Estate of Ware Ex Rel. Boyer v. Hospital of the University of Pennsylvania
871 F.3d 273
| 3rd Cir. | 2017Background
- Jeffrey Ware, a UPenn neuroscientist, developed gliosarcoma and his widow Barbara Boyer sued UPenn and affiliated defendants alleging radiation exposure from cesium-137 irradiators in his research lab caused his illness and death.
- Boyer alleged UPenn failed to monitor/protect Ware from radiation, concealed records, and later committed related malpractice and fraud during his treatment; she sued in Pennsylvania state court.
- UPenn (and NSBRI, later dismissed by Boyer) removed under the Price‑Anderson Act (42 U.S.C. § 2011 et seq.) and § 1442(a); the district court held the Act applied to Boyer’s radiation‑based negligence claims.
- Under NRC regulation, occupational exposure limits are 5 rem/year; Warehouse’s documented exposure averaged far below that (total 0.075 rem over 16 years), and Boyer produced no expert reports to prove causation.
- Boyer moved to withdraw her Price‑Anderson claims and remand the rest; the district court denied withdrawal, retained supplemental jurisdiction, and granted summary judgment to UPenn because Boyer failed to oppose the motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Price‑Anderson applies to Ware’s alleged injuries from cesium‑137 in a university research lab | Boyer: Price‑Anderson was intended for nuclear power/weapons contexts or only where indemnity agreements exist; it should not reach her husband’s lab research injuries | UPenn: The Act’s text and definitions cover any "nuclear incident" caused by byproduct material (cesium‑137); UPenn held a state‑delegated license | Held: Price‑Anderson applies; cesium‑137 is byproduct material and the allegations describe a "nuclear incident" and "public liability" under the Act |
| Whether possession of an NRC (vs. state‑delegated) license or an indemnity contract is required for Act coverage | Boyer: Act should be limited to NRC‑licensed or indemnified entities | UPenn: Act covers licensed activity; state‑delegated licenses are authorized by the Atomic Energy Act and suffice | Held: Court rejects requiring an NRC‑issued license or indemnity agreement; UPenn’s state‑delegated license is adequate if license possession mattered |
| Whether intentional medical uses of radiation are excluded from the Act | Boyer: Congress declined to extend the Act to nuclear pharmacies/hospital medicine, implying a limit | UPenn: Allegations involve negligent (unintended) occupational exposure in research, not intentional therapeutic use | Held: Even if medical‑use caveat existed, it does not apply here; alleged exposure was negligent, research use, not deliberate medical therapy |
| Whether district court abused discretion by denying motion to withdraw Price‑Anderson claims and by retaining state claims | Boyer: Should be allowed to withdraw Price‑Anderson claims and remand remaining state claims | UPenn: Withdrawal at late stage would prejudice defendant given extensive discovery and motions; supplemental jurisdiction appropriate | Held: No abuse of discretion; denial of withdrawal proper due to prejudice and district court permissibly retained supplemental jurisdiction and entered summary judgment for lack of opposition |
Key Cases Cited
- El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473 (discusses Price‑Anderson history and purpose)
- In re TMI Litig. Cases Consol. II, 940 F.2d 832 (3d Cir.) (discusses prior role of extraordinary nuclear occurrence and reliance on state law)
- Acuna v. Brown & Root Inc., 200 F.3d 335 (5th Cir.) (interprets 1988 amendments expanding Price‑Anderson scope beyond extraordinary nuclear occurrences)
- Cook v. Rockwell Int’l Corp., 618 F.3d 1127 (10th Cir.) (applies Price‑Anderson to non‑power plant contexts)
- Dumontier v. Schlumberger Tech. Corp., 543 F.3d 567 (9th Cir.) (applies § 2014(q) to cesium‑137 workplace exposure)