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Foust v. Southeastern Pennsylvania6/29/2000
oor." Additionally, affidavits submitted at the certification hearing reflect that information relating to, inter alia, background levels of PCBs in the United States population, harms associated with increased PCB exposure and the Defendants' knowledge of PCB-related harms and responses thereto will be the same for each plaintiff in the class. (See Affidavit of Ian C.T. Nisbet, S.R.R. at 22b-23b).
b. Proof of Significantly Increased Risk
Defendants assert that proof of a significantly increased risk of contracting a serious latent disease will require an inquiry into each individual plaintiff's age, gender, medical history, family history and lifestyle. Moreover, an increase in risk also depends upon the dose and duration of the individual's exposure to PCBs.
Once again, Plaintiffs argue that this element of Redland can be proven without an investigation into individual characteristics. Plaintiffs contend that they need only demonstrate "that exposure to x amount of PCBs leaves places them at significantly elevated risk of contracting a latent disease." (Plaintiffs' Brief at page 30). Plaintiffs cite the Third Circuit Court of Appeals opinion in the case of In re Paoli Railroad Yard PCB Litigation, 35 F. 3d 717 (3d Cir. 1994), cert. denied sub. nom., General Electric Co. v. Ingram, 513 U.S. 1190 (1995), as further support for this assertion. In that case, the court stated:
here experts individualize their testimony to a group of individuals with a common characteristic (i.e., levels of exposure to chemical X above Y amount), we do not think there is a need for greater individualization so long as they testify that the risk to each member of the group is significant. We fail to see the purpose in requiring greater individualization. Nor do we think that an expert must quantify the increased risk. See Ayers, 106 N.J. 557, 525 A.2d 287 (N.J. 1987)(holding that where medical experts testified that a group of 300 plaintiffs who had drunk contaminated well water were subject to significant but unquantifiable increased risk of cancer, the plaintiffs had made out a medical monitoring claim). Id. at 788.
c. Proximate Causation
Defendants raise a similar argument with regard to proof of proximate causation. Defendants contend that individualized factors that must be considered when proving proximate causation include: what conditions each Plaintiff was exposed to; what each plaintiff's preexisting condition happened to be; what each plaintiff's present condition is; when and how each Plaintiff discovered the increase in risk; and, finally, what intervening factors may have caused the increased risk.
Plaintiffs reject this argument for similar reasons, asserting that all that must be shown is exposure. The rest of the individualized factors listed by Defendants, while relevant, will fall under consideration during the course of Plaintiffs' actual medical monitoring.
d. Proof of Reasonably Necessary Monitoring Regimen
Defendants emphasize that their experts opined that in order to determine whether a medical monitoring program is reasonably necessary, a physician must analyze each plaintiff's health, the tests to be employed, the diseases to be screened and the available treatments for these conditions as appropriately integrated into each particular plaintiff's medical care program. (See Joint Affidavit of Drs. Marie Savard and David Goldmann, R.R. at 193a).
In response, Plaintiffs point to the testimony of Dr. Lewitt, who opined that the question of whether a group needs medical monitoring can be addressed on a class-wide basis. (S.R.R. at 38b). Plaintiffs argue that the extent, type and f
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