Wicker v. Consolidated Rail Corp. (371 F. Supp. 2d 702, 2005)

MEMORANDUM OPINION and ORDER OF COURT

GIBSON, District Judge.

This matter comes before the Court on the Defendant’s Motion in Limine (Document No. 24 at C.A. No.l994-4J), Plaintiffs’ Motion to Strike Conrail’s Motion in Limine (Document No. 119 at C.A.No. 1993 — 41J) and the Defendant’s Motion to Enforce Release (Document No. 32 at C.A. No.l994-23J). A general background discussion as to the history of these matters can be found under Section II. A. of this Memorandum. Before proceeding to determine the Motion in Limine, the Court will first review the Plaintiffs’ Motion to Strike Conrail’s Motion in Limine.

I. PLAINTIFFS’ MOTION TO STRIKE CONRAIL’S MOTION IN LIMINE

On October 8, 2004, the Plaintiffs (For purposes of Section I, refers collectively to all of the remaining eighteen Plaintiffs identified in the above captions; see Section II, infra) filed a Motion to Strike Conrail’s Motion in Limine. The thrust of the Plaintiffs’ argument is that the Consolidated Rail Corporation’s (Defendant) Motion relies upon the “illegal” research of Dr. James Albers, one of the Defendant’s expert witnesses. More specifically, the Plaintiffs allege that Dr. Albers converted the medical information of railroad workers previously examined by him during the course of independent medical examinations unrelated to the instant litigation and used such medical information in medical studies that are supportive of the Defendant’s argument that exposure to solvents in railroad work does not result in solvent-induced toxic encephalopathy.

The Plaintiffs produce a letter dated February 12, 2003, Exhibit 7 to their motion, which indicates that the Department of Health and Human Services, Office of Human Research Protections (Department) required the University of Michigan in relation to the Albers research to “submit ... a satisfactory corrective action plan to address the above finding.” The letter was written by Dr. Patrick J. McNeilly to Dr. Fawwaz T. Ulaby. The finding the Department refers to is its finding that the University of Michigan Institutional Review Board did not document “four specific criteria when approving waiver or alteration of some or all of the required elements of informed consent.” Plaintiffs’ Motion to Strike, Exhibit 7. The Plaintiffs provide no further information as to whether the necessary corrective action was taken or if criminal action was taken against Dr. Albers or the University of Michigan. However, the Defendant has provided the Court with a letter dated September 15, 2003 in which the Department noted the “corrective actions” taken by the University of Michigan(UM):

... adequately address the determination in OHRP’s February 12, 2003 letter and are appropriate under the UM FWA.

(2) OHRP finds that UM has adequately addressed, the additional concerns raised in OHRP’s February 12, 2003 letter.

As a result of the above determinations, there should be no need for further involvement of OHRP in this matter.

Letter of Dr. McNeilly to Dr; Ulaby, dated September 15, 2003, Exhibit 7 to Conrail’s Response (Document No. 79 at C.A. No.l994-4J). This letter references the two published studies of Dr. Albers: “Absence of Polyneuropathy Among Workers Previously Diagnosed with Solvent-Induced Toxic Encephalopathy, Journal of Occupational and Environmental Medicine 41:500-509; 1999” and “Neurologic Evaluation of Workers Previously Diagnosed with Solvent-Induced Toxic Encephalopathy, Journal of Occupational and Environmental Medicine 42: 410-423; 2000.” Id. These are the same studies referenced in the February 12, 2003 letter from Dr. McNeilly to Dr. Ulaby. Compare Plaintiffs’ Motion to Strike, Exhibit 7 with Defendant’s Response, Exhibit 7. Clearly, this informed consent related issue was resolved to the satisfaction of the Department.

The Plaintiffs also suggest that the use of the medical information in question may be in violation of the Health Insurance Portability and Accountability Act of 1996, but do not provide any additional or followup actions taken by the government. Such speculation and allegations do not warrant the striking of the Defendant’s Motion.

What is more pertinent to the Court’s decision on the Plaintiffs’ motion is that the two research studies of Dr. Albers that are in question do not play a role in our analysis of the Defendant’s Motion in Li-mine. Dr. Albers’ opinions play no part in the requirement that the Plaintiffs carry the burden established by Federal Rule of Evidence 104 to demonstrate the reliability of their experts. The focus of Defendant’s motion is directed at the qualifications and methodology of the Plaintiffs ’ experts, and the Court does not rely in any way upon Dr. Albers’ opinions or research in making its analysis of these issues.

Furthermore, the Plaintiffs have not stated in what manner Dr. Albers’ research supports the Defendant’s current Motion in Limine. In addition, Dr. Albers’ studies wére published in October 1997, June 1999, and April 2000. The present motion was filed on January 16, 1998. Other than the fact that the first article provided to the Court was published by Dr. Albers four months- before the Motion in Limine was filed, no evidence has been provided that would permit the Court to conclude that Dr. Albers’ research played a role in the Defendant’s Motion in Li-mine. Further, the Department noted the existence of illegal activity on February 12, 2003 and only then requested corrective action from the University of Michigan, the institutional sponsor, by means of documenting certain criteria for waivers of informed consent. Plaintiffs’ Motion to Strike, Exhibit 7. This corrective action only referenced the articles of 1999 and 2000, not the 1997 article. In addition, acceptable corrective action was taken as to the 1999 and 2000 articles. As a result, the Court finds no basis to grant the Plaintiffs’ Motion to Strike and it is hereby denied.

The Court will revisit the Plaintiffs’ arguments with regard to Dr. Albers in its consideration of the Defendant’s Motion to Enforce Release, discussed later in this Memorandum Opinion. For now, we turn to the Defendant’s Motion in Limine.

II. DEFENDANT’S MOTION IN LI-MINE

This matter comes before the Court on the Defendant’s Motion in Limine filed January 16, 1998. (Document No. 24 at C.A. No.l994-4J).

A. Background

These cases have a long and involved procedural history, most of which need not be recounted here. However, for the sake of the reader’s understanding as to why these cases have persisted in litigation for twelve years, the Court will briefly explain the process through which these cases presented themselves to this writer.

Twenty-six plaintiffs filed the action found at civil action number 1993-41J, with Mr. Edward L.Wicker, Sr. being the lead plaintiff. Their complaint sought damages against the Defendant under several counts, including negligence and the Federal Employer’s Liability Act, 45 U.S.C. §§ 51-60, (FELA) with the Plaintiffs being then-current and former employees of the Defendant who worked at the Hollidaysburg Reclamation Plant, the Hollidaysburg Car Shop and/or the Junia-ta Locomotive Shop, sites used to salvage locomotives and freight cars and “for the purpose of constructing and repairing locomotives and freight cars.... ” (Plaintiffs’ Complaint, ¶ 15 at C.A. No.l993-41J) respectively. The Plaintiffs claimed medical ailments as a result of alleged exposure to toxic substances including PCBs, diesel fuel, chlorinated solvents, contaminated dust and other hazardous chemicals and substances used in and around the plants as well as disposed onto the enumerated property sites. Although originally comprised of several counts, the Plaintiffs’ complaint was reduced to one count alleging injuries under the FELA as a result of the memorandum order of September 24, 1993, signed by then-District Judge D. Brooks Smith. The original cases were later severed by Judge Smith by order dated December 10, 1993 (Document No. 23 at C.A. No.l993-41J). These matters were later consolidated for discovery purposes only under civil action number 1993-41J (Wicker, Sr. v. Consolidated Rail Corporation) by order of Judge Smith dated October 3, 1994 (Document No. 26 at C.A. No.1993-41J). Senior Judge John P. Ful-lam, of the Eastern District of Pennsylvania, was later assigned these cases by Chief Judge Donald E. Ziegler by order dated March 1, 1999. Immediately prior to the entry of this order, Judge Fullam heard three days of testimony concerning the present motion in limine on February 2, 3 and 4,1999.

Judge Fullam attempted to mediate a settlement between the Defendant and the various Plaintiffs prior to addressing the pending motion in limine. Several Plaintiffs compromised and settled their claims against the Defendant, but eighteen of these civil actions did not result in a settlement and are currently before this Court for disposition. These outstanding civil actions were transferred to this writer by order of Chief Judge Ambrose dated May 13, 2004. The Court held a status conference on these civil actions on June 30, 2004 to acquaint itself with the outstanding issues related to this litigation, including the need for withdrawal of Plaintiffs’ former counsel and the entry of appearance of Plaintiffs’ current counsel, Mr. George Chada. Subsequently, the Court scheduled oral argument on the Defendant’s Motion in Limine and the Defendant’s Motion to Enforce Release (Document No. 32 at C.A. No.l994-23J) for October 8, 2004. This oral argument lasted approximately five and one half hours. The Court entertained this lengthy argument in order to achieve a better understanding of the issues involved in the outstanding motions as well as to provide Mr. Chada an opportunity to advocate for the Plaintiffs, in that he had not previously represented the Plaintiffs during the course of the Daubert hearing before Judge Fullam in February 1999.

B. Applicable Law for Daubert Motions Generally

The Supreme Court recognized in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) that Federal Rule of Evidence 702 had superseded the common law standard of “general acceptance” that governed the admissibility of expert testimony at trial since, the ruling in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923). The version of Rule 702 at the time of the Daubert ruling read as follows: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469, 480 (1993)(citing Federal Rule of Evidence 702). The Supreme Court in Daubert concluded that the trial judge should act to screen evidence to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert at 589, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469, 480 (1993).

The Daubert court then proceeded to analyze Rule 702 as being two separate parts: 1) scientific knowledge (whether the testimony is reliable, ie. based upon “good grounds”); and 2) the ability of the testimony to “assist the trier of fact to understand the evidence or to determine a fact in issue.” (whether the testimony is relevant, ie. whether there is a “fit” to use the term utilized by Judge Becker of the Third Circuit Court of Appeals). Daubert at 589-591, 113 S.Ct. 2786, 2795-2796, 125 L.Ed.2d 469, 480-482. Thus, the Supreme Court in Daubert requires trial courts to initially determine the validity of the methodology utilized by the expert and then whether the methodology applies to the circumstances in the case at bar. Daubert at 592-593, 113 S.Ct: 2786, 2796, 125 L.Ed.2d 469, 482.

While noting that a Daubert inquiry is a “flexible one” and that different factors will be applicable depending upon the circumstances, the Supreme Court set forth five non-exclusive factors that can be used in making this evaluation: 1) can the theory or technique in question be tested; 2) has the theory or technique been subject to peer review and publication; 3) what is the known or potential rate of error for a particular technique; 4) are there standards that exist and are maintained that control the technique’s operation; and 5) has the theory or technique been “generally accepted”. Daubert at 593-594, 113 S.Ct. 2786, 2796-2797, 125 L.Ed.2d 469, 482-483. In addition, the Court specifically recognized that the focus of the inquiry was not to be upon an expert’s conclusions: “The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 595, 113 S.Ct. 2786, 2797, 125 L.Ed.2d 469, 484 (1993). Finally, the Court concluded that expert testimony, which is admissible but “shaky,” can be tested by means of “[v]ig-orous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert at 596, 113 S.Ct. 2786, 2798, 125 L.Ed.2d 469, 484.

Dauberb requires that the proponent of expert testimony must prove the testimony as valid and applicable to the facts at issue in the matter by a preponderance of proof, following the requirements of FedeRal Rule of Evidence 104(a). Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-593, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469, 482, n. 10 (1993).

The Third Circuit addressed the standards required of proponents of expert testimony in the case of In re: Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3rd Cir.1994) (Paoli III). In that case, the plaintiffs alleged exposure to PCBs that were deposited in the rail yard adjacent to their homes in making claims for medical monitoring and property damage. The version of Federal Rule of Evidence 702 which the Third Circuit reviewed in Paoli III differed from the current version of the Rule. The version of Rule 702 at the time of the Paoli III litigation was the same as that version evaluated in Daubert.

In evaluating the necessary standards for admitting expert testimony at trial the Third Circuit concluded that the 1972 version of Rule 702 had two requirements: 1) a witness offering “specialized knowledge must be an expert”; and 2) “the expert must testify to ‘scientific, technical or other specialized knowledge [that] will assist the trier of fact.’ ” Paoli III at 741-742. In discussing the manner of evaluating the Court’s first requirement of qualifications, Judge Becker, writing for the' Court, found: “Rule 702’s liberal policy of admissibility extends to the substantive as well as the formal qualification of experts. We have eschewed imposing overly rigorous requirements of expertise and have been satisfied with more generalized qualifications.” Paoli III at 741 (citing Hammond v. International Harvester Co., 691 F.2d 646, 652-53 (3rd Cir.1982)).

Addressing the second requirement of “Reliability,” Judge Becker noted the Supreme Court’s conclusion in Daubert that the Frye test was not a part of the evaluation of admissibility of expert testimony under Rule 702. Id. at 742. Judge Becker then wrote:

Daubert explains that the language of Rule 702 requiring the expert to testify to scientific knowledge means that the expert’s opinion must be based on the “methods and procedures of science” rather than on “subjective belief or unsupported speculation”; the expert must have “good grounds” for his or her belief. Daubert, 509 U.S. at 589-90, 113 S.Ct. at 2795. In sum, Daubert holds that an inquiry into the reliability of scientific evidence under Rule 702 requires a determination as to its scientific validity. Id. at 590 n. 9, 113 S.Ct. at 2795 n. 9.

Paoli III, 35 F.3d 717, 742 (3rd Cir.1994). The five factors set forth by the Supreme Court in Daubert, are to be used in- the evaluation of the reliability of an expert’s methods. The five factors of Daubert were noted by Judge Becker to be similar to those factors utilized in the Third Circuit opinion in U.S. v. Downing, 753 F.2d 1224, 1238-1239 (3rd Cir.1985). However, three factors of Downing were not included within the Daubert factors: “the degree to which the expert testifying is qualified, the relationship of a technique to ‘more established modes of scientific analysis,’ and the ‘non-judicial uses to which the scientific technique are put.’ ” Paoli III at 742 (citing Downing, 753 F.2d 1224, 1238-39 (3rd Cir.1985)). The Supreme Court in Daubert did not foreclose such use of other factors in evaluating the reliability of expert testimony, Daubert, 509 U.S. 579, 594, 113 S.Ct. 2786, 2797, 125 L.Ed.2d 469, 484, n. 12, and Paoli III instructs the district courts of the Third Circuit to consider all of the factors listed by Daubert and Downing as listed in footnote eight of Pao-li III. Paoli III at 742. Footnote eight of Paoli III reads as follows:

Thus, the factors Daubert and Downing have already deemed important include: (1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and. maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.

In conducting a Daubert analysis a district court must also consider the requirement of “fit.” • Judge Becker succinctly describes “fit” as follows:

In addition to reliability, Rule 702 requires that the expert’s testimony must assist the trier of fact. As we put it in Downing, admissibility depends in part on “the proffered connection between the scientific research or test result to be presented and' particular disputed factual issues in the case.” Downing, 753 F.2d at 1237. See Daubert, 509 U.S. at 589-93, 113 S.Ct. at 2795-96, 125 L.Ed.2d 469 (explicitly adopting the “fit” requirement of Downing). For example, animal studies may be methodologically acceptable to show that chemical X increases the risk of cancer in animals, but they may not be methodologically acceptable to show that chemical X increases the risk of cancer in humans. Daubert explains that, “ ‘[f]it’ is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes.” Id. at 591,113 S.Ct. at 2796. Thus, even if an expert’s proposed testimony constitutes scientific knowledge, his or her testimony will be excluded if it is not scientific knowledge for purposes of the case. “Rule 702’s ‘helpfulness’ standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Id. (emphasis added). For example, in order for animal studies to be admissible to prove causation in humans, there must be good grounds to extrapolate from animals to humans, just as the methodology of the studies must constitute good grounds to reach conclusions about the animals themselves. Thus, the requirement of reliability, or “good grounds,” extends to each step in an expert’s analysis all the way through the step that connects the work of the expert to the particular case.

Paoli III, 35 F.3d 717, 742-743 (3rd Cir.1994). The Third Circuit emphasized that the question of reliability, discussed infra, bears upon the “fit” component of the analysis by finding that the standard for fitness is “not that high” but is “higher than bare relevance.” Paoli III at 745. The court noted in, In re: Paoli R.R. Yard PCB Litig., 916 F.2d 829 (3rd Cir.1990) (Paoli I) that testimony that PCBs cause liver cancer was admissible even though no plaintiff suffered from such cancer because an affidavit supported the notion that “increased risk of liver cancer was probative of increased risk of other forms of cancer.” Id.

The Paoli III Court went on to recognize that in assessing the ádmissibility of expert opinion under Federal Rule of Evidence 702, in accordance with Federal Rule of Evidence 104(a), the proponent of the testimony “must make out more than a prima facie case of reliability.” Paoli III at 744, n. 9. This pre-trial inquiry is to establish compliance with Rule 702, specifically to establish that the opinions to be given at trial are reliable. Paoli III at 744. “The evidentiary requirement of reliability is lower than the merits standard of correctness.” Id. Further, the Paoli III Court found that a court may determine that “good grounds” exist for the expert opinion to be offered, even though the judge may believe “better grounds” exist for an alternate conclusion or that a somewhat flawed methodology, if fixed, would lead to a different conclusion. Paoli III at 744. “A judge frequently should find an expert’s methodology helpful even when the judge thinks that the expert’s technique has flaws sufficient to render the conclusions inaccurate.” Paoli III at 744-745. The Third Circuit also found that the distinction between a methodology and the manner of its application is not warranted by concluding:

As suggested,* Daubert inters any need for us to make such a distinction, for Daubert’s requirement'that the expert testify to scientific knowledge — conclusions supported by good grounds for each step in the analysis — means that any step that renders the analysis unreliable under the Daubert factors renders the expert’s testimony inadmissible. This is true whether the step completely changes a reliable methodology or merely misapplies that methodology.

Paoli III, 35 F.3d, 717, 745 (3rd Cir.1994). The Court also recognized that when a district court, after focusing on the methodology of an expert under a Daubert analysis, subsequently disagrees with the expert’s conclusion, the judge will most likely be in disagreement not because of the conclusion made, but, because of a mistake in the questioned method or the superiority of another method over the questioned method. Paoli III at 746. However, a flaw in methodology does not automatically disqualify an expert opinion; the flaw must be of such substance to create a lack of “good grounds” for the expert’s conclusions. Paoli III, at 746.

C. Analysis on Plaintiffs’ Failure to Meet Initial Burden of Proof

The Court notes the complexity of this matter and observes that Judge Fullam conducted a lengthy Daubert hearing on February 2, 3 and 4, 1999. The Third Circuit has required Daubert hearings in such circumstances. See e.g., Padillas v. Stork-Gamco, Inc., 186 F.3d 412 (3rd Cir.1999)(finding complexity as a reason for a court to require a Daubert hearing without a request from any party). The Court notes that during the hearing, the movant, the Defendant, was the only party to produce any witnesses while the Plaintiffs, the proponents of the challenged testimony, sought only to conduct cross-examination of the Defendant’s witnesses without offering testimony of their own. The Plaintiffs offered only documentary evidence into the record: “MR. LAUGH-LIN: On behalf of the plaintiffs, we will not be calling any live testimony in this proceeding. However, we have a number of documents which we wish to move into evidence.” Hearing Transcript of February 4, 1999 (Document No. 67)(hereinafter “HT”), p. 112.

This procedure followed during the hearing appears to be contrary to the standard established in Daubert and Paoli III requiring that the proponent of the challenged evidence must meet the burden of demonstrating admissibility by a preponderance of the evidence. See id. at 417-418; Paoli III, 35 F.3d 717, 743 n. 9, 744 (3rd Cir.1994). However, in spite of this apparent procedural lapse, this Court will evaluate the Defendant’s motion in accordance with the previously stated burden of proof and will do so by considering all of the evidence submitted by the Plaintiffs in relation to the Motion in Limine, the transcript of the Daubert proceedings of February 1999 and all of the evidence submitted by the Defendant in relation to the Motion in Limine. After a review of the hearing transcripts, the Court finds that the Plaintiffs were provided the opportunity to submit their challenged experts for examination along with any other evidence they wished to present; the reason for the apparent procedural misstep of the party with the burden of proof failing to offer affirmative testimony is unclear in that it was a circumstance not commented upon by counsel or the Court at the time.

Nevertheless, the Plaintiffs, through their various counsel, have taken advantage of the opportunities to submit ample evidence upon the record in support of their proposed experts to allow the Court to conclude that prior to these matters being transferred to this writer, that the rule of law requiring the Plaintiffs to step forward first in the procedural sequence and proffer evidence in support of their proposed experts has been in a sense “substantially” met by the numerous submissions of information and argument in this matter. Therefore, the Court conducts the following analysis of the Daubert issues with an awareness of the requirement that the Plaintiffs, as proponents of the challenged evidence, must initially offer evidence in support of their expert witnesses.

D. Analysis on the Applicability of the Daubert and Paoli III Holdinys to FELA Actions

One further issue must be addressed briefly before proceeding to the analysis of Daubert issues. This issue concerns the interplay and effect of the FELA upon the question of admissibility of expert opinion under Daubert and Paoli III. The Third Circuit, in a pre-Daubert case of Hines v. Consolidated Rail Corporation, 926 F.2d 262, 269 (3rd Cir.1991), concluded that the FELA standard can affect the decision to admit expert testimony. The Hines court resolved most of the issues before it consistent with its rulings in the related ease of Paoli I principally because of the fact that the district court, which presided over both cases, did not provide an opinion explaining its exclusion of the Plaintiffs expert, Harry Shubin, M.D., who conducted what appeared to be a differential diagnosis. Hines was decided in the context of a summary judgment motion.

In Paoli III, the Third Circuit, having the benefit of the guidance of the Supreme Court in Daubert, again indicated that in “analyzing reliability for the purposes of litigation not for the purposes of science, the substantive standard of causation can affect the standard of admissibility.” Paoli III, 35 F.3d 717, 761 n. 31 (3rd Cir.1994). The Third Circuit went on in that footnote to conclude that the Pennsylvania state law standard of the “substantial factor” in a negligence action did not affect the issue of admissibility in that case because the cases applying the “substantial factor” standard are mostly found in the medical malpractice context with one exception which did not explain why that standard was applied. The Third Circuit concluded: “We do not think that this latter case articulates the law in Pennsylvania, and we thus think that Pennsylvania substantive law does not change the federal standard for the admissibility of expert testimony.” Id. Paoli III was also decided in the context of a summary judgment motion challenging expert testimony, where the cause of action concerned the state law claim of medical monitoring and the issue concerned how the Plaintiffs’ expert testimony, based upon the methodology of differential diagnosis, supported this claim.

In a matter related to the cases sub judice, Snyder v. Consolidated Rail Corporation, C.A. No.1994-11J, then-District Judge D. Brooks Smith decided a motion in limine as to John J. Shane, M.D. wherein he had to apply both Paoli III and Hines. In the unpublished opinion of Snyder v. Consolidated Rail Corporation, No. C.A. 94-11J, 1998 WL 465897, at *6 (W.D.Pa. Aug.4, 1998), the court concluded that “as long as [a] plaintiff s expert presents scientifically reliable evidence that the toxic exposure. could have played some role, however small, in causing plaintiffs injuries, the testimony should be admitted under Hines ” but “if the expert’s conclusion — or any inferential link that under-girds it — fails under Daubert to provide any evidence of causation, it must be excluded, even under Hines liberal approach to admissibility.” (emphasis in original).

The Third Circuit has yet to elaborate upon footnote thirty-one in Paoli III as to the circumstances under which the substantive law affects the issue of admissibility. Judge Kelly, the presiding judge of the Paoli litigation, has recently found, in an unpublished opinion, that the FELA causation standard does not affect the burden of admissibility of a plaintiffs expert witnesses. In re Paoli Railroad Yard PCB Litigation, Nos. CIV.A. 86-2229, 87-119087-1258, 87-3227, 2000 WL 274262 (E.D.Pa. March 7, 2000). Judge Kelly’s approach is consistent with the Ninth Circuit’s case of Claar v. Burlington Northern R. Co. 29 F.3d 499, 503 (9th Cir.1994) which found: “The standard of causation under FELA and the standards for admission of expert testimony under the Federal Rules of Evidence are distinct issues and do not affect one another.” In Claar, a FELA action, the Ninth Circuit was reviewing the granting- of summary judgment and the court upheld summary judgment finding a lack of causation ■evidence presented by the plaintiffs expert witnesses, and thus no genuine issue of material fact on the element of causation. Claar at 504.

In consideration of the uncertainty of the Third Circuit’s message in footnote thirty-one of Paoli III, and a lack of subsequent precedent in the Third Circuit concerning the interplay between the FELA and the admissibility of expert testimony under Federal Rule of Evidence 702, Daubert, and its progeny, the Court will analyze the Defendant’s motion in li-mine consistent with the Claar approach. The Court does this for three reasons.

First, all of the precedent and cases cited above have determined admissibility in the context of motions for summary judgment and not motions in limine. Summary judgment is obviously connected to the proving of a prima facie case and in a FELA case, causation is one such element of the employer’s negligence. It is the Court’s view, consistent with Claar, that the Plaintiffs’ expert testimony could result in opinions that do not establish causation, but are still reliable, fit and helpful for the jury to understand the issues. Thus, an opinion could meet a Daubert challenge as to reliability and fit by applying the proper methods to scientific questions, but not advance the Plaintiffs’ cause of action because it is equivocal in its conclusions. Therefore, in this opinion, the Court is only determining the questions required by Federal Rule of Evidence 702 and Daubert and not. any questions under Federal Rule of Civil Procedure 56. The Court notes that the Defendant has proposed summary judgment also, but that motion will be addressed separately later in our opinion. If the two issues were combined, the Court would proceed to questions of causation and a possible finding of summary judgment. However, that circumstance is not before the Court, and therefore only the issue of whether the experts offered by Plaintiffs will be permitted to offer expert opinions will be considered, not their role in proving causation under FELA.

Second, the Court notes the following passage from Hines:

Conrail also argues that, in contrast to Paoli, Hines did not make a claim for medical monitoring and therefore the “decreased burden of proof apparently applied by the Paoli decision based on medical monitoring has no claim here.” Letter Brief for Appellees (General Electric) at 3. However, in Paoli, we treated our decision regarding the medical monitoring claim, together with what we characterized to be other “discrete” or “distinct” legal issues, separate and apart from our decision regarding the admissibility of evidence under Fed. R.Evid. 702, 703, and 403. Paoli, 916 F.2d at 836, 861. Conrail is incorrect, then, in concluding that our decision on the medical monitoring issue in any way affected, either substantively or in terms of burden of proof, our decision regarding the admissibility of the testimony of other experts.

Hines v. Consolidated Rail Corporation, 926 F.2d 262, 276 (3rd Cir.1991) (emphasis added).

Third, the Paoli litigation, Hines and Snyder all dealt with expert witness testimony that was based upon differential diagnosis. The admissibility of this type of diagnosis will be reviewed further, later in the opinion. Nonetheless, it is sufficient to say at this point that differential diagnosis relies upon the evaluation of separate possible causes of a physical condition, and the arrival at a diagnosis through the narrowing down of these causes commonly through use of medical exams and testing, taking of medical histories, and review of relevant literature on possible diagnoses, as well as other techniques sometimes unique to the symptoms and circumstances. See Paoli III, infra. Therefore, differential diagnosis, .as an expert methodology, uniquely relies upon the question of causation in its application. That is why in Paoli III the Third Circuit required an expert applying- differential diagnosis to explain why he did not find a specific alternative cause when challenged to do so by the opposing party; failure to reasonably explain why a conclusion of such alternative cause was not reached would therefore result in a finding of unreliability. Paoli III, 35 F.3d 717, 759, n. 27, 760 (3rd Cir.1994).

Therefore, the following analysis of the Defendant’s Motion in Limine is based upon Federal Rule of Evidence 702, Dau-bert and its progeny, and Paoli and its progeny without any question of admissibility being affected by the standards of causation set forth under the FELA. Such questions of causation are properly suited for analysis pursuant to a challenge to the adequacy of the prima facie elements of a theory of liability under the rubric of a Federal Rule of Civil Procedure 56 summary judgment motion.

E. Analysis on the Reliability of Plaintiffs’ Expert Witnesses

Plaintiffs’ counsel at oral argument on this matter on October 8, 2004 indicated that he would not present any testimony from the experts being challenged by the Defendant in its Motion in Limine. Argument Transcript (hereinafter “AT”), pp. 2-14. However, Plaintiffs’ counsel did indicate that he intends to present, at the time of trial, the treating physicians of each Plaintiff who may or may not rely upon the reports produced by these experts being challenged in the Motion in Limine as part of the treating physicians’ technique of differential diagnosis performed upon the Plaintiffs. Id.

The Court proceeded with argument on the Motion in Limine as it was apparent that Plaintiffs’ counsel was not going to agree to the preclusion of the Plaintiffs’ experts and that the Plaintiffs may rely upon these expert reports at some point in the future. AT, pp. 11, 6.

The Court does not pass judgment upon the issue of whether differential diagnoses of the Plaintiffs’ treating physicians are admissible or whether the Plaintiffs require the testimony of expert witnesses to prove them causes of action under FELA. Even so, the Court recognizes that the Plaintiffs’ counsel is correct that differential diagnosis is an acceptable methodology under Rule 702 (See Paoli III, 35 F.3d 717, 758-759 (3rd Cir.1994)), but also recognizes that the time for expert discovery and designation of experts has long since passed in these eighteen civil actions before the Court. Amended Case Management Order, dated January 29, 1997(Doeument No. 10 at 94-4J)(or-dering fact discovery to be completed by June 30, 1997 and designation of Plaintiffs’ expert witnesses and their reports by July 31, 1997); AT, p. 8. These issues are not before the Court, but may in the future need to be decided and those decisions may at that time be dependent to some degree upon the expert reports at issue today. Therefore, the Court will proceed with its analysis of the Defendant’s Motion in Limine.

Before proceeding with the analysis of each individual expert under the motion in limine, the Court notes that at oral argument on this motion Plaintiffs’ counsel indicated that he would not rely upon the opinions of Dr. Ellenbecker or Dr. Pero-vich and the motion in limine is unopposed as to these experts. AT, pp. 41-42, 76-77. Therefore, the Defendant’s Motion in Limine is granted as to Dr. Ellenbecker and Dr. Perovich. The Court will now proceed to the analysis of the first expert witness under the Defendant’s Motion in Limine.

1. Dr. Melvyn J. Kopstein

Findings of Fact

Dr. Kopstein has a Ph.D. in chemical engineering from the University of Pennsylvania and has worked in this field as either an researcher, analyst, or consultant, including consulting for government and litigants, for the past thirty years. Kopstein Aff. ¶ ¶ 2-4.

Dr. Kopstein admits that his analysis does not attempt to measure the ambient air levels of chemicals in the air brake shop, garage or any other location within the Defendant’s facilities. Kopstein Aff. (Document No. 43 at C.A. No.l994-4J) ¶ 18; Kopstein Depo. (Document No. 27, Exhibit 2, at C.A. No.l994-4J) pp. 28-29. Dr. Kopstein’s analysis uses the Unsteady State Diffusion Model (Model), from the textbook Transport of Phenomena authored by Bird, Stewart & Lightfoot. Kopstein Depo. pp. 28-29; Kopstein Aff. ¶ 5. Dr. Kopstein uses the Model to estimate the concentration of Trichloroethy-lene, (TCE) Trichloroethane (TCA) and Benzene exposure for those Plaintiffs who had worked in job titles utilizing these chemicals either in the air brake shop or the garage. Kopstein Aff. ¶ ¶ 20-21. Dr. Kopstein uses this model only to analyze the concentrations of TCE, TCA and Benzene. Kopstein Depo. pp. 133, 135. Kop-stein Report (Document No. 40, Exhibit No. 9).

Dr. Kopstein does not attempt to opine on the issue of causation, but only on the “opportunities for exposure.” Kopstein Aff. ¶ ¶ 12, 23-24. Information regarding the measurement of ambient air levels of TCE, TCA, Benzene and other chemicals at issue during the time periods relevant to this suit have not been discovered. Kopstein Depo. p. 138. It is unknown whether any such tests were conducted at the times material to the allegations found in the Plaintiffs’ complaints. Id. Dr. Kop-stein employed an analysis that did not take into account air currents within the working space of the Plaintiffs for which he evaluated exposure. Kopstein Depo. pp. 166-167.

Kopstein Analysis

The Court notes that the qualifications of Dr. Kopstein have been challenged by the Defendant to the extent that the Defendant argues that Dr. Kopstein cannot give an opinion as to the causation of any condition or illness of any Plaintiff. Defendant’s Brief, p. 23. The Court agrees with the Defendant that Dr. Kopstein cannot opine as to causation of the Plaintiffs’ conditions or illnesses. The Plaintiffs have previously agreed to this point as well: Plaintiffs’ former counsel indicated that Dr. Kopstein was to put forth an opinion as to “dose and opportunity for exposure, not effect/” Plaintiffs Response, p. 27. Therefore, the Court concludes that Dr. Kopstein cannot opine as to the causation of any of the Plaintiffs’ physical or mental conditions or ailments as he is not qualified to do so. Nonetheless, as to the initial question of qualifications, the Court recognizes that Dr. Kopstein holds a Ph.D. in chemical engineering from the University of Pennsylvania, has conducted research and analysis professionally since 1974 for private corporations and government agencies such as Exxon, TRW Energy Systems, and the EPA and DOE to name a few examples. Kopstein Aff. ¶ ¶ 2-4. Dr. Kopstein also brings to the Court’s attention that he has been providing forensic chemical engineering for attorneys since 1987. Id. He is clearly qualified to speak on matters of chemical engineering.

Our second inquiry under Daubert and the Third Circuit’s Paoli III analysis is to review the reliability of the methods used by Dr. Kopstein. Defendant has challenged both reliability and fit in its motion in limine. Defendant’s Brief, p. 29. Before proceeding with our analysis, the Court must conclude at this point that Dr. Kopstein’s opinions with regard to chemical opportunities for exposure for those substances other than TCE and TCA and Benzene are unreliable. Dr. Kopstein has employed a Model discussed herein with regard to calculating exposure as to these three chemicals by the Plaintiffs. However, a review of Dr. Kopstein’s conclusory analysis of exposures in his report, deposition and affidavit to other substances cannot be permitted at trial as expert testimony. This is because such conclusions are not expert testimony in themselves.

Dr. Kopstein obtained various information indicating that certain substances, such as PCBs, were present at Plaintiffs’ workplace and the Plaintiffs were exposed to substances, such as in the case where the color of the paint being used by some workers was found in their mucus. Such observations do not require “scientific, technical, or other specialized knowledge” to be introduced into the record at trial. Fed.R.Evid. 702. Therefore, the Court will not place the label of “expert testimony” upon such observations. These items of information which do not fall within the ambit of expert testimony do not include Dr. Kopstein’s conclusion about the dumping or spreading of various wastes by the slop truck where he concluded that 1,000 tons per week were dumped or spread. Kopstein Report, p. 2. Such a calculation appears to be reliable and fit without need for further discussion. The Court will proceed with its remaining Daubert analysis as to Dr. Kopstein’s opinions concerning TCE, TCA, and Benzene.

Our review of Dr. Kopstein’s remaining opinions reveals his methodology to be reliable. The Court’s review of the Defendant’s' position, while framed as an argument regarding the reliability and fit of Dr. Kopstein’s methodology is, in essence, a challenge to the fit of his methodology as to the question of causation of the Plaintiffs’ conditions and illnesses. Paoli III instructs the district courts of the Third Circuit to conduct an evaluation of eight factors that can help determine a method’s reliability while considering other relevant factors as well. Paoli III, 35 F.3d 717, 742 (3rd Cir.1994).

Applying the eight factors listed earlier in this opinion, the Court makes the following conclusions regarding Dr. Kopstein’s method: the diffusion method employed here has been tested, peer reviewed and used consistently in the field of chemistry so as to be reliable, and is not in error. This Model is recognized as generally accepted in the chemical .engineering community for determining the rate of diffusivity. Dr. Kopstein has applied the needed variables to the Model used to calculate the diffusivity of TCE, TCA and Benzene (based on an average of 3% concentration in gasoline). Although not necessarily a technique, but more of a standard proven formula that is clearly reliable, the Model is used by chemists outT side of litigation in the field of chemistry and by qualified chemical engineers such as Dr. Kopstein.

It is clear to the Court that the use of the Model by Dr. Kopstein is a reliable methodology. Dr. Kopstein inserted the variables necessary to utilize the Model and make his calculations. Kopstein Depo. pp. 20-38. This Model is common to the field of chemical engineering and not created by Dr. Kopstein just for the purposes of this litigation. Kopstein Depo. pp. 20-21; Kopstein Aff. ¶ 5. No other extraneous considerations appear to bear any relevance to our reliability inquiry. Therefore, the Court finds that the Plaintiffs have proven by a preponderance of the evidence that Dr. Kopstein’s opinions are reliable.

The final and most challenging inquiry for this Court is the question of whether Dr. Kopstein’s reliable opinions are fit for the task of proving the Plaintiffs’ theories of liability against the Defendant. As discussed above, using the analysis from the hallmark case of Paoli III, fit is a question of more than “bare relevance” but “must itself constitute scientific knowledge.” Paoli III, 35 F.3d 717, >45, n. 13 (3rd Cir.1994). The Third Circuit in Paoli III used the example of a methodologically acceptable animal study demonstrating that a chemical increases' a cancer risk in animals but which may or may not be methodologically acceptable to demonstrate such a link to increased cancer risks in humans. Paoli III at 742-743. The qüestion is not whether the proposed testimony is scientific knowledge, but rather whether it is relevant scientific knowledge for the purposes of the case before the Court; .the. proposed testimony must have a “valid scientific connection to the pertinent inquiry as a precondition to admissibility.” Paoli III at 743. The Paoli III court concluded that within its example there must be “good grounds” for the methodology to make conclusions as to the chemical effect upon animals as well as good grounds for the animals studies to be able to be extrapolated from the animals to humans; “ ‘good grounds’ extends to each step in an expert’s analysis all the way through the step that connects the work of the expert to the particular case.” Paoli III at 743.

The Court has already concluded that Dr. Kopstein is not offering testimony as to causation, only “opportunities for exposure.” Considering the information presented by Dr. Kopstein and the finding that his opinion speaks to exposure, not the effect thereof, it is apparent that the question of fit of Dr. Kopstein’s opinion is one of fit to the first element of the seven steps outlined by Raymond D. Harbison, Ph.D., in his affidavit which are the scientifically accepted method of “causation analysis” of “chemically-induced disease”. Harbison Aff. (Document No. 26 at C.A. No.l994-4J) ¶ 56. These seven factors must be evaluated before causation of a chemically induced disease can be proven:

1) is there evidence of exposure;

2) does the exposure result in a dose;

3) is the dose sufficient to cause the specific ailment or disease;

4) is that specific disease or ailment known to be caused in humans by the chemical;

5) that the specific disease or ailment is temporally eligible to have been caused by the chemical exposure;

6) is the alleged effect biologically plausible; and

7) have confounding factors been eliminated as the possible cause of the disease or ailment?

Id. One of the Defendant’s arguments against Dr. Kopstein is the fact that, according to its expert, Dr. Harbison, there is no 'objective information, such as air monitoring or industrial hygiene data, that exists to confirm the exposures the Plaintiffs are alleging and attempting to prove, in part, through Dr. Kopstein’s testimony. The REFERENCE Manual on Soientifio Evidence (2d ed.2000) recognizes three means of measuring exposure of chemicals to human beings:

Evidence of exposure is essential in determining the effects of harmful substances. Basically, potential human exposure is measured in one of three ways. First, when direct measurements cannot be made, exposure can be .measured by mathematical modeling, in which one uses a variety of physical factors to estimate the transport of the pollutant from the source to the receptor. For example, mathematical models take into account such factors as wind variations to allow calculation of the transport of radioactive iodine from a federal atomic research facility to nearby residential areas. Second, exposure can be directly measured in the medium in question— air, water, food, or soil. When the medium of exposure is water, soil, or air, hydrologists or meteorologists may-be called upon to contribute their expertise to measuring exposure. The third approach directly measures human receptors through some form of biological monitoring, such as blood tests to determine blood lead levels or urinalyses to check for a urinary metabolite, which shows pollutant exposure. Ideally, both environmental testing and biological monitoring are performed; however, this is not always possible, particularly in instances of past exposure.

REFERENCE MANUAL ON SCIENTIFIC EVIDENCE, p. 424 (2d ed.2000) (emphasis added).

Discovery has been complete in this matter for over seven years and despite the numerous requests of current Plaintiffs’ counsel, the Court is loathe to open discovery again for a matter that has been ongoing for twelve years and which has had the subject motion under review for seven years. Had previous discovery uncovered real-time monitoring of the working conditions of the Plaintiffs during the periods of time relevant to their complaints, such evidence would be invaluable to the evaluation of all parties’ cases and would have given everyone, including the Court, a better understanding of the scientific evidence being proffered to it. The Court could agree with the Plaintiffs and re-open discovery for another period of time and essentially start this matter over again to determine the existence, if any, of industrial and medical monitoring conducted by the Defendant upon the Plaintiffs’ workplace and persons. Such a decision could conceivably provide to the Court a more complete picture in dealing with the analysis herein if such information rested in the Defendant’s possession. However, former Plaintiffs’ counsel chose a particular manner of proving these cases and it is not appropriate- to re-open discovery more than seven years after it had been closed, and in effect start over again on cases which were filed more than ten years ago.

Dr. Kopstein has presented evidence of “opportunities for exposure.” His methodology and resulting calculations speak to the first element of “causation analysis”. The Court has already concluded that good grounds exist for the reliability of those conclusions. The next issue is whether good grounds exist for the conclusions of Dr. Kopstein to be used in the overall causation analysis to be presented in the Plaintiffs’ cases. Dr. Kopstein’s testimony provides some assistance in painting a picture of the exposure alleged to have been suffered by the Plaintiffs in this case, but provides only a few brush strokes in the overall painting of that picture of exposure.

The Defendant points out several considerations, including the presence of any air currents, that are not measured by Dr. Kopstein’s calculations. Dr. Kopstein has noted that such information was not part of his Model. In addition, Dr. Kopstein has also noted that his use of the Model is more or less equivalent to an expert testifying to a hypothetical situation. Indeed, hypothesis is the only basis upon which an expert can opine in this instance in the absence of hard evidence of exposure.

The Third Circuit has previously recognized that hard evidence of the level of exposure is unnecessary for a medical expert to opine that exposure to- a chemical caused a plaintiffs illness. In both Heller v. Shaw Industries, Inc., 167 F.3d 146, 157-158 (3rd Cir.1999) and Kannankeril v. Terminix International, Inc., 128 F.3d 802, 808-809 (3rd Cir.1997) the Third Circuit, in the context of civil actions-where the plaintiffs were proffering expert medical testimony based upon differential diagnosis, found that the types of evidence used in supporting a theory of exposure of a plaintiff to a chemical is a question of credibility, not admissibility. Specifically in Kannankeril, the Third Circuit wrote:

We find that Terminix’s assertion is without merit. First, there is no expert opinion in the record to establish that an ambient air test, particularly an ambient air test performed nine months after the final application of Dursban, is the only appropriate way in this case to gauge exposure to the organophosphate. Moreover, the plaintiffs were prepared to offer into evidence the Dursban product label which contained warnings such as: “HARMFUL IF SWALLOWED. HARMFUL IF ABSORBED THROUGH SKIN. CAUSES EYE AND SKIN IRRITATION” and “Thoroughly wash dishes and food handling utensils with soap and water if they become contaminated by application of this product. Do not allow children or pets to contact treated surfaces until spray has dried.” App. at 241-43. Under the facts as presented in this case, the district judge erred in ruling that an expert may rely only on the ambient air test to determine whether Dr. Kannank-eril had been exposed to Dursban. Instead, all factual evidence of the presence of the -chemicals in the residence should be relevant in forming an expert opinion of causation.

We conclude that it is for the trier of fact to determine what weight to give the ambient air test results as an indication of exposure. See Joiner v. General Elec. Co., 78 F.3d 524, 534 (11th Cir.1996) (reversing exclusion of expert opinions that plaintiffs’ exposure to certain chemicals caused his lung cancer where there were issues of fact whether plaintiff was actually exposed to the chemicals so that summary judgment based on a finding of no exposure was inappropriate). The issue whether an ambient air test should be given more weight than pesticide application records goes to the weight rather than the admissibility of evidence. See United States v. Velasquez, 64 F.3d 844, 848 (3d Cir.1995) (citing United States v. Jakobetz, 955 F.2d 786, 800 (2d Cir.1992)). The trial judge must be careful not to mistake credibility questions for admissibility questions.

Kannankeril at 808-809. The Court does not intend to make such a credibility determination in the cases sub judice. Dr. Kopstein’s use of the Model clearly does not consider the movement of air within the air brake shop or the garage. This is a point the Defendant can certainly reveal to the jury through cross-examination at trial and the Plaintiffs would then have to explain in turn. The lack of consideration of all of the working conditions confronted by the Plaintiffs would present a difficulty for a jury to accord credibility to the Plaintiffs’ expert. If the Plaintiffs wish to present only half of the exposure picture, such is -their choice and the jury would have to assess these factors at the time of trial. As stated in Paoli III, “A judge frequently should find an expert’s methodology helpful even when the judge thinks that the expert’s technique has flaws sufficient- to render the conclusions inaccurate.” Paoli III at 744-745.

A more powerful argument is that the Plaintiffs have failed to establish Dr. Kop-stein’s testimony as fit because of the fact that the concentrations that he has opined were present would have allegedly resulted in explosions, loss of consciousness, diseases and death. See e.g. Harbison Aff. pp. 28-29. This raises an issue the Third Circuit addressed in Heller, supra.

In Heller, the plaintiffs were attempting to prove causation for their physical injuries based upon the emission of volatile organic compounds from household carpet. The plaintiffs attempted to prove this causation through use of a temporal relationship argument. On appeal, the Third Circuit concluded that: “While the district court may not reject an expert’s conclusion simply because the court finds it wanting, it is surely within the court’s province to ensure that the conclusion, particularly a medical expert’s ultimate conclusion on causation, ‘fits’ with the data alleged to support it.” Heller v. Shaw Industries, Inc., 167 F.3d 146, 158 (3rd Cir.1999) (citation omitted). For that conclusion, the Heller court relied upon the reasoning found in Paoli III, where the Third Circuit made the following observation:

Plaintiffs are correct, of course, that Daubert requires the judge’s admissibility decision to focus not on the expert’s conclusions but on his or her principles and methodology. See Daubert, 509 U.S. at 593-95, 113 S.Ct. at 2797. But we think that this distinction has only limited practical import. When a judge disagrees with the conclusions of an expert, it will generally be because he or she thinks that there is a mistake at some step in the investigative or reasoning process of that expert. If the judge thinks that the conclusions of - some other expert are correct, it will likely be because the judge thinks that the methodology and reasoning process of the other expert are superior to those of the first expert. This is especially true given that the expert’s view that a particular conclusion “fits” a particular case must itself constitute scientific knowledge — a challenge to “fit” is very close to a challenge to the expert’s ultimate conclusion about the particular case, and yet it is part of the judge’s admissibility calculus under Daubert.

Paoli III, 35 F.3d 717, 746 (3rd Cir.1994)(footnote omitted). This appears to be the same type of argument used by the Defendant in the cases sub judice to attempt to prove the methodology of Dr. Kopstein incorrect.

Dr. Kopstein defends his conclusions in paragraph forty of his affidavit which reads:

I never wrote, implied, or testified that workers at Conrail’s Hollidaysburg facility routinely breathed air that contained benzene, trichloroethylene, or trichloroethane in the concentrations discussed in the Motion. Furthermore, I never wrote, implied, or testified that workers at Conrail’s Hollidaysburg facility breathed air that contained benzene, trichloroethylene, or trichloroethane in the concentrations discussed in the Motion for more than a very brief instant. What I did convey in my report and deposition testimony is that the workers routinely breathed air that contained concentrations of benzene, trichloroethy-lene and trichloroethane. that exceeded OSHA limits.

Dr. Kopstein thereafter in paragraphs fifty-one through fifty-three outlines a comparison of odor thresholds to the OSHA time weighted average for fifteen minute and eight hour intervals for TCE, TCA and Benzene. A review of Dr. Kopstein’s report reveals the following conclusions: “I estimate that Conrail workers routinely breathed air above the wash racks which contained concentrations of trichloroethy-lene and trichloroethane in excess of OSHA limits. Under certain conditions, workers could have briefly been exposed to air in which the concentration of trichlo-roethylene or trichloroethane was well in excess of 100,000 parts per million (ppm).” Kopstein Report, pp. 5-6. In reference to Benzene, Dr. Kopstein also opined: “I have determined that workers’ inhalation exposures to benzene were often well in excess of OSHA’s permissible exposure limits.” Kopstein Report, p. 7.

Recognizing that Dr. Kopstein is opining to “opportunities of exposure” and not an actual exposure-dose relationship coupled with the absence of actual air sampling of the Plaintiffs’ workplaces during the period of time alleged in the various complaints, the Court accepts Dr. Kopstein’s opinions as fit under the Paoli III analysis. The Court reaches this conclusion based upon the idea that Dr. Kopstein’s opinions are viewed as part of the analysis used to determine exposure, but not the entire analysis. Further information and analysis would be needed for the jury to reach a conclusion of exposure. Dr. Kop-stein’s application of method is correct, but admittedly does not account for all of the factors necessary for him to make conclusions as to overall causation. However, Dr. Kopstein’s analysis for TCE, TCA and Benzene provides insightful understanding of possible exposures. Actual exposure is an issue for the jury to decide. Credibility of testimony is also for the jury to consider. Reliability and fit are the only issues for the Cour