Sheridan v. NGK Metals Corp.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 08-4373

SHIRLEY SHERIDAN; JAMES W. ZIMMERMAN,
On behalf of themselves and others similarly situated,
Appellants

v.

NGK METALS CORPORATION;
CABOT CORPORATION;
SPOTTS, STEVENS & McCOY, INC.

D.C. Civil Action No. 06-cv-5510
(Honorable Gene E.K. Pratter)

No. 08-4374

GARY ANTHONY,
On behalf of himself and others similarly situated,
Appellant
 v.

SMALL TUBE MANUFACTURING CORP.,
doing business as Small Tube Products Corp., Inc.;
ADMIRAL METALS, INC.; TUBE METHODS, INC.;
CABOT CORPORATION, Individually and
as successor in interest to Cabot Berylco, Inc.,
Kawecki Berylco Industries, Inc. and the
Beryllium Corporation c/o C.T. Corporation Systems

v.

AMETEK, INC.;
BRUSH WELLMAN INC.;
MILLENNIUM PETROCHEMICALS INC., formerly
known as National Distillers and Chemical Corporation

D.C. Civil Action No. 06-cv-4419
(Honorable James Knoll Gardner)

On Appeal from the United States District Court
for the Eastern District of Pennsylvania

Argued January 11, 2010

Before: SCIRICA, BARRY and SMITH, Circuit Judges.

2
 (Filed June 7, 2010)

RUBEN HONIK, ESQUIRE (ARGUED)
STEPHAN MATANOVIC, ESQUIRE
Golomb & Honik
1515 Market Street, Suite 1100
Philadelphia, Pennsylvania 19107
Attorneys for Appellants

THOMAS C. DeLORENZO, ESQUIRE (ARGUED)
RONDA K. O'DONNELL, ESQUIRE
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut Street, 19th Floor
Philadelphia, Pennsylvania 19103
Attorneys for Appellee, NGK Metals Corporation

NEIL S. WITKES, ESQUIRE (ARGUED)
KATHLEEN B. CAMPBELL, ESQUIRE
Manko, Gold, Katcher & Fox
401 City Avenue, Suite 500
Bala Cynwyd, Pennsylvania 19004
Attorneys for Appellee,
Cabot Corporation, Individually and as successor
in interest to Cabot Berylco, Inc., Kawecki Berylco
Industries, Inc. and the Beryllium Corporation
c/o C.T. Corporation Systems

3
STEPHEN J. IMBRIGLIA, ESQUIRE (ARGUED)
Gibbons
1700 Two Logan Square
18th and Arch Streets
Philadelphia, Pennsylvania 19103
Attorney for Appellee,
Spotts, Stevens & McCoy, Inc.

SHARON F. McKEE, ESQUIRE
KENNETH J. WARREN, ESQUIRE
Hangley, Aronchick, Segal & Pudlin
One Logan Square, 27th Floor
18th and Cherry Streets
Philadelphia, Pennsylvania 19103
Attorneys for Appellee,
Small Tube Manufacturing Corp.,
d/b/a Small Tube Products Corp., Inc.

ROCHELLE M. FEDULLO, ESQUIRE
Wilson, Elser, Moskowitz, Edelman & Dicker
The Curtis Center, Suite 1130 East
Independence Square West
601 Walnut Street
Philadelphia, Pennsylvania 19106
Attorney for Appellee, Admiral Metals, Inc.

4
GREGORY W. FOX, ESQUIRE
STEPHEN M. HLADIK, ESQUIRE
DAVID C. ONORATO, ESQUIRE
Kerns, Pearlstine, Onorato & Hladik
298 Wissahickon Avenue
Upper Gwynedd, Pennsylvania 19446
Attorneys for Appellee, Tube Methods, Inc.

JOHN C. GOODCHILD III, ESQUIRE
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, Pennsylvania 19103
Attorney for Appellee, Ametek, Inc.

DENNIS R. CALLAHAN, ESQUIRE
JENNIFER L. WEED, ESQUIRE
Ward, Greenberg, Heller & Reidy
Eight Tower Bridge, Suite 900
161 Washington Street
Conshohocken, Pennsylvania 19428

JEFFERY D. UBERSAX, ESQUIRE (ARGUED)
MICHAEL A. PLATT, ESQUIRE
Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attorneys for Appellee, Brush Wellman, Inc.

5
JOSEPH M. PROFY, ESQUIRE
Blank Rome
One Logan Square
130 North 18th Street
Philadelphia, Pennsylvania 19103-6998
Attorney for Appellee,
Millennium Petrochemicals, Inc.,
f/k/a National Distillers and Chemical Corporation

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This is a diversity case. In these putative class actions
seeking medical monitoring, we determine whether, under
Pennsylvania law, a person exposed to beryllium above
background levels, absent sensitization, can be at a
“significantly increased risk” of contracting chronic beryllium
disease. There are two separate appeals. Plaintiffs in each case
filed a putative class action lawsuit against multiple defendants,
alleging negligence in connection with beryllium exposure and
seeking a medical monitoring trust fund based on their increased
risk of developing chronic beryllium disease. In the first action,
No. 08-4374 (the “Anthony action”), the District Court granted
defendants’ joint motion for summary judgment. In the second
action, No. 08-4373 (the “Zimmerman action”), the District

6
Court addressed three separate legal issues—medical monitoring
under Pennsylvania law, claim preclusion, and third-party
liability—and issued final orders in favor of defendants.1 As a
consequence, neither action addresses the class certification
issues. Plaintiffs appeal. We will affirm.

I.

A.

Both cases are based on exposure to beryllium, a steel-
gray metal produced from naturally occurring beryl ore.
Beryllium is an extremely stiff, light metal with a high melting
point and excellent thermal and electrical conductivity. Because
of these properties, beryllium is used as structural material for
high-speed aircraft, missiles, space vehicles, and
communications satellites. It is also used in radiation windows
for x-ray tubes, and as a reflector and moderator in nuclear
reactors. Although it is occasionally used as a pure metal, it is
more commonly incorporated at low levels into alloys.

Beryllium is highly toxic, odorless, and tasteless.
Inhaling beryllium particles can lead to scarring of the lungs, a
condition known as chronic beryllium disease (“CBD”). CBD

1
In its first order, the court granted defendants’ motion to
dismiss plaintiff Shirley Sheridan on claim preclusion grounds,
and also granted defendant Spotts, Stevens & McCoy’s motion
for judgment on the pleadings. In its second order, the court
granted summary judgment to the remaining defendants.

7
occurs when the immune system mounts an attack against
beryllium particles that have entered the body. The lung sacs
become inflamed and fill with large numbers of white blood
cells that accumulate wherever beryllium particles are found.
The cells form balls around the particles called granulomas.
Eventually, the lungs become scarred and lose their ability to
transfer oxygen to the blood stream. This leads to shortness of
breath, chronic cough, fatigue, fever, loss of appetite, and,
potentially, death.

Although some scientific studies suggest there may be a
relationship between the level of beryllium exposure and the
likelihood of developing CBD, exposure itself appears to be
insufficient because only persons who have a particular genetic
“marker”—the Human Leukocyte Antigen (HLA)-DPB1
allele—can potentially recognize beryllium in the lungs as an
antigen. This reaction is called beryllium sensitization (“BeS”).
The parties do not dispute that BeS is a necessary precursor to
CBD. BeS itself causes no abnormal lung function and requires
no treatment (i.e., it is asymptomatic). But when the reaction
leads to the formation of granulomas in the lungs, BeS has
progressed to CBD. Some studies show this temporal
progression varies—the development of CBD in a sensitized
person has ranged from months to several years. However,
some sensitized individuals have not developed CBD, and a
small percentage of them have become “desensitized.”

Multiple studies have attempted to determine the
percentage of the population that is genetically predisposed, or

8
“susceptible,” to CBD. The results so far are inconclusive and
disputed. There are substantial disagreements between the
expert opinions in these cases: Craig S. Glazer, M.D., M.S.P.H.,
F.C.C.P., an expert for plaintiff Gary Anthony, stated that
30–40% of the population has the genetic marker, while
Lawrence H. Repsher, M.D., F.C.C.P., defendants’ expert in the
Anthony action, stated that only 1–3% of the overall population
can become sensitized—that is, only this percentage has the
genetic marker. And in another study, researchers found that
3–10% of workers exposed to occupational beryllium may
develop CBD or BeS.2 Once a person is sensitized, the data also
varies on the likelihood that person will develop CBD. While
Dr. Glazer declared that more than 50% of individuals with BeS
will develop CBD, another study found that 6–8% of persons
with BeS develop CBD each year, but refused to speculate on
the total progression rate from BeS to CBD.3

Because BeS is asymptomatic, scientists have developed
tests to determine whether a person is sensitized. Although lung
biopsies, chest x-rays, and computed axial tomography (CAT)

2
See Lisa A. Maier et al., Recent Chronic Beryllium Disease
in Residents Surrounding a Beryllium Facility, 177 Am. J. of
Respiratory and Critical Care Med., 1012, 1016 (2008).
3
Lee S. Newman et al., Beryllium Sensitization Progresses to
Chronic Beryllium Disease, 171 Am. J. of Respiratory and
Critical Care Med., 54, 58 (2005).

9
scans of the chest can be used to diagnose BeS and CBD, the
most common test for sensitization is the beryllium lymphocyte
proliferation test (“BeLPT”). Developed in its modern form in
the 1980s, the BeLPT is performed by extracting lymphocytes
from blood or lung lavage fluid and exposing them to beryllium.
If the lymphocytes proliferate in response to beryllium, then the
BeLPT is “positive,” which means that the individual’s immune
system has begun to recognize beryllium as an antigen. Due to
the risk of false positives, it is generally accepted that two
positive blood BeLPTs, or one positive BeLPT performed on
lung lavage fluid, are required to demonstrate sensitization. But
a negative BeLPT result is not necessarily indicative of future
results—the test only reflects a person’s current reaction (or lack
thereof) to beryllium.

In summary, the pathogenesis of CBD is as follows: (1)
a person is exposed to beryllium; (2) based on exposure and
one’s genetic predisposition, he may develop BeS; and (3) that
sensitization may (or may not) eventually lead to CBD.
Although BeS is a necessary precursor to CBD, the progression
rate from BeS to CBD is varied and uncertain, dependent on a
multitude of factors, many of which are unknown.

B.

Beryllium was discovered in 1798, but its use in the
United States can be traced back only to World War II and the
Cold War era, when the United States government purchased
significant quantities of the metal to produce weapons and

10
aircraft, primarily from Brush Wellman and The Beryllium
Company.4 Although the government’s need for beryllium has
declined, a private sector market has developed as
manufacturers of metal-based products such as automobiles,
golf clubs, bicycles, dental appliances, and computers have
begun to use beryllium alloys.

As early as the 1940s, workers at beryllium plants were
showing signs of CBD. Because the Atomic Energy
Commission (“AEC”) was the initial purchaser of beryllium, it
developed the first safety guidelines for beryllium use. In 1949,
it adopted a standard of 2 micrograms per cubic meter (µg/m 3 )
of air averaged over an eight-hour period. See Morgan v. Brush
Wellman, Inc., 165 F. Supp. 2d 704, 710–11 (E.D. Tenn. 2001)
(providing a brief history of the regulation of beryllium). In
1971, the Occupational Safety and Health Administration
(“OSHA”) adopted the 2 µg/m 3 standard and also recommended
a peak concentration of 25 µg/m 3 of air for a maximum duration
of thirty minutes. 29 C.F.R. § 1910.1000. The Department of
Energy (“DOE”) then promulgated the most recent regulations,
maintaining the exposure limit set by the AEC, but also
requiring the use of periodic medical surveillance and the
implementation of worker protection programs when the level
of airborne concentration of beryllium exceeds 0.2 µg/m 3 . 10
C.F.R. §§ 850.3, .22, .23. Other governmental agencies also

4
Cabot Corporation, a defendant in both cases, is the
successor-in-interest to The Beryllium Company.

11
have issued recommendations for beryllium levels. The
Environmental Protection Agency (“EPA”) promulgated its own
rule, limiting exposure to 0.01 µg/m 3 of air averaged over a
thirty-day period. 40 C.F.R. § 61.32. The National Institute for
Occupational Safety and Health (“NIOSH”) has collaborated
with Brush Wellman by conducting multiple studies on exposed
employees to better understand the relationship between
beryllium exposure, the HLA-DPB1 marker, BeS, and CBD.

In addition to government standards and studies, both
private and public employers have implemented screening
programs for their employees. Brush Wellman, the predominant
producer of beryllium products in the United States today, began
providing the BeLPT to its employees at some of its beryllium
plants in the early 1990s, and created a formal screening
program in 1999. Similarly, OSHA personnel who have
participated in inspections of industries where beryllium is used
are offered the opportunity to be medically monitored for
beryllium disease.

II.

Both the Anthony action and the Zimmerman action were
filed in 2006 in the Philadelphia County Court of Common Pleas
and were timely removed to the United States District Court for
the Eastern District of Pennsylvania under the Class Action
Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4
(codified in scattered sections of 28 U.S.C.), where Judge
Gardner presided over the Anthony action and Judge Pratter

12
presided over the Zimmerman action.5 Both courts granted
defendants’ respective motions to dismiss, for judgment on the
pleadings, and for summary judgment.6 Although we denied
plaintiffs’ motion to consolidate the Anthony and Zimmerman
appeals, our opinion resolves both actions.7

5
Although the cases present similar legal issues, they arise
out of different locations and distinct facts. With that said,
plaintiffs’ lawyers, many of the expert witnesses, and one
defendant, Cabot, are the same in each case.
6
The District Court in both proceedings—the Anthony action
and the Zimmerman action—had jurisdiction under 28 U.S.C.
§§ 1332(d)(2)(A) and 1453. Defendants in each proceeding
properly removed their respective actions under CAFA. The
court in the Zimmerman case had supplemental jurisdiction over
the third-party claims, discussed infra, under 28 U.S.C. § 1367.
We have jurisdiction under 28 U.S.C. § 1291 because the May
21, 2008 and September 18, 2008 orders in the Zimmerman
action and the September 30, 2008 order in the Anthony action
were final orders of the District Court.
7
Judge Pratter issued a May 21, 2008 order granting (1)
Spotts, Stevens & McCoy’s motion to dismiss Zimmerman and
Sheridan’s claim, and (2) Cabot’s motion for judgment on the
pleadings against Sheridan. That order preceded Judge Pratter’s
September 18, 2008 summary judgment order and Judge
Gardner’s September 30, 2008 summary judgment order, both

13
 A.

Gary Anthony worked at the U.S. Gauge Plant in
Sellersville, Pennsylvania from May 1972 to May 2004. U.S.
Gauge used beryllium-based products to manufacture various
commercial goods, causing the emission of respirable beryllium
dust, particles, and fumes in the facility. Anthony commenced
a putative class action, of which he is the sole representative,
comprising all current and former employees of U.S. Gauge who
were exposed to a beryllium-containing product at the facility
for a period of at least one month while employed there.
Defendants are U.S. Gauge’s suppliers of beryllium-based
products (Small Tube Manufacturing Corp., Admiral Metals,
Inc., Tube Methods, Inc., and Cabot Corp.), as well as three
third-party defendants.8 Anthony’s Complaint asserts a single

of which addressed the merits of the respective plaintiffs’
medical monitoring claims. But because medical monitoring is
the focus of each action, we address those claims first.
8
The third-party defendants include (1) Ametek, owner and
operator of U.S. Gauge; (2) Brush Wellman, Inc., which
allegedly provided Tube Methods with the beryllium-containing
material; and (3) Millennium Petrochemicals Inc., which is the
successor to National Distillers and Chemical Corp., a company
that entered into an asset purchase agreement with Small Tube
and agreed to defend certain product liability claims. Because
all defendants and third-party defendants joined in the motion

14
negligence claim in which he contends that members of the
proposed class were exposed to beryllium during their
employment, which resulted in an increased risk of contracting
CBD. He seeks the establishment of a medical monitoring trust
fund for the benefit of the putative class. Medical monitoring
would include testing, examination, and preventative and
diagnostic screening for BeS and CBD.

Defendants removed the action to federal court and filed
a joint motion for summary judgment. The court granted limited
discovery. Anthony presented two experts, Adam M. Finkel,
Sc.D., M.P.P., CIH, and Dr. Glazer; defendants presented one
expert, Dr. Repsher. The parties agreed on the aforementioned
pathogenesis of CBD, the fact that BeS is a necessary precursor
to developing CBD, and that two positive blood BeLPTs are
necessary to show sensitization. They also stipulated that
Anthony had taken one blood BeLPT, which was negative, and
accordingly he was not beryllium sensitized. But they disagreed
on when “significantly increased risk” attaches to persons
exposed to beryllium. The gist of Dr. Glazer’s and Dr. Finkel’s
testimony is that all individuals exposed to beryllium at above-
background levels are at a significantly increased risk and
require medical monitoring. Dr. Finkel also declared that there
is a direct relationship between the level of exposure and risk,
and that CBD is not “qualitatively different from any other

for summary judgment, we refer to them collectively as
“defendants.”

15
environmental disease, for which susceptibility is continuous
(not either/or) and for which both susceptibility and exposure
matter fundamentally.” Decl. of Dr. Finkel (Anthony action) ¶
17. In contrast, Dr. Repsher opined that given Anthony’s
negative BeLPT result and the fact that only a small percentage
of the population can become sensitized, Anthony was not at a
significantly increased risk of developing CBD. Decl. of Dr.
Repsher (Anthony action) ¶ 11.

Judge Gardner granted defendants’ summary judgment
motion against Anthony. Applying Pennsylvania law, the court
looked to the seven-element test for a medical monitoring claim
set forth in Redland Soccer Club, Inc. v. Dep’t of the Army, 696
A.2d 137 (Pa. 1997), and focused on whether “as a proximate
result of the exposure,” Anthony had “a significantly increased
risk of contracting a serious latent disease.” Id. at 145. It then
looked to the Pennsylvania Superior Court’s decision in Pohl v.
NGK Metals Corp., 936 A.2d 43 (Pa. Super. Ct. 2007), alloc.
denied, 952 A.2d 678 (Pa. 2008), the only state appellate court
opinion to apply Redland Soccer to a medical monitoring claim
for exposure to beryllium. Because the plaintiffs in Pohl were
not beryllium sensitized and had not otherwise made a plausible
showing that they faced a “significantly increased risk” of
developing CBD, the Superior Court held that these plaintiffs
had failed to make a prima facie showing of their medical

16
monitoring claim under Redland Soccer. Anthony v. Small Tube
Mfg. Corp., 580 F. Supp. 2d 409, 428 (E.D. Pa. 2008).9

Judge Gardner read Pohl as a fact-specific decision, but
concluded that the expert opinions Anthony presented were
“merely assumptions and speculation, rather than opinions”
because they were not supported by data from the U.S. Gauge
Plant. Id. at 426–27. Because Anthony was not sensitized to
beryllium and had not presented alternative evidence to raise a
genuine issue of material fact regarding the risk of developing
CBD, the court granted defendants’ summary judgment motion.
Id. at 428.

B.

James Zimmerman resided within one mile of the
Reading Beryllium Facility in Muhlenberg Township,
Pennsylvania from 1977 to 1984. The facility extracted
beryllium hydroxide and manufactured products containing
beryllium from 1936 to 2000. Zimmerman, together with
Shirley Sheridan, discussed infra, commenced a putative class
action lawsuit. The Complaint is almost identical to the
Anthony Complaint—it asserts one negligence claim in which

9
The court rejected Anthony’s attempt to distinguish Pohl
based on the means of exposure—occupational exposure versus
community exposure—finding Anthony’s own experts belied
this distinction. Anthony, 580 F. Supp. 2d at 425–26. Anthony
does not raise this argument on appeal.

17
plaintiffs contend that because of their residency in close
proximity to the Reading Plant they were exposed to beryllium
particles in the ambient air. Defendants include NGK Metals
Corp., owner and operator of the Reading Plant from 1986
through 2000; Cabot Corp., owner and operator of the plant for
at least fifty years before 1986; and Spotts, Stevens & McCoy,
Inc., an engineering firm that was responsible for testing and
monitoring the levels of beryllium at the facility. Like Anthony,
Zimmerman and Sheridan seek the establishment of a medical
monitoring trust fund for themselves individually and on behalf
of a putative class, which includes all persons who resided
within a one-mile radius of the Reading Plant for at least six
months between 1950 and 2000.

Defendants removed the action to federal court, and the
parties commenced bifurcated discovery so that discovery
related to the issue of class certification would be completed
prior to merits discovery. Defendants Cabot and NGK Metals
moved for summary judgment before the court ruled on
plaintiffs’ motion for class certification.10 Zimmerman provided

10
Defendant Spotts, Stevens & McCoy had already been
dismissed from the lawsuit. See infra Part II.D. By an October
6, 2008 stipulation and order, Sheridan’s claim asserted against
NGK Metals was dismissed with prejudice because the company
did not operate the plant when she lived in the area. Similarly,
the court dismissed Sheridan’s claim against Cabot in a May 21,
2008 order, discussed infra Part II.C.

18
the opinions of several experts, including Lisa A. Maier, M.D.,
M.S.P.H., John W. Martyny, Ph.D, C.I.H., Milton Rossman,
M.D., Dr. Finkel, and Dr. Glazer, the last two of whom served
as experts in the Anthony action. Defendants did not submit
expert testimony, relying on the Pohl decision to support their
motion. The parties stipulated that Zimmerman was not
beryllium sensitized—he tested positive on a single blood
BeLPT in 2003, but in 2006 he tested negative on another blood
BeLPT and on a lavage BeLPT.

Both Dr. Maier and Dr. Glazer stated that anyone who
has lived in the area surrounding the Reading Plant is at a
significantly increased risk given the levels of beryllium in the
ambient air and documented cases of CBD in the community.
Dr. Martyny provided a general history of the Reading Plant,
information regarding background levels of beryllium emissions
in and around the facility, and reported cases of occupational
and community-based CBD. In particular, he produced samples
from the community surrounding the plant that showed the mean
concentration of beryllium in the air to be 0.0155 µg/m 3 , and the
average within the first one-half mile of the plant rising to 0.028
µg/m 3 , significantly higher than the general background level of
beryllium in the air in Pennsylvania of 0.00002 µg/m 3 . Decl. of
Dr. Martyny (Zimmerman action) ¶ 13. Dr. Finkel provided a
declaration similar to what he presented in the Anthony action,
but here he made a quantitative risk assessment based on the
aforementioned exposure data. He concluded that the risk of
contracting CBD to the members of the proposed class

19
represented by Zimmerman was 3 per 10,000, and for those
individuals who have lived near the Reading Plant for at least
ten years, the risk increased to 1 per 500. Decl. of Dr. Finkel
(Zimmerman action) ¶¶ 44–45. Dr. Rossman, who evaluated
Zimmerman for signs of beryllium-related diseases in 2006,
reported that because of Zimmerman’s abnormal pulmonary
function studies and his one positive blood BeLPT, he had
“borderline results” for which he should be tested every three to
five years for the rest of his life. Decl. of Dr. Rossman
(Zimmerman action) ¶¶ 4–5.

The court granted defendants’ summary judgment motion
against Zimmerman. Like Judge Gardner in the Anthony action,
Judge Pratter looked to Redland Soccer and Pohl to determine
whether Zimmerman had made a prima facie showing of a
medical monitoring claim. Applying Pohl, Judge Pratter said:
“[B]eryllium sensitization is the appropriate point on the
beryllium exposure-to-disease continuum where a defendant’s
liability should attach.” Sheridan v. NGK Metals Corp., 614 F.
Supp. 2d 536, 549 (E.D. Pa. 2008). Because Zimmerman was
not sensitized, the court held that he did not present evidence
sufficient to raise a genuine issue of material fact as to his risk
of contracting CBD.

C.

Like Zimmerman, Shirley Sheridan lived near the
Reading Plant from 1951 to 1956. In 2002, Sheridan
commenced a personal injury lawsuit against Cabot in the

20
United States District Court for the Eastern District of
Pennsylvania, alleging negligence and strict liability, and
seeking compensatory damages for beryllium-related diseases.
The District Court granted Cabot’s motion for summary
judgment, finding that although Sheridan had been diagnosed
with CBD, she had not suffered a compensable injury under
Pennsylvania law. Sheridan v. Cabot Corp., No. Civ. A. 02-
1212, 2003 WL 22999256, at *4–5 (E.D. Pa. Mar. 12, 2003).
We affirmed. Sheridan v. Cabot Corp., 113 F. App’x 444 (3d
Cir. 2004).

Sheridan brings this class action lawsuit with
Zimmerman as a co-lead plaintiff and putative class action
representative, seeking a medical monitoring fund, discussed
supra. Cabot moved for judgment on the pleadings, arguing that
Sheridan’s claim was barred by the doctrine of res judicata, or
claim preclusion. The District Court granted the motion,
dismissing Sheridan’s claim against Cabot.

D.

Spotts, Stevens & McCoy is an engineering and
consulting firm that was hired by the operators of the Reading
Plant to analyze and monitor beryllium levels emitted from the
facility, and to ensure compliance with state and federal
regulations. The putative class action initiated by Zimmerman
and Sheridan asserts a claim for medical monitoring against
Spotts, Stevens & McCoy, relying on § 324A of the Restatement

21
(Second) of Torts, which imposes liability on third persons for
negligent performance of an undertaking.11

Spotts, Stevens & McCoy filed a motion to dismiss under
Fed. R. Civ. P. 12(b)(6), arguing that the Amended Complaint
failed to allege the company owed a legal duty to plaintiffs or
breached any duty. The District Court granted defendant’s
motion, finding that the Amended Complaint did not allege the
company undertook a duty to warn the residents of the
community surrounding the Reading Plant of the results of the
tests it performed for the facility’s owners and operators.
Because § 324A imposes liability on third parties only upon
their breach of a specifically undertaken duty, the court
dismissed plaintiffs’ claim against Spotts, Stevens & McCoy.

III.

The principal question presented by these appeals is
whether Anthony and/or Zimmerman can sustain their medical
monitoring claims under Pennsylvania law.12 In Simmons v.

11
Plaintiffs’ initial claim against Spotts, Stevens & McCoy
was for common law negligence, which the District Court
dismissed for failure to state a claim because it did not allege the
firm owed a legal duty to plaintiffs. The court granted plaintiffs
leave to amend the Complaint.
12
We exercise plenary review over a district court’s decision
granting summary judgment. See Prowel v. Wise Bus. Forms,

22
Pacor, Inc., 674 A.2d 232, 240 (Pa. 1996), the Pennsylvania
Supreme Court recognized the viability of a medical monitoring
cause of action. Although the court held that a claim for
damages based solely on increased risk and fear of developing
a disease is too speculative and “contrary to the established
jurisprudence of th[e] Commonwealth,” it stated that “recovery
for medical monitoring is appropriate and just.” Id. In Redland
Soccer the court articulated the elements of a common law claim

Inc., 579 F.3d 285, 286 (3d Cir. 2009). Summary judgment is
proper “if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c). “A motion for
summary judgment will not be defeated by ‘the mere existence’
of some disputed facts, but will be denied when there is a
genuine issue of material fact.” Am. Eagle Outfitters v. Lyle &
Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). We draw all
inferences in a light most favorable to the nonmoving party. Id.
A plaintiff, however, cannot avert summary judgment by resting
on the allegations in his pleadings, but rather must present
evidence from which a jury could find in his favor. See
Ridgewood Bd. of Educ. v. N.E. ex. rel. M.E., 172 F.3d 238, 252
(3d Cir. 1999).
Because plaintiffs bring only state law claims, we apply
Pennsylvania’s substantive law. See Erie R.R. Co. v. Tompkins,
304 U.S. 64, 78 (1938).

23
for medical monitoring. Under Pennsylvania law, a plaintiff
must prove each of the following seven factors:

(1) exposure greater than normal background
levels; (2) to a proven hazardous substance; (3)
caused by the defendant’s negligence; (4) as a
proximate result of the exposure, plaintiff has a
significantly increased risk of contracting a
serious latent disease; (5) a monitoring procedure
exists that makes the early detection of the disease
possible; (6) the prescribed monitoring regime is
different from that normally recommended in the
absence of the exposure; and (7) the prescribed
monitoring regime is reasonably necessary
according to contemporary scientific principles.

Redland Soccer, 696 A.2d at 145–46.13 Expert testimony is

13
The Pennsylvania Supreme Court articulated several
reasons for recognizing medical monitoring claims: (1)
monitoring “promote[s] early diagnosis and treatment of disease
or illness resulting from exposure to toxic substances caused by
a tortfeasor’s negligence”; (2) it allows recovery for the
expenses of such monitoring, which “avoids the potential
injustice of forcing an economically disadvantaged person to
pay for expensive diagnostic examinations necessitated by
another’s negligence”; (3) it “affords toxic-tort victims, for
whom other sorts of recovery may prove difficult, immediate
compensation for medical monitoring needed as a result of

24
required to prove these elements. Id. The focus in these appeals
is on factor four: whether plaintiffs in each action have a
“significantly increased risk” of contracting CBD.

The Pennsylvania Supreme Court has not considered a
medical monitoring claim for exposure to beryllium (or a toxin
that creates increased risk of a disease with a similar
pathogenesis to CBD), but in 2007 the Pennsylvania Superior
Court squarely addressed this issue in Pohl. The facts in Pohl
are similar to those in the Zimmerman action: three plaintiffs
living near the aforementioned Reading Plant brought a class
action lawsuit against NGK Metals and Cabot, alleging
negligence and seeking a medical monitoring trust fund on
behalf of all residents who resided within a six-mile radius of
the Reading Plant for at least six continuous months between
1950 and 1989. Pohl v. NGK Metals Corp., No. 0733, 2003 WL
24207633, at *6 (C.P. Phila. July 9, 2003). Testimony indicated
that the class may have consisted of over 200,000 persons. Id.
at *8. The state trial court denied class certification, explaining

exposure”; (4) “it furthers the deterrent function of the tort
system by compelling those who expose others to toxic
substances to minimize risks and costs of exposure”; and (5) it
furthers an “important public health interest in fostering access
to medical testing for individuals whose exposure to toxic
chemicals creates an enhanced risk of disease.” Redland Soccer,
696 A.2d at 145 (quoting Hansen v. Mountain Fuel Supply Co.,
858 P.2d 970, 976–77 (Utah 1993) (internal citations omitted)).

25
that “[s]ince only susceptible persons can develop CBD at a
given dose, because of their own immunological response to
particles of beryllium, the issue of increased risk is not common
to the class.” Id. at *10. After the Superior Court affirmed, 863
A.2d 1239 (Pa. Super. Ct. 2004), alloc. denied, 872 A.2d 1200
(Pa. 2005), plaintiffs proceeded in their individual capacities.
Plaintiffs were not sensitized to beryllium—two of them had
tested negative on a BeLPT, and the other did not take the test.
The trial court granted defendants’ motion for summary
judgment, stating that plaintiffs had not “presented evidence that
exposure to beryllium without the allergic immune response puts
one at risk for CBD.” Pohl v. NGK Metals Corp., No. 0733,
slip. op. at 4 (C.P. Phila. June 22, 2006), available at 2006 WL
3898323 (as an appendix).

On appeal, plaintiffs argued the trial court erred in
finding that only sensitized individuals are at risk, especially in
light of contradictory testimony by Dr. Maier, one of plaintiffs’
experts, who testified that someone exposed to beryllium can be
“susceptible” to CBD without being sensitized, and that
susceptibility alone places a person at risk. Pohl, 936 A.2d at
48. The Superior Court affirmed, holding that plaintiffs had not
met their burden of showing they were at a “significantly
increased risk” of contracting CBD. The court detailed
testimony from each of plaintiffs’ three witnesses. Although Dr.
Maier stated that susceptible individuals are still at risk, she also
conceded that BeS is a necessary precursor to developing CBD,
id. at 50, and “admitted she could not positively determine

26
whether [plaintiffs] were susceptible to beryllium,” id. at 51.
Dr. Martyny, plaintiffs’ second expert, testified that exposure to
beryllium at above-normal background levels creates a risk, but
he could not determine whether the risk was “significant.” Id.
Plaintiff’s third expert, Dr. Rossman, testified that 1–3% of an
exposed population might develop BeS, and about half of those
will contract CBD. Id.

The Pennsylvania Superior Court concluded that “[the]
record provides no support for [plaintiffs’] contention that they
are sensitive [sic] to beryllium or face a significantly increased
risk of contracting CBD.” Id. Moreover, “[e]ven if a test were
available to prove [plaintiffs] are susceptible to beryllium,” the
court found that “no expert testimony supports [plaintiffs’]
claim that susceptibility, absent beryllium sensitivity, creates a
significantly increased risk of contracting CBD.” Id. Because
of “expert testimony, as well as [plaintiffs’] failure to
demonstrate beryllium sensitivity through positive BeLPT
results,” the court found plaintiffs did not prove they were at “a
significantly increased risk of developing CBD,” and thus did
not present sufficient evidence to make out a prima facie cause
of action for medical monitoring. Id. at 51–52. But the court
explicitly stated plaintiffs could “bring another action for
medical monitoring if and when they have a positive BeLPT or
develop CBD.” Id. at 52 n.3. The Pennsylvania Supreme Court
denied allocatur. 952 A.2d 678 (Pa. 2008).

Interpreting Pohl is central to these appeals. Defendants
in both actions argue Pohl held, as a matter of Pennsylvania law,

27
that only persons with BeS are at a significantly increased risk
of developing CBD. They rely on the undisputed testimony
presented in the state court proceeding—that CBD is an
immunological disease, and that only a small percentage of the
population with the known genetic marker (the HLA-DPB1
allele) is at risk of becoming sensitized. Plaintiffs contend Pohl
is neither controlling nor persuasive because it was a fact-
specific decision in which the state court dismissed the three
plaintiffs’ claims based on their failure of proof.14

14
Judge Gardner in the Anthony action and Judge Pratter in
the Zimmerman action interpreted Pohl in slightly different
ways, but the distinction is not one of substance. Judge Gardner
explained in a footnote how his interpretation differs from that
of Judge Pratter:
I . . . believe that Pohl implies that if in a
future case there were a bona fide dispute
between competing experts concerning whether or
not a plaintiff could show a significantly
increased risk of CBD in the absence of a positive
BeLPT for beryllium sensitization, it would be for
the jury to decide, and summary judgment would
be inappropriate.
Therefore, I concluded that in the future
the trial court must adjudicate anew on a case-by-
case basis whether or not to grant summary
judgment in beryllium medical monitoring cases,
based upon the unique facts and testimony

28
 Pennsylvania trial courts have had occasion to interpret
the scope of the Pohl opinion. The Philadelphia County Court
of Common Pleas created a specialized docket for beryllium
exposure medical monitoring cases, which included thirty-one
cases brought by fifty plaintiffs who had been exposed to
beryllium but were not sensitized.15 Judge Tereshko issued an
opinion on January 18, 2008, dismissing the claims of four of
these plaintiffs. See Schlott v. NGK Metals Corp., No. 1247,
slip. op. (C.P. Phila. Jan. 18, 2008). He interpreted Pohl as
holding “that exposure or susceptibility does not create a

presented, including any relevant expert scientific
evidence.
Anthony, 580 F. Supp. 2d at 424 n.50. But immediately after
making this distinction, Judge Gardner stated that “because
plaintiff has no possibility of being diagnosed with CBD, he
cannot show that as a proximate result of his exposure to
beryllium, he has a significantly increased risk of contracting
CBD, a latent disease.” Id. at 425. He found that Pohl was
“premised upon the scientific fact that individuals who are not
sensitized to beryllium cannot be diagnosed with CBD,” and that
the science had not changed. Id. Thus, as an undisputed
scientific conclusion, Judge Gardner’s interpretation appears to
have the same practical effect as that of Judge Pratter.
15
Many of the parties and their lawyers in the state trial court
proceedings are the same as those involved in the actions
presented here.

29
significantly increased risk of contracting CBD.” Id. at 2. He
went on to find that plaintiffs had “nothing additional to offer .
. . which would support their claim that exposure is sufficient to
satisfy the requirement that Plaintiffs are at a significantly
increased risk [of developing] beryllium disease.” Id. at 3.
Three months later, Judge Tereshko issued twenty-seven orders
granting summary judgment to defendants on the remaining
cases for the same reasons set forth in his January 18 opinion.
After these plaintiffs appealed, the court issued a second opinion
pursuant to Pa. R. App. P. 1925(a), reaffirming its earlier
decision and stating: “As was established in Pohl, exposure to
beryllium without proof of sensitization does not create a
significantly increased risk of contracting CBD.” Anastasio v.
NGK N. Am., No. 0116, 2009 Phila. Ct. Com. Pl. LEXIS 52, at
*10 (C.P. Phila. Jan. 6, 2009). These cases are pending before
the Pennsylvania Superior Court.

A.

Our role in diversity cases is to apply state law. “A
federal court under Erie is bound to follow state law as
announced by the highest state court.” Edwards v. HOVENSA,
LLC, 497 F.3d 355, 361 (3d Cir. 2007). As noted, the
Pennsylvania Supreme Court has not yet determined whether
exposure to beryllium, absent sensitization, can cause a
significantly increased risk of contracting CBD under
Pennsylvania law, so we must predict the position the court
would take on this issue. See id. “Where an intermediate
appellate state court rests its considered judgment upon the rule

30
of law which it announces, that is a datum for ascertaining state
law which is not to be disregarded by a federal court unless it is
convinced by other persuasive data that the highest court of the
state would decide otherwise.” Budget Rent-A-Car Sys., Inc. v.
Chappell, 407 F.3d 166, 174 (3d Cir. 2005) (quoting West v.
Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940)). “This standard
places a significant constraint on us . . . .” Jewelcor Inc. v.
Karfunkel, 517 F.3d 672, 676 n.4 (3d Cir. 2008). Unlike our
role in interpreting federal law, we may not “act as a judicial
pioneer” in a diversity case. City of Phila. v. Lead Indus. Ass’n,
994 F.2d 112, 123 (3d Cir. 1993). Additionally, “[w]hen a
state’s highest court denies review, the policy reasons for
following an intermediate court decision (absent compelling
evidence to the contrary) are strengthened.” Budget Rent-A-Car,
407 F.3d at 174 n.7. The application of an intermediate
appellate court decision to actions in lower state courts provides
an additional reason for federal courts to abide by the decision,
as it promotes consistency of law and principles of comity. Cf.
West, 311 U.S. at 236 (explaining that the “obvious purpose” of
Erie and the Rules of Decision Act, which Erie interprets, “is to
avoid the maintenance within a state of two divergent or
conflicting systems of law”); City of Phila., 994 F.2d at 123
(“Federalism concerns require that we permit state courts to
decide whether and to what extent they will expand state
common law.”).

Pohl is the highest Pennsylvania court to directly address
a medical monitoring claim for exposure to beryllium. The

31
Pennsylvania Supreme Court twice denied allocatur, and Pohl
has been applied to at least fifty persons in thirty-one cases in
the Philadelphia County Court of Common Pleas, with a
consolidated appeal pending in the Superior Court. At this
point, plaintiffs have not presented “persuasive data” that the
Pennsylvania Supreme Court would decide otherwise.
Accordingly, we apply Pohl.

Although the opinion suggests that future developments
in science’s understanding of the effects of beryllium exposure
and its relationship with CBD may result in a different outcome,
see Pohl, 936 A.2d at 51 (“This record provides no support for
[plaintiffs’] contention that they are sensitive [sic] to beryllium
or face a significantly increased risk of contracting CBD.”), it
drew a line along the exposure-to-disease continuum at
sensitization. Contrary to both Anthony’s and Zimmerman’s
contentions, Pohl was not based only on a lack of proof; it was
based on plaintiffs’ failure to meet the requisite threshold for
establishing significantly increased risk due to (1) the
undisputed facts about beryllium exposure, BeS, and CBD, and
(2) plaintiffs’ inability to demonstrate a significant increase in
risk before sensitization. The lack of proof in Pohl which
Anthony and Zimmerman allege they have corrected is in fact
the Pohl plaintiffs’ inability to prove sensitization itself. See
Pohl, 936 A.2d at 49 (“[Defendants] insist, absent positive
results from the BeLPT, [plaintiffs] lack evidence they are
sensitized; thus, [plaintiffs] cannot show they face a
significantly increased risk of contracting CBD. [Defendants]

32
suggest this lack of proof led the trial court to deny class
certification . . . . We agree.”).

B.

Anthony contends the District Court prematurely granted
defendants’ motion for summary judgment. According to
Anthony, the court dismissed his claim only because he did not
provide specific exposure levels at the U.S. Gauge facility,
implying that if he had the opportunity to present this data, the
court would have denied defendants’ motion. Defendants
characterize the court’s decision differently, focusing on CBD’s
pathogenesis and highlighting the fact that because Anthony is
not sensitized, he cannot develop CBD at this time.

Anthony attempts to highlight the factual differences
between the opinions of defendants’ expert, Dr. Repsher, and
those of his experts, Dr. Glazer and Dr. Finkel. While Dr.
Repsher opined that only 1–3% of the general population can
develop CBD, Dr. Glazer stated that 30–40% of the population
can develop BeS, and that CBD will develop in more than half
of those individuals. Although this data shows the gaping holes
in the current state of scientific research, as well as the
substantial factual disagreements between scientists, it is not
material to this appeal. The parties stipulated that Anthony has
not developed BeS, and we do not know whether he has the
genetic marker associated with CBD. Anthony must prove there
is a genuine issue of material fact as to his risk of developing
CBD absent sensitization. This background data, most of which

33
was also cited in Pohl, 936 A.2d at 50–51, is not relevant to
Anthony’s individual risk.16

Dr. Finkel engaged in a quantitative risk analysis to
consider the relationship between beryllium exposure and CBD.
He contradicted Dr. Repsher’s declaration that only a small
portion of an exposed population is at risk of contracting CBD
as a result of genetic predisposition.17 Regardless, because he
contended that up to 50% of the population is genetically
predisposed to recognizing beryllium as an antigen, he believes
that “not much is lost (in terms of over-inclusiveness) by
defining the high-risk residents to include some people who may
only be at risk because of extremely high exposures.” Decl. of
Dr. Finkel (Anthony action) ¶ 17. These statements do not add
to the evidence plaintiffs presented in Pohl, and do not create a
material issue of fact regarding Anthony’s individual risk.

Moreover, as explained by the District Court, Anthony’s
experts did not provide any other specific information as to his

16
Anthony also challenges Dr. Repsher’s declaration under
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993), and Rule 702 of the Federal Rules of Evidence. The
District Court rejected Anthony’s arguments. We see no error,
but in any case the Daubert ruling is not relevant in this appeal.
17
In the next subsection, we discuss and reject this portion of
Dr. Finkel’s declaration because (1) it is not supported by any
evidence, and (2) Pohl rejected it.

34
risk of contracting CBD, and so the court granted defendants’
motion for summary judgment. Anthony now contends he did
not provide this information—that is, exposure data from the
U.S. Gauge Plant—because he was unable to take discovery
from the plant’s operators. A district court shall “give a party
opposing summary judgment an adequate opportunity to obtain
discovery.” Dowling v. City of Phila., 855 F.2d 136, 139 (3d
Cir. 1988). We review for abuse of discretion. Bradley v.
United States, 299 F.3d 197, 206 (3d Cir. 2002).

The court did not prematurely grant defendants’ motion.
Anthony filed an emergency motion for leave to take limited
discovery in order to respond to defendants’ summary judgment
motion, which the District Court granted. Anthony subsequently
conducted extensive discovery—his counsel subpoenaed records
from Brush Wellman regarding its employee screening program
and deposed Dr. Repsher—before filing his brief in opposition
to the motion. But Anthony did not file an affidavit under Fed.
R. Civ. P. 56(f) stating that he needed to conduct additional
discovery. “We have made clear that, in all but the most
exceptional cases, failure to comply with Rule 56(f) is fatal to a
claim of insufficient discovery on appeal.” Bradley, 299 F.3d
at 207. Regardless of this data, Anthony cannot prevail because
under Pohl the threshold increase in risk to establish a medical
monitoring claim under Redland Soccer remains at sensitization,
a point along the exposure-to-disease continuum that Anthony
has not reached.

35
 C.

As noted, Zimmerman brings his class action individually
and on behalf of a putative class consisting of all persons who
resided within a one-mile radius of the Reading Plant for at least
six months during the time period between 1950 and 2000. The
facts underlying his action are similar to those under which
Anthony’s case arose—both plaintiffs represent putative classes
consisting of persons exposed to beryllium in the ambient air,
are seeking to establish a medical monitoring trust fund, and are
not sensitized to beryllium. But Zimmerman’s appeal presents
a closer question for two reasons. First, Zimmerman tested
positive to a blood BeLPT in 2003, before twice testing negative
in 2006. His expert, Dr. Rossman, declared that Zimmerman’s
2003 positive BeLPT as well as abnormal pulmonary function
studies showed “borderline results” for which he recommended
Zimmerman undergo repeat breathing studies within six months
and beryllium proliferation studies every three to five years for
the rest of his life. Decl. of Dr. Rossman (Zimmerman action)
¶¶ 4–5. Second, Zimmerman’s experts have presented data on
specific exposure levels around the Reading Plant and the
number of documented cases of CBD in the community. Dr.
Martyny declared that the average concentration of beryllium in
the area surrounding the plant was 0.0155 µg/m 3 , well above the
background level throughout the rest of Pennsylvania,18 and that

18
The record seems to indicate that the data on the
background levels is from the 1950s or 1960s.

36
in a 1969 investigation 92 cases of CBD were reported among
both residents and workers in the vicinity of the Reading Plant.
Decl. of Dr. Martyny (Zimmerman action) ¶¶ 13–14. More
recently, a study showed that at least eight residents within 1.05
miles of the Reading Plant have been diagnosed with CBD.19
Dr. Finkel used this data to engage in a quantitative risk
analysis, finding that the risk of contracting CBD to Zimmerman
and members of his proposed class was at least 3 per 10,000.

Like Anthony, Zimmerman argues Pohl is not
controlling. He contends sensitization does not create or
increase risk, but instead manifests the already-existing risk in
a way for which one can test (via the BeLPT). In other words,
sensitization is only a marker along the continuum between
exposure and disease. Because of the advent of the BeLPT,
which is the predominant means of testing for whether one’s
body has begun reacting to beryllium exposure, Zimmerman
argues the importance of sensitization as a risk indicator has
been unnecessarily heightened. Beginning with the trial court’s
denial of the motion for class certification in Pohl, 2003 WL
24207633, at *12, sensitization has, in Zimmerman’s view,
incorrectly been labeled as “the point” along the exposure-to-
disease continuum at which significant risk attaches. See
Zimmerman Oral Argument Trans. 15–16. According to
Zimmerman, more than 50% of individuals with BeS will go on
to develop CBD, with an average rate of 6–8% per year; at least

19
Maier et al., supra note 3, at 1016.

37
3 per every 10,000 people in the putative class will develop
CBD; and there is a correlation between exposure and risk, as
evidenced in one study that found 14.3% of machinists
developed BeS compared to only 1.2% of employees with
relatively less beryllium exposure.20 Thus, Zimmerman argues,
risk is created by heightened exposure, well before and
independent of sensitization.21

20
Statement of Work: Collaboration on Worker Screening at
the Brush Wellman Plants in Tucson, Arizona and Elmore,
Ohio. See also Newman et al., supra note 3, at 56 (finding that
of individuals already sensitized to beryllium, those who
progressed to CBD were more likely to be machinists); Decl. of
Dr. Glazer (Anthony action) ¶ 10 (stating that some employees
at beryllium manufacturing facilities with relatively less
exposure, like security guards and administrative personnel,
have developed CBD).
21
Both Zimmerman and Anthony argue BeS itself is a
“serious latent disease” under Redland, or at least the beginning
stage of the development of the disease. First, they cite to the
2004 Newman study, supra note 3, which found that BeS
progresses to CBD at a rate of 6–8% per year. Second, they
reference an Eleventh Circuit decision in which the court held
that a genuine issue of material fact existed as to whether BeS
is a compensable injury under Georgia law. Parker v. Brush
Wellman, 230 F. App’x. 878, 884 (11th Cir. 2007). But cf. Paz
v. Brush Engineered Materials, Inc., 555 F.3d 383, 394–98 (5th

38
 From Zimmerman’s perspective, exposure to beryllium
is analogous to exposure to other toxins, such as asbestos and
polychlorinated biphenyls (PCBs). Defendants contend CBD’s
immunological nature distinguishes beryllium from other toxins,
which do not invoke an allergic response in only a subset of
susceptible persons and instead have a more linear exposure-to-

Cir. 2009) (holding that BeS is not a compensable injury under
Mississippi law).
Plaintiffs’ arguments miss the mark. The 2004 study was
inconclusive—it could not determine whether all individuals
with BeS will eventually develop CBD, nor did it attempt to
determine the relationship between the level of exposure and the
rate of progression from BeS to CBD. The Parker decision
interpreted Georgia law, but we are bound by Pennsylvania law,
and Pohl appears to have rejected this argument. Although the
court was presented with an expert opinion stating that BeS can
“develop[ ] with [CBD] or before it,” 936 A.2d at 50, it did not
recognize BeS as a disease under Pennsylvania law. BeS seems
to be similar to asymptomatic pleural thickening caused by
asbestos exposure, which the Pennsylvania Supreme Court held
was not a compensable injury. See Simmons, 674 A.2d at 237.
Just as asymptomatic pleural thickening does not entail
“disabling consequences or physiological dysfunction,” id. at
236, so too does BeS—itself an asymptomatic condition—not
cause physical impairment or require treatment.

39
disease relationship. 22 But Zimmerman posits that the
immunological aspect of CBD is simply another element of
uncertainty, which discounts risk by the percentage of the
population that is not genetically susceptible to beryllium, and
that exposure itself is correlated with risk.

Zimmerman cites a Pennsylvania Commonwealth Court
decision, which focused on the issue of “significantly increased
risk” in the context of exposure to PCBs. See Foust v. Se. Pa.
Transp. Auth., 756 A.2d 112 (Pa. Commw. 2000). In Foust, the
court affirmed the certification of plaintiffs’ class, and in so
doing held that proof of a significantly increased risk of
contracting a serious latent disease under Redland Soccer will
not necessarily require an individual inquiry into each plaintiff’s
particular characteristics. The decision relied on testimony of
experts who stated that exposure to a toxic substance above
some threshold level places an individual at a significantly
increased risk of contracting disease. Id. at 119–20.

Here, Dr. Finkel provided similar statements based on his
quantitative risk assessment, concluding that the beryllium level
in the ambient air in the community surrounding the Reading
Plant was over the threshold for establishing significantly

22
Dr. Glazer’s testimony in one of the post-Pohl actions now
pending before the Pennsylvania Superior Court supports this
distinction. See Deposition of Dr. Glazer, at 177–78, Harris v.
NGK N. Am., Inc., No. 04388 (C.P. Phila. Dec. 13, 2007).

40
increased risk.23 But as he conceded in his declaration, the legal
threshold that constitutes a “significant” increase in risk is not
a scientific question. Decl. of Dr. Finkel (Zimmerman action)
¶ 32. And whatever the requisite threshold is, Pohl rejected Dr.
Finkel’s assertion that mere exposure reaches it.

Dr. Finkel also opined that

the various genetic “markers” that appear to have
some association with the propensity to develop

23
He stated:
Based on my scientific understanding of the risk
of contracting beryllium disease as a function of
duration and intensity of exposure, I can state to
a reasonable degree of scientific certainty that the
members of the proposed class face a significantly
increased risk of contracting CBD . . . .
The most important determinant of the risk of
CBD is the duration and intensity of exposure to
beryllium in the environment (or workplace).
Although science may come to understand in the
future that only “susceptible” persons are at
substantially elevated risk relative to the
remainder of the population, at the present time
there is no basis for concluding that persons “non-
susceptible to CBD” exist or can be exposed with
impunity.
Decl. of Dr. Finkel (Zimmerman action) ¶¶ 40–41.

41
 CBD . . . do not begin to establish that CBD is
qualitatively different from any other
environmental disease for which susceptibility is
continuous (not either/or) and for which both
susceptibility and exposure matter fundamentally.

Id. ¶ 20. To the extent Dr. Finkel argues the presence of the
HLA-DPB1 marker is merely an effect modifier, as opposed to
a sine qua non of contracting CBD, Pohl rejected this
proposition: “CBD affects between one and three percent of
those exposed to beryllium, because only those individuals with
a specific immune response or allergy to beryllium can develop
the disease. Thus, even those workers at [plaintiffs’] plant with
enormous exposure to beryllium . . . cannot develop the disease
if they lack the immunologic response to beryllium.” 936 A.2d
at 45. Without scientific data that might support Dr. Finkel’s
hypothesis, the District Court properly did not consider this
testimony in its analysis. “A court may conclude that there is
simply too great an analytical gap between the data and opinion
proffered.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997).

As Pohl recites, only a small subset of an exposed
population (those who carry the genetic marker) is at risk of
developing CBD; thus, the issue presented here is
distinguishable from Foust. Unlike exposure to beryllium, the
evidence presented on PCBs in Foust seems to indicate that all
persons are at risk of developing disease from exposure
alone—that is, there is no known genetic predisposition that
affects risk. Foust, 756 A.2d at 119. The linear relationship

42
between PCB exposure and disease allowed the Pennsylvania
Commonwealth Court in Foust to generalize risk based on PCB
exposure levels alone. Under Pohl, the relationship between
beryllium exposure and CBD is relatively non-linear, making
generalized risk assessments inappropriate.

The essence of Zimmerman’s arguments, which are
supported by expert testimony, is that risk of contracting CBD
develops through beryllium exposure alone, independent of
sensitization. Zimmerman contends the concept of sensitization,
although important to understanding the pathogenesis of the
disease, is not an indicator of risk. See, e.g., Decl. of Dr. Finkel
(Zimmerman action) ¶ 20 (“[T]he dubious assertion that ‘only
susceptible people can develop CBD’ is irrelevant to human risk
assessment, even if it were true.”); Decl. of Dr. Rossman
(Zimmerman action) ¶ 7 (“I can categorically state that one does
not need to be diagnosed with BeS in order to be considered
significantly at risk for contracting CBD.”); Decl. of Dr. Glazer
(Zimmerman action) ¶ 17 (“All [members of the proposed class]
are at a significantly increased risk for the development of
beryllium related health effects.”). But nearly identical
testimony was presented in Pohl by experts Zimmerman uses in
his case. Dr. Martyny “opined with a reasonable degree of
scientific certainty that each of the [plaintiffs] . . . was at a
significantly increased risk of contracting CBD as a result of
exposure to beryllium in Reading . . . .” Brief for Appellants at
13–14, Pohl v. NGK Metals Corp., No. 2083 EDA 2006 (Pa.
Super. Ct. Sept. 3, 2007), 2007 WL 2721323. Similarly, Dr.

43
Maier explained that each plaintiff was at a significantly
increased risk of developing CBD due to beryllium exposure,
and that once a person has been exposed, his risk of developing
CBD remains with him for life. Id. at 14–15 (citing Maier
Affidavit). After considering these expert opinions, the Superior
Court in Pohl found that plaintiffs had still failed to make a
prima facie showing of significantly increased risk under
Redland Soccer.24

The Pohl court did not dismiss plaintiffs’ claims based
only on a failure of proof; it dismissed after holding that the risk
threshold under the fourth element of the Redland Soccer test,
given the current state of scientific knowledge on the
relationship between beryllium exposure and disease, fell on
sensitization. For these reasons, Zimmerman has failed to
present sufficient evidence that “as a proximate result of the
exposure,” he “has a significantly increased risk of contracting”
CBD. Redland Soccer, 696 A.2d at 145–46.

24
Both plaintiffs’ references to Brush Wellman’s, OSHA’s,
and other governmental agencies’ medical monitoring programs
are also unavailing. They are helpful to understand the effects
of beryllium exposure, but they do not aid us in defining what
constitutes a “significantly increased risk” under Pennsylvania
law.

44
 IV.

Sheridan contends the District Court erred in granting
Cabot’s motion for judgment on the pleadings under Fed. R.
Civ. P. 12(c) on the grounds of res judicata, or claim
preclusion.25 “[A] final judgment on the merits of an action
precludes the parties or their privies from relitigating issues that
were or could have been raised in that action.” Churchill v. Star
Enters., 183 F.3d 184, 194 (3d Cir. 1999) (quoting Rivet v.
Regions Bank of La., 522 U.S. 470, 473 (1998)). To succeed in
the assertion of the defense, the defendant must show there has
been “(1) a final judgment on the merits in a prior suit
involving; (2) the same parties or their privies; and (3) a
subsequent suit based on the same causes of action.” Id.
(quoting United States v. Athlone Indus., Inc., 746 F.2d 977, 984

25
Judgment on the pleadings “will not be granted unless the
movant clearly establishes that no material issue of fact remains
to be resolved and that he is entitled to judgment as a matter of
law.” Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir.
2008) (quoting Jablonski v. Pan Am. World Airways, Inc., 863
F.2d 289, 290–91 (3d Cir. 1988) (internal quotation marks and
citations omitted)). We exercise plenary review over a district
court’s decision granting a motion for judgment on the
pleadings, and “view the facts presented in the pleadings and the
inferences to be drawn therefrom in the light most favorable to
the nonmoving party.” Id. (quoting Jablonski, 863 F.2d at
290–91) (internal quotation marks and citations omitted).

45
(3d Cir. 1984)). We “[do] not apply this conceptual test
mechanically,” but “focus on the central purpose of the doctrine,
to require a plaintiff to present all claims arising out [of] the
same occurrence in a single suit.” Id. (quoting Athlone, 746 F.2d
at 984). In so doing, we avoid piecemeal litigation and conserve
judicial resources. See id.

In 2002, Sheridan brought a personal injury action
against Cabot for negligence and strict liability, alleging that her
exposure to beryllium near the Reading Plant from 1951 to 1956
caused her to contract CBD. She sought compensatory and
punitive damages. The District Court granted Cabot’s motion
for summary judgment, finding that although Sheridan had been
diagnosed with CBD, she had not suffered a compensable injury
under Pennsylvania law. Sheridan v. Cabot Corp. (Sheridan I),
No. Civ. A. 02-1212, 2003 WL 22999256, at *4–5 (E.D. Pa.
Mar. 12, 2003) (citing Simmons, 674 A.2d at 237), aff’d, 113 F.
App’x 444 (3d Cir. 2004). Sheridan then initiated this putative
class action as a lead plaintiff against Cabot, among other
defendants, for medical monitoring (Sheridan II). The
underlying facts supporting her allegation of negligence are the
same as those in Sheridan I—that she was exposed to beryllium
particles emitted from the Reading Plant as a result of living in
the surrounding community, which can cause CBD and other
adverse beryllium health effects.

The Sheridan II court granted Cabot’s motion for
judgment on the pleadings, finding that Sheridan’s claim against
it is barred by the doctrine of claim preclusion. Specifically, the

46
court held that (1) Cabot had obtained a judgment on the merits
against Sheridan in Sheridan I; (2) Sheridan and Cabot were
parties to both actions; and (3) Sheridan’s claim was based on
the same cause of action as Sheridan I. We agree.

First, the Sheridan I court’s dismissal of Sheridan’s
negligence and strict liability claims was “on the merits.”
Sheridan contends that because the court held she did not suffer
a compensable injury, it did not reach the merits of her case.
The Sheridan I court implied that because Sheridan’s personal
injury claim had not yet ripened, she could properly initiate a
second personal injury action if and when she begins to suffer
a “compensable injury.” Sheridan I, 2003 WL 22999256, at
*4–5. It also noted that Sheridan’s statute of limitations period
had “not begun to run, much less expired.” Id. at *5 n.2.
Sheridan cites the Restatement (Second) of Judgments, which
states, in part:

A valid and final personal judgment for the
defendant, which rests on the prematurity of the
action or on the plaintiff’s failure to satisfy a
precondition of suit, does not bar another action
by the plaintiff instituted after the claim has
matured, or the precondition has been satisfied,
unless a second action is precluded by operation
of the substantive law.

Restatement (Second) of Judgments § 20(2) (1982). Just as
cases dismissed for lack of jurisdiction, lack of venue, improper

47
service, and improper joinder do not bar another action after a
claim has matured, so too, Sheridan argues, does her claim in
Sheridan I not bar a subsequent claim after the initial action has
“matured.” But because her claim in Sheridan II is simply
seeking another form of relief—medical monitoring instead of
compensatory damages—based on the same underlying factual
averments, her initial claim in Sheridan I has not matured.
Accordingly, § 20(2) of the Restatement does not apply, and the
Sheridan I court’s decision was on the merits.26

Second, Cabot has met the “same parties” requirement of
the claim preclusion defense because Sheridan and the company

26
By stating that Sheridan can bring a second personal injury
claim if and when she suffers a “compensable injury,” the
Sheridan I court seems to have implicitly recognized the “two-
disease” rule under Pennsylvania law, which permits a plaintiff
to commence separate causes of action for each exposure-based
disease she develops. See Simmons, 674 A.2d at 237; see also
Abrams v. Pneumo Abex Corp., 981 A.2d 198, 206–07 (Pa.
2009) (applying Simmons). The Pennsylvania Supreme Court
adopted this rule so that plaintiffs would not be forced to
“establish all future harm that may result from the contraction of
. . . . [a] latent disease[] which do[es] not surface until years
after the initial exposure. Simmons, 674 A.2d at 237. But here
Sheridan does not contend she has contracted a new or separate
disease. Accordingly, the “two-disease” rule does not apply to
her claim.

48
were parties in both actions. The fact that there are additional
parties in Sheridan II does not affect our conclusion. See
Gregory v. Chehi, 843 F.2d 111, 119 (3d Cir. 1988) (“The
essence of the cause of action . . . is not altered by the addition
of more parties.”).

Third, the medical monitoring claim in Sheridan II is
based on the same cause of action asserted in Sheridan I. We
take a “broad view” of what constitutes the same cause of
action. Churchill, 183 F.3d at 194; Athlone, 746 F.2d at 984;
see also Restatement (Second) of Judgments § 24(1) (“[A] claim
extinguished [by the doctrine of claim preclusion] includes all
rights of the plaintiff to remedies against the defendant with
respect to all or any part of the transaction . . . out of which the
action arose.”). “Rather than resting on the specific legal theory
invoked, res judicata generally is thought to turn on the essential
similarity of the underlying events giving rise to the various
legal claims . . . .” Athlone, 746 F.2d at 983–84 (quoting Davis
v. U.S. Steel Supply, 688 F.2d 166, 171 (3d Cir. 1982) (en banc))
(emphasis in Athlone omitted). Multiple factors guide our
analysis under the essential similarity test: “(1) whether the acts
complained of and the demand for relief are the same . . . ; (2)
whether the theory of recovery is the same; (3) whether the
witnesses and documents necessary at trial are the same . . . ;
and (4) whether the material facts alleged are the same.” Id. at
984 (internal citations omitted). It is not dispositive that a
plaintiff asserts a different theory of recovery or seeks different
relief in the two actions. Id.

49
 Here, although the Athlone factors point in both
directions, the factual assertions are indistinguishable. Sheridan
correctly notes that the demand for relief is different in each
case. In Sheridan I, she alleged the beryllium emissions actually
caused her to develop CBD and sought compensatory and
punitive damages. In contrast, she contends in Sheridan II that
the beryllium exposure merely increased her risk of contracting
CBD and seeks medical monitoring instead of damages. She
would have had to produce medical testimony in Sheridan I to
prove the beryllium exposure was responsible for causing CBD,
while in Sheridan II she needs to produce testimony showing
only that she was at an increased risk of contracting the disease.
But this does not change the fact that the underlying assertions
giving rise to each claim were the same. The beryllium
emissions from the Reading Plant and the allegation that Cabot
is responsible for these omissions have not changed between
Sheridan I and II.

Sheridan’s attempts to circumvent the identical nature of
the events giving rise to the causes of action are unavailing.
First, she references the fact that additional parties and claims
are involved in Sheridan II. But as previously mentioned, other
parties asserting new claims in the first or second action do not
affect a claim preclusion analysis with respect to the parties
involved in both proceedings. Second, Sheridan contends that
members of the proposed class who are at risk of developing
CBD cannot have their medical monitoring claims barred. This
is true as applied to any individual who has not already litigated

50
the same cause of action. Only Sheridan is barred from bringing
a medical monitoring claim. Third, Sheridan seems to argue that
because she was already “injured,” it was not possible for her to
bring a claim to merely monitor her “already-existing injuries”
in Sheridan I. Only after the Sheridan I court held that she had
not suffered a compensable injury did she think she had a
medical monitoring claim. But Fed. R. Civ. P. 18(a) permits a
party to join “independent or alternative claims.” Sheridan
cannot dispute that she could have asserted a medical
monitoring claim as an alternative to her negligence and strict
liability claims. Cf. Simmons, 674 A.2d at 240 (“Although we
hold that awarding damages for the increased risk and fear of
cancer is contrary to the established jurisprudence of this
Commonwealth, we find that recovery for medical monitoring
is appropriate and just.”).

Barring Sheridan’s medical monitoring claim against
Cabot is consistent with the purpose of claim preclusion, namely
finality and avoidance of piecemeal litigation. Because the
underlying assertions in each action are the same, and because
Sheridan could have brought a medical monitoring claim in
Sheridan I, the District Court properly granted Cabot’s motion
for judgment on the pleadings.

V.

We now turn to whether the District Court correctly
granted Spotts, Stevens & McCoy’s motion to dismiss based on
Zimmerman’s and Sheridan’s failure to plead facts that give rise

51
to a medical monitoring claim.27 Under Redland Soccer, a
plaintiff must prove negligence, among other elements, in order
to prevail on a common law medical monitoring claim.28 696
A.2d at 145. Plaintiffs argue that Spotts, Stevens & McCoy’s
alleged negligence in analyzing and monitoring beryllium levels
at the Reading Plant rendered it liable under § 324A of the
Restatement (Second) of Torts. This provision, which governs

27
We exercise plenary review over district court orders
dismissing claims under Fed. R. Civ. P. 12(b)(6). “Reviewing
such an order, we accept as true all allegations in the plaintiff’s
complaint as well as all reasonable inferences that can be drawn
from them, and we construe them in a light most favorable to the
non-movant.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir.
2008). To survive a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, --
- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic
v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (quoting Twombly, 550
U.S. at 556).
28
Even if plaintiffs were able to establish a prima facie case
for negligence, they would still need to prove the other elements
in Redland Soccer, particularly the “significantly increased risk”
element, discussed supra.

52
liability to a third party for negligent performance of an
undertaking, states:

One who undertakes, gratuitously or for
consideration, to render services to another which
he should recognize as necessary for the
protection of a third person or his things, is
subject to liability to the third person for physical
harm resulting from his failure to exercise
reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care
increases the risk of such harm, or
(b) he has undertaken to perform a duty
owed by the other to the third person, or
(c) the harm is suffered because of reliance
of the other or the third person upon the
undertaking.

Restatement (Second) of Torts § 324A (1965). Pennsylvania
has adopted § 324A. See Cantwell v. Allegheny County, 483
A.2d 1350, 1353 (Pa. 1984).

For liability to be imposed under § 324A, “the defendant
specifically [must have] undertaken to perform the task that [it]
is charged with having performed negligently.” Patentas v.
United States, 687 F.2d 707, 716 (3d Cir. 1982). In other words,
the defendant must have assumed an affirmative duty to be
liable to third parties for negligently performing that duty. See
Evans v. Liberty Mut. Ins. Co., 398 F.2d 665, 667 (3d Cir. 1968)

53
(“It is well-settled under Pennsylvania law . . . that plaintiff must
prove, inter alia, the existence of a duty owed to him and a
breach thereof . . . .”) (internal quotation marks and citation
omitted). The scope of this rule, known as the “good samaritan
doctrine,” is measured by the scope of the defendant’s
undertaking. Patentas, 687 F.2d at 716. Even if a particular
injury is foreseeable, see Cantwell, 483 A.2d at 1353–54 (stating
that § 324A “is essentially a requirement of foreseeability”), a
defendant must still have a specific duty to prevent the injury,
see Breiner v. C&P Home Builders, Inc., 536 F.2d 27, 31 (3d
Cir. 1976) (“Foreseeability of injury, however, in the absence of
a duty to prevent that injury, is an insufficient basis on which to
rest liability.” (citing Evans, 398 F.2d at 667)). In addition to
proving the defendant owed a duty to exercise reasonable care,
the plaintiff must also show that one of the three causation
requirements in § 324A has been met. See Patentas, 687 F.2d
at 716 (“Section 324A specifies three circumstances in which
the injury may be proximately caused by the negligent
performance of an undertaking.”).

Boiled down to its core, plaintiffs’ Amended Complaint
contends that Spotts, Stevens & McCoy breached its duty of
reasonable care by failing to warn members of the community
surrounding the Reading Plant of the beryllium emissions from
the facility. Am. Compl. ¶¶ 63–64. But the Amended
Complaint also states that “Spotts, Stevens & McCoy was paid
by the Reading Plant operators, defendants herein, to test,
sample, analyze, and monitor . . . the levels of beryllium . . . .

54
[and] Spotts, Stevens & McCoy was responsible for advising
defendants herein . . . .” Id. ¶ 58. Accordingly, for Spotts,
Stevens & McCoy to be liable under § 324A, plaintiffs must
prove this specific duty was performed negligently. If plaintiffs
had asserted that Spotts, Stevens & McCoy negligently
performed the tasks it actually undertook—that is, testing,
analyzing, and monitoring the levels of beryllium, and reporting
those tests to the owner and operator of the facility—then the
assertions would sufficiently establish a claim under § 324A.
But plaintiffs’ Amended Complaint makes no such allegations.
In order for Spotts, Stevens & McCoy to have negligently failed
to warn plaintiffs of harmful beryllium exposures, it must have
undertaken the responsibility of making that warning.

Plaintiffs’ reference to Farabaugh v. Pennsylvania
Turnpike Commission, 911 A.2d 1264, 1277 (Pa. 2006), where
the Pennsylvania Supreme Court noted that there is a “social
duty” on parties “to perform their contractual obligations so as
not to injure third parties,” is inapposite. In Farabaugh, the
plaintiff alleged the defendant had failed to exercise reasonable
care in performing the services owed under its contract. Id.
Here, however, plaintiffs do not allege Spotts, Stevens &
McCoy negligently performed its contractual duties.

The flaw in the Amended Complaint is its failure to
match an allegation of a specific duty owed to plaintiffs with an
allegation of negligent performance of that duty. By failing to
make this connection, plaintiffs cannot succeed in establishing

55
liability under § 324A.29 Accordingly, the District Court
properly granted Spotts, Stevens & McCoy’s motion to dismiss
for failure to state a claim upon which relief can be granted.

VI.

For the foregoing reasons, we will affirm the District
Court’s judgments on appeal in both the Anthony and
Zimmerman actions.

29
Because plaintiffs have not identified a duty that Spotts,
Stevens & McCoy owed them, we need not determine the
subsequent question of whether they have proven proximate
cause under § 324A.

56