Redland Soccer v. Dept of Army , 55 F.3d 827 ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
5-15-1995
Redland Soccer v Dept of Army
Precedential or Non-Precedential:
Docket 93-7829
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Recommended Citation
"Redland Soccer v Dept of Army" (1995). 1995 Decisions. Paper 133.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 93-7829
___________
REDLAND SOCCER CLUB, INC., BRETNI BRINK, a Minor,
by TAMARA BRINK, RYAN BRINK, a Minor, by TAMARA BRINK,
JOSEPH BRTALIK, CAROLE G. BRTALIK, JOSEPH J. BRTALIK,
BRIAN BRTALIK, WENDY BRTALIK, a Minor,
by JOSEPH and CAROLE G. BRTALIK, THEODORE F. BURD,
DIANE M. BURD, CHRISTOPHER T. BURD, a Minor, by THEODORE F. and
DIANE M. BURD, GREGORY C. BURD, a Minor, by THEODORE F.
and DIANE M. BURD, DEWITT J. CLINE, JR., JAN M. CLINE,
ERIC J. CLINE, a Minor, by DEWITT J., JR. and JAN M. CLINE,
JEROMY J. CLINE, a Minor, by DEWITT J., JR. and JAN M. CLINE,
RONALD W. DANNER, DANIELLE M. DANNER, a Minor,
by RONALD W. DANNER, CRAIG A. DANNER, a Minor,
by RONALD W. DANNER, THEODORE J. ELLIOTT, FRANCES M. ELLIOTT,
TODD ELLIOTT, a Minor, by THEODORE J. and FRANCES M. ELLIOTT,
TRACEY ELLIOTT, a Minor, by THEODORE J. and FRANCES M. ELLIOTT,
STEVEN W. HAAS, IRMA L. RODGERS-HAAS, ANTHONY M. RODGERS,
a Minor, by STEVEN W. HAAS and IRMA L. RODGERS-HAAS,
NICOLE C. RODGERS, a Minor, by STEVEN W. HAAS
and IRMA L. RODGERS-HAAS, LAWRENCE E. HAGER, RUTH A. HAGER,
SAMUEL HAGER, BENJAMIN HAGER, a Minor,
by LAWRENCE and RUTH HAGER, SHAWN HAGER, a Minor,
by LAWRENCE and RUTH HAGER, EDWARD HOCKENBERRY,
MARY L. HOCKENBERRY, BRETT R. HOCKENBERRY, a Minor,
by EDWARD and MARY L. HOCKENBERRY, ROGER L. HOCKENBERRY,
PATRICIA D. HOCKENBERRY, KERIC L. HOCKENBERRY, a Minor,
by ROGER L. and PATRICIA D. HOCKENBERRY, KODI B. HOCKENBERRY,
a Minor, by ROGER L. and PATRICIA D. HOCKENBERRY,
KLINT D. HOCKENBERRY, a Minor,
by ROGER L. and PATRICIA D. HOCKENBERRY, DAVID G. HOOPER,
PRISCILLA G. HOOPER, DAVID G. HOOPER, II, JOHN H. KNAUB,
DEBORAH J. KNAUB, DEREK J. KNAUB, a Minor,
by JOHN H. and DEBORAH J. KNAUB, SEAN M. KNAUB, a Minor,
by JOHN H. and DEBORAH J. KNAUB, THOMAS R. KRAUSE,
ROBERT A. KRAUSE, a Minor, by THOMAS R. KRAUSE, RICHARD H. LEBO,
DONNA LEBO, TRISHA LEBO, a Minor, by RICHARD and DONNA LEBO,
KRISTINA LEBO, a Minor, by RICHARD and DONNA LEBO,
RALPH E. McCARTY, GALE P. McCARTY, JOSHUA H. McCARTY, a Minor,
by RALPH E. and GALE P. McCARTY, LUCAS P. McCARTY, a Minor,
by RALPH E. and GALE P. McCARTY, JAMES P. MEYERS, KIM MEYERS,
SAMANTHA MEYERS, a Minor, by JAMES and KIM MEYERS, BRETT MEYERS,
a Minor, by JAMES and KIM MEYERS, THOMAS M. MORROW,
MEREDITH S. MORROW, GREGORY M. MORROW, a Minor,
by THOMAS M. and MEREDITH S. MORROW, GEOFFREY T. MORROW, a Minor,
by THOMAS M. and MEREDITH S. MORROW, JACK E. MUTH,
KATHLEEN L. MUTH, ROBERT C. MUTH, a Minor,
by JACK and KATHLEEN L. MUTH, JOHN A. NACE, JR., LINDA M. NACE,
MICHAEL NACE, a Minor, by JOHN A. and LINDA M. NACE, ROBERT NACE,
a Minor, by JOHN A. and LINDA M. NACE, KENNETH E. NACE,
PAMELA R. NACE, JEREMY M. NACE, a Minor,
by KENNETH E. and PAMELA R. NACE, KEVIN E. NACE, a Minor,
by KENNETH E. and PAMELA R. NACE, MELISSA A. NACE, a Minor,
by KENNETH E. and PAMELA R. NACE, DEAN G. NEWHOUSE,
NORMA J. NEWHOUSE, MARTIN NEWHOUSE, ERIC NEWHOUSE,
BENJAMIN NEWHOUSE, a Minor, by DEAN G. and NORMA J. NEWHOUSE,
PETER P. O'NEILL, ALICE L. O'NEILL, PETER O'NEILL,
PATRICK O'NEILL, PAUL O'NEILL, PATRICIA A. PALM,
DYLAN T. BUCKWALTER, a Minor, by PATRICIA A. PALM,
MICHELLE A. BUCKWALTER, a Minor, by PATRICIA A. PALM,
ROBERT J. PONTIUS, CINDY L. PONTIUS, JAY PONTIUS, a Minor,
by ROBERT J. and CINDY L. PONTIUS, DEBRA S. POPP, ANDREW J. POPP,
a Minor, by DEBRA S. POPP, THOMAS M. RADOS, a Minor,
by SONJA RADOS, WILLIAM P. REHM, JR., KIMBERLY A. REHM,
DAVID A. REHM, a Minor, by WILLIAM P., JR., and KIMBERLY A. REHM,
ANDAR A. REHM, a Minor, by WILLIAM P., JR., and KIMBERLY A. REHM,
DEON J. REHM, a Minor, by WILLIAM P., JR.,
and KIMBERLY A. REHM, MICHELLE D. REHM, a Minor,
by WILLIAM P., JR., and KIMBERLY A. REHM, KEN RIBBLE,
SUSAN RIBBLE, SCOTT RIBBLE, a Minor, by KEN and SUSAN RIBBLE,
MARK RIBBLE, a Minor, by KEN and SUSAN RIBBLE,
NEVIN C. SHENCK, JR., LISA L. SHENCK, NATHAN S. SHENCK,
AARON M. SHENCK, a Minor, by NEVIN C., JR., and LISA L. SHENCK,
REBECCA SHENCK, A Minor, by NEVIN C., JR., and LISA L. SHENCK,
BRADLEY SHIRK, RICHARD V. SPONG, SR., JULIA A. SPONG,
RICHARD V. SPONG, JR., NATHAN M. SPONG, JOELLE L. SPONG,
BARRY L. STONE, MATTHEW D. STONE, COREY J. STROMAN, a Minor,
by LOWELL R. and DEBRA J. STROMAN, DONNA L. SZOSZOREK,
SHANNON M. SZOSZOREK, A Minor, by DONNA L. SZOSZOREK,
SHAYNA M. SZOSZOREK, a Minor, by DONNA L. SZOSZOREK,
EUGENE K. TORBEK, ERIK P. TORBEK, a Minor, by EUGENE K. TORBEK,
DONALD WILLIAMSON, ELIZABETH M. WILLIAMSON, MICHAEL WILLIAMSON,
a Minor, by DONALD and ELIZABETH WILLIAMSON, WILLIAM B. WIRT,
PAMELA A. WIRT, CHRISTINE E. WIRT, KEVIN M. WIRT,
TIMOTHY B. WIRT, a Minor, by WILLIAM B. and PAMELA A. WIRT,
BRYAN C. WIRT, a Minor, by WILLIAM B. and PAMELA A. WIRT,
BURLIN COVERT, JOSEPH DORWART, III, PATRICIA A. DORWART,
JOSEPH DORWART, IV, a Minor, by JOSEPH DORWART, III, and
PATRICIA DORWART, ALICIA DORWART, a Minor, by
JOSEPH DORWART, III, and PATRICIA DORWART, BRENT DORWART,
a Minor, by JOSEPH DORWART, III, and PATRICIA DORWART,
JACK H. HERSHBERGER, JR., JUNE HERSHBERGER, LARRY SMART,
CAROL SMART, JEFFREY SMART, a Minor, by LARRY and CAROL SMART,
CRYSTAL SMART, a Minor, by LARRY and CAROL SMART, GLENN DILLER,
DALE KAHLER, ROBERT E. KANE, TERRENCE L. KEMBERLING,
DAVID A. KUPP, E. ROBERT McCOLLUM, HERBERT D. MYERS,
and WILBUR YORTY,
Appellants
v.
DEPARTMENT OF THE ARMY OF THE UNITED STATES OF AMERICA
and THE UNITED STATES OF AMERICA,
Appellees
___________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 90-cv-01072)
___________
Argued: June 22, 1994
PRESENT: BECKER and HUTCHINSON, Circuit Judges,
and JOYNER, District Judge*
(Filed May 15, 1995)
____________
Laurence W. Dague, Esquire (Argued)
Glenn R. Davis, Esquire
Raja G. Rajan, Esquire
Shumaker & Williams
P.O. Box 88
Harrisburg, PA 17108
Attorneys for Appellants Redland Soccer Club,
Inc., Bretni Brink, a Minor, by Tamara Brink,
Ryan Brink, a Minor, by Tamara Brink,
Joseph Brtalik, Carole G. Brtalik, Joseph J.
Brtalik, Brian Brtalik, Wendy Brtalik, a Minor,
by Joseph and Carole G. Brtalik, Theodore F. Burd,
Diane M. Burd, Christopher T. Burd, a Minor, by
Theodore F. and Diane M. Burd, Gregory C. Burd, a
Minor, by Theodore F. and Diane M. Burd, Dewitt J.
Cline, Jr., Jan M. Cline, Eric J. Cline, a Minor,
by Dewitt J., Jr. and Jan M. Cline, Jeromy J.
Cline, a Minor, by Dewitt J., Jr. and Jan M.
Cline, Ronald W. Danner, Danielle M. Danner, a
Minor, by Ronald W. Danner, Craig A. Danner, a
Minor, by Ronald W. Danner, Steven W. Haas and
Irma L. Rodgers-Haas, Anthony M. Rodgers, a Minor,
by Steven W. Haas and Irma L. Rodgers-Haas, Nicole
C. Rodgers, a Minor, Steven W. Haas and Irma L.
______________
* Hon. J. Curtis Joyner, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Rodgers-Haas, Lawrence E. Hager, Ruth A. Hager,
Samuel Hager, Benjamin Hager, a Minor, by Lawrence
and Ruth Hager, Shawn Hager, a Minor, by Lawrence
and Ruth Hager, Edward Hockenberry, Mary L.
Hockenberry, Brett R. Hockenberry, a Minor, by
Edward and Mary L. Hockenberry, Roger L.
Hockenberry, Patricia D. Hockenberry, Keric L.
Hockenberry, a Minor, by Roger L. and Patricia D.
Hockenberry, Kodi B. Hockenberry, a Minor, by
Roger L. and Patricia D. Hockenberry, Klint D.
Hockenberry, a Minor, by Roger L. and Patricia D.
Hockenberry, David G. Hooper, Priscilla G. Hooper,
David G. Hooper, II, John H. Knaub, Deborah J.
Knaub, Derek J. Knaub, a Minor, by John H. and
Deborah J. Knaub, Sean M. Knaub, a Minor, by John
H. and Deborah J. Knaub, Thomas R. Krause, Robert
A. Krause, a Minor, by Thomas R. Krause, Richard
H. Lebo, Donna Lebo, Trisha Lebo, a Minor, by
Richard and Donna Lebo, Kristina Lebo, a Minor, by
Richard and Donna Lebo, Ralph E. McCarty, Gale P.
McCarty, Joshua H. McCarty, a Minor, by Ralph E.
and Gale P. McCarty, Lucas P. McCarty, a Minor, by
Ralph E. and Gale P. McCarty, James P. Meyers, Kim
Meyers, Samantha Meyers, a Minor, by James and Kim
Meyers, Brett Meyers, a Minor, by James and Kim
Meyers, Thomas M. Morrow, Meredith S. Morrow,
Gregory M. Morrow, a Minor, by Thomas M. and
Meredith S. Morrow, Geoffrey T. Morrow, a Minor,
by Thomas M. and Meredith S. Morrow, Jack E. Muth,
Kathleen L. Muth, Robert C. Muth, a Minor, by Jack
and Kathleen L. Muth, John A. Nace, Jr., Linda M.
Nace, Michael Nace, a Minor, by John A. and Linda
M. Nace, Robert Nace, a Minor, by John A. and
Linda M. Nace, Kenneth E. Nace, Pamela R. Nace,
Jeremy M. Nace, a Minor, by Kenneth E. and Pamela
R. Nace, Kevin E. Nace, a Minor, by Kenneth E. and
Pamela R. Nace, Melissa A. Nace, a Minor, by
Kenneth E. and Pamela R. Nace, Dean G. Newhouse,
Norma J. Newhouse, Martin Newhouse, Eric Newhouse,
Benjamin Newhouse, a Minor, by Dean G. and Norma
J. Newhouse, Peter P. O'Neill, Alice L. O'Neill,
Peter O'Neill, Patrick O'Neill, Paul O'Neill,
Patricia A. Palm, Dylan T. Buckwalter, a Minor, by
Patricia A. Palm, Michelle A. Buckwalter, a Minor,
by Patricia A. Palm, Robert J. Pontius, Cindy L.
Pontius, Jay Pontius, a Minor, by Robert J. and
Cindy L. Pontius, Debra S. Popp, Andrew J. Popp, a
Minor, by Debra S. Popp, Thomas M. Rados, a Minor,
by Sonja Rados, William P. Rehm, Jr., Kimberly A.
Rehm, David A. Rehm, a Minor, by William P., Jr.,
and Kimberly A. Rehm, Andar A. Rehm, a Minor, by
William P., Jr., and Kimberly A. Rehm, Deon J.
Rehm, a Minor, by William P., Jr., and Kimberly A.
Rehm, Michelle D. Rehm, a Minor, by William P.,
Jr., and Kimberly A. Rehm, Ken Ribble, Susan
Ribble, Scott Ribble, a Minor, by Ken and Susan
Ribble, Mark Ribble, a Minor, by Ken and Susan
Ribble, Nevin C. Shenck, Jr., Lisa L. Shenck,
Nathan S. Shenck, Aaron M. Shenck, a Minor, by
Nevin C., Jr., and Lisa L. Shenck, Rebecca Shenck,
a Minor, by Nevin C., Jr., and Lisa L. Shenck,
Bradley Shirk, Richard V. Spong, Sr., Julia A.
Spong Richard V. Spong, Jr., Nathan M. Spong,
Joelle L. Spong, Barry L. Stone, Matthew D. Stone,
Corey J. Stroman, a Minor, by Lowell R. and Debra
J. Stroman, Donna L. Szoszorek, Shannon M.
Szoszorek, a Minor, by Donna L. Szoszorek, Shayna
M. Szoszorek, a Minor, by Donna L. Szoszorek,
Eugene K. Torbek, Erik P. Torbek, a Minor, by
Eugene K. Torbek, Donald Williamson, Elizabeth M.
Williamson, Michael Williamson, a Minor, by Donald
and Elizabeth Williamson, William B. Wirt, Pamela
A. Wirt, Christine E. Wirt, Kevin M. Wirt, Timothy
B. Wirt, a Minor, by William B. and Pamela A.
Wirt, Bryan C. Wirt, a Minor, by William B. and
Pamela A. Wirt, Burlin Covert, Joseph Dorwart,
III, Patricia A. Dorwart, Joseph Dorwart, IV, a
Minor, by Joseph Dorwart, III, and Patricia
Dorwart, alicia Dorwart, a Minor, by Joseph
Dorwart, III, and Patricia Dorwart, Brent Dorwart,
a Minor, by Joseph Dorwart, III, and Patricia
Dorwart, Jack H. Hershberger, Jr., June
Hershberger, Larry Smart, Carol Smart, Jeffrey
Smart, a Minor, by Larry and Carol Smart, Crystal
Smart, a Minor, by Larry and Carol Smart, Glenn
Diller, Dale Kahler, Robert E. Kane, Terrence L.
Kemberling, David A. Kupp, E. Robert McCollum,
Herbert D. Myers, and Wilbur Yorty
Louis B. Tarasi, Jr. Esquire
Jean A. Manifesto, Esquire (Argued)
Tarasi & Johnson
510 Third Avenue
Pittsburgh, PA 15219
Attorneys for Appellants Theodore J. Elliott,
Frances M. Elliott, Todd Elliott, a Minor, by
Theodore J. and Frances M. Elliott, Tracey
Elliott, a Minor, by Theodore J. and Frances M.
Elliott
Lois J. Schiffer, Esquire
Acting Assistant Attorney General
Environmental & Natural Resources Division
Frank W. Hunger, Esquire
Assistant Attorney General
Civil Division
David M. Barasch, Esquire
United States Attorney
Kim Daniels, Esquire
Assistant United States Attorney
J. Patrick Glynn, Esquire
Director
David S. Fishback, Esquire
Assistant Director
John T. Stahr, Esquire (Argued)
P.O. Box 23985
L'Enfant Plaza Station
Washington, DC 20026-3986
Attorneys for Appellee United States of America
Wendy L. Weiss, Esquire (Argued)
Adam, Bain, Esquire
Wagner Jackson, Esquire
Torts Branch, Civil Division
U.S. Department of Justice
Box 340, Ben Franklin Station
Washington, DC 20044
Brett P. Scott, Esq.
United States Department of Justice
1331 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Attorneys for Appellee United States Department of
the Army
____________
OPINION OF THE COURT
____________
HUTCHINSON, Circuit Judge.
Appellants are three groups of plaintiffs whose
separate actions were consolidated by the district court because
they all claimed they were harmed by exposure to toxic wastes
appellee, the United States Army ("Army"), had deposited in lands
once a part of the New Cumberland Army Depot ("Depot"). In all
three cases, plaintiffs sought class certification, but the
district court denied class certification.1 One group of
plaintiffs consists of workers for the township ("Township
Workers") who converted the area the Army used as a landfill into
a soccer field after the Army had transferred it to the township
that adjoins the Depot. The second group consists primarily of
residents living near the landfill (the "Neighbor Plaintiffs").
The third group are persons, primarily children, who played
soccer (the "Soccer Plaintiffs") on the field created on the site
of the Army's landfill. This third group includes two children
of the Elliott family, Todd and Tracey (the "Elliotts"). Tracey
suffers from leukemia and Todd from enlarged lymph nodes.
Except for the Elliotts, the primary relief all parties
seek is medical monitoring. They appeal the district court's
final order for the Army on all their claims, which was entered
following orders granting the Army's motions for summary
judgment. Their appeals raise several important issues.
Ultimately, we will affirm the orders of the district court with
respect to all appellants except the Elliotts, the only
plaintiffs who have been able to produce evidence of actual harm
by medical evidence showing the Elliott children are suffering
from conditions that require medical attention beyond the medical
1
. Basically, the named plaintiffs sought to include all persons
exposed to any toxic substances the Army had deposited in the
affected lands.
services everyone in the general population should have. Our
reasons, which differ somewhat from those of the district court,
follow.2
I. Factual History
A. The History of Marsh Run Park
1. NCAD's Use of the Land as a Landfill
The New Cumberland Army Depot is located just east of
the Harrisburg Airport on about 974 acres of land, between the
Pennsylvania Turnpike to the south and some railroad tracks and
the Susquehanna River to the north. From 1917 until the mid-
2
. We may summarily dispose of two of the arguments appellants
raise on appeal. We hold that their argument that the district
court abused its discretion when it denied class certification
lacks merit and so will affirm the order denying class
certification. We also reject appellants' argument that the
district court erred in denying "Plaintiffs' Motion for Emergency
Relief," relating to a discovery motion filed in a separate case,
O'Neal v. United States, No. 1:CV-90-1073 (order filed Nov. 16,
1993). The district court had consolidated O'Neal with the
instant case for discovery purposes. It held that counsel for
the Depot correctly sought to preclude plaintiffs' counsel from
contacting current or former Depot employees about the case
without first complying with 32 C.F.R. § 516.35(d). This
regulation requires an individual seeking information from
present or former employees of the Army to make the request in
writing to appropriate Department of Defense personnel. It is
known as the Touhy provision after United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951). The United States argues this order
is not appealable because it was entered in a separate case not
before the Court in these appeals. Because O'Neal was
consolidated with Redland for discovery purposes, the United
States also argues that the motion was untimely because discovery
had ended and summary judgment had been entered in Redland on all
issues but one when the court denied "Plaintiffs' Motion for
Emergency Relief." Assuming that the order denying discovery in
O'Neal is properly before us, we nevertheless hold that this
argument also lacks merit.
1950's, the Depot used a fourteen-acre tract of land in its
extreme southeastern part as a landfill to dispose of various
wastes. The former landfill is bordered by a railroad embankment
and the Susquehanna River to the north and by Marsh Run Creek
("Creek") and an access road on the south. A drainage pipe
carrying storm water from the Depot once emptied out onto the
western part of the tract. When the landfill was closed in the
mid-1950's, Depot employees covered the debris with eighteen
inches of dirt taken from the bank of the Creek and then spread
coal ashes over the landfill's surface, adding another six to
seven inches of cover. The Depot's perimeter fence was moved
westward so that the land, then known as Marsh Run Field, was no
longer within the fence. The Depot remains adjacent to the west
end of Marsh Run Field.
2. Transfer of the Land to Fairview Township and
Conversion Into a Soccer Field
In 1970, an executive order directed the Army to
identify and dispose of its excess acreage. The Depot identified
its former landfill as excess and engaged in negotiations with
adjoining Fairview Township ("Township") officials to transfer
the former landfill to the Township for use as a public
recreational area, which would include soccer fields. The land
was formally transferred to the Township in 1976. According to
both Army officials and Township employee, E. Robert McCollum
("McCollum"), it was common knowledge that the area was once used
as a landfill by the Depot. Indeed, the tract was commonly
referred to as "Pineapple Junction" because of old canned goods
that were known to have been disposed of there. No one from the
Depot or the Army informed the Township that the landfill
contained potentially hazardous or toxic substances. Whether the
Army knew the landfill was contaminated before the transfer is a
point of contention.3
In 1981, the Township began excavating and leveling the
site, now known as Marsh Run Park ("Park"), for use as a soccer
field. The soccer field was completed in 1982 and was used by
the Redland Soccer Club from 1982 until the Park was closed on
August 28, 1987.
3. The Park Closure and Tests for Contamination
In the 1960's and 1970's environmental concerns
intensified in this nation. New laws and regulations reflected
3
. This issue is the focus of plaintiffs' argument that the
district court erred in holding that the government's deliberate
process privilege justified the Army's refusal to disclose or
discuss certain internal records. We discuss that issue infra in
Part VIII of this opinion, where we conclude that the district
court did not adequately explain the reasons for its ruling. We
note there, however, that this discovery related not to the
nature or toxicity of the substances the Army deposited in the
landfill, the subject of other discovery and extensive testing,
but rather to the Army's knowledge of their presence. That
knowledge, or lack of it, seems to us to have little relevance to
the plaintiffs' medical monitoring claim. See also infra
footnote 20. We are thus satisfied that any error in this
respect, if indeed the order refusing discovery, as opposed to
the failure fully to explicate its rationale, is erroneous, does
not materially affect the parties' medical monitoring claims,
which are the subject of the claims of all plaintiffs except the
Elliotts, who also claim standard tort damages, including damages
for pain and suffering.
this growing concern, and the Army began investigating how wastes
were disposed of at its facilities. The Depot was included. In
1972, the United States Army Environmental Hygiene Agency did a
study on the Depot's wastewater discharges' effect on local
streams and waters, including the Susquehanna River and the
Creek, a stream which flows through the whole southern end of the
Depot. This study concluded that the Depot's discharges had no
apparent deleterious impact on the Susquehanna River, but that
they did have "a significant, adverse impact" on the plant and
animal life in the part of the Creek lying within the Depot's
boundaries. In June of 1978, the Army recommended that the
waters of the Creek within the Depot be closed to recreational
use because low levels of polychlorinated biphenyls ("PCBs") had
been detected in them.
Most of the environmental studies done at the Depot
thereafter focused on lands within the Depot and excluded the
closed landfill, which was no longer Depot property. In
September of 1977, Depot officials discovered a document
indicating a one-pound container of potassium cyanide, a toxic
substance, had been buried in the landfill. Depot officials
contacted the Township and asked for permission to dig it up and
remove it. Depot officials were unable to locate any other
documents detailing the contents of the landfill, and to date all
its contents have not been identified.4
4
. A United States Army Environmental Hygiene Agency Interim
Final Report (Draft) dated December 14-17, 1987, called
Groundwater Contamination Survey at New Cumberland Army Depot,
listed "damaged canned goods" as the major item for disposal
a. Woodward-Clyde Soil Testing Report Dated July, 1987
In 1986, the United States Army Corps of Engineers
("Corps") hired Woodward-Clyde Consultants ("Woodward-Clyde") to
perform soil testing at the former landfill to see whether any
contamination existed there. This was done pursuant to the
Defense Environmental Restoration Account ("DERA"), a program
established under 10 U.S.C.A. § 2701 et seq. (West 1983), to
investigate and remedy environmental contamination at former
Department of Defense sites. The testing was done in March of
1987 when the field was still being used by the Redland Soccer
Club.
The parameters of the study were determined by the
Corps. Woodward-Clyde installed three monitoring wells
surrounding, but not on, the landfill. It dug five test pits:
one in the cut area on the northern edge of the Park to obtain
background soils, one in the area of the cyanide canister burial
and the remaining three on the field itself. The test pits in
the field were four to five feet in depth. Two samples were
removed from each pit, one near the surface and one at mid-depth.
Surface soil samples were also taken, but not from the soccer
(..continued)
along with "damaged, out-of-specification or empty containers
from such materials as napalm thickener (aluminum naphthalate
soaps), decontaminating agent noncorrosive, decontaminating
solution DS-2) (sic), bleaches, and clothing impregnating
compounds (acetylene tetrachloride or chlorinated aniline in a
chlorinated paraffin binder)." Appellants' Appendix ("App.") at
1013a. A United States Environmental Protection Agency Report
dated July 9, 1988 speculates that acids, solvents, fuels and
plating solutions may also have been disposed of in the landfill.
field area. Groundwater was sampled in the monitoring wells,
surface water was sampled at two locations along the site's
boundaries and samples were obtained from in or near the Creek.
The testing demonstrated a "significant presence of
contaminants in some areas" of the Park and contamination in most
of the soil and sediment samples. Test pit soil samples
contained organic contaminants and all surface soils contained
elevated levels of petroleum hydrocarbons. Groundwater samples
contained elevated concentrations of metals. Woodward-Clyde
recommended further testing, including testing of the surface
soils from the playing fields and surrounding areas "where fill
is visible at the surface." Appellants' Appendix ("App.") at
950a. Following receipt of the Woodward-Clyde report, the Army
and the Township, by mutual agreement, closed the Park to further
public use and the Army repossessed the land in order to conduct
additional testing.
b. Corps' Public Health Evaluation Dated June 1988
On May 25, 1988, nine months after the Park was closed
to public use, the Corps sampled surface soils from seven areas
on the soccer fields and one off site in an effort to determine
whether the surface soils of the former landfill presented
possible human health hazards. The samples were analyzed for the
presence of volatile organic compounds ("VOCs"), semi-volatile
organics, PCBs, metals and cyanide. In four of the eight
locations low levels of polycyclic aromatic hydrocarbons ("PAHs")
were detected. Lead was the only metal detected at levels
significantly above those found in the off-site sample. The
report considered exposure pathways of dust inhalation, skin
contact and inadvertent ingestion of soil by hand-to-mouth
contact. The Corps concluded that the sampling results showed
"no apparent increase in health risk to the children playing at
Marsh Run Park" because the concentrations of contaminants were
within the acceptable limits proposed by the United States
Environmental Protection Agency ("EPA").
c. EPA Soil and Groundwater Sampling Report Dated July 29, 1988
On June 11, 1988, the Army determined that the former
landfill was an appropriate site for a remedial investigation
study, which was also to be performed by the Corps as part of the
Defense Environmental Restoration Program. Meanwhile, EPA
officials also decided to conduct soil and groundwater sampling
at the Park and make a detailed magnetic survey. Surface samples
were taken by EPA on June 22 and 23, 1988 at ten on-site
locations, stratified soil samples at three locations and
groundwater samples at three on-site monitoring wells. EPA
concluded that the Park's surface soils were contaminated with
lead and PAHs, its subsurface soils with lead and VOCs and its
groundwater with VOCs. The magnetic survey showed three possible
drum burial sites in the former landfill.
d. EA Engineering Remedial Investigation Report Dated January
1990
In conducting its remedial investigation, the Corps
contracted with EA Engineering, Science and Technology, Inc. ("EA
Engineering"). EA Engineering agreed to identify potential
sources of contamination, define the nature and extent of site
contamination and any immediate offsite impact to ground water,
surface water and air, and to assess downstream ground water and
surface water for human health and environmental risks. EA
Engineering sampled waters from four nearby residential wells on
August 31, 1989. It sampled ground water and soils from
monitoring wells in two separate phases in February and August of
1989. The record does not contain the entire EA Engineering
Remedial Investigation Report, and it does not indicate when EA
Engineering took the Creek surface water and sediment samples it
analyzes in the Report. EA Engineering did not sample the Park's
surface soils but instead used the results of the Corps' and
EPA's surface soils testing in May of 1988. EA Engineering did
not sample the waste fill itself but analyzed the surface soil
and groundwater samples results to determine what contaminants
might be flowing out from the waste fill.
EA Engineering concluded that the site was contaminated
with PAHs but that the PAHs were not unique to the site. It
concluded the site was also contaminated with trace metals
including barium, lead, copper and silver. It also determined
the fill was a potential source of VOCs. It found VOCs in the
bedrock aquifer beneath the site and determined the source of
this contamination was probably the fill. It found low-level
VOCs discharging to the Creek upstream from and adjacent to the
Park, but could not confirm whether this contamination was
resulting from ground water flowing from the fill or from some
other source. EA Engineering also concluded the trace metals
were emanating partially from the fill and some other source. It
found no contamination in any of the residential wells, all of
which are hydraulically upgradient from the Park.
EA Engineering concluded that any contaminated ground
water from the site would migrate north towards the Susquehanna
River or flow into the adjacent Creek and that no residences are
in the predicted migration path. It also concluded that the
Creek's surface waters upstream from the Park contained low-level
volatile contaminants trichloroethane and 1,1,2,2-
tetrachloroethane, and that the upstream sediments contained
low-level PAHs. The Creek's waters adjacent to and downstream
from the Park contained low-level volatiles of trichloroethane
and 1,2-dichlorothene. EA Engineering concluded that the source
of these compounds was somewhere upstream, unrelated to the Park
and that dust from the surface soils was not a significant
exposure pathway because the field, when tested, was covered by
dense grass.
As for human health risk, EA Engineering concluded that
"the past use of Marsh Run Field as a soccer field . . . resulted
in very little risk to the children using the field." App. at
1251a. It concluded that there would be potential health risk
from any ingestion of on-site ground water, but that such
ingestion would be highly improbable because it was unlikely any
residential use would be made of the site in the future.
Finally, EA Engineering concluded there was no risk to any of the
nearby residents because their wells were not contaminated and
would not become contaminated in the future. As for residents
who may have eaten fish from the Creek, it concluded there was no
carcinogenic risk.
B. The Township Worker Plaintiffs
The Township worker plaintiffs consist of seven
individuals who either performed the excavation and levelling
work while the former landfill was being converted into a soccer
field or who mowed the grass and performed maintenance work at
the Park after the field was constructed. Their deposition
testimony and affidavits can be summarized as follows.
Sometime in 1980 or 1981, Fairview Township Engineer,
Robert G. Hartman ("Hartman"), was assigned the task of
landscaping the former landfill for recreational use as a soccer
field. He conducted a topographical and perimeter survey with a
field crew. The Township Workers then excavated and levelled the
land over a four month period during the summer of 1981.
When the Township Workers first arrived at the site, it
was covered by brush and trees and was swampy in some areas. The
Township Workers cleared the brush and trees and also removed
what little topsoil was present at the site, which they put aside
for later use. As they began to grade the site and move earth
from a higher section of land to the north, near the railroad
tracks, to a lower section to the south in order to level the
ground, they began to unearth "junk," including several barrels
of white powder, drums, canisters, broken glass, old coffee mugs,
utensils, cans, wood, a railroad rail and gas masks. One of the
Township Workers recalled someone digging test holes into the
junk area and taking samples from them. No one recalled any Army
personnel being on site at any time during the work. As
excavation continued, the junk was covered up and used as part of
the fill for the lower area. The Township Workers estimated that
a cap of an average of three feet of dirt from the higher area
near the railroad embankment was placed over the junk. After the
fill was levelled, the Township Workers placed on-site topsoil
and topsoil from off-site over the fill to a depth of two to six
inches. The field was then seeded. The Township Workers
testified they inhaled dust, waded through dirt and debris, sat
in the dirt and ate their lunch there over the four-month period.
One Township Worker recalled that his eyes burned or stung while
he was running the grader and tearing up new soil and that the
burning did not stop until the newly torn up soil was reburied.
During the excavation and leveling work, some of these
same Township Workers constructed a drainage swale to redirect
water flowing out of a pipe carrying storm drainage waters out of
the Depot. During excavation for the swale, the Township Workers
exposed groundwater. Some of the Township Workers performed
repairs on a bridge over the Creek and removed debris from the
Creek.
A Township Worker named David A. Kupp ("Kupp") was
responsible for mowing the field after it was constructed. He
mowed once a week for approximately five hours. Kupp recalled
the field as dry and only sparsely covered with grass and
remembered the mower kicking up dirt and dust from the surface of
the field about 20% of the time. He also spent several hours
painting the bridge over the Creek while he stood on the banks
and rocks and in the waters of the Creek.
None of the Township Workers are currently suffering
from any physical ailment that they claim is the result of their
exposure. There is no evidence in the record that any of them
have been examined for health problems related to their exposure
at the Park or that any doctor has personally informed them that
they have an increased health risk because of exposure to toxic
substances while working at the Park.
C. The Neighbor Plaintiffs
The Neighbor Plaintiffs are twelve residents living in
the immediate vicinity of the Park and the Creek, plus some
relatives who regularly visited them. Some testified in
depositions or affidavits that they waded in the Creek, fished in
it and ate fish they caught there. Several testified they hunted
in the former landfill area and ate pheasant, rabbit, squirrel or
turtle they caught or shot there. Most of the Neighbors used the
Park for walking or other forms of exercise.
On May 8, 1988, the Department of Environmental
Resources ("DER") tested residential wells for trace metals and
VOCs and found none of the wells were contaminated. One
Neighbor, however, testified that her well water was tested in
1990 by her employer and found to contain high concentrations of
several chemicals, including lead. Another Neighbor testified
that he was told his well water did not pose a health risk but
contained traces of contaminants. He and his family stopped
drinking from it. None of the Neighbors are currently suffering
from any illness as a result of their exposure, nor have any been
personally advised by a doctor that they have an increased health
risk as a result of such exposure.
D. The Soccer Plaintiffs
The remaining 128 plaintiffs are members of the Redland
Soccer Association ("Redland"), adults and children who used the
Park on a regular basis from 1982 to 1987 for soccer activities,
and members of their immediate families who were with them during
activities at the Park. Some of the Soccer Plaintiffs testified
they helped build the soccer field in 1982, picking rocks and
moving dirt around the field and then raking and seeding it,
setting goalposts and lining the field in order to get it ready
for play in 1983. This took five or six weekends with about six
hours work per day.
One of the Soccer Plaintiffs coached a team for
Redland. He testified that his team, boys sixteen years old and
under, practiced two to three hours, three times each week at the
Park and played one game each weekend, half at the Park. He also
coached a team for boys fourteen years of age and under. That
team also practiced three times each week and played a game once
every weekend during the season. Half of this team's games and
practices were played at the Park.
Soccer's spring season started in April of each year
and ended in early June. Its fall season began in mid-August and
ended in mid-November. Practices were canceled if it rained, but
games were played no matter what the weather conditions were. If
water was on the field, someone would shovel the water away or
throw sawdust on it. The soccer coach recalled several players
falling into the drainage ditch that ran the length of the field,
which was sometimes dry and sometimes wet. Each practice started
with calisthenics.
The record contains excerpts from the depositions of
two of the soccer players. One of them, a goalie, testified he
often fell in the dirt around the goal area, sometimes face down
in puddles one to two inches deep. He also testified he
sometimes got dirt in his mouth that he had to spit out. Both
players testified at times they went into the Creek to retrieve
balls. None of the players except Todd Elliott and his sister,
Tracy Elliott are alleging that they are currently suffering from
any ailment as a result of their exposure or that they have been
personally advised by a doctor that they have an increased health
risk due to their exposure.
E. The Elliott Plaintiffs
The Elliott plaintiffs include soccer player Todd
Elliott and his younger sister, Tracey Elliott, as well as their
parents. Todd played soccer at the Park and Tracey, while
attending practices and games at the Park, skipped stones in a
stagnant creek near the field, sat on the grass and ate food,
crawled and ran on the field and walked through a mud-filled
gully near the parking area. The Elliotts allege that as a
result of Todd's and Tracey's exposure to contaminants at the
Park, Tracey is suffering from acute lymphocytic leukemia and
Todd suffers from enlarged lymph nodes and an increased risk of
cancer.5
5
. The Elliotts are also plaintiffs in an action against the
Three Mile Island nuclear plant and allege their illnesses were
caused by its release of radiation in March of 1978. See Brinser
v. Metropolitan Edison Co., No. 481-S-88 (Pa. Commw. Ct. filed
Feb. 1988).
F. The Parties' Expert Reports6
1. Plaintiffs' Risk Assessment
The plaintiffs rely primarily on a report by Richard S.
Greeley, Ph.D. ("Dr. Greeley") of R.E. Wright Associates, Inc.
entitled "Public Health Risk Assessment of a Soccer Field Near
the New Cumberland Army Depot, Fairview Township," dated
January 24, 1992 ("Plaintiffs' Risk Assessment"). The
Plaintiffs' Risk Assessment is limited to a study of the health
risks for children and adults making use of the former landfill
as a soccer field. It does not address any health risks to the
Township Workers from their excavation work or to the Neighbors
from their recreational use of the Creek and their ingestion of
fish and animals from the Creek and Park or water from
residential wells.
The Plaintiffs' Risk Assessment contains the following
summary:
Surface soil samples and soil samples from
excavation of test pits on the soccer field
have shown that volatile and semi-volatile
organic compounds and inorganic chemical
compounds are present in the soil. Some of
these compounds are carcinogenic and others
can cause adverse non-carcinogenic health
effects. The assessment considered health
risks arising from four primary pathways of
exposure of the soccer players, referees and
6
. Because the parties on appeal do not dispute the
admissability of any of the expert reports, we do not address the
experts' qualifications or the reliability of their techniques or
data, as otherwise required under our decisions In re Paoli
Railroad Yard PCB Litigation, 35 F.3d 717, 742-49 (3d Cir. 1994)
("Paoli II"), cert. denied, General Electric Co. v. Ingram, 1995
WL 75508 (Feb. 27, 1995), and In re Paoli Railroad Yard PCB
Litigation, 916 F.2d 829, 855-859 (3d Cir. 1990) ("Paoli I").
coaches to contaminant chemicals in the soil:
(1) ingestion of contaminated soil; (2)
ingestion of contaminated water on or near
the field; (3) inhalation of contaminated
dust; and (4) dermal contact with the
contaminated soil or water.
The risk assessment was conducted based on
U.S. Environmental Protection Agency risk
assessment guidance documents.
The results of the calculations indicate that
participation in games or practices at the
soccer field for periods of time greater than
33 hours results in significant health risks
for both children and adults.
The primary chemicals contributing to these
risks are the inorganic chemicals arsenic and
lead, and the base neutral polycyclic
aromatic hydrocarbon benzo(a)pyrene. Other
inorganic chemicals, polycyclic aromatic
hydrocarbons, and semi-volatile organic
compounds contribute lesser percentages to
the risks.
App. at 2909a. The Report also states that increased risk may
arise from absorption of chemicals through a cut, abrasion or
perspiration, increased amounts of volatiles and dusts in the air
during play and ingestion of contaminated soil or water during
rough play when a player's face comes in contact with the ground.
In arriving at his conclusion that adults and children
using the field for soccer play or practice for more than
thirty-three hours were exposed to a significant health risk, Dr.
Greeley relied on EPA's risk assessment procedure which consists
of four steps: (1) data collection, evaluation and
identification of chemicals of concern; (2) exposure assessment;
(3) toxicity assessment and (4) risk characterization. Risk
characterization involves, among other things, the calculation of
carcinogenic risks, which are stated in terms of "risk per
million," and is arrived at by multiplying the calculated
"increased risk of cancer" by 1,000,000.7 For each pathway of
exposure, Dr. Greeley added together the cancer risks for each of
the carcinogenic chemicals found at the site to derive an
increased risk of cancer for each pathway. He then totalled the
risks for each pathway to arrive at a total "increased risk of
cancer," which he defined as an increased risk of cancer due to
exposure at the site against everyone's everyday risk of getting
cancer.
Using the EPA guideline that treats an increased cancer
risk which is greater than one in a million as "significant" and
a similar guideline for non-carcinogenic health risks, Dr.
Greeley concluded that children or adults playing or practicing
soccer at the Park for thirty-three hours or more had an
increased risk of cancer of one in a million and an increased
7
. No one points to any demographic, epidemiologic or any other
type of scientific data, nor to any risk-utility analysis that
supports EPA's million-fold regulatory factor as demonstrating
the presence of a hazard, nor does this threshold appear in the
regulatory or statutory history. Nevertheless, the million-fold
factor seems ubiquitous in regulatory risk-utility determinations
despite its indeterminate pedigree. We will assume that it has
some rational basis and thus represents a regulatory
determination to which we must defer in deciding plaintiffs'
statutory claims. Chevron U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 897 (1984); Federal Labor Relations
Authority v. Dep't of Navy, 966 F.2d 747 (1992). For purposes of
simplicity, we will also use it to assess the tort claims. We
note, however, that a common law court may still be free to apply
standard tort risk-utility analysis to the problem of defining
the threshold at which a toxic substance becomes a hazard.
risk of non-carcinogenic health problems of three in a million
(children) and one in a million (adults). Children who played or
practiced soccer at the Park for the maximum calculated exposure
time of 1,350 hours had an increased risk of cancer of sixty-five
in a million and of non-carcinogenic health risks of thirty-eight
in a million. Adults with the maximum calculated exposure time
had an increased risk of cancer of forty-six in a million and a
non-carcinogenic increased health risk of eleven in a million.
In preparing his report, Dr. Greeley relied on the soil
and groundwater sampling performed by Woodward-Clyde in March of
1988. Dr. Greeley also considered the soil and groundwater
sampling results from the Corps' study performed in May of 1988
and the EPA study performed in June of 1988, but he decided to
rely solely on the Woodward-Clyde results because of "the non-
homogeneity of the landfill/soccer field soil, as well as the
difficulty in attempting to correlate samples taken at different
depths at different times by different sampling personnel." App.
at 2921a. He reasoned that the Woodward-Clyde study was the most
representative of the three, and its sampling was performed while
the soccer field was still in use. He acknowledged, however,
that Woodward-Clyde only dug three test pits within the immediate
area of the former landfill, now the soccer field, and that the
samples were not from the surface but were "'near-surface'"
samples and composite samples over the four-foot depth of the
test pits. Therefore, he concluded "[t]he actual concentrations
of the chemicals of concern in the soil to which the soccer
players and adults were exposed may vary more or less from the
values selected for this risk assessment." App. at 2960a. He
also considered and rejected additional exposure routes via
ingestion or contact with the sediments in the marsh area
adjacent to the soccer field and the surface water of the Creek
because the concentrations of chemicals there were either below
the detection limits of the testing method used or no larger than
the concentrations in the test pit soils.
2. Plaintiffs' Medical Monitoring Report
The plaintiffs also rely on a report by Susan M. Daum,
M.D. ("Dr. Daum") entitled "Medical Surveillance for Individuals
Exposed to Hazardous Waste on Land Known as 'Marsh Run Park' in
Fairview, Pennsylvania near the 'New Cumberland Army Depot'"
("Medical Monitoring Report") dated May 2, 1993. App. at 3006a.
There, Dr. Daum states she relies on Dr. Greeley's Risk
Assessment and agrees with Dr. Greeley that risk levels above one
times the background rate of one case per million is medically
significant. She refers to "the exposures which occurred from
the . . . Depot and waste disposal site, whether through well
water, or recreational activities on/in contaminated soil," as
having a risk estimate above one in a million but does not state
where she obtained the risk estimate for well water exposure, in
light of the fact that Dr. Greeley did not address well-water
exposure in his Risk Assessment. App. at 3010a. Ultimately, Dr.
Daum concludes that
the examinations [she recommends] . . . are
not out of the ordinary, but consist of the
usual adult medical examinations recommended
for all adults with the adult risk of cancer
in our society from those carcinogen
exposures which are already prevalent. It is
because of the increased risk of the
exposures at the Marsh Run area, however,
that such examinations become more urgent,
and access to such examinations should not be
left to vicissitudes of employment, health
insurance contract, or other individual
economic difficulties so prevalent in current
health care delivery.
App. at 3008a. Therefore, Dr. Daum did not recommend any
specialized tests for any of the plaintiffs but did recommend
routine physical examinations and preventative programs.
3. Plaintiffs' Contributing Contaminants Report
Finally, the plaintiffs rely on a report by Richard C.
Cronce, Ph.D. ("Dr. Cronce") of R.E. Wright Associates, Inc.
entitled "Evaluation Contributions of Contaminants to the
Fairview Township Soccer Field" ("Contributing Contaminants
Report") dated May 19, 1993. App. at 3044. The purpose of the
report is "to determine the possible pathways of migration of
regulated compounds to the surface of the soccer field, thus
exposing persons on the field to potential adverse health effects
from these chemicals." Id. at 3044a. In preparing his report,
Dr. Cronce reviewed the various Army reports on the site and also
performed a "site walkover" to observe present on-site
conditions. Id. at 3044. The report concludes that periodic
additions of contaminants to the surface of the soccer field are
likely as a result of flooding, overland flow of discharge waters
from a drainage pipe adjacent to the field, erosion of top soil
which is revealing an underlying layer of coal ash and movement
of the contaminants inside the landfill up to the surface soil
either by VOCs moving up through pore space in the soil or semi-
volatile organic compounds moving upwards as a result of
pedoturbation, or physical soil mixing, which occurs as animals
or insects dig or burrow in the ground. Finally, Dr. Cronce
concluded that because some of the topsoil used on the field
originated from a point along the Creek, it was probably
contaminated.
Dr. Cronce did not perform any soil testing to confirm
his hypotheses. He believed, however, that "[t]he presence of
these contaminants on the existing surface has been documented
and, therefore, the contribution of these contaminants from these
various processes is highly likely." Id. at 3049a.
4. Elliott Plaintiffs' Expert Report
Finally, the record contains the affidavit of Peter W.
Wright, M.D. ("Dr. Wright"), dated April 23, 1992 regarding
plaintiff Tracy Elliott's acute lymphocytic leukemia and
plaintiff Todd Elliott's enlarged lymph nodes. While preparing
his report, Dr. Wright reviewed Tracy and Todd Elliotts' medical
records as well as extensive scientific and medical literature
regarding the causes of cancer and acute leukemias in particular.
He concluded, "based on a reasonable degree of medical certainty,
[that] the chemicals . . . found at Marsh Run Park are known to
cause cancer, and some have been specifically implicated with
acute leukemias, such as that which has affected Tracy Elliott.
App. at 2233a-34a. Dr. Wright further opined that "the acute
lymphocytic leukemia of Tracey Elliott is related to her exposure
to the [certain] chemicals[]" [and that] "Todd Elliott, . . . due
to his exposure to the [these] chemicals, is himself at increased
risk of cancer." Id.
5. Defendants' Expert Reports
The defendants present a number of expert reports
refuting plaintiffs' experts' conclusions and assumptions.
Jessica Herzstein, M.D., M.P.H. ("Dr. Herzstein"), a physician
specializing in occupational and environmental health, reviewed
the Plaintiffs' Risk Assessment and the three soil sample
analyses performed in 1987 and 1988. She concluded that no
medical monitoring was necessary because the plaintiffs' excess
risk for cancer was extremely low and the risks of such tests
outweighed the benefits. Dr. Herzstein also produced an
affidavit addressing Dr. Daum's Medical Monitoring Report and
refuting its conclusion that medical monitoring was necessary for
the same reasons given in her initial report. Defendants also
produced an expert report by Martyn T. Smith, Ph.D. ("Dr.
Smith"), a toxicology specialist, who also critiqued Plaintiffs'
Risk Assessment and concluded that the actual excess cancer risk
posed to the Soccer Plaintiffs was zero. Dr. Smith also
concluded that Plaintiffs' Risk Assessment was flawed in the
following respects: (1) it utilized unrealistic weather
conditions; (2) it assumed an exceptionally high intake of
surface water and soil; (3) it used test results from soil
samples taken three to five feet below the surface; (4) it failed
to take into account normal background levels of contaminants and
(5) it used rodent studies for carcinogenic potency values, which
are upper bound estimates of human potencies. Dr. Smith also
produced an affidavit negating Dr. Greeley's response to his
critique of the Plaintiffs' Risk Assessment.
James H. Jandl, M.D. ("Dr. Jandl"), a specialist in
blood and blood disorders, reviewed Tracey Elliott's medical
records as well as the existing literature and research in the
fields of hematology and oncology and concluded that there is no
medically recognized evidence linking acute lymphatic
(lymphoblastic) leukemia to any chemical substances. He stated
that the only known cause of this type of leukemia is exposure to
ionizing radiation. He also reviewed Todd Elliott's medical
records and concluded Todd has no medical problem with respect to
his enlarged lymph nodes.
Roger Minear ("Minear"), Director of the Institute for
Environmental Studies at the University of Illinois and Professor
of Civil Engineering, conducted a detailed review of the
available documents concerning the Army's use of the land as a
landfill as well as the various soil studies and remedial
investigations reports undertaken by EPA and the Army and
pertinent literature. He concluded that the landfill has not
caused surface contamination at the soccer field and that
plaintiffs' use of the subsurface soil test results to represent
the surface conditions on the soccer field was not realistic or
scientifically defensible. He also prepared a report critiquing
Dr. Cronce's Contributing Contaminants Report, concluding that
Dr. Cronce's hypothesized transportations of contaminants to the
field has not been confirmed by any of the soil samples.
Finally, defendants rely on a report by Marilyn A.
Hewitt, P.G. ("Hewitt"), a certified professional geologist and
former Pennsylvania DER hydrogeologist. Hewitt reviewed
Plaintiffs' Risk Assessment, as well as the soil test reports and
other environmental investigation reports at the Park, maps,
photographs, depositions and correspondence. She concluded that
the exposure assumptions made in the Plaintiffs' Risk Assessment
were not consistent with standard EPA protocols for evaluating
human exposure to contaminants when the use of the contaminated
property is recreational, such as a soccer field. She found the
Plaintiffs' Risk Assessment was erroneous primarily because it
utilized test results from soils as deep as three feet below the
surface, whereas the standard EPA protocol called for use of
surface soil samples no more than one foot deep. She also found
the Risk Assessment failed to average the concentrations of
contaminants in the soil samples and calculated the health risks
using the maximum concentrations of contaminants, also contrary
to standard EPA protocol. Therefore, she concluded that the
Plaintiffs' Risk Assessment contained an inflated estimate of the
health risks associated with the soccer field. She also examined
Dr. Cronce's Contributing Contaminants Report and, using the
available soil testing results, refuted Dr. Cronce's assumptions
regarding contaminants being contributed from other contaminated
areas of the Creek or Depot. She refuted Dr. Cronce's conclusion
that the surface soils were contaminated by upward transport by
volitization of contaminants within the landfill based on the
"insignificant" concentrations of such chemicals in the soils at
the Park. App. at 3223a. Finally, Hewitt refuted Dr. Cronce's
assumption that pedoturbation had caused mixing of the surface
soils with the contaminated subsurface soils based on the fact
that the surface soils were tested after the field had been
closed for use as a soccer field.
Both Dr. Greeley and Dr. Cronce submitted affidavits
responding to defendants' experts' critiques of their reports.
II. Procedural History
On June 7, 1990, five of the plaintiffs filed a class
action complaint ("Redland complaint") seeking (1) injunctive
relief and money damages under the Federal Tort Claims Act
("FTCA"), 28 U.S.C.A. § 2671 et seq. (West 1994), for remedial
action, medical monitoring and emotional distress ("Redland FTCA
Plaintiffs"); (2) injunctive relief and response costs under the
Comprehensive Environmental Response, Compensation, and Liability
Act ("CERCLA"), 42 U.S.C.A. § 9601 et seq. (West Supp. 1994), in
the form of remedial action, medical monitoring and reimbursement
of plaintiffs' litigation costs; (3) injunctive relief under the
Pennsylvania Hazardous Sites Cleanup Act ("HSCA"), 35 Pa. Cons.
Stat. § 6020.101 et seq. (West 1993), in the form of remedial
action, monetary damages and reimbursement of plaintiffs'
litigation costs and (4) monetary damages for diminution of the
Neighbors' property values based on trespass. On February 26,
1991, the Elliotts filed a complaint under the FTCA alleging
negligence and seeking monetary damages for past and future
medical expenses, pain and suffering, medical monitoring and
litigation costs. The district court consolidated these cases on
September 30, 1993.
The district court denied class certification for the
Soccer Plaintiffs, Neighbors and Township Workers on March 4,
1991. After the plaintiffs' motion for reconsideration was
denied on May 3, 1991, they filed an amended complaint joining an
additional one hundred forty-five plaintiffs (collectively
"Redland Plaintiffs") on August 26, 1991.
On December 12, 1991, the United States moved to
dismiss plaintiffs' claims for medical monitoring and injunctive
relief pursuant to Federal Rule of Civil Procedure 12(b)(6). On
February 12, 1992, the district court granted the motion in part,
and dismissed the Redland Plaintiffs' request for a medical
monitoring fund under CERCLA. The court also dismissed all of
the Redland Plaintiffs' FTCA claims requesting injunctive relief.
On March 27, 1992, the United States moved for
dismissal of the Elliotts' complaint and for summary judgment.
On June 23, 1992, the district court granted the motion in part
and entered summary judgment in favor of the United States on all
claims except medical monitoring, which it then left for trial.
On June 4, 1992, the United States moved for summary
judgment or, in the alternative, partial summary judgment on the
amended Redland complaint. On September 15, 1992, the district
court granted the motion in part and dismissed the Redland
plaintiffs' citizen suits under CERCLA and HSCA claims for lack
of subject matter jurisdiction. The court also granted summary
judgment to the United States and dismissed the Redland
Plaintiffs' claims for attorneys' fees and experts' fees under
CERCLA and for attorneys' fees under the HSCA. The court did not
address the Redland Plaintiffs' entitlement to expert fees under
HSCA. The court denied the United States' request for partial
summary judgment based on sovereign immunity, and denied the
motion in all other respects.
On January 25, 1993, the United States moved to dismiss
the Redland Plaintiffs' FTCA claims for lack of subject matter
jurisdiction and, in a separate motion, asked for summary
judgment on all of the plaintiffs' claims for medical monitoring
and emotional distress, including the Elliotts' medical
monitoring claim. On June 1, 1993, all plaintiffs moved for
partial summary judgment. On October 19, 1993, the district
court denied the United States' motion to dismiss but granted its
motion for summary judgment on all plaintiffs' medical monitoring
and emotional distress claims and entered judgment against
plaintiffs on those claims. It therefore denied plaintiffs'
motion for partial summary judgment.
During the proceedings in the district court, the
parties became embroiled in a number of discovery disputes which
the district court resolved in the United States' favor and which
plaintiffs now challenge on appeal. These include (1) an order
dated January 14, 1991 denying plaintiffs' motion to compel
discovery and sustaining the United States' objections to several
interrogatories; (2) an order dated August 13, 1992 denying
plaintiffs' motion to compel the production of one hundred
thirty-nine documents and sustaining the United States' assertion
of the Deliberative Process Privilege; (3) an order dated
January 29, 1993 denying plaintiffs' motion to compel the
production of five documents and sustaining the United States'
assertion of the Deliberative Process Privilege; (4) an order
dated March 4, 1993 granting the United States' motion for a
protective order concerning plaintiffs' notices of deposition and
(5) an order dated November 16, 1993 denying plaintiffs' motion
for emergency relief concerning defense counsel's contact with
former Army employees who were potential witnesses for the
plaintiffs.
On November 29, 1993, the court entered final judgment
in favor of the United States and against the plaintiffs. On
December 23, 1993 plaintiffs filed a timely notice of appeal.
III. Jurisdiction and Standard of Review
The district court had subject matter jurisdiction
pursuant to 28 U.S.C.A. §§ 1331, 1346 (West 1993) and 28 U.S.C.A.
§ 2671 (West 1994), as well as CERCLA, 42 U.S.C.A. § 9613(b)
(West 1983). It had supplemental jurisdiction over the
plaintiffs' state law claims pursuant to 28 U.S.C.A. § 1367 (West
1993). We have appellate jurisdiction pursuant to 28 U.S.C.A.
§ 1291 (West 1993).
In reviewing an order granting summary judgment, we
exercise plenary review. Viewing the facts in the light most
favorable to the nonmoving party, we look to see if there was a
genuine issue of material fact; and, if not, whether the moving
party was entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986); In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829, 860
(3d Cir. 1990) ("Paoli I").
We review de novo the district court's determination
that the Redland Plaintiffs were not entitled to response costs
under CERCLA and HSCA, including a health risk assessment, expert
fees, attorney fees and other costs. See United States v.
Hardage, 982 F.2d 1436, 1446 (10th Cir. 1992). Finally, we
generally review the court's discovery rulings for abuse of
discretion. See Marroquin Manriquez v. I.N.S., 699 F.2d 129, 134
(3d Cir. 1983), cert. denied, 467 U.S. 1259 (1984).
Nevertheless, we exercise de novo review over the standards the
district court used in exercising its discretion. We find an
abuse of discretion only if there is either an interference with
a substantial right or a gross abuse that could result in
fundamental unfairness at trial. Id. (citations omitted).
IV. Plaintiffs' Claims Under FTCA
A. Medical Monitoring
We will first address the Redland FTCA Plaintiffs'
argument that they presented sufficient evidence to the district
court to withstand a motion for summary judgment on their FTCA
claim that the Army's negligence entitles them to medical
monitoring. In Paoli I, supra, we concluded that the
Pennsylvania Supreme Court would recognize a cause of action for
medical monitoring for plaintiffs who have been exposed to
various toxic substances. See Paoli I, 916 F.2d at 852. In so
concluding, we set forth four factors a plaintiff must prove in
order to recover:
1. Plaintiff was significantly exposed
to a proven hazardous substance through the
negligent actions of the defendant.
2. As a proximate result of exposure,
plaintiff suffers a significantly increased
risk of contracting a serious latent disease.
3. That 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.
Id. We stated that these factors must be proven by competent
expert testimony. Id. (citation omitted). We did not, however,
define the term "significantly exposed" or state what details an
expert must testify to in order to establish it.
We recently revisited this issue in In re Paoli
Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994),
(Paoli II), cert. denied, General Electric Co. v. Ingram, 1995 WL
75508 (Feb. 27, 1995) . There, we noted a New Jersey Supreme
Court decision which held that plaintiffs seeking recovery for
medical monitoring must "'have . . . experienced direct and hence
discrete exposure to a toxic substance[.]'" Id. at 787 (quoting
Theer v. Philip Carey Co., 628 A.2d 724, 733 (N.J. 1993)). Theer
held a plaintiff who was exposed to asbestos while laundering her
husband's clothes could not bring a medical monitoring claim
because, in part, "it was too difficult to quantify her
exposure." Id. We noted our uncertainty regarding the impact of
Theer, but believed Pennsylvania courts would not adopt such a
narrow view of the cause of action. We reasoned that "[s]omeone
indirectly exposed to one chemical might have as much risk of
disease as someone directly exposed to another chemical[.]" Id.
at 787-88. Accordingly, we declined to adopt a "per se rule
requiring direct exposure, actual injury, and testimony about an
individual's particular level of exposure." Id. at 788.
Nevertheless, we predicted that the Pennsylvania
Supreme Court would set some limits on a medical monitoring
claim, and we therefore adopted the Utah Supreme Court's holding
in Hansen v. CCI Mechanical, Inc., 858 P.2d 970, 980 (Utah 1993).
We stated that:
In order for a plaintiff to show significant
exposure that causes a significantly
increased risk to plaintiff of contracting a
serious disease that makes periodic testing
reasonably necessary, we think that a
plaintiff must:
prove that by reason of the
exposure to the toxic substance
caused by the defendant's
negligence, a reasonable physician
would prescribe for her or him a
monitoring regime different from
the one that would have been
prescribed in the absence of that
particular exposure. This is
because under this cause of action,
a plaintiff may recover only if the
defendant's wrongful acts increased
the plaintiff's incremental risk of
incurring the harm produced by the
toxic substance enough to warrant
a change in the medical monitoring
that otherwise would be prescribed
for that plaintiff.
Hansen v. CCI Mech., Inc., 858 P.2d 970, 980
(Utah 1993). The court continued:
[I]f a reasonable physician would
not prescribe it for a particular
plaintiff because the benefits of
the monitoring would be outweighed
by the costs, which may include,
among other things, the burdensome
frequency of the monitoring
procedure, its excessive price, or
its risk of harm to the patient,
then recovery would not be allowed.
Id. at 788. "Significant exposure," therefore, refers to an
exposure which, either by duration or harm, is sufficient to
cause a significantly increased risk, which in turn is sufficient
to require a monitoring regime different from that normally
required in the absence of such an exposure.
Here, in order to establish the first Paoli I factor of
significant exposure, the district court reasoned that plaintiffs
must show by clear evidence that they were actually exposed to
toxins. The district court noted that "[t]here is, of necessity,
a degree of speculation in a medical monitoring case.
However, . . . the allowable conjecture should be in regard to
the amount or future effect of the exposure, not whether there
was exposure at all." Redland Soccer Club Inc. v. Dep't of Navy,
No. 90-1072, slip op. at 14-15 (M.D. Pa. Oct. 19, 1993). After
reviewing plaintiffs' expert reports, the district court
concluded that nowhere did plaintiffs' experts unequivocally
state that plaintiffs had actually been exposed to any of the
toxins alleged to be in the Park's soils or that any of the
toxins had actually entered any of the plaintiffs' bodies. The
district court's conclusion was based on plaintiffs' failure to
present any evidence that the surface soils of the Park contained
a level of contamination harmful to human beings.
The district court's analysis focuses perceptively on
an issue we believe is central in all toxic tort cases; namely,
the requirement that the alleged wrong create some significant
risk of harm to the plaintiff. Thus, a plaintiff must not only
show exposure, but must 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 normal risks all of us encounter
in our everyday lives. In Paoli II, we chose not to delve into
the issues of how much exposure there had to be to equal
"significant exposure", nor how "direct" the exposure must be.
Instead, we simply required the plaintiff to prove indirectly the
nature of the exposure by requiring him to show an "injury"
(e.g., a need for medical monitoring greater than that what is
required by all persons).8
We do not believe, however, that the Redland FTCA
Plaintiffs' failure to produce evidence, in the form of blood or
tissue tests, showing directly that they absorbed toxins from the
field into their bodies is fatal to their claims. Defendants'
own expert stated generally that there are no medical tests which
8
. The injury requirement is particularly important before a
remedy such as medical monitoring is provided because the
plaintiff's injury is only an increased possibility of harm
rather than actual harm. Paoli II's requirement of "special"
medical monitoring implicitly recognizes the longstanding
requirement in all tort cases other than those based on the old
"intentional" common law torts for various forms of trespass that
a plaintiff must prove an injury before he may recover anything
from a defendant. See Gideon v. Johns-Manville Sales Corp., 761
F.2d 1129, 1136 (5th Cir. 1985) ("An actionable tort, whether
based on negligence or strict liability consists of two elements:
a failure to act in accordance with the standard of care required
by law and a resultant injury . . . . However egregious the
legal fault, there is no cause of action for negligence . . .
until there is 'actual loss or damage resulting to the interests
of another.'") (citations omitted). Otherwise, a polluter 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. Imposition of liability on this basis seems to
go beyond current tort theories of negligence or strict liability
by requiring a polluter to pay for medical procedures that the
general population should receive. 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. See Paoli II, 35 F.3d at 788.
could have detected the presence of the toxins found at the Park,
and even if a test existed which could have detected a particular
toxin, it would have been useful only if it were conducted within
one hundred twenty days of the plaintiffs' exposure. App. at
82a. Requiring a plaintiff to produce this kind of evidence to
support a finding of exposure to a toxic hazard would place an
impossible burden on persons subjected to serious medical risk
from toxic substances polluters have left to contaminate the
environment and afflict the people who live near the wrongdoer's
waste deposits. Thus, even without this direct evidence, we
believe plaintiffs may still satisfy the first Paoli I factor
through expert testimony showing they were exposed to the toxins
at issue at levels significantly above their normal background
presence so as to require special tests or more frequent medical
monitoring than medicine recommends for the general population.
With this in mind, we turn to the Redland FTCA Plaintiffs' expert
reports to see whether any of them have produced evidence
sufficient to survive summary judgment on their medical
monitoring claims.
Surprisingly, we discover the record has no expert
opinion on whether either the Township Workers or the Neighbors
have been exposed to toxins to such an extent that they suffer
such an increased risk of contracting a serious disease that
supplemental medical testing is reasonably required. Of all the
Redland Plaintiffs, the Township Workers who excavated and
levelled the contaminated landfill for four months would appear
to have the highest potential for significant exposure to toxins.
Yet plaintiffs' experts virtually ignore them, as well as the
Neighbors, and focus their expert opinion almost exclusively on
the soccer players, who would seem to have suffered a more
limited risk of significant exposure, given the paucity of
evidence in this record showing there were harmful quantities of
contaminants in the surface soils of the playing field. Our
review of the expert reports presented by the parties, as well as
the soil testing analyses, indicates that the subsurface of the
landfill was contaminated; but neither the EPA's nor the Corps'
surface soil test results indicate contamination in the surface
soil above background levels. It is undisputed that the soccer
players' primary exposure for any substantial length of time was
only to the surface soils on the soccer field. Without evidence
showing that the surface was contaminated, the Soccer Plaintiffs
cannot show significant exposure.
Dr. Greeley's report relies solely on the
Woodward-Clyde soil samples which were taken at some depth below
the surface of the Park, and he acknowledges that the exposure
values selected for use in the risk assessment may vary from the
actual concentrations in the soil. Nevertheless, we believe that
Dr. Greeley's report, as well as Dr. Cronce's report in which he
concluded that contaminants from the subsurface could migrate
upwards into the surface and that flooding of the Creek could
spread contaminants on the surface, permit a reasonable
factfinder to infer that adults and children using the soccer
field for thirty-three hours or more were exposed to carcinogens
and non-carcinogens that increased their risk of illness beyond
the one-in-a-million benchmark the EPA uses to measure
significant risk.9
Turning to the Redland FTCA Plaintiffs' evidence
concerning special medical monitoring, the only expert report
concerning the need for and extent of medical monitoring is that
of Dr. Daum. She expressly states that she does not recommend
special testing for any of the plaintiffs:10
I emphasize . . . that the examinations
suggested [below] are not out of the
ordinary, but consist of the usual adult
medical examinations recommended for all
adults with the adult risk of cancer in our
society . . . . It is because of the
increased risk of the exposures at the Marsh
Run area, however, that such examinations
become more urgent, and access to such
examinations should not be limited to
vicissitudes of employment, health insurance
contract, or other individual economic
difficulties . . . .
She acknowledges the considerable limitations of the currently
known examinations and tests for the early detection of cancer,
as well as the fact that some, such as lung cancer screening,
create risks that outweigh the potential benefits. She also
9
. We again note, however, that Dr. Cronce's report is not based
on any study quantifying the actual effects of this hypothetical
migration. We also note again that EPA's basis for its use of
the one-in-a-million lifetime ratio to judge significant exposure
is not readily apparent. Nevertheless, we will assume a rational
basis for EPA's one-in-a-million standard in defining
"significant" risk. See supra footnote 7.
10
. Dr. Daum does not distinguish between the different groups
of Redland Plaintiffs. Rather, she refers simply to them as the
"individuals" exposed to contaminants at the Park. App. at
3006a.
declines to recommend any specific surveillance tests for any
other non-cancerous chronic diseases, for the same reasons.
(App. 3011)
Thus, because all the Redland FTCA Plaintiffs (the
Township Workers, the Neighbors and the Soccer Players) failed to
introduce evidence that their exposure required a different
medical monitoring regimen than that which would normally be
recommended for them absent exposure, under Paoli II, we will
affirm the district court's order granting summary judgment to
the United States on the Redland FTCA Plaintiffs' medical
monitoring claims.
B. Emotional Distress
The Redland FTCA Plaintiffs also seek to recover
damages for negligent infliction of emotional distress caused by
their exposure to chemicals at the Park. The record shows that
none of the Redland FTCA Plaintiffs currently suffer a physical
injury or a medically-identifiable effect from any exposure to
chemicals at the Park. Therefore, we conclude the district court
did not err in granting summary judgment to the United States on
this aspect of plaintiffs' claim. Absent some physical injury or
impact, Pennsylvania's governing law does not provide recovery
for negligent infliction of emotional distress. See Wisniewski
v. Johns-Manville Corp., 759 F.2d 271, 274 (3d Cir. 1985) (citing
Cathcart v. Keene Indus. Insulation, 471 A.2d 493, 508 (Pa.
Super. Ct. 1984)); see also Bubash v. Philadelphia Elec. Co., 717
F. Supp. 297, 300 (M.D. Pa. 1989) (mere exposure not equivalent
to physical injury).
We also believe the district court correctly
distinguished Merry v. Westinghouse Elec. Corp., 684 F. Supp. 847(M.D. Pa. 1988). There, the court held that plaintiffs'
emotional distress claims survived Westinghouse's summary
judgment motion because the plaintiffs' experts testified that
plaintiffs suffered a present "physical effect as a result" of
exposure to contaminated well water and that some plaintiffs
"demonstrated acute physical symptoms of exposure to the
chemicals." Id. at 852. We have no such expert evidence here.
Therefore, summary judgment against the Redland FTCA Plaintiffs
on their emotional distress claims was appropriate.11
V. The Redland Plaintiffs' Claims Under CERCLA
We turn next to the Redland Plaintiffs' argument that
the district court erred in dismissing their claims for response
costs, including attorneys fees, expert witness fees and health
11
. The Redland FTCA Plaintiffs also argue the district court
erred in dismissing their FTCA request for remedial action under
CERCLA and HSCA. This remedy is not available against the United
States under FTCA, and we will affirm the district court's order
dismissing it. See, e.g., Hatahley v. United States, 351 U.S.
177, 182 (1956) (district court did not possess power under FTCA
to enjoin United States); Moon v. Takisaki, 501 F.2d 389, 390
(9th Cir. 1974) (per curiam) (FTCA does not submit United States
to injunctive relief). Accordingly, we need not, and do not
consider whether the district court correctly denied the Redland
FTCA Plaintiffs' motion for summary judgment on their claim of
negligence per se against the United States.
risk assessment costs, under CERCLA. We conclude that the
district court correctly dismissed these response cost claims.12
Although the Redland Plaintiffs acknowledge the
existence of an ongoing remedial action at the site, they contend
that the remedial action "is not even attempting to address the
health risks created by the contaminated site," and therefore
their request for expert fees, costs of health risk assessments
and other costs are not "challenges" to the remedial action.
Brief for Appellants at 17. They also contend their action is an
action for response costs, which is not subject to CERCLA's
prohibition against private remedial actions. See 42 U.S.C.A.
§ 9613(h) (West Supp. 1994).
Under CERCLA, there are at least two theories on which
a private individual can base an action for response cost.
First, a person who has incurred response costs that were
necessary and consistent with the national contingency plan
12
. Initially, we note that the Redland plaintiffs also contend
that the district court erred in dismissing their claim for
medical monitoring under CERCLA. We believe that the elements of
a claim for medical monitoring under CERCLA and HSCA are the same
as the elements for a common law medical monitoring claim set out
in Paoli I and Paoli II. Because of our conclusion that the
Redland FTCA Plaintiffs failed to introduce sufficient evidence
to survive a summary judgment motion on their FTCA medical
monitoring claim, we need not and do not address whether they
could recover medical monitoring costs from the United States as
a "response cost" under CERCLA or HSCA. We also note that the
United States Supreme Court recently held that attorneys fees
are not recoverable as response costs under CERCLA. See Key
Tronic Corp. v. United States, 114 S. Ct. 1960, 1967 (1994).
Thus, as the Redland Plaintiffs concede, we must affirm the
district court's order dismissing their request for attorneys
fees under CERCLA.
("NCP"), has a private right of action under 42 U.S.C.A.
§ 9607(a)(4)(B) (West Supp. 1994). Second, any person may bring
a civil action on his own behalf in the proper district court
against any person, including the United States or its agencies,
for violations of CERCLA or against the President or the
Administrator of EPA for their failure to perform any act or duty
arising under CERCLA. See 42 U.S.C.A. § 9659(a) (West Supp.
1994); see also Key Tronic Corp., 114 S. Ct. at 1965-66.
The district court's jurisdiction over such actions is
limited as follows:
No Federal Court shall have jurisdiction
under Federal law other than under section
1332 of Title 28 (relating to diversity of
citizenship jurisdiction) or under [relevant]
State law . . . to review any challenges to
removal or remedial action selected under
section 9604 of this title, or to review any
order issued under section 9606(a) of this
title, in any action except one of the
following:
(1) An action under section 9607 of
this title to recover response costs or
damages or for contribution.
. . .
(4) An action under section
9659 of this title (relating to
citizen suits) alleging that the
removal or remedial action taken
under section 9604 of this title or
secured under section 9606 of this
title was in violation of any
requirement of this chapter. Such
an action may not be brought with
regard to a removal where a
remedial action is to be undertaken
at the site.
42 U.S.C.A. § 9613(h)(1), (4) (West Supp. 1994).13
The absence of a definition of "response costs" has
been the source of much litigation since CERCLA's enactment. The
terms "response" and "respond" are defined as "remove, removal,
remedy, and remedial action," including enforcement activities.
42 U.S.C.A. § 9601(25) (West Supp. 1994). "'[R]emedial action'
means those actions consistent with permanent remedy taken
instead of or in addition to removal actions in the event of a
release or threatened release of a hazardous substance into the
environment, to prevent or minimize the release of hazardous
substances . . . ." 42 U.S.C.A. § 9601(24) (West Supp. 1994) (in
relevant part). The terms "remove" or "removal" means:
the cleanup or removal of released hazardous
substances from the environment, such actions
as may be necessary taken in the event of the
threat of release of hazardous substances
into the environment, such actions as may be
necessary to monitor, assess, and evaluate
the release or threat of release of hazardous
substances, the disposal of removed material,
or the taking of such other actions as may be
necessary to prevent, minimize or mitigate
damage to the public health or welfare or to
the environment, which may otherwise result
from a release or threat of release.
42 U.S.C.A. § 9601(23) (in relevant part).
13
. The Redland Plaintiffs argue the district court incorrectly
limited its analysis to section 9613(h)(1), (4) in dismissing
their CERCLA claims. Nevertheless, when we look to section 9659,
we see that the issues still to be decided on this appeal do not
involve either of the kinds of claims that can support a
citizen's suit alleging a removal or remedial action undertaken
or secured by or through EPA. The Redland Plaintiffs do not
contend otherwise. Therefore, we focus our analysis on the first
exception to section 9613(h).
We do not believe the Redland Plaintiffs' litigation
costs are "response costs" under any of these definitions. The
health risk assessment and expert testimony were designed to
assess, for litigation purposes, what health risks, if any, the
plaintiffs were exposed to while using the Park for recreation.
The expert assessments were conducted long after the Park was
closed to recreational use and have nothing to do with any
remedial or response action at the Park itself. Moreover, under
section 9607, plaintiffs may only recover response costs which
are necessary and consistent with the NCP. See 42 U.S.C.A.
§ 9607(a)(4)(B). The heart of these definitions of removal and
remedy are "'directed at containing and cleaning up hazardous
releases. . . . [T]herefore[,] . . . 'necessary costs of
response' must be necessary to the containment and cleanup of
hazardous releases." United States v. Hardage, 982 F.2d 1436,
1448 (10th Cir. 1992) (health assessments conducted by experts
retained for litigation purposes not response costs under section
9607(a)(4)(B)), cert. denied, Advance Chemical Co. v. U.S., 114
S. Ct. 300 (1993); see Cook v. Rockwell Int'l Corp., 755 F. Supp.
1468, 1476 (D. Colo. 1991) ("A plaintiff who has incurred no
costs, except for litigation expenses, prior to the filing of a
CERCLA action has incurred no 'necessary costs of response' under
§ 9607(a)."); Ambrogi v. Gould, Inc., 750 F. Supp. 1233, 1246
(M.D. Pa. 1991) (health assessments not recoverable response
costs under CERCLA). Therefore, we do not believe the district
court erred in determining that plaintiffs' costs are not
response costs because they are not "monies . . . expended to
clean up sites or to prevent further releases of hazardous
chemicals." Redland Soccer Club Inc. v. Dep't of Navy, No. 90-
1073, slip op. at 5 (M.D. Pa. Sept. 15,, 1992).14
VI. Summary Judgment against Elliotts
Finally, we consider the Elliotts' claims. They
challenge the district court orders dismissing their FTCA
negligence claim against the Army in which they seek damages for
medical monitoring, past and future medical expenses, pain and
suffering and emotional distress. The district court held that
the Elliotts, like the other plaintiffs, had produced no evidence
they were actually exposed to chemicals at the Park. We
concluded in Section IV.A. that there is enough evidence to
create a genuine issue of material fact as to whether persons
using the Park for thirty-three hours or more had enough exposure
to carcinogens and non-carcinogenic toxins to create a
significant risk to their health. Nevertheless, we affirmed the
district court's order granting summary judgment to the
government on the claims of the Township Workers, the soccer
players and the Neighbors for medical monitoring because they had
failed to show that their exposure made any medical monitoring
14
. The Redland Plaintiffs also argue that the district court
erred in dismissing their citizen suits for injunctive and
remedial relief, as well as attorneys fees, expert fees and
health risk assessment costs under HSCA. In view of our
disposition, we need not decide that issue. We note, however,
that the test of HSCA is markedly different from that of CERCLA.
We express no opinion, however, about any claim for medical
monitoring under state law.
tests or examinations necessary or desirable other than those
that health care professionals recommend for people who have had
no exposure to any of the toxic substances that might be found at
the Park.
The Elliotts' case differs in a striking respect from
the other plaintiffs in this action: Tracey Elliott suffers from
leukemia and Todd Elliott suffers from enlarged lymph nodes.
None of the other Redland Plaintiffs show any signs of physical
injury from their exposure. Accordingly, the Elliotts have shown
harm because the illnesses of their children demonstrate an
immediate need for medical monitoring beyond that which is
recommended for the general population. Still, neither their
common law tort claim nor any of their statutory claims can
survive unless they establish their exposure is the cause of
their increased medical needs. The district court held that Dr.
Wright's statement that the Elliott children's illnesses were
"related to" their exposure to the health hazards at the Park
that resulted from the Army's deposit of toxic substances there
was insufficient to show causation under applicable Pennsylvania
law. We believe the conclusion that the Elliotts have failed to
show causation, as a matter of law, should not have been made at
this stage of the proceeding on the record before the district
court.
In order to establish a traditional tort claim for
negligence under Pennsylvania law, the Elliotts must establish
that the Army's failure to exercise reasonable care towards them
and any breach of its duty exposed them to an elevated risk of
foreseeable harm, which resulted in injury.15 Mohler v. Jeke,
595 A.2d 1247 (Pa. Super. Ct. 1991). On this record, we think
the question whether the Elliotts can successfully establish all
these elements of their claim is a question of fact, not law. At
this stage, we look only to see if the Elliotts have introduced
enough evidence to create a genuine issue of material fact as to
each of these elements, including causation, the only one still
at issue. For the following reasons, we conclude they have.
We note initially that "cause in fact," or physical
cause, is not the same as "proximate cause," or legal cause, and
that both must be shown. See Bell v. Irace, 619 A.2d 365, 367
(Pa. Super. Ct. 1993); Novak v. Jeanette Dist. Mem. Hosp., 600
A.2d 616, 618 (Pa. Super. Ct. 1991). Causation in fact is
normally a question for the jury, but proximate cause poses
questions of law which require the court to determine whether the
defendant's negligence was so remote that, as a matter of law, he
cannot be held liable for the harm which subsequently occurred.
See Bell, 619 A.2d at 367; Novak 600 A.2d at 618. Of course,
under Pennsylvania law, the exposure must appear to contribute
15
. The parties agree that Pennsylvania law governs all state
law issues in this case. We believe causation is an issue that
should be determined by state law on all the theories of recovery
the Elliotts assert. Paoli II, 35 F.3d at 717. Like the
district court, we recognize that violation of a statute or
administrative regulation may be negligence per se, and therefore
a higher degree of care may be required in handling dangerous or
toxic materials. The principles of negligence per se aid
plaintiffs in establishing a breach of duty, but they do not
avoid the issue of causation. The basic elements of any
negligence claim remain a duty, breach of the duty, actual loss
or harm and a causal connection between the breach and the harm.
See Casey v. Geiger, 499 A.2d 606, 612 (Pa. Super. Ct. 1985).
"substantially" to the Elliotts' injuries, but this is an issue
of degree that is usually a question for the factfinder.16 See
Paoli II, 35 F.3d at 761 n.31 (citing Hamil v. Bashline, 392 A.2d
1280, 1284 (1978) (discussing Pennsylvania's "substantial" factor
requirement on proving causation).
The district court believed that Dr. Wright's statement
that the Elliott children's illnesses was "related to," rather
than "caused by," any assumed exposure failed to show a causal
connection between Tracey's exposure and her leukemia. It relied
on Novak v. United States, 865 F.2d 718 (6th Cir. 1989), in
rejecting Dr. Wright's report and thus analyzed Dr. Wright's
report in terms of proximate cause, rather than "but for" cause
or causation in fact. In Novak, an expert testified that
plaintiff's death was "related" to a swine flu vaccination he
received. Id. at 720. This medical opinion was based on the
expert's assumption that the disease plaintiff suffered was
caused by a virus. Tellingly, "no witness for the plaintiff
could say with scientific or medical certainty that the
particular vaccine at issue . . . caused [plaintiff's] disorder."
Id. at 722. Considered along with the defendant's expert
testimony that there was no scientific evidence that the vaccine
was related to the cause of plaintiff's illness, the United
States Court of Appeals for the Sixth Circuit concluded that the
16
. Of course, if it could be shown, by cross-examination or
otherwise, that Dr. Wright used the term "relation" to mean
"correlation" in the statistical sense instead of cause in either
the medical or legal sense, the force of his testimony could be
significantly affected.
district court clearly erred in upholding a finding of causation
and entering judgment for the plaintiff. Id.On this appeal, however, we are reviewing the Elliotts'
claims at the summary judgment stage, and on that basis alone
Novak is distinguishable. Whether Dr. Wright's testimony will
persuade the factfinder that leukemia is caused by toxins of the
type found at the Park remains to be seen. For summary judgment
purposes, however, we believe that the Elliotts have introduced
sufficient evidence to establish a genuine issue of material fact
regarding causation. Dr. Wright testified:
It has been stated in a standard text of
oncology that irradiation and exposure to
toxic chemicals are the most studied
environmental factors that predispose to
leukemia. In another standard text of cancer
epidemiology, it has also been stated that
the probable causes of leukemia include a
range of factors, acting singly or in
combination, some involving intrinsic host
mechanisms and others reflecting
environmental exposures, including radiation,
chemicals and others.
App. at 2190a. Dr. Wright continued:
Some of the chemicals found on [NCAD]
includ[ing] . . . but not restricted to
arsenic, cadmium, trichloroethylene,
chloroform, DDT, PCBS, carcinogenic PAHs,
hexachlorobenzene, radium, and
pentachlorophenol.
Lymphoreticular malignancies in humans have
been linked to exposure to benzene,
chloroform, chlorophenols, and
trichloroethylene. Animal studies have also
supported a causal relationship between
exposure to trichloroethylene, DDT, and
benzene and lymphoreticular malignancy in
animals. A positive statistical association
of childhood leukemia and well water
contaminated with chlorinated organics,
including trichloroethylene chloroform has
been reported. An increased leukemia
mortality has been attributed to occupational
exposure to chemicals, including organic
solvents, and chlorophenols, all chemicals
known to be present at Marsh Run Park.
Id. at 2191a. In contrast to Novak, Dr. Wright also testified,
"based upon a reasonable degree of medical certainty," some of
the chemicals at the Park cause cancer, including acute leukemia,
and Tracey Elliott's disease is related to her exposure at the
Park. Id. at 2233a.17
Under Paoli II, 35 F.3d at 750-52, the requirement of
expert testimony on issues of the type involved here is a matter
of substantive law governing a plaintiff's burden of proof.
However, Pennsylvania caselaw on causation does not require that
expert testimony include any "magic words" such as "caused by,"
rather than "related to." To the extent that "magic words" have
any significance in the Pennsylvania cases, they seem merely to
reflect Pennsylvania's sensible requirement that the expert speak
"with a reasonable degree of medical certainty." In Gradel v.
Inouye, 421 A.2d 674, 679 (Pa. 1980), for example, the Supreme
Court of Pennsylvania held:
Expert medical opinion on causation need not
be unqualified and absolute, i.e., stated in
'categorical terms;' ordinarily, it must
17
. Of course, if it could be shown, by cross-examination or
otherwise, that Dr. Wright used the term "relation" to mean
"correlation" in the statistical sense instead of cause in either
the medical or legal sense, the force of his testimony could be
significantly affected.
establish that the injury was, to a
'reasonable degree of medical certainty,'
caused by the alleged negligence.
[When] the complexities of the human
body place questions as to the cause of pain
or injury beyond the knowledge of the average
layperson . . . the law requires that expert
medical testimony be employed. In addition
to its bearing on whether or not the
defendant's conduct was negligent, such
testimony is needed to establish that the
injury in question did, with a reasonable
degree of medical certainty stem from the
negligent act alleged.
Id. (quoting Hamil v. Bashline, 392 A.2d 1280, 1285 (Pa. 1978)
(emphasis omitted from original and added)). We believe Dr.
Wright spoke with the "reasonable degree of medical certainty"
required by Pennsylvania caselaw.
The district court also concluded that Dr. Wright's
report did not sufficiently "rebut" the affidavit submitted by
the Army's expert, Dr. Jandl, stating that leukemia is not caused
by the types of chemicals found at the Park and that Tracey's
leukemia and Todd's enlarged lymph nodes therefore cannot be
causally linked to their exposure. Dr. Wright's report stated
that Tracey Elliotts' leukemia is related to her exposure to the
chemicals found at the Park and that Todd Elliott has an
increased risk of cancer due to his exposure to the same
chemicals. It also states that exposure to certain chemicals,
including those found at the Park, is among the risk factors
associated with leukemia. Dr. Wright and Dr. Jandl simply
reached different conclusions regarding the cause of the Elliott
children's injuries after reviewing the Elliotts' medical
records. Because their opinions conflict as to the fact of
causation, there remains a genuinely disputed issue of material
fact on the issue of causation, which is for the factfinder to
resolve. It is up to the jury to decide whether the chemicals at
the Park were a substantial contributory cause of the Elliott
children's illnesses. Viewing the evidence in the light most
favorable to the Elliotts, the nonmoving party, we believe Dr.
Wright's report is enough to permit the Elliotts to survive the
United States' motion for summary judgment on the issue whether
Todd and Tracey Elliotts' present injuries, including any need
for special medical monitoring, has been caused by their exposure
to any toxic substances the Army may have deposited in the
landfill under the Park in which they played.
VII. Discovery Disputes
Because we will reverse the district court's order
granting summary judgment to the United States on the Elliotts'
claims, we must consider the discovery issues the appellants
raise concerning the district court's decision that the
deliberate process privilege enabled the United States to
withhold discovery of certain documents that could be relevant or
likely to lead to the discovery of relevant information. The
plaintiffs appeal three discovery related orders, issued by the
district court, which denied their motions to compel production
of documents.18
A. The Deliberative Process Privilege
First, the plaintiffs allege that the district court's
order, dated August 13, 1992, denying their motion to compel
production of one hundred thirty-nine documents based upon the
defendants' deliberative process privilege, was an abuse of
discretion. The deliberative process privilege permits the
government to withhold documents containing "confidential
deliberations of law or policymaking, reflecting opinions,
recommendations or advice." In re Grand Jury, 821 F.2d 946, 959
(3d Cir. 1987) (citing NLRB v. Sears Roebuck & Co., 421 U.S. 132,
150-54 (1975); EPA v. Mink, 410 U.S. 73, 89 & n.16 (1973)), cert.
18
. The plaintiffs also challenge the district court's order,
dated March 4, 1993 granting the defendants' motion to require
the plaintiffs to travel to the residence or place of business of
certain witnesses who were sought to be deposed. The plaintiffs
contend that it was an abuse of discretion to require them to
send an attorney there to conduct the depositions and that the
district court should have ordered the depositions to occur at
the site of the litigation. In the end, the plaintiffs deposed
these individuals by phone and so did not incur the travel
expense to which they objected. The plaintiffs now claim this
was unfair because they were unable "to evaluate the appearance
and conduct of [the] witnesses." Reply Brief of Appellants at
22. We cannot say, based on this generalized complaint, that the
district court's order was an abuse of discretion. See
Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983),
cert. denied, 467 U.S. 1259 (1984) (a district court has broad
discretion in determining the manner in which discovery is
conducted.).
denied sub. nom., Colafella v. United States, 484 U.S. 1025(1988).19
"[T]he ultimate purpose of this long-recognized
privilege is to prevent injury to the quality of agency
decisions." Sears, Roebuck & Co., 421 U.S. at 151. It
recognizes "that were agencies forced to operate in a fishbowl,
the frank exchange of ideas and opinions would cease and the
quality of administrative decisions would consequently suffer."
First Eastern Corp. v. Mainwaring, 21 F.3d 465, 468 (D.C. Cir.
1994) (quotations and internal ellipses omitted). The
deliberative process privilege does not protect factual
information, even if such information is contained in an
otherwise protectable document, as long as the information is
severable. See In re Grand Jury, 821 F.2d at 959. In addition,
it does not protect "[c]ommunications made subsequent to an
agency decision." United States v. Farley, 11 F.3d 1385, 1389
(7th Cir. 1993).
The privilege, once determined to be applicable, is not
absolute. First Eastern Corp., 21 F.3d at 468 n.5; Farley, 11
F.3d at 1389. After the government makes a sufficient showing of
entitlement to the privilege, the district court should balance
19
. Our discussion of the deliberative process privilege is
based, in part, on interpretations of the bank examination
privilege. The two privileges are similar and precedent
concerning them is often relied upon interchangeably. See, e.g.,
Schreiber v. Society for Savings Bancorp, Inc., 11 F.3d 217, 220-
22 (D.C. Cir. 1993); In re Subpoena Served Upon the Comptroller
of the Currency and the Secretary of the Board of Governors of
the Federal Reserve System, 967 F.2d 630, 634 (D.C. Cir. 1992).
the competing interests of the parties. The party seeking
discovery bears the burden of showing that its need for the
documents outweighs the government's interest. This Court has
previously stated that "the party seeking disclosure may overcome
the claim of privilege by showing a sufficient need for the
material in the context of the facts or the nature of the case .
. . or by making a prima facie showing of misconduct." In re
Grand Jury, 821 F.2d at 959 (internal citations omitted). The
United States Court of Appeals for the District of Columbia,
recently determined that a district court, in balancing the
interests, should consider at least the following factors:
"(i) the relevance of the evidence sought to be protected;
(ii) the availability of other evidence; (iii) the 'seriousness'
of the litigation and the issues involved; (iv) the role of the
government in the litigation; [and] (v) the possibility of future
timidity by government employees who will be forced to recognize
that their secrets are violable." First Eastern Corp., 21 F.3d
at 468 n.5.
Thus, a party's assertion of the deliberative process
privilege requires a two-step review in the district court.
First, it must decide whether the communications are in fact
privileged. Second, the court must balance the parties'
interests. Because the district court did not sufficiently
explain its rationale in either respect, we will vacate its order
of August 13, 1992 denying the plaintiffs' motion to compel
discovery of the 139 documents which the Army claimed the
deliberative process privilege.20 On remand, the district court
should demonstrate its adherence to the process.
The initial burden of showing privilege applies is on
the government. See Schreiber v. Society for Savings Bancorp.,
11 F.3d 217, 221 (D.C. Cir. 1993). To meet it, the government
must present more than a bare conclusion or statement that the
documents sought are privileged. Id. Otherwise, the agency, not
the court, would have the power to determine the availability of
the privilege. Id.The United States, in support of its assertion of the
deliberative process, initially gave the district court a list
and description of fifty-nine requested documents which
plaintiffs had requested with supporting affidavits. There it
states that all the documents fall within one of three
categories: "1) [d]raft documents intended only for internal
review; 2) comments on draft documents; and 3) internal, pre-
decisional notes and memoranda recommending courses of agency
action." App. at 1900. The affidavit then states in general
terms that the documents in each category are within the purview
20
. Our remand on these discovery related orders does not affect
our affirmance of summary judgment against the plaintiffs who
were unable to show an injury. The discovery that was denied
sought information on violations of law, the defendants'
knowledge, overall contamination, etc. See App. at 2334-37.
These issues go to breach of duty, or violation of law, not to
the special monitoring that might be necessary from the exposure
involved here. See also supra footnote 3. Unlike the other
plaintiffs, the Elliotts and their children seek damages beyond
medical monitoring and have produced evidence showing present
illness, not just future risk of harm.
of the privilege.21 The listing provided some benefit to the
district court in its description of the documents, but the
detail given in the various descriptions varies. The description
given for most of the documents withheld provides little more
than general information indicating which of the three general
categories the documents fall into. For example, one document is
described as "August 1990 draft New Cumberland Army Depot
Remedial Investigation/Feasibility Study of the AMSCS."
21
. The entire argument the United States presented to the
district court follows:
An essential element in the effective
management of the Army's environmental
program at Army installations is the
assurance that the Army, its contractors, and
other reviewing agencies may engage in free
and candid discussions while formulating Army
positions, arriving at Army decisions, and
preparing final versions of Army documents.
Draft documents and the comments on draft
documents listed in attachment 1 are an
integral part of the deliberational,
predecisional processes that results in a
final Army decision. Editorial changes that
would be apparent fr[o]m a comparison of the
draft to the final document reflect the
personal opinions and mental impressions of
the drafting and editing staff. Disclosure
of draft documents and comments on drafts
would stifle the editing process and impair
the frank presentation of ideas that
accompanies the drafting and finalization of
Army documents. Disclosure would, therefore,
result in an identifiable harm to the public
interest, namely an impairment of the
decision making process would result in
prejudice to the Army's goal of making the
best possible decisions and producing the
best possible documents.
App. at 1900-01.
Approximately two months after the filing of the initial
affidavit and document list, the defendants presented the
district court with a second affidavit, verbatim except for the
different date, and a listing of an additional 82 documents for
which the defendants wished to invoke the privilege. The
descriptions of these documents were similarly conclusory.
Before this Court, both the United States and the
Elliotts dispute the reasoning behind the district court's order.
The Elliotts rely on the district court's use of the phrase
"compelling reason" in its order to argue that the court erred by
applying a "compelling reason test." The United States points to
the court's use of the word "outweighs" to argue that the
district court applied the correct balance in the exercise of its
discretion. The district court stated:
It is understandable that plaintiffs may
wish access to this material but they state
no specific or compelling reason to obtain
any particular item. Based upon our review
of the arguments made and authorities cited
we believe the need to protect the
predecisional, deliberative process in
government decision making outweighs the
general desire of plaintiffs to view this
material as part of discovery.
App. at 2402.
We are reluctant, on this record, to decide just what
the district court meant by the use of any particular word or
phrase. Instead, we think the district court should, on remand,
apply the balancing test as we have outlined it. It should also
make any findings of fact that may be needed to support its
implicit conclusion that the documents sought fell under the
deliberative process privilege, if it so decides on remand. See
Comptroller of the Currency, 967 F.2d at 636 (Although the
district court used the language of balancing, "[n]either the
order nor the . . . hearing that preceded it indicates with any
clarity, [] the factors that persuaded the court to [reach] this
conclusion."); In re Grand Jury, 821 F.2d at 959.
The district court may elect to perform a preliminary
in camera review of the documents in question before balancing
the competing interests and exercising its discretion. In In re
Grand Jury, we referred to the Supreme Court's statement in Kerr
v. United States District Court, 426 U.S. 394, 406 (1976), that
"in camera review is a highly appropriate and useful means of
dealing with claims of governmental privilege." In re Grand
Jury, 821 F.2d at 959.22
22
. See also In re Franklin Natl. Bank Securities Litig., 478
F. Supp. at 582 ("Given this clash of strong competing interests,
the official information privileged usually requires examination
of documents in camera."); Northrop v. McDonnell Douglas Corp.,
751 F.2d 395, 405 (D.C. Cir. 1984) ("The litigant's need for the
information cannot be balanced against its sensitive and critical
role in the government's decision making process without any
indication of what that information is.").
The plaintiffs also contend that the district court erred by
not considering whether the government committed illegal acts,
the fact that the government is alleged to be a tortfeasor, that
the individual who characterized the documents could not
objectively evaluate their deliberative content, that the
government failed to persuasively show the potential harm from
disclosure and that the government failed to adequately describe
the documents. We believe these tests tend to beg the privilege
question.
In considering the United States' assertion of
privilege, the district court should keep in mind the fact that
Federal Rule of Civil Procedure 26 authorizes broad discovery
into "any matter, not privileged, which is relevant to the
subject matter involved in the pending action, [see Federal Rule
of Civil Procedure 26(b)(1)] but the deliberative process
privilege, like other executive privileges, should be narrowly
construed." See Coastal States Gas Corp. v. Dep't. of Energy,
617 F.2d 854, 868 (D.C. Cir. 1980); Cooney v. Sun Shipbuilding &
Drydock Co., 288 F. Supp. 708, 716 (E.D. Pa. 1968) (collecting
cases).
B. Waiver of the Privilege
The plaintiffs also attack the district court's order,
dated January 29, 1993, denying their motion to compel discovery
of five documents. In this respect, they claim, even if the
documents were privileged, that the United States has waived its
privilege. Waiver is based on the Army's disclosure of these
five documents in the course of a subsequent response. The
district court concluded that this disclosure was "inadvertent"
and did not qualify as a "voluntary" waiver. App. at 2621. See
Transamerica Computer Co. v. International Business Machines
Corp., 573 F.2d 646, 651 (9th Cir. 1978). The district court did
not err when it rejected the plaintiffs' waiver argument.
We also reject the plaintiffs' contention that the
importance of the documents should be factored into the
determination of whether the government waived its privilege.
The importance of the documents is relevant to the balancing of
interests, but the plaintiffs refer us to no cases and we find
none stating that it is relevant to waiver. Moreover, we believe
the importance of the documents is immaterial to whether their
disclosure was voluntary.
C. Relevance
Finally, the plaintiffs challenge the district court's
order, dated January 14, 1991, regarding their attempt to compel
discovery against the Army's contention that the Privacy Act, 5
U.S.C.A. § 552a(b)(11) (West 1995), covered some of the
plaintiffs' requests. In this order, the district court held
that the Privacy Act did not protect the discovery sought, but
denied some of the requested discovery as overbroad or
burdensome. The plaintiffs contend that the court failed to
apply the standards this court requires in deciding whether a
discovery request is overbroad or burdensome. See Josephs v.
Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982). The United
States responds with a footnote in its brief, stating:
The basis for appealing this order is unclear
given the fact that the district court
required the United States to supply
plaintiffs with information which otherwise
would have been protected by the Privacy Act,
5 U.S.C. § 552a(b)(11). This Court should
reject the appeal because plaintiffs have
failed to show how the district court abused
its discretion.
Brief of Appellees at 41 n.22.
In Josephs, we stated "the mere statement by a party
that the interrogatory was overly broad, burdensome, oppressive
and irrelevant is not adequate to voice a successful objection to
an interrogatory." Josephs, 677 F.2d at 992 (internal quotations
omitted). Instead, "the party resisting discovery must show
specifically how each interrogatory is not relevant or how each
question is overly broad, burdensome or oppressive." Id.(citations, internal ellipses and internal quotations omitted).
The record before us has only the district court's
order which states its conclusion that the discovery requests
were "overbroad and burdensome." App. at 1507. On remand the
district court might wish to set forth its recognition and use of
the Josephs standards in support of its conclusion that the
plaintiffs' request for some documents be overturned.
VIII. Conclusion
The order of the district court dismissing the claims
of the Neighbors, the Soccer Plaintiffs and the Township Workers
will be affirmed. Its order granting the United States summary
judgment on the Elliotts' claims will be reversed, and their case
will be remanded for further proceedings consistent with this
opinion.
The parties shall each bear their own costs.