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The Pennsylvania Superior Court has rejected the medical monitoring claim of Berks County residents who lived near a beryllium processing plant because the litigants failed to show they have a significantly increased risk of chronic beryllium disease. Plaintiffs Paul Bare, Linda Dondore and Sandra Pohl sought medical monitoring for chronic beryllium disease (CBD) because they said they were exposed to beryllium “in the ambient air” after living near a beryllium processing plant in Berks County, four miles north of Reading, for several years, the decision said. None of the plaintiffs ever worked at the plant, but Bare lived two blocks from the plant between 1951 and 1967, Dondore has lived within three-tenths of a mile of the plant since 1952 and Pohl has lived within three-tenths of a mile of the plant since 1974. The plant shut down in 2000. But Judge Susan Peikes Gantman wrote Oct. 11 in Pohl v. NGK Metals Corp. that Philadelphia Common Pleas Court Senior Judge Stephen E. Levin correctly granted a summary judgment motion brought by NGK Metals Corp. and Cabot Corp. because the three plaintiffs had not shown beryllium sensitivity, which indicates a “significantly increased risk of contracting CBD, and only a subset of sensitized individuals actually do contract the disease.” Judge Debra Todd and Senior Judge John T.J. Kelly Jr. joined Gantman in the decision. CBD is a lung disorder caused by exposure to the hard metal beryllium used in a number of commercial uses and high-tech applications. Philadelphia Common Pleas Court has around 40 active beryllium cases, most of them stemming from the Reading plant, said Stanley Thompson, director of the Common Pleas Court’s Complex Litigation Center. The corporations argued that summary judgment was correctly granted because the plaintiffs had not proven they face a significantly increased risk of contracting CBD, while the plaintiffs said there was a genuine issue of material fact that people exposed to beryllium can be “‘susceptible’ without being found sensitive,” Gantman said. “This record provides no support for appellants’ contention that they are sensitive to beryllium or face a significantly increased risk of contracting CBD,” Gantman said. “Additionally, appellants cannot show they are even susceptible to beryllium, because beryllium susceptibility cannot be determined by a test. Even if a test were available to prove appellants are susceptible to beryllium, no expert testimony supports appellants’ claim that susceptibility, absent beryllium sensitivity, creates a significantly increased risk of contracting CBD.” Ruben Honik of Golomb & Honik and an attorney for Bare, Dondore and Pohl, said his clients will appeal the decision. “We will seek review of the ruling, which we believe is not in conformity with established medical monitoring jurisprudence in this commonwealth, nor does this decision comport with well-settled procedural rules that formed part of the basis for this court’s opinion,” Honik said. “There is an important public health issue in the community affected and we intend to advance their rights to medical surveillance.” CBD, according to the trial court opinion cited by Gantman, is a lung disorder resulting from an immunologic response to beryllium particles in the lungs; 1 to 3 percent of people exposed to the metal are affected by CBD. A beryllium lymphocyte proliferation test can measure a person’s beryllium sensitivity by looking for evidence of an allergic immune response to beryllium. Bare and Dondore had negative results to the BeLPT, and Pohl never took the BeLPT. A medical monitoring claim requires that proof of exposure to a hazardous substance at greater than normal levels is provided; that the exposure was caused by the defendants’ negligence; that as proximate result of exposure the plaintiff’s risk of developing a latent disease has significantly increased; that a monitoring procedure exists to make early detection of the disease possible; and that prescribed monitoring is considered necessary by scientific principles, Gantman said. On appeal, the plaintiffs argued Levin incorrectly ignored evidence that their medical monitoring claim was sustainable because they were at an increased risk of contracting CBD and that Levin abused his discretion by granting summary judgment after the plaintiffs filed a praecipe to discontinue their case, Gantman said. The plaintiffs originally sought to certify their lawsuit as a class action, but the common pleas court denied the motion for class certification in June 2003, and the class action certification denial was affirmed by the Superior Court in 2004, Gantman said. The plaintiffs filed a praecipe to discontinue the lawsuit June 23, 2006, but the trial judge was unaware of that motion and meanwhile gave an order later that same day granting the corporations’ summary judgment motion, Gantman said. The plaintiffs argued the summary judgment should be voided because the lawsuit had already been properly discontinued when they filed their praecipe. The Superior Court rejected this argument because the praecipe to discontinue the lawsuit did not ultimately resolve the issue, a decision by the trial court to grant the praecipe would have been an abuse of discretion and the reason given by the plaintiffs for the praecipe was to join a new federal class action suit, Gantman said. “Appellants emphasize their purpose for discontinuance was to join a similar class action beginning in federal court. � Allowing appellants’ discontinuance to stand would encourage ‘forum-shopping,’ whereby appellees would be made to litigate the same action again in a different court,” Gantman said. The appellants are able to bring another claim for medical monitoring if they have a positive BeLPT or develop CBD, Gantman said. The attorney for NGK Metals Corp., Thomas DeLorenzo of Dennehey Warner Coleman & Goggin, was out of the office last week. Neil Witkes of Gold Katcher & Fox in Bala Cynwyd and the attorney for Cabot Corp. said his client usually declines comment on litigation. Cabot Corp. was the original owner of the plant. (Copies of the 17-page opinion in Pohl v. NGK Metals Corp. , PICS No. 07-1614, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.) •

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