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Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 1 of 25






INC., et al.,


NO. 09-4215




September 19, 2013

Diane Perlman (Plaintiff) commenced this diversity

action1 against Universal Restoration Systems, Inc., 1 Source

Safety & Health, Inc. (1 Source ), INX Technology Corporation of

Pennsylvania (INX), Great Northern Insurance Company (Great

Northern) d/b/a Chubb Group of Insurance Companies (Chubb), and

John Little2 for damages and other costs in an amount greater

than $100,000 related to Plaintiff’s breach of contract,

Plaintiff is an individual residing in the District of

Columbia. First Am. Compl. ¶ 7, ECF No. 32. The only remaining
defendant, 1 Source Safety & Health, Inc., is a Pennsylvania
corporation with its principal place of business in Exton, PA.
Id. ¶ 10.

John Little is an employee of Chubb & Son, which is a
division of Federal Insurance Company, the insurance manager of
Great Northern. Little was the claims adjustor for Plaintiff’s
Chubb insurance claim.

Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 2 of 25

negligence, and insurance bad-faith claims. Four of the five

defendants are no longer in the case, leaving only 1 Source.3

This memorandum pertains only to Plaintiff’s negligence and

breach-of-contract claims against 1 Source. 1 Source filed a

motion for summary judgment on both claims, to which Plaintiff

responded.4 After the Court heard oral argument on 1 Source’s

motion and all related filings, including argument on whether

one of Plaintiff’s expert witnesses, Dr. Jack Thrasher, meets

the threshold requirements under Daubert v. Merrill Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), the matter is now

ripe for review. For the reasons that follow, the Court will

grant 1 Source’s motion.



Plaintiff alleges that mold contamination was first

discovered on her Narberth, Pennsylvania property (the Narberth

Plaintiff removed Little as a defendant in her Amended
Complaint. First Am. Compl. § 1, 4. The Court dismissed INX from
the case pursuant to the parties’ request. Order, Jan. 26, 2012,
ECF No. 121. Finally, Great Northern d/b/a Chubb and Universal
each settled with Plaintiff and were, accordingly, dismissed
from the case. Order, May 24, 2012, ECF No. 123; Order, Nov. 20,
2012, ECF No. 151.

1 Source subsequently moved for leave to file a reply

in support of summary judgment. Def.’s Mot. Leave to File 1, ECF
No. 148. Plaintiff responded in opposition. Pl.’s Resp. in Opp’n
to Def.’s Mot. Leave to File 1, ECF No. 149. Plaintiff also
filed a sur-reply that includes arguments on why her experts
meet the Daubert requirements after receiving leave of Court.
Pl.’s Sur-Reply, ECF No. 155.


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 3 of 25

home) in August 2001. Pl.’s Resp. Ex. A, Perlman Dep., at 81:17-

21, Jun. 14, 2011, ECF No. 142-1. Both her attic and basement

were affected at this time. Id. at 82:9-18. She filed a claim

with her property insurer, Chubb, and Chubb had Universal

perform mold remediation work on the Narberth home in September

2001. Def.’s Mot. Summ. J. Ex. I, Pl.’s Resp. to Interrogs. No.

8, ECF No. 140-2. Plaintiff claims Universal failed to

adequately remove the mold. First Am. Comp. ¶ 29. She further

claims that, from 2001 to 2003, she experienced allergies,

shortness of breath, fatigue, joint stiffness, concentration

problems, reading and writing difficulties, vertigo,

inflammation, head sweats, weight gain, and hypothyroidism as a

result of the mold exposure. Pl.’s Resp. to Interrogs. No. 9.

Plaintiff rediscovered mold in the Narberth home in

June 2003. Id. No. 8. On June 23, 2003, Jake Yasgur of Mold

Detective inspected the property and collected mold samples. Id.

No. 2. The samples were processed by NAL East Mold Testing,

which confirmed the presence of toxic mold and elevated levels

of Stachybotrys. Notice of Removal Ex. A, 2003 NAL East Report,

ECF No. 1. After Plaintiff informed Chubb of the NAL East Report

indicating mold contamination, Little referred her to speak with

1 Source’s vice president, Harry Neil, a Certified Industrial

Hygienist (CIH). Perlman Dep. 130: 14-15; Pl.’s Resp. Ex. P, 1

Source Visual Inspection, Moisture Testing and Sampling Report


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 4 of 25

1, 6, ECF No. 146-16 [hereinafter 1 Source Report]. 1 Source

submitted an inspection proposal to Plaintiff on June 18, 2003,

Def.’s Mot. Summ. J. Ex. B, Proposal, ECF No. 146-2, but Neill

stated that he was unable to begin the inspection until August

2003 due to vacation plans and other work projects, Def,’s Mot.

Summ. J. Ex. C, Neill Dep., at 41:10-14, Jan. 31, 2012, ECF No.

146-3. Consequently, Plaintiff chose not to hire 1 Source to

perform the inspection. Perlman Dep. 130:14-132:11. However,

Chubb requested that 1 Source investigate, on its behalf, an

area in the attic of the Narberth home and throughout the house

for moisture sources after Plaintiff submitted a claim to Chubb

in July 2003. 1 Source Report 1.

1 Source inspected the Narberth home on August 4,

2003, and September 2, 2003. Id. The company reported that it

performed moisture-meter testing using a Tramex “Moisture

Encounter” meter and a Delmhorst Moisture Probe and collected

air samples using a pbi surface-air-system. Id. at 1-2. The air

samples were processed by P&K Microbiology Services, Inc. Id. at

2. 1 Source’s report to Chubb also indicated the presence of

elevated moisture levels in the attic sitting room and a

bathroom, damp basement walls suggesting fungal amplification,

and staining in the master bedroom and closet suggesting prior

moisture damage. Id. at 3-5. Accordingly, 1 Source recommended

that a structural engineer perform further inspection, that


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 5 of 25

Plaintiff take cleaning measures including HEPA air washing and

vacuuming, and that she seek medical attention regarding her

health concerns. Id. at 5-6. 1 Source submitted invoices to

Chubb on September 9, 2003, for moisture and mold investigation

totaling $2,552.35 and on October 7, 2003, for moisture and mold

investigation totaling $3,389.28. Pl.’s Resp. Ex. S, 1 Source

Invoices, ECF No. 146-19. INX subsequently completed mold

remediation work at the Narberth home in 2003. First Am. Compl.

¶ 59.

Plaintiff temporarily moved to Washington, D.C. on

September 8, 2003. Pl.’s Resp. to Interrogs. No. 2. At the time,

she moved her furniture, clothing, and books from the

Pennsylvania residence to D.C. Id. Due to this transfer of

belongings, she claims that her temporary D.C. residence became

contaminated with mold from the Narberth Home. Id.

Thereafter, Plaintiff permanently moved to D.C. on

July 26, 2004, and she purchased a residence there on February

15, 2005 (the permanent D.C. home). First Am. Comp. ¶¶ 66-67.

Meanwhile, she was forced to seal her contaminated property in

plastic boxes and place them in long-term storage. Id. ¶ 68.

Plaintiff contends that she experienced re-exposure to toxic

mold in the permanent D.C. home when her neighbor’s apartment

flooded and caused water damage to the residence. Id.

¶¶ 87-88. She alleges that her original symptoms caused by mold


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 6 of 25

exposure in the Narberth home were aggravated by and caused a

hypersensitivity to mold exposure in the permanent D.C. home.

Id. ¶ 86-87, 124.

Overall, she alleges experiencing serious mycotoxin

exposure symptoms as a result of: (1) 1 Source’s participation

in the mold remediation of the Narberth home (2); further

exposure to mold found on furniture and other belongings that

she moved from the Narberth home to her temporary D.C.

residence; and (3) aggravated symptoms based on re-exposure to

mold in the permanent D.C. home. Id. ¶ 162.


Summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). “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) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986)). A fact is “material” if proof of its existence

or nonexistence might affect the outcome of the litigation, and

a dispute is “genuine” if “the evidence is such that a


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 7 of 25

reasonable jury could return a verdict for the nonmoving party.”

Anderson, 477 U.S. at 248.

The Court will view the facts in the light most

favorable to the nonmoving party. “After making all reasonable

inferences in the nonmoving party’s favor, there is a genuine

issue of material fact if a reasonable jury could find for the

nonmoving party.” Pignataro v. Port Auth. of N.Y. & N.J., 593

F.3d 265, 268 (3d Cir. 2010). While the moving party bears the

initial burden of showing the absence of a genuine issue of

material fact, meeting this obligation shifts the burden to the

nonmoving party who must “set forth specific facts showing that

there is a genuine issue for trial.” Anderson, 477 U.S. at 250.

Federal courts sitting in diversity generally apply

the substantive choice-of-law rules of the forum state, which is

Pennsylvania. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

(1938); Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216, 219 (3d

Cir. 2005). Here, the parties rely on Pennsylvania law in their

written submissions to the Court, which indicates their

agreement that Pennsylvania law governs the interpretation of

the instant insurance contract. Therefore, to the extent the law

of a state other than Pennsylvania would control, the parties

waive the issue and Pennsylvania law will apply. See Advanced

Med., Inc. v. Arden Med. Sys., Inc., 955 F.2d 188, 202 (3d Cir.


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 8 of 25

1992); Mellon Bank v. Aetna Bus. Credit, Inc., 619 F.2d 1001,

1005 n.1 (3d Cir. 1980).


Plaintiff asserts that 1 Source was negligent in its

role during the 2003 mold remediation of the Narberth home and

thus violated Pennsylvania law. She also argues that 1 Source is

liable for breach of contract on a third-party beneficiary

theory. 1 Source moves for summary judgment, arguing that

Plaintiff has not produced sufficient evidence to survive

summary judgment as to either of these causes of action. For the

reasons that follow, the Court will grant 1 Source’s Motion for

Summary Judgment.


Negligence Claim

Plaintiff first asserts that 1 Source was negligent in

delaying and performing mold-remediation work in Plaintiff’s

home in 2003. First Am. Compl. ¶¶ 122-123. 1 Source moves for

summary judgment, arguing that 1 Source did not perform mold

remediation work in 2003 but merely conducted inspections and

air sampling at Chubb’s request. Def.’s Mot. Summ. J. 8.

Therefore, 1 Source argues that Plaintiff has failed to produce

any evidence demonstrating that 1 Source’s “remediation” actions

caused Plaintiff’s injuries. Id. at 11.


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 9 of 25

Plaintiff responds in opposition, requesting that her

First Amended Complaint be amended yet again to allege that 1

Source was negligent in its role as a CIH- and indoor-air-

quality professional. Pl.’s Resp. 32. Pursuant to this new

theory of negligence, Plaintiff argues that 1 Source owed a duty

to Plaintiff to adequately inspect and recommend remediation

procedures for Plaintiff’s home. Id. at 33. to argue that 1

Source breached this duty, and summary judgment will therefore

be denied. Id. at 34. Accordingly, the Court will first

determine whether Plaintiff is permitted to further amend the

First Amended Complaint. Then, the Court will determine whether

her negligence claim survives summary judgment.


Leave to Amend

To determine whether Plaintiff’s theory of negligence

should be amended to conform to the evidence as requested, the

Court must analyze whether allowing an amendment of the

Complaint is proper at this stage of the proceeding.5 Amendments

The Court need not consider whether any statute-of

limitations-issues render Plaintiff’s proposed amendment futile
or whether the new claim relates back to the date of the
original Complaint’s filing. See Fed. R. Civ. P. 15(c). “There
is no allowance in Rule 15(c) for inquiry into a party's delay
in moving for leave to amend. Such equitable considerations are
relevant to whether leave to amend should be granted under Rule
15(a) . . . but do not relate to any of the enumerated
conditions of Rule 15(c).” Arthur v. Maersk, Inc., 434 F.3d 196,
203 (3d Cir. 2006) (citations omitted). Accordingly, because the
Court denies the request for leave to amend based solely on Rule


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 10 of 25

to pleadings are governed by Rules 15 and 16 of the Federal

Rules of Civil Procedure. Rule 15 permits parties to amend their

pleadings only once as a matter of course, within 21 days after

service of the initial complaint or the filing of a responsive

pleading or motion. Fed. R. Civ. Pro. R. 15(a)(1). All further

amendments require the leave of the court, which it should

“freely give . . . when justice so requires.” Id. R. 15(a)(2).

If, however, a motion to amend is filed after the Court ordered

deadline for amendments has passed, the moving party must first

demonstrate good cause for the amendment. Id. R. 16(b)(4). “Good

cause” under Rule 16(b) focuses on the diligence of the party

seeking the modification of the scheduling order. See Fed. R.

Civ. P. 16, Advisory Committee Note (1983) (“[T]he court may

modify the schedule on a showing of good cause if it cannot

reasonably be met despite the diligence of the party seeking the


Once good cause is shown, the Court may determine

whether justice requires the amendment under Rule 15. A district

court has discretion to deny such a request, “if it is apparent

from the record that (1) the moving party has demonstrated undue

delay, bad faith, or dilatory motives, (2) the amendment would

be futile, or (3) the amendment would prejudice the other

15(a), it does not reach any statute-of-limitations or relation-
back issues. See id. at 203-04.


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 11 of 25

party.” Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 116

(3d Cir. 2003). “In determining whether a claim would be futile,

the district court applies the same standard of legal

sufficiency as [it] applies under Federal Rule of Civil

Procedure 12(b)(6).” Travelers Indem. Co. v. Dammann & Co., 594

F.3d 238, 243 (3d Cir. 2010) (internal citations and quotations


The potential prejudice to 1 Source bars any amendment

and prevents the claim from relating back to the filing of the

original Complaint. “[A] district court may deny leave to amend

a pleading where the moving party has: (1) failed to utilize

previous opportunities to amend; and (2) has not offered any

explanation for this failure.” AMS Const. Co. v. Reliance Ins.

Co., No. 04-CV-02097, 2006 WL 1967336, at *2 (E.D. Pa. July 12,

2006); see also CMR D.N. Corp. v. City of Phila., 703 F.3d 612,

629, (3d Cir. 2013) (“[A] significant, unjustified, or “undue”

delay in seeking the amendment may itself constitute prejudice

sufficient to justify denial of a motion for leave to amend.”).

Here, all discovery occurred under the theories

advanced by Plaintiff in the original Complaint and First

Amended Complaint, and Plaintiff waited until after 1 Source

filed a motion for summary judgment to suggest an alternative

theory of liability in this case. Moreover, she had moved to

amend the Complaint twice previously, and both times she failed


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 12 of 25

to include this new theory of negligence. Furthermore, she

offers no explanation or justification in her Response for why

this theory was not included in either previous attempt to amend

the First Amended Complaint. 1 Source would therefore be

prejudiced as it was unable to sufficiently prepare a defense

against this theory during discovery. Under the circumstances,

the Court declines to grant her third request to amend the



Negligence Claim Merits

Having denied Plaintiff’s third attempt to amend the

Complaint, the Court must now determine whether her claim can

survive 1 Source’s Motion for Summary Judgment based on its

original theory of negligence—that 1 Source was “negligent in

the mold remediation work they performed on Dr. Perlman’s

Narberth Property and they failed to remove all of the mold.”

First Am. Compl. ¶ 123. But Plaintiff admits that 1 Source is

not a mold remediation company and performed no remediation on

her home. Pl.’s Resp. to Interrogs. No. 5.

The Court must then consider whether the phrase “mold

remediation work” should be interpreted narrowly, as argued by 1

Source, to reference only mold remediation or broadly, as argued

by Plaintiff, to include inspection and development of any

remediation plan taking place before actual remediation. The


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 13 of 25

Court needs not determine which of the two definitions applies

under Pennsylvania law because under either, Plaintiff’s claim


Under the narrow view of interpretation, 1 Source’s

actions clearly fall outside the scope of “mold remediation

work” because 1 Source did not perform any remediation work.

Under the broad view of interpretation, which would include

inspection and preparation of mold remediation recommendations,

Plaintiff’s evidence is insufficient to defeat summary judgment.

Under Pennsylvania law, a plaintiff bringing a claim

of negligence must demonstrate: (1) a duty or obligation

recognized by law; (2) the defendant’s breach of that duty; and

(3) a causal connection between the conduct and the resulting

injury; and (4) actual loss or damages suffered by the

plaintiff. Merlini ex rel. Merlini v. Gallitzin Water Auth., 980

A.2d 502, 506 (Pa. 2009) (citing Martin v. Evans, 711 A.2d 458,

461 (Pa. 1998)).6

Additionally, Plaintiff’s negligence claim appears to

be barred by Rule 1042.3 of the Pennsylvania Rules of Civil
Procedure, which requires that an action based upon professional
negligence be supported by a certificate of merit. It appears
this claim falls within the province of the rule in that
Plaintiff relies exclusively on ethical guidelines and expert
testimony in her attempt to demonstrate proof of negligence, and
a certificate of merit must support such a cause of action. See
Zokaites Contracting Inc. v. Trant Corp., 968 A.2d 1282, 1287
(Pa. Super. Ct. 2009). None was filed in this case. But because
1 Source failed to raise the issue at the motion-to-dismiss


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 14 of 25

Plaintiff argues that the American Board of Industrial

Hygiene (ABIH) Canons of Ethical Conduct, American Industrial

Hygiene Association (AIHA) guidelines, Institute of Inspection

Cleaning and Restoration Certification (IICRC) guidelines, and

the testimony of her toxicology expert, Dr. Jack Thrasher,

establish 1 Source’s duty to Plaintiff and its breach of that

duty. She also relies on Dr. Thrasher’s testimony to demonstrate

causation between the breach of duty and Plaintiff’s harm. Pl.’s

Resp. 34.7

First, regarding the AIHA and IICRC guidelines,

Plaintiff has not pointed to any language in the guidelines that

clearly casts 1 Source’s conduct into doubt. Plaintiff

particularly emphasizes AIHA guidance that states that “[t]he

confirmed presence of Stachybotrys chartarum requires that the

space if occupied be inspected as quickly as possible upon

receipt of the data and consideration be given to children,

immune compromised individuals and mold sensitive asthmatics.”

Pl.’s Resp. Ex. R, Recognition, AIHA Manual on Recognition,

Evaluation, and Control of Indoor Mold 8, ECF No. 146-18.

stage, the Court will assume that Plaintiff proceeds on a theory
of ordinary negligence.

Plaintiff also relies on the testimony of

neuropsychologist Dr. Wayne Gordon, although his opinion that
Plaintiff’s ailments were “the result of” mold exposure does
nothing to connect 1 Source to her alleged harm. See Pl.’s Resp.
Ex. N, Gordon Dep. 38:, Feb. 27, 2012, ECF No. 146-14.


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 15 of 25

Also, both the AIHA and IICRC guidelines are advisory

and do not impose a legal duty on 1 Source—although they may

inform any such duty, they are not binding or create a duty. Cf.

R.W. v. Manzek, 888 A.2d 740, 746-47 (Pa. 2005) (“[T]he concept

of duty amounts to no more than the sum total of those

considerations of policy which led the law to say that the

particular plaintiff is entitled to protection from the harm

suffered.”) (internal quotation marks omitted) (citing Althaus

v. Cohen, 756 A.2d 1166, 1168-69 (Pa. 2000)). This is

particularly true where ordinary negligence is at issue, as is

the case here, see supra n.7, which does not include a

heightened duty under professional negligence. See Merlini ex

rel. Merlini v. Gallitzin, 934 A.2d 100, 103-04 (Pa. Super. Ct.


In any event, Plaintiff has not produced sufficient

evidence to suggest that 1 Source did not perform according to

their precepts. Regarding the ABIH ethical code, Plaintiff

highlights the statements that:

Industrial Hygienists shall: (1) Practice their
profession following recognized scientific principles
with the realization that the lives, health and well-
being of people may depend upon their professional
judgment and that they are obligated to protect the
health and well-being of people. (2) Counsel affected
parties factually regarding potential health risks and
precautions necessary to avoid adverse health effects.


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 16 of 25

Pl.’s Resp. Ex. M, ABIH Code of Ethics 1, ECF No. 146-13. Even

in light of this excerpt, however, Plaintiff has again failed to

produce sufficient evidence to support a reasonable jury’s

finding that 1 Source did not meet these ethical obligations.

For instance, 1 Source’s report to Chubb of its initial testing

results specifically states that it recommended that Plaintiff

seek medical attention regarding her health concerns. 1 Source

Report 5-6. This advice is sufficient to satisfy any obligation

to Plaintiff as to health risks.

Second, regarding Dr. Thrasher, Plaintiff relies

solely on his testimony to show causation, as well as to further

clarify the alleged duty owed by 1 Source. Specifically,

Plaintiff claims that “1 Source did not ‘tell Dr. Perlman to get

out of the house and stay out of the house,’ as a result of

which she stayed in the home and ‘continued to exacerbate

preexisting conditions and create additional health problems.’”

Pl.’s Sur-Reply 12 (quoting Thrasher Dep. 184:4-185:15).

Furthermore, Dr. Thrasher stated in his expert report that 1

Source’s failure to mention the existence of Stachybotrys

chartarum was a “serious oversight,” the “investigation did not

quantify the extent of indoor contamination of mold species,” 1

Source’s role as a CIH was to recommend remediation plans and

conduct additional testing after remediation, and that

“[o]versight of these natures is negligence regarding the


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 17 of 25

responsibilities of a CIH company.” Pl.’s Resp. J. Ex. J,

Thrasher Report 3, 6, ECF No. 146-10. Dr. Thrasher states that

his conclusions were based on his review of the case docket, the

NAL East Report, Reports by 1 Source, photographs, and

additional reports and materials. Id.; Def.’s Reply Ex. O,

Thrasher Dep. 83:24-84:22, Sept. 23, 2012, ECF No. 148-2.

1 Source challenges the admissibility of Dr.

Thrasher’s reports in its Reply, arguing that his opinions are

unreliable and would not assist the trier of fact, that

causation is not properly addressed, and that Dr. Thrasher lacks

proper qualifications. Def.’s Reply 4-6, 12-14. Plaintiff argues

that 1 Source did not properly file a motion in limine pursuant

to Rule 702 or address this argument in its Motion for Summary

Judgment. Pl.’s Resp. in Opp’n to Def.’s Reply 1-2.8

Under Daubert v. Merrell Dow Pharmaceuticals, Inc.,

the Supreme Court held that the Federal Rules of Evidence give

trial judges the authority to determine the threshold of

reliability and relevance of expert testimony. 509 U.S. 579

(1993). Courts have interpreted this holding to “instruct

district courts to conduct a preliminary assessment of the

While 1 Source may have failed to initially raise an

objection to Plaintiff’s experts’ admissibility, it is not
necessary to consider this procedural issue because the Court
subsequently heard argument on the reliability of Dr. Thrasher’s
report and further provided an opportunity to Plaintiff to file
a sur-reply on the matter, which she has done.


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 18 of 25

reliability of expert testimony, even in the absence of an

objection [to the expert’s reliability].” Hoult v. Hoult, 57

F.3d 1, 4-5 (1st Cir. 1995). Furthermore, “where the opposing

party does not sufficiently call these issues into question,

[the Court of Appeals] will not find plain error merely because

the District Court did not conduct an extensive Daubert analysis

on the record.” Id. Therefore, the Court will conduct a

preliminary analysis and apply the Daubert factors to determine

the admissibility of Plaintiff’s toxicology expert.

In analyzing the admissibility of expert testimony,

Rule 702 of the Federal Rules of Evidence provides three

requirements: (1) The testimony must be based on sufficient

facts or data (qualification); (2) the testimony is the product

of reliable principles and methods (reliability); and (3) the

witness has applied the principles and methods reliably to the

facts of the case (fit). Fed. R. Evid. 702; In re Paoli R.R.

Yard PCB Litig., 35 F.3d 717, 741-43 (3d Cir. 1995).

To determine whether the expert testimony is reliable

and admissible, the “the court must inquire into whether (1) the

theory or technique employed by the expert is scientific

knowledge that will assist the trier of fact, (2) the theory or

technique has been subjected to peer review and publication, (3)

the known or potential rate of error, and the existence and

maintenance of standards for controlling the technique’s


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 19 of 25

operation, and (4) the general acceptance of the theory or

technique.” ID Sec. Sys. Canada, Inc. v. Checkpoint Sys., Inc.,

249 F. Supp. 2d 622, 690, amended, 268 F. Supp. 2d 448 (E.D. Pa.

2003) (Robreno, J.); see also Paoli R.R. Yard PCB Litig., 35

F.3d at 742.

In this case, Dr. Thrasher’s qualifications as an

expert seem adequate, as he represents that he is a

medical/legal consultant in environmental toxicology and

immunotoxicolgy and is a toxicologist and cell biologist. Pl.’s

Sur-Reply Ex. A, Thrasher C.V., at 1-2; see also Thrasher Dep.


Dr. Thrasher admits that he has reviewed several

reports, including the sampling report prepared by 1 Source,

depositions, and “a whole bunch of other materials.” Thrasher

Dep. 83:24-84:22. He did not perform any independent research.

But although Dr. Thrasher may be permitted to rely on other

reports related to the case and may not be required to conduct

his own scientific tests,9 the opinions he reaches in his report

are conclusory and offer no true explanations, as he even goes

as far to say 1 Source’s conduct “is negligence.” Thrasher

Report 6. In other words, Dr. Thrasher “has unjustifiably

The Court does not decide whether Dr. Thrasher’s

failure to perform any independent studies or tests precludes
his testimony from consideration at this stage of the


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 20 of 25

extrapolated from an accepted premise to an unfounded

conclusion.” In re Unisys Sav. Plan Litig., 173 F.3d 145, 166

n.10 (3d Cir. 1999) (citing Gen. Elec. Co. v. Joiner, 522 U.S.

136, 144 (1997)).

Furthermore, Plaintiff places great emphasis on a

single sentence in Dr. Thrasher’s report: that 1 Source did not

‘tell Dr. Perlman to get out of the house and stay out of the

house,’ as a result of which she stayed in the home and

‘continued to exacerbate preexisting conditions and create

additional health problems.’” Id. 184:4-185:15. But other than

this singular observation, based only on “subjective belief or

unsupported speculation,” Paoli, 35 F.3d at 742, he makes no

connection between the alleged cause and result. What is more, 1

Source arguably complied with Dr. Thrasher’s stringent,

unsupported duty to warn when the company included in its report

an admonition to Plaintiff to see a doctor. 1 Source Report 5-6.

Because Dr. Thrasher’s report relies on unreliable methodology

for establishing causation, it fails a Daubert analysis and is

thus inadmissible.

Without Dr. Thrasher’s report, Plaintiff has failed to

produce sufficient evidence to demonstrate that 1 Source’s

actions were causally related to her harm. Therefore, it is not

necessary to consider whether Plaintiff’s evidence has


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 21 of 25

sufficiently addressed general and specific causation, as 1

Source argues. Plaintiff’s negligence ultimately fails.


Breach-of-Contract Claim

Plaintiff also alleges under a third-party

beneficiary theory that 1 Source committed a breach of contract.

Pl.’s Resp. 36.10 1 Source counters that a third-party

beneficiary theory is inapplicable because Plaintiff has not

produced evidence that a contract existed between 1 Source and

Chubb or that these companies intended to benefit Plaintiff.

Def.’s Mot. Summ. J. 16. The Court need not determine whether

Plaintiff qualifies as a third-party beneficiary because she

improperly recasts her negligence claim as a breach-of-contract


Notably, Plaintiff does not specifically mention this

theory in her First Amended Complaint; she only states a general
claim for breach of contract. However, Plaintiff sought to
include this amendment, among several other changes, in a Second
Amended Complaint, which the Court denied. Order, ECF No. 63.

Even under a third-party beneficiary theory,

Plaintiff’s breach-of-contract claim fails. Under Pennsylvania
law, there are two tests to determine third-party beneficiary
status. The first test requires an intention to benefit a third
party expressed in an actual contract. Sound of Mkt. St., Inc.
v. Cont’l Bank Int’l, 819 F.2d 384, 389 (3d Cir. 1987) (citing
B. Bornstein & Son, Inc. v. R.H. Macy & Co., 420 A.2d 477, 482
(Pa. Super. Ct. 1980); Spires v. Hanover Fire Ins. Co., 70 A.2d
828, 830 (Pa. 1950)).

The second test provides:

First, the circumstances must be so compelling that
recognition of the beneficiary's right is appropriate


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 22 of 25

The gist-of-the-action doctrine precludes Plaintiff

from recasting ordinary breach-of-contract claims into tort

claims. Erie Ins. Exchange v. Abbott Furnace Co., 972 A.2d 1232,

1238 (Pa. Super. Ct. 2009); Reardon v. Allegheny College, 926

A.2d 477, 486 (Pa. Super. Ct. 2007). In this case, Plaintiff’s

breach-of-contract claim fails under a “reverse” gist-of-the-

to effectuate the intention of the parties. Second,
(1) the performance satisfies an obligation of the
promisee to pay money to the beneficiary or (2) the
circumstances indicate that the promisee intends to
give the beneficiary the benefit of the promised

Two Rivers Terminal, L.P. v. Chevron USA, Inc., 96 F. Supp. 2d
432, 450 (M.D. Pa. 2000) (citing Guy v. Liederbach, 459 A.2d 744
(Pa. 1983)). Furthermore, the Pennsylvania Supreme Court adopted
§ 302 of the Restatement (Second) of Contracts, which states in
relevant part that “[a]n incidental beneficiary is a beneficiary
who is not an intended beneficiary.” Sovereign Bank v. BJ’s
Wholesale Club, Inc., 533 F.3d 162, 168 (3d Cir. 2008) (citing
Scarpitti v. Weborg, 609 A.2d 147, 149 (Pa. 1992)).

In this case, Plaintiff fails to satisfy the first test
because neither party produced evidence of a contract between 1
Source and Chubb. Accordingly, she must meet the requirements of
the second test for her breach-of-contract claim to survive.

In attempting to do so, Plaintiff relies on the

proposition she espoused at the motion-to-dismiss stage of the
proceedings—that because she would benefit from inspection and
other work performed by 1 Source at her home, 1 Source should
have known at the time of contracting with Chubb that Plaintiff
would receive the benefit of its performance. Pl.’s Resp. 39.
Since that time, Plaintiff has pointed to no additional
evidence, much less compelling evidence as required under Two
Rivers, to show that 1 Source intended to give Plaintiff the
benefit of its performance. This assertion alone, in the absence
of supporting evidence, is insufficient to meet the requirements
set forth in Two Rivers Terminal and at most shows that
Plaintiff is an incidental beneficiary. Therefore, Plaintiff
cannot qualify as a third-party beneficiary.


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 23 of 25

action theory. A valid contract claim must allege more than just

a violation of a pre-existing legal duty. Hoyer v. Frazee, 470

A.2d 990, 992-93 (Pa. Super. Ct. 1984), abrogated on other

grounds by Bailey v. Tucker, 621 A.2d 108 (Pa. 1993)); see also

I.B.E.W. Local Union 380 Pension Fund v. Buck Consultants, Civil

Action No. 03-4932, 2008 WL 269467, at *9 n.5 (E.D. Pa. Jan. 30,

2008) (quoting Official Comm. of Unsecured Creditors of Correll

Streel ex. rel. Correll Steel v. Fishbein & Co., P.C., CIV. A.

No. 91-4919, 1992 WL 196768, at *5 (E.D. Pa. Aug. 10, 1992))

(“Failure to perform a service with the requisite level of

professional care typically constitutes a claim of negligence,

not breach of contract.”). Furthermore, a duty to act according

to professional guidelines or principles is separate and

independent of any duty imposed by contract. See Matlack

Leasing, L.L.C. v. Morison Cogen, L.L.P., Civil Action No. 09-

1570, 2010 WL 114883, at *6 (E.D. Pa. Jan. 13, 2010) (citing

Robert Wooler Co. v. Fidelity Bank, 479 A.2d 1027, 1031 (Pa.

Super. Ct. 1984)).

In Plaintiff’s Response, she does not point to any

contractual duty between 1 Source and Chubb or 1 Source and

Plaintiff.12 She only argues that 1 Source failed to act in

Granted, there is no contract upon which to rely, but

Plaintiff is still obligated to raise an issue as to whether any
agreement between Chubb and 1 Source specifically instructed 1
Source to perform a task that it failed to perform. See Matlack,


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 24 of 25

accordance with the ABIH Canon of Ethics, the AIHA and IIRC

guidelines, and Dr. Thrasher’s proposed, stringent duty to warn.

Indeed, in the breach-of-contract section of the Response, she

points to no contractual duty whatsoever, and merely speculates

that “[clearly], the purpose of any agreement between Chubb and

1 Source was to inspect the Perlman residence to determine the

sources of moisture intrusion and the extent of the mold damage

for which remediation was required.” Pl.’s Resp. 29. In support

of this argument, she cites not to any agreement between Chubb

and 1 Source, but to the report at issue submitted by 1 Source.

Id. Because Plaintiff’s breach-of-contract argument necessarily

relies on her negligence argument, it must fail as a matter of


2010 WL 114883, at *6 (dismissing a breach-of-contract claim
proceeding under a third-party beneficiary theory because
plaintiffs failed to distinguish it from their negligence
claim); Scarpitti, 609 A.2d at 151 (finding plaintiffs
adequately pleaded a breach-of-contract cause of action under a
third-party beneficiary theory despite the lack of a contract).

The Court recognizes that defects in claims stemming

from the gist-of-the-action doctrine and its variant are usually
disposed of at the motion-to-dismiss stage. See, e.g., Matlack,
2010 WL 114883, at *1; Fishbein, 1992 WL 196768, at *1. Here,
the Court denied several motions to dismiss based in part on the
gist-of-the-action doctrine and provided Plaintiff the
opportunity to establish distinct evidentiary foundations for
her negligence and breach-of-contract claims through discovery.
See Hr’g Trans. 38:18-40:6, Mar. 11, 2010, ECF No. 65; Order,
Mar. 23, 2010, ECF No. 63. Judging by her Response, in which she
relies on the same underlying duty for both claims, she has
failed to take advantage of the opportunity.


Case 2:09-cv-04215-ER Document 156 Filed 09/19/13 Page 25 of 25


For the foregoing reasons, the Court will grant 1

Source’s Motion for Summary Judgment.