McMunn v. Babcock & Wilcox Power Generation Group, Inc.
896 F. Supp. 2d 347
W.D. Pa.2012Background
- Plaintiffs allege releases of radioactive, hazardous substances from NUMEC-affiliated facilities in Apollo and Parks, PA caused environmental contamination and personal injuries; jurisdiction under the Price Anderson Act and Atomic Energy Act plus state-law claims with supplemental jurisdiction.
- A Court Management Order (CMO) requires prima facie evidence identifying radionuclides, exposure pathways, source facilities, dates, dose, epidemiological evidence, and supporting medical/scientific basis; and restricts theories not supported by admissible evidence.
- The Lone Pine-type pre-discovery approach sought to manage complex discovery and limit theories to prima facie evidence, citing Beanal, Acuna, Landry, Fournier and related Fifth Circuit/Ninth Circuit authority.
- Plaintiffs submitted five expert reports on April 24, 2012 and a sixth on May 8, 2012; Defendants filed motions in May 2012 with supplements in June 2012; the court treated the motions as to compliance with the CMO rather than merits.
- The Court grants in part and denies in part, narrowing claims to Apollo exposures during operation, only enriched uranium as the radionuclide, and an inhalation pathway; evidence concerning Parks, SLDA, non-uranium radionuclides, or other pathways is excluded; dose-specific proofs for each Plaintiff are not required to proceed for airborne Apollo exposure.
- The court reserves other arguments about causation methodologies for another stage and notes that some merit-based disputes (e.g., differential diagnosis) are not addressed in this order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CMO compliance by plaintiffs with prima facie elements | Plaintiffs contend they met CMO requirements for radionuclide, exposure pathways, facilities, dates, dose and causation. | Defendants show plaintiffs failed to provide prima facie evidence for several elements and request narrowing to supported theories. | Partial compliance; some elements required narrowing and evidentiary limits applied. |
| Exposure to radionuclides other than uranium | Plaintiffs claim multiple radionuclides (e.g., plutonium) were released and should be considered. | Defendants show no prima facie evidence of non-uranium exposures and that Ketterer/Ring do not tie to specific plaintiffs. | Excludes non-uranium exposures from prima facie case. |
| Exposure pathways beyond inhalation | Plaintiffs assert waterborne and other pathways may have caused exposure. | Exposures beyond inhalation lack prima facie support; evidence is limited to airborne uranium. | Excludes non-airborne pathways from prima facie case. |
| Dates of exposure and facilities involved | Plaintiffs identify Apollo operation years as exposure period. | Franke and others did not tie exposures to specific plaintiffs or Parks; limited to Apollo. | Permits Apollo operation years as exposure window; excludes other facilities. |
| Dose methodology and plaintiff-specific doses | Dose reconstructions are unnecessary given monitoring unreliability and general causation evidence. | Dose for individuals is required to establish causation; Franke did not provide plaintiff-specific doses. | No per-plaintiff dose required to proceed for Apollo airborne exposure; otherwise, dose issues unresolved. |
Key Cases Cited
- Beanal v. Freeport-MecMoran, Inc., 197 F.3d 161 (5th Cir. 1999) (plaintiffs’ complaint must contain factual specifics to put defendant on notice of claims)
- Acuna v. Brown & Root, Inc., 200 F.3d 335 (5th Cir. 2000) (reaffirming Lone Pine-style management to handle complex discovery)
- Lone v. Lone Pine Corp., {not available in provided text} ({not specified}) (origin of Lone Pine orders as tool for managing mass tort discovery)
- Landry v. Air Line Pilots Ass’n Int’l AFL-CIO, 901 F.2d 404 (5th Cir. 1990) (court’s discretion to manage complex discovery in mass torts)
- Fournier v. Textron, Inc., 776 F.2d 532 (5th Cir. 1985) (recognizing district court authority to manage and develop complex litigation discovery)
- Hall v. Babcock & Wilcox Co., 69 F.Supp.2d 716 (W.D. Pa. 1999) (discussed differential diagnosis method and epidemiological study issues in causation)