McMunn v. Babcock & Wilcox Power Generation Group, Inc., 2017 U.S. App. LEXIS 16103

Background

Plaintiffs (70+ consolidated claimants) allege cancers caused by inhalation of uranium effluent from the NUMEC Apollo, PA facility (operations ~1953–1983). Most lived near Apollo for decades and were diagnosed 2007–2011; cancers and risk profiles varied.
The Price-Anderson Act preempted Plaintiffs’ common-law negligence claims; only Price-Anderson public-liability claims remained, which require proof of duty, breach, causation, and damages (analogous to negligence elements).
Regulatory framework: 10 C.F.R. § 20.106 sets maximum permissible concentrations (MPC) applicable at the boundary of the restricted area; concentrations may be averaged over a period not greater than one year. NRC/AEC correspondence and NUMEC records include both readings suggesting high stack/vent emissions and AEC findings that roof-edge/site‑boundary samples met limits. NUMEC received a 1969 license amendment allowing high stack concentrations so long as roof-edge and off‑site sampling complied.
Procedural history: Magistrate issued a Lone Pine order limiting claims to airborne uranium exposure from Apollo and required prima facie evidence; Daubert rulings excluded some experts but left Dr. James Melius’s testimony admissible; District Court granted summary judgment for defendants adopting the Magistrate’s R&R. Plaintiffs appeal.
Key factual/technical gaps: Plaintiffs relied heavily on stack and fan readings, incomplete roof‑edge monitoring, and limited short‑duration exceedances; they presented no individualized, quantitative dose estimates for any plaintiff and lacked an expert to reliably convert stack/vent data to legally relevant roof‑boundary annual averages.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Duty — applicable standard for emissions	MPC should apply to any emission from any part of the roof (including stacks/fans); license limits and AEC correspondence show stacks were regulated	Duty is defined by 10 C.F.R. §20.106: MPC applies at the boundary of the restricted area (roof edge) with annual averaging; the 1969 license amendment did not create an independent tort duty	Court held duty defined by §20.106: roof is a restricted area, MPC assessed at roof boundary with annual averaging; license amendment was an administrative compliance mechanism, not a tort duty.
Breach — proof of exceeding MPC	Stack/fan and short‑duration readings and evidence of incomplete monitoring create genuine dispute of breach	Exceedances at stacks/fans are legally irrelevant absent expert showing they translate to roof‑edge annual averages; plaintiffs lack expert proof converting readings to boundary MPC	Court held plaintiffs failed to raise a genuine dispute of breach because they lacked qualified expert evidence showing roof‑boundary annual MPC exceedance.
Adverse‑inference/spoliation	Defendants’ poor recordkeeping entitles plaintiffs to an adverse inference that would show breach/exposure	No basis for an adverse‑inference instruction; District Court did not abuse discretion in denying it	Court affirmed denial of adverse inference — plaintiffs did not show abuse of discretion or develop the argument sufficiently.
Causation — individualized proof of exposure sufficient to show substantial factor	Plaintiffs contend frequency/regularity/proximity (Rost/Tragarz approach) suffices without quantified dose; Melius’s differential‑diagnosis opinions create triable issues	Defendants contend plaintiffs must show individualized exposure/dose sufficient to make radiation a substantial factor; Melius’s opinions are conclusory, fail to quantify dose, and do not rule out confounders	Court held plaintiffs failed to establish causation: Melius’s opinions were conclusory and lacked individualized dose/exposure assessments; frequency/regularity/proximity evidence was insufficient to avoid summary judgment.

Key Cases Cited

In re TMI Litigation, 193 F.3d 613 (3d Cir. 1999) (summarizes radiation‑to‑cancer science and evidentiary limits on proving specific causation)
In re TMI, 67 F.3d 1103 (3d Cir. 1995) (Price‑Anderson preemption; federal regulations define duty and standard of care)
Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (federal gatekeeping standard for expert admissibility)
In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994) (standards for expert proof and adopting regulations as standards of care in some contexts)
Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016) (Pennsylvania adopts frequency‑regularity‑proximity framework for certain exposure‑based causation inquiries)
Heller v. Shaw Indus., 167 F.3d 146 (3d Cir. 1999) (permitting differential diagnosis where scientifically reliable)