused its
discretion in its exclusion of evidence offered by the
plaintiffs regarding heat-degraded PCBs, and whether the
court gave erroneous jury instructions dealing with the
"significant exposure" element of the plaintiffs' medical
monitoring and their property damage claims. The other
questions presented are not of sufficient substance or
difficulty to merit discussion here, especially given the
length of our previous published opinions in the case,1 and
hence we resolve them summarily.2
_________________________________________________________________

1. The district court has also published an opinion. See In re Paoli
Railroad Yard PCB Litig., 

(E.D. Pa. 1988).
2. We find the following claims of the plaintiffs to be patently without
merit:

(1) the district court should have granted plaintiffs' motion seeking
recusal pursuant to 28 U.S.C. § 455;

(2) the district court erred in excluding photographs of EPA
employees wearing protective gear, evidence of remedial efforts taken
by the railroad, an EPA report relating to the Paoli site, and an
internal memorandum written by an EPA staff member; and

(3) the district court erred in admitting the defendants' untimely
report regarding a trend analysis of real estate values.

Moreover, in Frankel v. Burke's Excavating, Inc., 

(3d Cir.
1968), we explained that, if there are jury interrogatories that make it
clear which issues the jury found dispositive, evidentiary arguments that
relate to other matters cannot be the cause of any prejudice to the
plaintiff. Frankel applies here. The jury resolved the plaintiffs' medical
monitoring claims in favor of the defendants on the threshold element of
the claim -- whether the plaintiffs were significantly exposed to PCBs.
Because, as the succeeding discussion demonstrates, the plaintiffs have
not demonstrated reversible error infecting the jury's determination that
they had not been significantly exposed to PCBs, we need not consider
the plaintiffs' evidentiary objections that relate to other elements of their
medical monitoring claim, including their contentions that:

(1) the district court erred in excluding Dr. Barsotti's deposition
testimony;

(2) the court erred in limiting the rebuttal testimony of plaintiffs'
expert Dr. LeWitt and in excluding the rebuttal testimony of
plaintiffs' expert Dr. Nicholson; and

(3) the district court erred in admitting charts offered by
defendants' expert Dr. Whysner, and in excluding charts offered by
plaintiffs' expert Dr. Nisbet.

Plaintiffs also challenge the district court's decision to bifurcate the
trial. We resolve this issue in favor of the defendants infra at n.5.
11
We resolve the remaining questions as follows:

(1) We will affirm the district court's exclusion of
evidence offered by the plaintiffs regarding heat-degraded
PCBs. The district court correctly determined that evidence
related to heat-degraded PCBs fell within the ambit of its
previous order excluding evidence related to plaintiffs'
exposure to furans under Fed. R. Evid. 403, which was
affirmed by this Court in Paoli 

.
Furthermore, even if heat-degraded PCBs are a chemical
substance distinct from furans, the district court did not
abuse its discretion by excluding such evidence under Rule
403.

(2) We will affirm the district court's instructions on the
"significant exposure" element of plaintiffs' medical
monitoring claim. The court instructed the jury that
plaintiffs must prove that they were exposed to PCBs at a
level greater than that ordinarily encountered in everyday
life. These instructions comport with this Court's
description of the medical monitoring cause of action, the
elements of which we explicated in Redland Soccer Club,
Inc. v. Dept. of the Army, 

(3d. Cir. 1995), cert.
denied, 

(1996). In affirming on this point, we
make clear that Paoli 

n.36, does not
require a different result. We did remark in the Paoli II
footnote that, in a personal injury or medical monitoring
action, a plaintiff may be able to survive a motion for
summary judgment, even if he or she was not exposed to a
greater level of PCBs than was present in the background
area; however, when making this statement, as the footnote
makes clear, we were contemplating the unique situation in
which defendants expose the entire population in a
geographic area to high levels of contaminants, so that the
level of contaminants that the plaintiff ordinarily
encounters is extraordinarily high as a result of the
defendants' traceable activities. Plaintiffs adduced no such
evidence here.

(3) We will affirm the district court's instructions
regarding the plaintiffs' property damage claims. We
conclude that, when it instructed the jury that the property
damage must be "actual," the district court did not

                    12
improperly convey that the damage need be permanent in
order to be compensable.

Because we resolve all issues in favor of the defendants,
the judgment in their favor will be affirmed.

I. RELEVANT FACTS AND PROCEDURAL HISTORY

The background facts are stated comprehensively in Paoli
II. For our present purposes we make only the following
relatively brief account. The Paoli Railroad Yard has long
stored and handled PCBs, which are fire-resistant
insulating fluids used in railroad car transformers. In the
mid-1980s, the EPA documented relatively high levels of
PCBs in the soil in the Yard and the nearby water and land.
As a result of litigation under the Comprehensive
Environmental Response Compensation and Liability Act,
42 U.S.C. § 9601, et. seq., Amtrak, Conrail, and SEPTA, all
of which owned or operated the Yard at various times since
1976, entered into a series of consent decrees with the
United States pursuant to which the PCB exposure in the
Yard was monitored and controlled. In July 1992, the EPA
issued a Record of Decision (ROD), which mandates
extensive excavation and treatment of soils at the Yard and
in the adjacent residential area, and erosion controls at the
Yard.3 As of the time of oral argument, the required soil
excavation or treatment had not been completed.

The plaintiffs are individuals who have lived for many
years in the vicinity of the Yard in areas identified by the
EPA and by the railroad defendants' contractor as having
experienced the most severe PCB-laden run-off. The
plaintiffs have adduced evidence of significant levels of
PCBs in the soil surrounding their homes, on which some
of them played and in which some of them gardened.
_________________________________________________________________

3. The ROD calls for: (1) the excavation and treatment of residential soil
that contains PCBs in excess of 2 ppm; (2) the erection of new erosion
controls to further reduce water runoff from the Yard to nearby
properties; and (3) prohibition of any future residential or agricultural
use of the Yard. In 1992, the EPA noted that 35 residential properties
had composite samples that exceeded 5 ppm PCBs, either in the front or
back yards or in the garden-soil.

                    13
Plaintiffs also regularly traversed the Yard on foot, as they
were given open access to the Yard prior to the mid-1980's.

In 1986, thirty eight plaintiffs brought suit in the District
Court for the Eastern District of Pennsylvania against the
owners and operators of the Yard, and against Monsanto
Company, the manufacturer of PCBs in the United States,
and General Electric Company, a manufacturer of railroad-
car transformers in which the PCBs were used. Some
plaintiffs sought recovery for present injuries allegedly
caused by exposure to PCBs and other assorted chemicals
from the Yard, including polychlorinated dibenzo furans
("furans") and polychlorinated dibenzo-p-dioxins ("dioxins").
Some plaintiffs brought claims for emotional distress
caused by fear of future injury, and for medical monitoring
designed to decrease the chances of future illness. Finally,
some plaintiffs brought claims for the decrease in value of
their property caused by the presence (or reputed presence)
of PCBs on the land.

After our decision in Paoli I reversing the grant of
summary judgment for the defendants on the grounds that
the district court had not conducted an in limine hearing on
evidentiary issues, plaintiffs submitted a list of expert
witnesses, which included Melvyn Kopstein, Ph.D., who was
proffered to testify about plaintiffs' exposure to PCBs from
the Yard; Ian C.T. Nisbet, Ph.D., who was proffered to
testify about plaintiffs' exposure to PCBs; and Janette
Sherman, M.D., who was proffered to testify that PCBs had
caused plaintiffs' injuries and that plaintiffs require medical
monitoring to detect and treat future PCB-related illnesses.
At the close of discovery, defendants moved in limine to
exclude these experts' opinions under Fed. R. Evid. 702,
703, and 403. On the same grounds, the defendants also
filed motions in limine to preclude the plaintiffs' experts
from testifying about evidence concerning the harm of
dioxins and furans (chemicals sometimes present in
transformer fluids), and evidence concerning the "Yusho"
incident in Japan and the "Yu Cheng" incident in Taiwan,
in which many individuals suffered adverse effects after
consuming rice oil contaminated with PCBs and furans.
Defendants also moved for summary judgment on all of
plaintiffs' claims.

                    14
After holding five days of in limine hearings, in which Drs.
Kopstein, Nisbet, and Sherman testified for the plaintiffs
and ten scientists testified for the defendants, the district
court entered orders excluding the opinions of all but one
of the plaintiffs' experts. The court also excluded under
Rule 403 evidence concerning dioxins and furans, and the
Yusho and Yu Cheng incidents. The court then granted
summary judgment against the plaintiffs on both their
personal injury and medical monitoring claims on the
grounds that they had adduced no evidence of exposure to
the PCBs, or of causation. The district court also granted
summary judgment for the defendants on the plaintiffs'
property damage claims on the grounds that plaintiffs could
not prove that they had suffered permanent property
damage in light of the EPA's proposed cleanup plan.

In Paoli II, we affirmed most aspects of the judgment, but
we also reversed in part and remanded for further
proceedings. In reviewing the admissibility of expert
opinions, we applied the admissibility standards enunciated
in Daubert v. Merrell Dow Pharmaceuticals, Inc., 

(1993), which the Supreme Court decided after the
district court's rulings. We held that, as to all but two of
the plaintiffs, the court did not abuse its discretion in
excluding the testimony of plaintiffs' experts that PCBs had
caused their (alleged) injuries. We reversed the district
court's exclusion from evidence of Dr. Sherman's opinion
with respect to the causation of injuries to Bessie
Cunningham and Amber Burrell, two plaintiffs whom she
actually examined and whose medical histories she 

. We also affirmed the district court's
exclusion of expert opinion concerning the effect of dioxins
and furans and testimony related to the Yusho and Yu
Cheng incidents. We further held that, in the absence of Dr.
Sherman's opinion on causation, the district court had
properly granted summary judgment for defendants with
respect to the personal injury claims of 31 of 33 plaintiffs
(excluding Bessie Cunningham and Amber Burrell, leaving
their tort claims for trial). 

We also held that the district court had erred in
excluding as unreliable the opinions of experts who testified
that plaintiffs needed medical monitoring as a result of

                    15
their alleged exposure to PCBs. 

Those
opinions, we noted, were "not seriously challenged" by
defendants in the in limine hearing, and passed Daubert
muster. 

Accordingly, we reversed the grant of
summary judgment on the medical monitoring claims. 

reversed the grant of summary judgment for
the defendants with respect to plaintiffs' claim for
diminution of property value. We predicted that
Pennsylvania would allow recovery where the property
sustains at least temporary physical damage, repairs will
not restore the value of the property to the prior level, and
there is some ongoing risk to land. In sum, the following
claims remained in the litigation after Paoli II: the medical
monitoring claims of 26 plaintiffs; the personal injury
claims of two plaintiffs; and the property damage claims of
ten plaintiffs.4

Following Paoli II, and exercising its discretion under
Federal Rule of Civil Procedure 42(b), the district court
ordered that the trial would proceed in two phases. Phase
I would involve the "issues of exposure, causation, medical
monitoring, and property damages." If a jury returned a
verdict favorable to the plaintiffs, Phase II would determine
the defendants' liability for all claims, and the amount, if
any, of punitive damages.

Prior to trial, defendants had moved in limine to exclude
all the plaintiffs' evidence pertaining to heat-degraded PCBs
and the heating process that produced them on the
grounds: (1) that the evidence was covered by the court's
prior order excluding evidence of dioxins and furans, which
this Court affirmed in Paoli II; and (2) that, at all events,
the evidence presented the same Rule 403 problems as had
evidence of dioxins and furans. The court heard argument
on the motion but reserved judgment until trial. During the
course of testimony, plaintiffs proffered evidence on three
separate occasions related to heat-degraded PCBs, which
they alleged to be more toxic than "new PCBs" that had not
been heated. In each instance, defendants challenged the
evidence on the same grounds that they had advanced at
_________________________________________________________________

4. During the subsequent trial, the district court granted the motion for
voluntary dismissal of the tenth property damage claim.

                    16
the in limine hearing. In each instance, the court agreed
with the defendants and ordered plaintiffs to refrain from
referring to "heating" or heat-degraded PCBs.

After thirteen days of Phase I testimony, consisting
primarily of expert opinion, the jury returned a verdict for
defendants on all claims. In response to special
interrogatories, the jury found that none of the plaintiffs
had been "significantly exposed" to PCBs from the Yard;
that plaintiffs Bessie Cunningham and Amber Burrell had
not sustained injuries as a result of PCB exposure; and
that PCBs from the Yard had not damaged the plaintiffs'
properties. Phase II therefore never took place. This appeal
followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.5
_________________________________________________________________

5. The plaintiffs contend that the district court's bifurcation of the trial
violated their right to trial by jury as guaranteed by the Seventh
Amendment because the jury would have to make foreseeability
determinations when considering the causation issues of Phase I,
whereas a different jury would have to make the same determinations
when considering the negligence issues of Phase II. The record before us
does not suggest that the district court actually considered summoning
a different jury to hear the trial of Phase II, should Phase II have been
necessary, and we fail to see why it would have. Moreover, the jury
found for the defendants on all counts in Phase I, and because we will
affirm the district court here, a second jury will not be convened. Under
these circumstances, the issue would appear to be moot. At all events,
the district court acted within its discretion when it ordered the
bifurcation of the suit.

Fed. R. Civ. P. 42(b) authorizes district courts to bifurcate lawsuits
into separate trials "in furtherance of convenience or to avoid prejudice,"
or when separate trials "will be conducive to expedition and economy."
9 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal
Practice and Procedure § 2387 (1995). Severance of the question of
liability from other issues can "reduce the length of trial, particularly if
the severed issue[s] [are] dispositive of the case, and can also improve
comprehension of the issues and evidence." Manual for Complex
Litigation, Third § 21.632, at 119 (West 1995). In the case at bar, the
interests of judicial economy and convenience counseled strongly in
favor of severing the issues relating to plaintiffs' exposure to PCBs and
causation of their injuries from the issues of defendants' culpability.
Phase I focused on plaintiffs' exposure to PCBs while Phase II would
have concerned whether the conduct of several railroad operators and
manufacturers caused that exposure. The trial of the Phase I issues

                    17
II. THE RULE 403 ISSUE

A.

Fed. R. Evid. 403 provides in pertinent part that
"[a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of
_________________________________________________________________

alone lasted three weeks and involved dozens of witnesses. Resolution of
the Phase I issues obviated the need for a trial on the issues of the
defendants' liability, which undoubtedly would have taken months and
would have involved issues more complicated than the Phase I trial, all
at additional cost to the parties. Thus, bifurcation preserved judicial
resources and reduced the expenses of the parties, and the district court
did not abuse its discretion in ordering such a process. See In re
Bendectin Litig., 

, 309-314 (6th Cir. 1988) (issues of
causation tried separately from issues of defendant's tortious conduct);
In re Beverly Hills Fire Litig., 

, 216-17 (6th Cir. 1982)
(upholding severance of liability issues from causation issues).

Even if a second trial on the liability issues had been conducted before
a different jury, the district court's bifurcation of the case would not
appear to have offended the Seventh Amendment. The Seventh
Amendment requires that, when a court bifurcates a case, it must
"divide issues between separate trials in such a way that the same issue
is not reexamined by different juries." In the Matter of Rhone-Poulenc
Rorer, Inc., 

, 1303 (7th Cir.), cert. denied, 

(1995); McDaniel v. Anheuser-Busch, Inc., 

, 304-05 (5th Cir.
1993)("the Seventh Amendment guarantee of a trial by the jury is the
general right of a litigant to have only one jury pass on a common issue
of fact") (citations omitted). Plaintiffs argue that both Phase I causation
issues and Phase II negligence issues would require the jury to make
foreseeability determinations. We disagree. The first jury did not
determine the foreseeability of plaintiffs' alleged or prospective injuries,
and instead determined only whether the plaintiffs were exposed to PCBs
and injured from that exposure. The district court did not instruct the
jury on foreseeability, neither the plaintiffs nor the defendants requested
an instruction on that issue, and the jury interrogatories did not refer to
the foreseeability of the alleged harms. Nor does the fact that certain
evidentiary items might have been relevant to both phases of trial require
us to reverse the district court on this point, for the Seventh Amendment
"prohibition is not against having two juries review the same evidence,
but rather against having two juries decide the same essential issues."
In re Innotron Diagnostics, 

, 1086 (Fed. Cir. 1986).

                    18
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." In making a
Rule 403 determination, the court must balance the
genuine need for the challenged evidence against the risk
that the information will confuse the jury and delay trial.
United States v. Sriyuth, 

, 747-48 (3d Cir.
1996).

A district court's decision to admit or exclude evidence is
reviewed for abuse of discretion. Paoli 

. A
ruling excluding evidence under Rule 403 is accorded
particular deference, and, provided that the court has
explained its ruling or the reasons for its ruling are
"otherwise apparent from the record," United States v.
Murray, 

, 318 (3d Cir. 1997) (quoting United
States v. Himmelwright, 

, 781 (3d Cir. 1994)), it
may not be reversed unless the determination is "arbitrary
and irrational." Bhaya v. Westinghouse Elec. Corp., 

, 187 (3d Cir. 1990) (citing United States v. DePeri,

, 973-74 (3d Cir. 1985)); United States v. Long,

, 767 (3d Cir. 1978) ("If judicial self-restraint
is ever desirable, it is when a Rule 403 analysis of a trial
court is reviewed by an appellate tribunal.").

B.

During the in limine process following the initial remand
(Paoli II), plaintiffs proffered evidence about dioxins and
furans, which they contend could have been produced at
the Yard when PCB-containing transformer fluids were
heated, and also evidence of the Yusho and Yu Cheng
poisoning incidents in which furans may have caused
injuries. Acting on defendants' motion, the district court
excluded all evidence concerning these chemicals as
irrelevant under Rule 401 and unduly confusing and
prejudicial under Rule 403. Specifically, the district court
noted that the evidence would require defendants to
"defend against a substance to which the Plaintiffs cannot
prove they were exposed; confuse and complicate the issues
for trial ..., confuse and mislead the jury ..., result in undue
delay and wasting of time consumed in the presentation of
irrelevant evidence at trial; and prejudice the Defendants by

                     19
permitting inflammatory evidence concerning substances
such as dioxin as to which there is much public sensitivity
and fear."

In Paoli II, we affirmed the district court's rulings.
Although we found that the district court had
impermissibly excluded the evidence as irrelevant under the
lenient standard of Rule 401, we ruled that the court had
not abused its discretion in ruling the evidence
inadmissible under Rule 

. In so
holding, we took cognizance of the fact that there was
evidence in the record that various heat-producing activities
occurred at the Yard, and that dioxins and furans may
have been produced as a result. However, we agreed with
the district court that, in light of the paucity of the evidence
that plaintiffs were exposed to dioxins and furans,
admitting evidence about those chemicals would have
required time-consuming mini-trials on the minimally
relevant issues of plaintiffs' alleged exposure to the
chemicals and the effects of that exposure. 

We
also noted that furans and dioxins were alleged to be
significantly more dangerous than PCBs and had received
negative publicity, and therefore "would have been too
inflammatory for the jury," given their minimal relevance.

affirmance of the district court's
prior orders, plaintiffs sought on remand to proffer evidence
of heat-degraded PCBs. Prior to trial, the district court
heard argument from plaintiff regarding heat-degraded
PCBs, but postponed judgment on admissibility. Plaintiffs
attempted to proffer evidence about heat-degraded PCBs
several times during trial. First, the plaintiffs' engineering
expert testified that fires at the Yard created"chemicals ...
present in heat degraded PCB transformer oils." The
defendants objected that the testimony was an
impermissible allusion to dioxins and furans, and the
district court sustained the objection. Plaintiffs made no
proffer as to what additional testimony the witness would
have given on the subject.

The issue arose a second time before the direct
examination of plaintiffs' expert Dr. Nisbet. After the district
court ruled that Dr. Nisbet could testify about increases in

                     20
toxicity caused by the "weathering" of PCBs in the
environment, plaintiffs requested that Dr. Nisbet be
permitted to testify that "over-heated transformer fluid"
existed in the dirt at the Yard. Defendants objected that the
only significance of the overheating of PCB fluid would be
the generation of dioxins and furans. Plaintiffs' only
response was that "[t]here will be no mention of furans, no
mention of dioxins." The court then instructed the plaintiffs
not to "refer to heating." Plaintiffs did not represent what
Dr. Nisbet would have said about heated PCB fluid, except
that it was present in the dirt at the Yard.

The third episode arose after defendants questioned
plaintiffs' expert Dr. Calesnick about the conclusion
contained in Dr. Nicholson's meta-analysis, which analyzed
deaths among PCB-exposed workers, that PCBs "pose
minimal harm to health." Plaintiffs requested that the jury
be read another sentence from the same analysis stating
that PCBs "may be contaminated with more toxic
polychlorinated hydrocarbons (e.g. polychlorinated
dibenzofurans, PCDFs)," a passage that plaintiffs imply
pertained to heat-degraded PCBs. The district court
sustained defendants' objection to the evidence on the
ground that the proffered text referred to contaminants
previously excluded by the court.6

Plaintiffs argue that the district court incorrectly
interpreted its previous order regarding furans and dioxins,
affirmed by this Court in Paoli II, as mandating the
exclusion of evidence pertaining to heat-degraded PCBs.
According to the plaintiffs, although heat-degraded PCBs
are of the same toxicity as dioxins and furans, they are
chemically distinct and remain part of the PCB family.
Furthermore, they contend that in order to explain the
_________________________________________________________________

6. Plaintiffs contend that the "rule of completeness" embodied in Fed. R.
Evid. 106 compelled admission of the additional portion of the text. Rule
106 requires admission of those portions of writing that "ought in
fairness to be considered." See United States v. Soures, 

, 91
(3d cir. 1984). But the very premise of the district court's determination
to exclude evidence of furans was that plaintiffs' case regarding the
alleged toxicity of PCBs could fairly proceed without evidence relating to
furans. As a result, Rule 106 did not independently require the
admission of additional portions of the text.

                    21
toxicity of heat-degraded PCBs they would not have needed
to refer in any way to dioxins and furans, and hence that
the admission of such evidence would not constitute an end
run around the court's previous ruling.

Plaintiffs further assert that the court's allegedly
improper evidentiary rulings significantly impaired their
ability to fully identify the substances to which they were
allegedly exposed, thereby undermining the pursuit of both
their medical monitoring and tort recovery.

As we have seen, with regard to their medical monitoring
claims, the plaintiffs failed to convince the jury that they
were "significantly exposed to PCBs." Plaintiffs assert,
however, that because heat-degraded PCBs have far greater
carcinogenic potential than unheated PCB mixtures, had
they been allowed to proffer the disputed evidence, they
could have demonstrated that they were exposed to a kind
of PCBs in an amount significant enough to warrant
medical monitoring. Plaintiffs also submit that the
defendants' experts, who testified that PCBs were not
dangerous, relied largely on epidemiological studies of
unheated, new PCB mixtures, rather than the heat-
degraded PCBs to which plaintiffs allegedly were exposed,
which again limited their ability to demonstrate "significant
exposure."

Additionally, plaintiffs argue that the court's evidentiary
decisions impaired their ability to accurately present their
property damage claims. In order to recover for property
damage, the plaintiffs had to demonstrate that the remedial
activities ordered by the EPA's ROD would not return the
property to its former value. Plaintiffs contend that heat-
degraded PCBs do not dissipate as rapidly as new PCBs,
and, that had they been permitted to offer evidence of heat-
degraded PCBs, they could have demonstrated that the
remediation ordered by the EPA would be insufficient to
neutralize the presence of heat-degraded PCBs at the Yard,
and that property damages were in order. As a result,
plaintiffs suggest that the court's alleged errors were not
harmless and provide a sound basis for reversal.

The defendants respond that heat-degraded PCBs are
merely furans by another name, and that therefore the

                    22
exclusion of evidence of heat-degraded PCBs was entirely
within the ambit of the court's prior ruling regarding
furans. Defendants further argue that the admission of
such evidence would have posed its own Rule 403 dangers
of undue delay and confusion of the issues.

C.

As an initial matter, we are satisfied that the plaintiffs
had ample opportunity to convince the jury that they were
exposed to PCBs of a more toxic variety than the
"background" PCBs that they normally would have
encountered in day-to-day life. Plaintiffs presented evidence
that they were exposed to Aroclor 1260 PCBs and to
weathered Aroclor 1260. According to the plaintiffs'
evidence, the harmfulness of a PCB mixture is a function of
its persistence: those PCBs that are the most difficult to
eliminate from our bodies and environment pose the
greatest potential danger. PCB mixtures, the plaintiffs
allege, are particularly persistent if they are manufactured
with a high degree of chlorination or with a high number of
coplanar congeners. Plaintiffs proffered evidence that
Aroclor 1260 compounds, even when new, contain the
highest chlorine content of any PCB mixture commonly
used in this country. The chlorine content of a mixture may
also increase as a result of weathering, which is a process
of selective retention or preferential bioaccumulation. In
addition, coplanar congeners may be formed through
incineration. Thus, plaintiffs argue, the chemical to which
they were exposed was more toxic than other PCB
mixtures.

Not only did the plaintiffs have the opportunity to
introduce evidence that they were exposed to PCBs of a
more toxic variety than the background PCBs that they
normally would have encountered, but we are also satisfied
that the evidence they were prevented from introducing
would not have substantially altered their case, because
they had the opportunity to put forward at trial their
essential theory -- that the PCBs to which they were
exposed were more toxic than the PCBs in the
epidemiological literature. In this vein, Dr. Nisbet testified
that the estimates in defendants' tables, which were

                    23
proffered as proof that PCBs were not toxic, were based on
analysis of PCBs of "a potency factor ... for the
unweathered, the pure unweathered aroclors," while the
scientific evidence regarding weathered PCBs "would
[probably] be more hazardous." Thus, plaintiffs were able to
present and reemphasize the theme of their argument --
that what they were exposed to was somehow more
dangerous than that to which the background population
was exposed. They therefore had little genuine need for the
excluded evidence.

At all events, we are persuaded by the defendants'
arguments and our independent analysis that the district
court acted within its discretion when it excluded plaintiffs'
evidence of heat-degraded PCBs. In a ruling affirmed by
this Court, the district court had previously excluded
evidence of dioxins and furans, and plaintiffs' proffer of
evidence of heat-degraded PCBs appears to have been an
attempt to evade that ruling by altering the vocabulary. The
only proffered basis for admission that plaintiffs offered the
court during trial was that the witnesses would not utter
the words "dioxin" or "furan." But this justification reads
the affirmed prior order, which excluded "[a]ll Testimony,
Evidence or Statements to the Jury ... concerning Dioxins,
Furans, Tin Tetraphenyl, and Epoxides," too narrowly, for
the district court had excluded all evidence that concerns
the offending chemicals.

The district court was not without basis for believing that
heat-degraded PCBs are functionally dioxins by another
name. For example, according to plaintiffs, heat-degraded
PCBs have the same toxicity as dioxins. See Appellants'
Reply Brief at 5. Additionally, in their deposition testimony,
plaintiffs' experts treated heat-degraded PCBs as
toxicologically equivalent to dioxins. For instance, Dr.
Sherman testified that the literature on coplanar PCBs
"likens them to the para dioxins." In addition, the record
suggests that heat-degraded PCBs, like dioxins and furans,
are waste products formed by the incineration of new PCBs.

Moreover, at oral argument before us, plaintiffs' counsel
explained that heat-degraded PCBs are refered to as
"dioxin-like" because they react to the same AH receptor
that is exploited by dioxin molecules. Discussion of the

                    24
toxicity of coplanar PCBs at trial would thus likely have
reintroduced the subject of dioxins in a slightly different
guise. In sum, it appears to us that the district court did
not err in concluding that the plaintiffs' proffer, which was
weakly made, was within the ambit of the court's prior
ruling, which this Court has affirmed.7

D.

Finally, even if the evidence about heat-degraded PCBs
was not precluded by the literal terms of the prior ruling,
we are persuaded by the defendants' arguments that the
district court was within its discretion to make an
independent ruling under Rule 403 excluding evidence of
heat-degraded PCBs on the ground that its probative value
was substantially outweighed by its tendency to cause
delay, confusion, and unfair prejudice.8 Such a ruling
_________________________________________________________________

7. Our ruling does not emanate from any pretense of scientific
exactitude, and, unfortunately, the materials presented to this Court fail
to illuminate how dioxins and furans differ from heat-degraded PCBs, if
in fact they do. Plaintiffs' briefs instead focus on the differences between
heat-degraded and unheat-degraded PCBs, and thus offer little guidance
as to the scope of the prior ruling. So then, despite the similarities
between dioxins and heat-degraded PCBs, subtle structural differences
may in fact exist so that it is possible that evidence of heat-degraded
PCBs may fall outside the scope of the court's prior ruling regarding
dioxins and furans. In fact, one comment made by defense counsel
seems to admit of the possibility that heat-degraded PCBs differ
materially from dioxins and furans. See Brief for Appellees General
Electric Co., Southeastern Pennsylvania Transportation Authority, the
City of Philadelphia, and Westinghouse Corp., at 14 ("evidence about
coplanar congeners was not precluded by the literal terms of the court's
prior rulings"). These possibilities, however, cannot control our
evidentiary ruling in view of the weakness of the plaintiffs' showing.
Thus, because of the similarities between dioxins and heat-degraded
PCBs mentioned above, we remain convinced that the district court did
not abuse its discretion in considering evidence of heat-degraded PCBs
to be within the ambit of its previous ruling.

8. While we normally require a district court to make explicit its
reasoning under Rule 403, this is an unusual situation. The district
court did not make an explicit Rule 403 balancing because it believed
that the challenged evidence was properly excluded under its affirmed

                    25
would find precedent in our initial ruling on the general
subject, wherein we adverted to the necessity of mini-trials
on the issues presented by the effort to demonstrate
exposure to and the impact of heat-degraded PCBs. See
Paoli 

.

First, there is little evidence that plaintiffs' exposure to
heat-degraded PCBs was significant. There was no offer of
proof at trial that heat-degraded PCBs were found at the
Yard or in the soil of the nearby residences, or that the
temperatures to which PCB fluids were subjected at the
Yard were sufficient to create those types of congeners. In
fact, a significant amount of soil sampling data failed to
indicate that heat-degraded PCBs, as distinct from new
PCBs, existed in the soil. In addition, the evidence at trial
allowed the conclusion that plaintiffs had not sustained
any abnormal exposure to PCBs, regardless of whether that
exposure was with respect to heated or unheat-degraded
PCBs.9

Moreover, the evidence that the plaintiffs allege was
impermissibly excluded from trial -- evidence of significant
exposure to heat-degraded PCBs -- was never proffered,
and apparently was never adequately developed; thus, the
_________________________________________________________________

prior order. For purposes of this appeal, we therefore regard the required
403 balancing as implicit in the court's ruling. See Sheridan v. E.I.
DuPont de Nemours and Co., 

, 1076 n.10 (3d Cir. 1996).
In taking this action, we in no way suggest that the district courts are
relieved from their obligation to perform this weighing process on the
record. Although we are able to perform this balancing test here, other
cases may require remand to the court or even a new trial. See 

n.8 ("We take this occasion, once again, to remind the
district courts of their obligation to perform this weighing process on the
record.").

9. All but one of the plaintiffs had their blood analyzed for PCB content.
Five were found to have no detectable levels of PCBs in their blood. The
highest level found among the others was 30 ppb in one plaintiff, a level
that the laboratory conducting the analysis considered to be within the
normal reference range for PCBs in human blood. In contrast, workers
involved in the manufacturing of PCB-containing electrical equipment
have been found to have blood levels averaging close to 400 ppb and
measuring as high as 3500 ppb. (A2999).

                    26
district court never had the opportunity to exclude it. Oral
argument on the present appeal was the first time that
plaintiffs' counsel recounted how the plaintiffs would have
proven that they were exposed to heat-degraded PCBs: they
intended to compare chromatograms, which measure the
concentration of PCBs, of the soil used at the Yard to a
chromatogram of new, unheat-degraded PCBs. They then
would have compared the chromatograms of the PCBs at
the Yard to the chromatograms of the chemical remnants
found in plaintiffs' blood. The nature of the PCB mixture
found in a blood sample is determined by the "peaks" in a
given chromatogram. If given the opportunity, plaintiffs
contend that Dr. Nisbet would have testified that the
chromatograms of plaintiffs' blood, which were proffered at
trial, recorded peaks attributable to heat-degraded mixtures
of Aroclor 1260 PCBs.

While oral argument provided new explanations of the
probative value of what plaintiffs intended to show at trial,
and the evidence that they claim they would have
introduced appears to differ from the evidence actually
admitted at trial, we are not at liberty to consider it.
Instead, we are limited to a review of the record that was
before the district court, and, as previously mentioned, the
evidence actually before the district court did not suggest a
difference in the type of PCBs measured in the plaintiffs'
blood. As such, we find persuasive defendants' contentions
that plaintiffs were little prejudiced by the exclusion of
evidence pertaining to heat-degraded PCBs and that such
evidence was of minor probative value.

Finally, admitting evidence regarding heat-degraded PCBs
would appear to require extensive mini-trials on plaintiffs'
exposure to these chemicals and the harm they cause.
Given the small probative value of the evidence, such a
diversion would constitute "undue delay." In sum, under
Fed. R. Evid. 403, the district court did not abuse its
discretion in excluding the evidence concerning heat-
degraded PCBs.

III. THE JURY INSTRUCTIONS

We turn to plaintiffs' challenge to the jury instructions
regarding the medical monitoring and property damage

                    27
claims. Generally we review a district court's jury
instructions for abuse of discretion, although whether the
jury instructions misstate a legal standard is a question
over which we have plenary review. See United States v.
Coyle, 

, 1245 (3d Cir. 1995). We review the
charge to ensure that "the charge, taken as a whole and
viewed in the light of the evidence, fairly and adequately
submits the issues in the case to the jury." In re Merritt
Logan, Inc., 

, 359 (3d Cir. 1990) (quoting
Ayoub v. Spencer, 

, 167 (3d Cir. 1977). In
evaluating whether the district court satisfied this
requirement, we must examine the charge in its entirety
and not limit ourselves to particular phrases in isolation.
See 

.

A. The Medical Monitoring Claim Instructions

The jury rejected the plaintiffs' medical monitoring
claims, and plaintiffs now contend that the district court
erred when it instructed the jury that, in order tofind for
plaintiffs, they must conclude that the plaintiffs had been
exposed to a greater level of PCBs as a result of the
activities at the Yard than they would encounter normally
in their day-to-day lives. In order to evaluate this
contention, we must first provide some context. In Paoli 

, this Court addressed the predicament of
persons who are exposed to toxic chemicals but do not
suffer from manifest physical injuries. We noted that when
these persons suffer instead from latent injuries, common
law tort doctrine has often barred recovery because,
traditionally, "injury needed to be manifest before it could
be compensable," and toxic torts often fail to conform "with
the common law conception of injury." 

In an
effort to accommodate the potential injuries associated with
the widespread use of toxic substances, we predicted that
the Pennsylvania Supreme Court would recognize medical
monitoring claims by plaintiffs who have been exposed to
toxic substances but have not suffered manifest physical
injuries, and would authorize a plaintiff to recover the
"quantifiable costs of periodic medical examinations
necessary to detect the onset of physical harm." 

We noted that medical monitoring and traditional tort

                    28
claims are inherently distinct causes of action, and that,
once an injury is manifest and detected, a plaintiff who has
pursued a medical monitoring claim may also have a
traditional tort action against the same defendant for the
injury itself. 

n.24.

1.

In Paoli I, we also set forth the elements we understand
to be necessary to a successful medical monitoring claim
under Pennsylvania law:

1. Plaintiff was significantly exposed to a proven
hazardous substance through the negligent actions of
the defendants.

2. As a proximate result of exposure, plaintiff suffers
a significantly increased risk of contracting a serious
latent disease.

3. The increased risk makes periodic examinations
reasonably necessary.

4. Monitoring and testing procedures exist which
make the early detection and treatment of the disease
possible and beneficial.

The first hurdle for a plaintiff pursuing of a medical
monitoring claim is the need to demonstrate "significant
exposure" to a proven hazardous substance. In the case at
bar, the jury determined that the plaintiffs had not been
significantly exposed to PCBs, and therefore could not
satisfy even the first of the four factors necessary to a
successful claim. As a result, we need only concern
ourselves here with the jury charge as it relates to the
definition of "significant exposure."

2.

The district court initially instructed the jury on the
"significant exposure" element as follows:

Each plaintiff must prove through competent expert
testimony that he or she was significantly exposed to

                     29
PCBs from the Paoli Railyard. The plaintiff must prove
that PCBs from the Paoli Yard actually entered his or
her body in amounts significantly beyond what would
enter a person's body in everyday life elsewhere in the
Philadelphia area and in amounts sufficient to cause
the plaintiff to have a risk of future disease
significantly greater than what he or she would have
had without exposure.

After plaintiff objected to this formulation, the court further
instructed the jury that "the amount of PCBs that anyone
would be exposed to in the Philadelphia area, simply means
... greater than [the] normal background area in this
region."

The following day, in response to a question for
clarification from the deliberating jury regarding the
personal injury claims, the court again instructed the jury:

Exposure to PCBs i[s] sufficient if it causes
significantly increased risk of contracting a serious
latent disease.... I instructed you that [plaintiffs] had to
show that amounts were significantly beyond what
ordinarily entered a person's body in every day life,
elsewhere in the Philadelphia area.

And again, those -- the testimony with respect to the
exposure in this area of PCBs to everyone, is just one
factor to be considered in determining whether or not
they were significantly exposed to PCBs from the Paoli
Yard. So you would consider all of those circumstances
in considering whether or not they were exposed.

Plaintiffs challenge the instruction that a showing of
"significant exposure" required proof that they had been
exposed to levels of PCBs greater than the normal
background levels. But that part of the court's instruction
was taken almost verbatim from Redland Soccer Club v.
Department of Navy, 

(3d Cir. 1995), where we
defined the term "significant exposure" to require that:

a plaintiff ... prove that he was exposed beyond what
would normally be encountered by a person in everyday
life, so that the plaintiff's risk of being injured from the
exposure is greater, in some way, than the risks all of
us encounter in our everyday lives. ...

                     30
Thus Paoli II requires plaintiffs to show not only that
their exposure to toxic substances is greater than
normal background levels, but that the increased risk
of injury from such exposure warrants medical
monitoring against future illness beyond that which is
recommended for everyone.

& n.8 (emphasis added). In other words, medical
monitoring claimants must "show[ ] they were exposed to
the toxins at issue at levels significantly above their normal
background presence." 

The court's instructions
fairly and adequately set forth the "significant exposure"
element as articulated in Redland Soccer. In fact, we
perceive no discernable difference between Redland Soccer
and the jury charge issued here in terms of the applicable
standard; to that extent, plaintiffs' position appears to be a
remonstrance against Redland Soccer, which the district
court was constrained to follow (as are we, see Third Circuit
Internal Operating Procedures § 9.1).

We also find persuasive the argument set forth by
counsel for the defendants that, if anything, the district
court's charge suggested that plaintiffs' burden of proof on
this element was lighter than that mandated by Redland
Soccer. The court responded to the jury's request for
clarification by modifying the previous day's charge and
stating that whether plaintiffs' exposure was above the
background level was "just one factor" in determining
significant exposure. However, Redland Soccer makes clear
that the existence of above-background-level exposure is
not merely "one factor" in determining the significance of
the exposure. Instead, proof of abnormal exposure is an
absolute prerequisite to a finding of significant exposure.

3.

Faced with the foregoing analysis, plaintiffs invoke a
footnote in Paoli 

n.36, under which they
contend that they could make out a viable medical
monitoring claim "even if their exposure was within
background levels," so long as the exposure stemmed from
defendants' PCBs and "was sufficient to result in their
illnesses." The footnote reads:

                    31
We note that even if defendants are correct that
plaintiffs can only demonstrate exposure at levels
within background, this would not necessarily justify
the grant of summary judgment for defendants. For
example, if everyone in the population had been
exposed to substantial amounts of defendants' PCBs
such that each individual had high PCB levels, each
individual would have PCB levels within the
background but this would not justify a verdict for
defendants. Normally, plaintiffs could not make out a
viable claim if their exposure is within background
levels because there would be no reason to believe that
their exposure was from the defendants' PCBs as
opposed to other PCBs. However, to the extent that the
plaintiffs can demonstrate that their exposure stemmed
from the defendants' PCBs, they will have presented
evidence sufficient to survive summary judgment even
if their exposure was within background levels--so long
as this exposure was sufficient to result in their
illnesses.10
_________________________________________________________________

10. As we have noted above, plaintiffs submit that they were exposed to
a more toxic type of PCB -- heat-degraded mixtures -- than they would
have ordinarily encountered in their day-to-day existence, and that, even
if they were not exposed to a greater quantity of PCBs than they
ordinarily would have encountered, they were exposed to a risk of injury
significant enough to warrant medical monitoring. Plaintiffs contend that
Redland Soccer does not counsel otherwise, for in defining "significant
exposure," Redland Soccer did not require the jury to make amount-
based comparisons of exposure to contaminants, but only to compare
the nature and extent of the risk incurred through exposure. Thus, their
argument continues, the court incorrectly required the jury to find that
plaintiffs had been exposed to PCBs in an amount greater than that
found in the Philadelphia area.

It is not inconceivable that a situation may arise in which the form of
a contaminant is so toxic that exposure to it merits medical monitoring,
even if the exposed plaintiffs ordinarily encounter similar amounts of a
less toxic form of the same contaminant. But such is not the case here,
at least under the record, which is poorly developed in this regard. The
evidence is unclear as to whether the greater toxicity of the heat-
degraded PCBs stems from its persistence in the soil, so that a plaintiff's
exposure is simply of longer duration, or if it results in greater bodily
impact. Plaintiffs' expert Dr. Nisbet testified that "in the process of

                    32


plaintiffs', this footnote allows them to
pursue a medical monitoring claim so long as they proffer
evidence that they were exposed to sufficient levels of
defendants' PCBs to result in their illnesses, a proffer which
they claim to have made. Plaintiffs note that they offered
expert and lay testimony explaining that their PCB
exposure stemmed from the defendants' PCBs. Moreover,
they offered proof, to the extent allowed by the district
court, that the PCBs to which they were exposed were more
dangerous than those PCBs to which the population as a
whole was exposed.11 As a result, plaintiffs argue, the
district court improperly instructed the jury that, in order
to constitute "significant exposure," the plaintiffs must have
been exposed to a greater amount of PCBs than the
population as a whole.

Plaintiffs' reliance on the Paoli II footnote is misplaced.12
_________________________________________________________________

weathering the most toxic, the most hazardous components ... are
preferentially retained, so that PCB mixtures become more hazardous as
they move through the environment." But the testimony is susceptible to
two different explanations. Of course, if the increased toxicity results in
longer exposure, blood level measures already in the record would take
account of it. If it results in greater bodily impact, the record evidence is
insufficient to give the jury guidance to support an award based on that
theory. In sum, although in another situation plaintiffs may be correct
that a pure focus on amount of exposure may be a mistake, plaintiffs'
argument falls short on the record.

11. At oral argument, plaintiffs' counsel suggested that it was possible to
discern from chromatograms whether the PCBs in the soil and plaintiffs'
blood were remnants of heat-degraded PCBs or new PCBs. Yet plaintiffs
have never compared the level of heat-degraded PCBs resulting from the
Yard to the level of heat-degraded PCBs that they normally encountered,
which if greater would have conformed to the court's definition of
"significant exposure." As such, the court did not err in charging the jury
that they may consider as one factor whether plaintiffs were exposed to
a quantitatively different level of PCBs than was the background
population.

12. Defendants attempt to reconcile Redland Soccer and Paoli II on the
ground that note 36 of Paoli II relates only to the plaintiffs' personal
injury claims and not their medical monitoring claims. However, the
footnote did not limit itself to plaintiffs' personal injury claims, and the
text to which it is appended applies to both personal injury and medical
monitoring claims.

                     33
In Paoli II, the defendants moved for summary judgment as
to both personal injury and medical monitoring claims on
the grounds that plaintiffs were unable to demonstrate that
they were exposed to PCBs at levels above the background
levels to which members of the general population were
exposed. In a footnote intended to supply doctrinal context
to its prediction of Pennsylvania law, the panel admitted of
the possibility that in the limited situation where "everyone
in the population had been exposed to substantial amounts
of defendants' PCBs," plaintiffs could withstand summary
judgment without demonstrating above-background levels
of PCBs. 

Thus, in the Paoli II footnote,
we identified a potential limited exception to the general
requirement that plaintiffs demonstrate above-background
level exposure, an exception that ensures that the most
egregious polluters, those who cause abnormally high
degrees of contaminants to permeate an entire geographical
area, do not escape medical monitoring liability by virtue of
their own extraordinary malfeasance. The plaintiffs,
however, offer no proof that the background area in which
they live was generally exposed to a high level of
defendants' contaminants or that the background PCB level
in the Philadelphia area emanated from the Paoli Yard. As
a result, they must satisfy the general requirement
articulated in Redland Soccer of abnormal exposure to
PCBs.

Plaintiffs assert that Redland Soccer applies only where
plaintiffs cannot demonstrate direct exposure to the
defendants' toxic chemicals, and that in the case at bar,
direct evidence of contamination was offered, so that the
Paoli II footnote and not Redland Soccer provides the
applicable legal standard. However, this characterization of
the relationship between Paoli II and Redland Soccer misses
the mark. First, as previously iterated, it is the Paoli II
footnote, not Redland Soccer, that is limited to a particular
context, namely abnormally extensive contamination by a
defendant. Second, neither Redland Soccer nor the
jurisprudence of medical monitoring claims makes a
distinction between cases of direct and indirect exposure.
See, e.g., Paoli 

; Paoli 

-78; Redland 

. Instead,
plaintiffs must prove that their exposure to contaminants

                   34
exceeded that which they would normally encounter in
their daily routines regardless of the nature of the evidence
offered in proof.

Redland Soccer recognizes that the medical monitoring
cause of action calls for a legal standard different from that
of traditional torts because of the special nature of the
claim. As we previously noted, medical monitoring claims
recognize a need for monitoring because of a significantly
increased risk of contracting a 

. The
risk created by chemical exposure is not "significantly
increased" unless it is greater than "the normal risks all of
us encounter in our every day lives." 

requiring
a plaintiff to show significant exposure in this way can a
court ensure that the plaintiff suffers a need for medical
monitoring that is greater than that required by all other
persons. 

of exposure within background levels
were enough to create an entitlement to medical
monitoring, a toxic tort defendant "would become a health
care insurer for medical procedures routinely needed to
guard persons against some of the ordinary vicissitudes of
life. It would convert toxic torts into a form of specialized
health insurance." 

n.8.13
_________________________________________________________________

13. Plaintiffs also challenge the district court's instruction that they had
to prove their exposure was greater than the background level "in the
Philadelphia area" or "in this region." But the references to the
background level in the pertinent geographic area were entirely proper
and necessary to give meaning to the principles set forth in Redland
Soccer.

We note in this regard that there was sharply conflicting testimony
about the amount of background exposure to PCBs. Dr. Whysner
testified for the defense that in the northeastern United States, including
Pennsylvania, the background exposure is an amount sufficient to result
in an average PCB level of 9.2 ppb in human blood. By contrast,
plaintiffs' expert Dr. Nisbet opined that background exposure is an
amount that results in a blood level of just 0.1 ppb. However, Dr. Nisbet
derived that figure from a study of residents in rural South Carolina. He
also acknowledged that background exposures tend to be higher in the
northeast, including Pennsylvania, than in the country as a whole.

Against this background, the district court was correct to instruct the
jury that what mattered was the background level of exposure in the
specific region in which the plaintiffs resided. To instruct otherwise

                     35
In sum, the district court acted within the ambit of its
discretion when it instructed the jury that, in conformance
with Redland Soccer and Paoli II, to be successful in their
claim for medical monitoring, plaintiffs must demonstrate
that they were exposed to a greater level of PCB exposure
than they would ordinarily encounter in their daily life.

B. The Property Damage Instructions

Plaintiffs also contend that the district court improperly
instructed the jurors with respect to their "stigma" property
damage claims. The district court instructed the jury twice
on plaintiffs' property damage claims. The court initially
stated:

In order to recover damages for the loss in market
value of their properties, each plaintiff must prove by a
preponderance of the evidence first that PCBs from the
Paoli Railyard caused some actual physical damage to
the plaintiff's property. Second, that the plaintiffs
prove that repairing that damage will not restore the
value of the property to the value it had prior to the
damage.

After the court's initial jury charge, the jurors asked
whether stigma can be considered damage, "regardless of
any physical damage to the property." The court responded
in pertinent part:

if you find that there was actual physical damage to
the property, even if it was temporary, the plaintiffs
_________________________________________________________________

would have rendered meaningless this Court's requirement that plaintiffs
prove exposure beyond what would "normally be encountered by a
person in everyday life," for the jury would have been allowed to use
rural South Carolina or some other non-industrial region as its
benchmark for the ordinary life of the residents surrounding the Paoli
Railyard. Finally, and at all events, plaintiffs cannot demonstrate
prejudice from that instruction because, as noted above, the court later
diluted the charge to state that the background level was "just one
factor" in determining significant exposure. See, e.g., United States v.
Garrett, 

, 782 (3d Cir. 1978) (other parts of a charge can
cure even a constitutionally defective instruction).

                    36
would be entitled to recover for stigma damage. But
there must first have been actual physical damage to
the property in order to recover for stigma damage.

Plaintiffs assert that, because the court repeatedly stated
that the damage must be "actual," a term that plaintiffs
contend means "permanent," it improperly failed to instruct
the jurors that a stigma-based property damage claim may
be based on temporary physical damage as authorized by
Paoli II.14

In Paoli 

, we ruled that an award of
stigma damages requires proof of the following elements:
"(1) defendants have caused some (temporary) physical
damage to plaintiffs' property; (2) plaintiffs demonstrate
that repair of this damage will not restore the value of the
property to its prior level; and (3) plaintiffs show that there
is some ongoing risk to their land."

The plaintiffs argue that the district court erred in
instructing the jury to consider whether "actual" property
damage occurred under the Paoli II standard. However, as
we stated above, what the court instructed the jury was
that the plaintiffs need only demonstrate temporary
physical damage; the court never instructed the jury that
the damage had to be permanent. The court's repeated use
of the word "actual" did not convey a different legal
standard to the jury. The dictionary defines "actual" as
"existing in reality or fact." Webster's New World Dictionary
14 (3d College ed. 1988). Thus, actual damage can be either
temporary or permanent. As a result, the jury was not
improperly restricted to a finding of permanent damage as
a prerequisite to a finding for the plaintiffs. Moreover, the
court's use of the word "actual" was appropriate because
Paoli II specifically requires proof of some real physical
damage to plaintiffs' land, some damage that "exists in
fact," as opposed to damage caused by negative publicity
alone.
_________________________________________________________________

14. Plaintiffs complain that the court employed the term "actual" thirteen
times during the course of instructing the jury on the property damage
claim. Because we determine that the word "actual" correctly
communicates the legal standard at issue, the frequency with which the
court employed the term is irrelevant.

                     37
Moreover, plaintiffs never objected to the use of the word
"actual" at trial, and have therefore waived their right to
object. Neely v. Club Med Management Servs., Inc., 

, 200 (3d Cir. 1995) (objections to jury charge waived if
not made before closing argument or the closing of
charging); Fed. R. Civ. P. 51. A narrow exception to waiver
exists where review is necessary to avoid a gross
miscarriage of justice, 

n.39, or if the
error of the district court was plain, United States v.
Zehrbach, 

, 1260 n.6 (3d Cir.) (en banc), cert.
denied, 

(1995). Because we conclude that
the district court did not err in its instructions, we need not
consider here the applicability of the exceptions to waiver,
though we observe that making the exceptions applicable
here would be quite a "stretch."

Plaintiffs next contend that the district court improperly
instructed the jurors to assume that the clean-up activities
set forth in the EPA's 1992 ROD will be implemented, 

n.3. The district court instructed the jurors:

 If you find that plaintiffs' property suffered actual
physical damage as a result of the presence of PCBs
from the Paoli Yard, in order for [a] plaintiff to recover,
you must also find that the repair of that damage will
not restore the value of the property to the value that
it had prior to the damage.

 In other words, to be entitled to recover, each
plaintiff must prove to you that the clean up activities
mandated by the [EPA] will not eliminate the stigma or
the loss in value associated with the presence of PCBs
on his or her property.

As of the time of oral argument, the clean-up activities
ordered by the EPA some four years ago had not been
implemented. As a result, plaintiffs contend, the jurors
should not have been required to proceed on the basis that
all of EPA's remedies would be implemented. At the very
least, plaintiffs assign as error the court's failure to give
them notice as to the challenged instruction so that they
might have offered evidence that the defendants had
successfully resisted implementation of EPA's orders. While
we are sympathetic to the plaintiffs' position, it does not

                    38
provide grounds for reversal, for the district court's
instructions were not in error.

In Paoli II, we explained that, to recover for stigma
property damages, plaintiffs must prove that "the stigma
associated with their land will remain in place after any
physical damage to their land has been repaired,"
regardless of whether the repair is actually 

, n.64. Thus, the district court's instruction to
the jury to consider whether the plaintiffs' property would
remain damaged after the EPA-mandated clean-up
activities were completed followed from the nature of the
plaintiffs' claims. The plaintiffs could have brought suit
under different theories of recovery, such as for temporary
loss of use during remediation, but they did not. See Dennis
v. Ford Motor Co., 

, 736-37 (3d Cir. 1973)
(recognizing claim for loss of use of commercial vehicle
under Pennsylvania law). They were in no way precluded
from laying a foundation for such a claim, or offering
factual evidence of whether the EPA clean-up will ever be
completed. But they did not do so, and it is not for the
district court to assume sua sponte the responsibility at the
close of trial to present plaintiffs' best approach to an issue
to the jury.

Finally, plaintiffs note that three of the nine property
damage claimants sold their properties at a loss, and
contend therefore they could not benefit from the remedial
activities mandated by the EPA, even if such activities are
completed.15 As explained above, whether repairs are
actually completed, and, whether they are completed prior
to the sale of the properties in question, is legally irrelevant
to the success of the claim that was tried -- one for stigma
property damage. Plaintiffs were not precluded from
presenting evidence that they suffered an interim loss in
property value prior to the remediation. Instead, they tried
to persuade the jury that they suffered permanent property
damage, and the jury was not swayed. Thus, plaintiffs'
claim of error in the property damage instructions must
fail.
_________________________________________________________________

15. Plaintiffs' expert Ludwig testified that the three plaintiffs who had
sold their properties prior to trial lost $63,000, $55,000, and $15,000
respectively.

                     39
IV. CONCLUSION

It is not without a backward glance that we finally lay
this case to rest. Countless hours and immeasurable efforts
have been dedicated to guaranteeing the plaintiffs proper
pretrial proceedings and their fair day in court. Yet after
two weeks of trial, the jury remained unconvinced of the
most basic of plaintiffs' claims. While some may have found
the verdict surprising, our analysis of the district court's
proceedings has assured us that the verdict was not the
result of reversible trial error. The judgment of the district
court will therefore be affirmed.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

                    40