Cotroneo v. Shaw Environment & Infra-Structure, Inc.

ELROD, KING, Before DENNIS and Judges. Circuit DENNIS, Judge: Circuit case, plaintiffs in this who workers cleaning employed up were radioactive materials, they alleged that were harmed by exposure to at a excessive brought Texas work and claim site a tort against suit in York state a New supervisors employer their and under et Act, Price-Anderson U.S.C. (“the PAA”), seq. and law. Texas state explicit provision removal Under PAA, 2210(n)(2), the defen- this case the United dants removed to States District for Southern District Texas, injuries alleged where the occurred. granted That district court the defendants’ judgment summary motion for as to the plaintiffs’ predicated claims that were illnesses, holding and injuries genuine had failed to show a as to their issue of material fact whether physical had been over- harms caused time, At exposure radiation. same the district court denied the defendants’ summary judgment with re- motion for damages spect plaintiffs’ claims for battery by based on “offensive contact” that, district court held radiation. The bodily injury illness and whereas by opera- federal claims law arose 2014(hh), PAA, (argued), Alan Jon tion Linda Radko Shaw Reichhart, Shaw, arose Knauf, plaintiffs’ “offensive Amy Lynn Knauf plaintiffs, employed by Texas law. The district court as. The who were solely under jurisdic- supplemental exercise Shaw’s subcontractors at the Texas work declined to purely project, tion saw as .state-law site for the that Shaw over what contend without preju- supervisors exposed dismissed them its claims and them excessive levels of radiation during employ- dice. exposure, especially ment. Such ameri- unanimously affirms the panel This dis- cesium-137, cium-241 allegedly summary judgment dismissing trict court’s bodily injuries them certain to suffer plaintiffs’ physical injury and illness According plaintiffs, illnesses.1 to the de- unanimously we conclude claims. But appropriate precau- fendants failed take treating court erred in district prevented tions that could have this exces- plaintiffs’ contact” claims if “offensive claim, exposure. They instance, sive solely under Texas law. Al- arose “inappropriate bags radiation waste though all claims are de- were purchased from the Dollar Store to law, they are rived from Texas deemed to money.” save arise under law be- they part cause of a “suit asserting They the in a sued defendants New public liability” by as defined the PAA. court, York asserting Texas state-law divided, however, panel See This id. negligence, claims gross negligence, for upon what further the district action court se, negligence per battery. and assault and respect must take in “offensive con- plaintiffs’ alleges The complaint not battery majority tact” claims. A negli- defendants’ intentional or panel, ELROD, Judges KING and con- gent bodily injuries conduct caused their cludes that the “offensive contact” claims (bodily claims), and illnesses but fail the PAA and must dismissed also intentionally the defendants prejudice plaintiffs with because the have knowingly caused excessive amounts of ra- not shown that these claims arose from a diation to make physical offensive contact incident, and therefore cannot es- (“offensive claims). with them public liability. separate tablish In a dis- The battery “offensive contact” claims are 200-07, senting I opinion, explain at infra claims, require which do not a showing of why I disagree with that and result would physical injury. plaintiffs’ remand the “offensive contact” It is

battery undisputed plaintiffs’ claims to court that the the district bodi- ly injury adjudication. further claims are deemed to arise under by law virtue of the I. 2014(hh). Pursuant the PAA’s government contract, Pursuant to a provision, venue and removal Environmental, 2210(n)(2), Shaw up Inc. cleaned ra- the defendants removed this dioactive at material a former nuclear action to the United States District Court Webster, source facility Texas, fabrication Tex- for the Southern District lems, plaintiffs allege following vomiting, dehydration, problems, The illnesses teeth irritation, injuries: depression, lumps/cysts, irregular "throat dizzi- menstrual ammonia, anemia, ness/vertigo, cycles, bleeding, infertility, liver skin infec- rectal tion/rashes/exposure, high pressure, blood palpitations/chest pains, heart blood in loss, infections, urine, stones, noses, enlarged prostate, kidney hair bloody ear attacks, infections/problems, gallstones, polyps sinus stress/anxiety fatigue, extreme throat, cords, numbness, discoloration, aggravat- sleeping nodules on vocal mole diffi- culties, allergies/asthma, joint pain/prob- ed bone and headaches.” death,” ness, disease, 2014(q); id. giving rise to incidents where the district claims the “offensive contact” parties pro- The because occurred. complaint incident,” not out of “nuclear on did arise discovery, plain- ceeded Fur- they scope. the PAA’s motion, fell outside court admitted the district tiffs’ thermore, district court declined to reports by Dr. Marvin Resni- expert two jurisdiction over the supplemental exercise reports plain- that the opined These koff. claims, it ob- “offensive contact” been caused injuries could have tiffs’ legal pre- served novel issues “present to radiation. workplace exposure their Supreme viously Texas report addressed court also admitted the The district Accordingly, the district Dr. E. Court.” expert, Robert the defendants’ the “offensive contact” Jackson, After dead- dismissed contrary. to the allowing plaintiffs plaintiffs prejudice, at- without expert discovery, line for court. refile them state previously undis- designate tempted Patel, but the expert, Kalpana Dr. closed appeal This followed. The defendants Patel Dr. as a wit- court excluded district argue “offensive con- untimely. as and her affidavit ness have tact” claims should been dismissed by the the merits because are barred discovery, the defendants Following plaintiffs cross-appeal, PAA. chal- judgment, arguing summary moved lenging summary judgment dismissing provided legally had bodily injury and illness claims. a factual issue evidence to create sufficient injuries or physical to whether their II. by expo- illnesses had been caused cleanup site. The to radiation at the sure sum review district court’s We that the argued also “offensive defendants novo, by the mary judgment “guided de legally claims were excluded same as the district court: Fed standard extinguished PAA and were therefore In re eral 56.” Rule Civil Procedure district court held and not actionable. The (5th 218, F.3d Cir. Segerstrom, 247 223 plaintiffs had failed show 2001). Summary judgment appropriate fact as issue of material to wheth- genuine as to genuine dispute when is ‘no “there had physical harms been caused er their enti fact and the movant is material ” radiation, and accord- by overexposure to law.’ judgment tled to as matter of summary ingly granted the defendants’ Villarreal, 209, 211 Kovacic v. 628 F.3d judgment part. motion in Cir.2010) 56(a)). (5th (quoting Fed.R.Civ.P. judgment party moving summary “The “offensive contact” As to however, genuine claims, must that there are no the district court deter- establish moving fact. were not enti- issues of material ‘Once mined that defendants however, the party showing, The makes that summary judgment. district tled to party to nonmoving to the held that claims were not burden shifts these summary ap is not judgment PAA show that by opera- to arise under the deemed ” 2014(hh) Provident & Accident propriate.’ were of 42 tion U.S.C. Life (5th Goel, 984, v. 274 F.3d 991 The Ins. Co. purely therefore state-law claims. Cir.2001) City S. (quoting Fields v. that federal causes district court reasoned (5th Houston, 1183, Cir. 922 F.2d 1187 PAA are available of action 1991)). “Thus, for sum to defeat a motion liability arising out of asserting for suits must mary nonmoving party incident[s],” judgment, which defined “nuclear her own beyond “bodily ‘go pleadings causing injury, sick- occurrences 192

affidavits, TMI, by the In depositions, “Congress answers re 940 F.2d at 857. file, interrogatories, and admissions on provide desired state law the content designate specific showing facts that there operate for and as federal law ... in the ” is a for trial.’ genuine (quoting issue of a complex context scheme Catrett, 317, 324, Corp. 477 Celotex v. U.S. mold shape any would cause of action 2548, (1986)). 106 S.Ct. 91 L.Ed.2d 265 O’Conner, grounded in law.” F.3d “The evidence the non-movant is to be at 1100. believed, justifiable and all inferences are short, who asserts (quoting be drawn his favor.” Id. any claim out of a “nuclear inci Inc., Liberty Lobby, v.

Anderson U.S. PAA, dent” as defined 242, 255, 106 S.Ct. L.Ed.2d 202 § 2014(q), “can sue under the or not [PAA] (internal (1986)) omitted). quotation mark NLO, Inc., at all.” Nieman F.3d PAA, as amended (6th Cir.1997). “His federal establishes a federal cause of action known law,” id., claim will be derived from state “public liability as a action” for tort claims such “unless law is inconsistent with the arising out involving of incidents radioac provisions 2210],” [§ tive materials. This cause of action “is 2014(hh). law, built around preexisting state [but] parties agree Because the plain- that the distinctively contains some federal ele tiffs’ injury claims arise under the ments as well.” O’Conner v. Common first we address the district court’s Co., (7th wealth Edison summary claims, judgment on those before Cir.1994).2 explicitly “In providing that resolving the dispute regarding the proper rules for in public ‘substantive decision’ disposition of the “offensive contact” liability actions ‘shall be derived from’ the claims. law of the state in which the nuclear inci occurred, ... Congress dent expressed its A.3 provides intention that state law the con On cross-appeal, plaintiffs operates argue tent and as federal law.” re II, that the district court erred in Litig. 832, dismissing TMI Cases Consol. (3d Cir.1991) bodily injury their claims for failure to (quoting 42 U.S.C. 2014(hh)). “Thus, provide § evidence that a state excessive radiation cause action exposure at merely court; cleanup is not transferred site caused the instead, plaintiffs’ injuries. a new federal cause of action Our review of the rec- sup plants the ord prior state cause confirms that the proper- of action.” district court O’Conner, ly F.3d at summary 1099-1100. entered judgment “Con for the de- gress clearly intended all supplant pos plaintiffs’ fendants these claims. The sible state causes action when the factu genu- evidence was insufficient to raise a prerequisite[s] al of the statute are met.” ine issue fact as to whether there was a 2. Act period The "dictates the limitations for the state-based cause action into the federal action, O’Conner, cause of mold.’’ 13 F.3d at 1096. 2210(n)(l), venue, provides § 2210(n)(2), punitive availability limits the Judge affirming Dennis concurs the dis- damages action an out [aof nuclear summary judgment dismissing trict court's incident], 2210(s), and mandates that nor- plaintiffs’ bodily injury and illness claims mally-available be disagrees defenses waived in the part but majority's with the rea- occurrences], [extraordinary 11(A) cases of soning part opinion, of this as set 2210(n)(l). Act, therefore, The ... partial forms forth in footnote of his dissent. true, in Dr. as described “[I]t radiation assertion: between the causal connection that Report, all disorders inju- Jackson’s claimed exposure plaintiffs’ being by the experienced and conditions ries. come other Plaintiffs could causes.” epi attempted to use plaintiffs The Although Dr. Patel’s affidavit countered their establish that studies to demiological disorders and conditions can that “these caused their to radiation overexposure exposure,” it caused also be Supreme Texas harms. The physical sug nothing did to exclude Dr. Jackson’s epidemiological that studies Court has held gested alternative causes with reasonable a fact issue on causa can be used “to raise certainty. du de E.I. Pont Nemours See (1) if three conditions are met: tion” Robinson, v. 923 S.W.2d & Co. scientifically are reliable studies (Tex.1995) (holding expert’s that an “fail (2) risk,” “substantially elevated show a damage to rule other causes of the ure out in the is “similar to those the claimant little more than opinion specu renders his (3) studies,” “if plausi there other lation”); Bailey, Corp. Mobil Oil that or condition ble causes of (Tex.App. S.W.3d 274-75 —Beaumont must negated, could offer denied) Havner, under pet. (holding, rea excluding causes with evidence those plaintiffs did offer sufficient Pharm., certainty.” Dow sonable Merrell exposure evidence asbestos (Tex. Havner, 706, 720 Inc. v. 953 S.W.2d lung the decedent’s cancer because the added). 1997) (emphasis did plaintiffs’ experts not exclude other causes, smoking, the first two such plausible need not address as We certainty); Corp. agree we with reasonable Exxon v. Mak Havner conditions because ofski, 188-89 (Tex.App.— plaintiffs have S.W.3d court that district denied) 2003, pet. Dist.] have not Houston satisfy [14th failed the third: Havner, (holding plain excluding plausible other offered evidence tiffs did not offer sufficient evidence injuries causes their with reasonable benzene caused the decedent’s anemia be Dr. expert, The certainty. defendants’ expert did not exclude other cause Jackson, plausible offered numerous causes, such iron plausible alternative causes, exposure, than radiation other deficiency, certainty). with reasonable alleged injuries. plain Thus, into Dr. taking even account Patel’s Resnikoff, no de tiffs’ Dr. offered expert, affidavit, have failed to satis excluding testimony evidence position excluding plausi other fy their burden certainty with reasonable Dr. Jackson’s injuries causes of their with reasonable ble causes; con proposed alternative to the certainty.4 we affirm the Accordingly, trary, that the acknowledged Dr. Resnikoff summary plaintiffs’ judgment as to injuries have caused plaintiffs’ might been claims. bodily injury to exposure their by factors other than Dr. Patel’s affidavit Similarly, radiation. B.5 possible made no effort exclude other Indeed, plaintiffs’ injuries. now consider plaintiffs’ causes of the We In claims. order dispute her did Dr. Jackson’s “offensive contact” affidavit not considering appropriate, even Dr. Patel’s Patel as an was 4. The district court excluded Dr. affidavit. expert untimely, a Dr. affidavit and Patel's appeal. We ruling now which issue, however, light part Judge joins fully in this of this need address the 5. Dennis not judgment opinion. summary conclusion that our un liability determine whether these claims arise This suit is a “public ac PAA, precise der the we must examine the PAA, by tion” as defined because the PAA, language especially of the plaintiffs allege that they injuries suffered 2014(hh), § “public the term which defines exposure and illnesses to their due to radi liability legal action” and identifies the ation, and because assert “ govern rules that such actions. ‘The ob legal liability defendants bear arising out jective upon interpret a court called of these of exposure incidents to radiation.8 congressional statute is to ascertain intent action,” Since it is a “public liability is to it give to legislative effect will.’ The be arising treated as under federal law: congressional clearest indication of intent “A public liability action shall be deemed is the words of the statute itself. When an arising action under section 2210 language unambiguous statute is 2014(hh). § this title ....” 42 U.S.C. plain we must follow its meaning.” Davis Johnson, (5th 158 F.3d Cir. Therefore, the district court erred (citations 1998) omitted) (quoting Johnson by holding the plaintiffs’ “offensive Airlines, Inc., v. Am. 992 contact” claims did not arise under federal (5th Cir.1984)). suit, law. Those part claims are of this a “public liability action.” The employs The statute a chain of 2014(hh), in section provides that the scope definitions to “public define of a suit, just particular entire “public action.” A liability action” suit, part “shall be deemed to be means “suit asserting liability.” an arising action section 2210.” 2014(hh). § liability” “Public Therefore, claims, the “offensive contact” “any means legal liability arising out of or along claims, with the other resulting from a nuclear incident.”6 Id. must be treated as under federal 2014(w). A “nuclear incident” involves law. The fact the plaintiffs have “bodily injury, sickness, disease, death, or produce failed to sufficient evidence sur or damage loss to property, or loss of summary judgment vive as to whether property” use of caused the “radioac injuries actually were illnesses tive, toxic, explosive, or other hazardous caused their overexposure to source, properties nuclear, special does change this It result. nonethe byproduct material.”7 2014(q). Id. To summarize, less remains true this action “public liability is a “suit action” is a 2014(hh) asserting public liability.” suit in party which a asserts that another added). party legal (emphasis such, bears As liability arising is a “public out of an incident in which action” and prop hazardous therefore the entire erties radioactive material suit is deemed to be an action sickness, injury, or property damage. under federal law. provides exceptions, The definition for three dioactive waste encompassed by that is one addition, not relevant to this case. 2014(e) more § of these terms. See 42 U.S.C. liability definition includes from a (defining material”); “byproduct id. evacuation,” "precautionary not relevant here 2014(z) § (defining material”); “source id. plaintiffs because the not do claim to have 2014(aa) (defining § "special nuclear materi- been involved in such an evacuation. al”). "source, nuclear, special The definition of circumstances, 8. Under the we need de- byproduct material” is not at issue in this plaintiffs cide whether the could have avoided appeal. undisputed present purposes It is for through pleading. this result artful plaintiffs exposed that the were to some ra- resolving, inju but not issue ering, entire suit—the this

Because continuing trespass, a claim for “whether contact” well as “offensive ry claims as law, with by Ohio is inconsistent as defined law, the dis under federal claims—arises Act,” specifically the Price-Anderson the “offensive disposition court’s trict 2210(n)(l)). § The dis erroneous. claims was contact” arose exclu the claims trict court believed is An “offensive contact” claim law, to exercise declined sively under state battery a claim under Texas law. type of them, and jurisdiction over supplemental injury, physical than offensive “[R]ather preju claims without dismissed the thus action; gravamen is of the con contact 1867(c). § 28 U.S.C. Given dice. See is liable not sequently, the defendant law actually arise federal the claims physical cause actual contacts which however, by operation harm, but also for those are offen sup rather than original, had district court Montes, provocative.” v. Foye sive and As jurisdiction over them. plemental, (Tex.App [14th S.W.3d . —Houston such, court could decline the district denied); also v. pet. see Price Dist.] Or jurisdiction. See New exercise Short, (Tex.App. 931 S.W.2d Serv., Inc. Council Pub. leans (“Battery pet.) requires —Dallas no Orleans, 350, 358-59, City New U.S. ”). Thus, touching .... only an offensive (1989). 2506, 105 L.Ed.2d 298 109 S.Ct. an contact” claim does not re “offensive battery plaintiff to that the quire prove

C.9 injury. any physical Foye, dispute wheth parties at 441. The S.W.3d the plaintiffs’ established that Having overexposure intentional er a defendant’s claims arise under fed “offensive contact” actionable of a can be “public of a part law because are eral battery under as an “offensive contact” action,” liability this court must consider law. not resolve this dis Texas We need compensable un such claims are whether that, however, because conclude pute, we 2014(hh) provides the PAA. der Section law, in if it actionable under state even is action shall be public liability that “[a] of action would be this case such cause an under sec to be action deemed with 2210 because inconsistent section title, the substantive 2210 of this tion recover on would allow shall in such action rules decision establishing public liability action without in which from the law the State derived liability.” “public occurs, involved unless the nuclear incident provisions above, law with the such is inconsistent ac- public liability As discussed Thus, the claims this of such section.” liabili- asserting public tion means a “suit case, 2014(hh). including the “offensive “as- ty.” Although claims, rules governed substantive occurred serting” that a nuclear incident law law is from Texas unless that make the suit a derived sufficient to 2014(hh), action, proof 2210. See id. inconsistent (“[T]he O’Conner, actually establish required 13 F.3d at 1100-01 incident is liability arising out applicable “public liability”: “legal to assess whether will have law.”); incident resulting from nuclear law is consistent with ____” 2014(w). (eonsid- Nieman, 1560, 1562 §Id. Public 108 F.3d at —the cf. Judge disagrees Judge Dennis opinion Elrod. and the result as II.C of this 9. Section sets his reasons represent Section II.C and forth contact" claims to the "offensive part. dissenting in Judge King separate opinion panel majority, a of the the views liability contemplated by only type legal procedures Congress of for and the executive public judicial a action—thus and liability presupposes branches to follow when dam- of a nuclear a ages the occurrence incident. from nuclear incident exceed Therefore, plaintiff liability recovery if cannot show PAA’s Allowing limits. occurred, there a a nuclear incident can the absence of nuclear would incident public liability, recovery no no and hence be inconsistent with almost all of these liability public provisions. “overlay on his action.10 See Cook v. Far from placing an Corp., remedies, Int’l upon Rockwell F.3d of federal law” state law Cir.2010) (10th (“[T]he TMI, of a nu- permit occurrence re 940 F.2d at it would incident, clear and thus sufficient an end-run around the entire PAA scheme. § 2014(q), constitutes a threshold Crucially, majority provisions claim.”). of element PAA This result “public liability” section 2210 deal with perfectly logical: is the success failure presume and thus the occurrence of a nu- a plaintiffs public liability of action de- clear incident. provisions which limit pends upon prove whether the can liability, example, for speak of the “aggre- public liability. what he asserts — gate public liability for a single nuclear ” Moreover, 2210(e)(1) examination of § section incident.... id (emphasis (limitation added); 2210(r) straightforward confirms this of reading § see id. also liability statute. Section which is titled on applies only lessors to “lia- bility and arising “Indemnification limitation liabili of ” resulting out from a added)). ty,” contains numerous provisions concern nuclear (emphasis incident ing arrangements financial provisions between the The is same true government the nuclear provide compensation ener plans where gy industry for purpose the overall these pro public liability limits are exceeded. 2210(i). tecting industry against potentially § See id. Similarly, provi- other vast might arise out require sions nuclear licensees to obtain nuclear disaster. See Corcoran v. N.Y. adequate insurance provide “financial Auth., (2d Power 2210(a)-(b), protection,” § Cir. id. which is de- 1999) (“Congress enacted ability Price-Anderson fined “the respond dam- (1) 2014(k) to: ensure that funds adequate ages would liability.” Id. added). satisfy liability be available to (emphasis Likewise, claims in the the indemni- (2) accident; event of nuclear en provisions apply fication to “public liabili- courage private sector participation in the ty arising from nuclear incidents.” 2210(c)-(d) energy industry by added). atomic reducing (emphasis And pu- threat potentially damage enormous nitive prohibited awards are “with arising operation out of an respect atomic against nuclear incident ... energy plant.”). Among things, person other sec behalf of whom the United tion 2210 deals with premiums, obligated insurance States payments is to make un- indemnification, liability, limitation of an agreement der of indemnification eov- argues The dissent that if intend- never included in the definition in the first recovery ed way, to limit terms, in this it could have place. liability,” by "Public it own explicitly, pointing said so fact "legal liability arising limited out of or specific categories three explicit- of claims are resulting from a nuclear incident ...42 ly "public excluded from the definition such, 2014(w). adding As an exclu- liability.” Congress expressly had no need to sion for claims not out aof nuclear exclude claims not out aof would incident be redundant. incident, however, because those claims were ” 2210(s) action, prevail public liability to in he .... tiff a Id. ering such incident added). assert, Thus, merely than prove, if liabili- must rather public a (emphasis Cook, liability. a 618 F.3d at recovery public a without See ty lead to action can liability argument in turn showing public (rejecting of 1139-40 —which arising of nuclear inci- they liability occurrence a need assert requires the “that “complex re- undermines of a nuclear incident” order to dent —it out PAA). to Congress govern has created scheme” cover under the PAA. under public liability actions Here, cannot make the re- plaintiffs O’Conner, (“Congress F.3d at See a sum- showing. As result quired operate in that state law would recognized mary judgment bodily on their complex a federal scheme the context of claims, pub- cannot establish mold cause of shape which would liability. Having prove lic failed to that law.”). grounded state action bodily in- exposure prove that juries, cannot a sum, expressly pro PAA ... occurred —an “occurrence incident supplies that law substan vides state injury ... out of causing bodily ... liability public rules decision for a tive radioactive, toxic, resulting or from action, law is inconsistent “unless such explosive, properties or other hazardous § 2210].” provisions [42 with the nuclear, source, 2014(hh). byproduct mate- special on a recovery Yet § 2014(q). rial.” such a Without showing law of action without cause however, showing, their “offensive contact” has would a nuclear incident occurred law are claims under Texas inconsistent governing the entire scheme circumvent they cannot actions, in with the establish liability clearly which is public liability, they must order with section 2210.11 Conse consistent public liability in their plain- prevail for a action.12 quently, we hold that order dissent, allowing holding plain- 12. The dissent criticizes our for limit- According to the ing types "public pursue liability” beyond "public successful claims in a tiff to "other "public liability,” liability action” liability liability" "public action” is in their consequences resulting in that it believes Con- even inconsistent with section consequences gress not intend. Those governing did though every provision almost essentially that if a asserts liability inapplica- “public would be actions” occurred, prove but cannot nuclear incident explains that The dissent ble those claims. it, damages he will be unable to recover for liability Congress contemplated "public If, allegedly resulting that occurrence. from claims of "other liabili- actions” could involve indeed, any consequences” "unintended flow affirmatively ty,” and decided section reading straightforward statu- from our simply complex federal scheme would 2210’s text, they Congress’s tory result decision problem apply to those claims. The of causation into the to embed notion statutory reading text does not this is of a "nuclear incident.” See definition whisper liability about other contain even 2014(q) (defining "nuclear incident” as "public liability,” or a hint that an entire than inju- "any causing ... ... occurrence universe of claims—-those not sickness, disease, death, ry, property or” nuclear incident —would arise section resulting "arising damage, out yet governed almost none of it. from” (em- properties of nuclear material hazardous Thus, reading our the dissent’s criticism of added)). phasis greater own: applies with even force its Moreover, reading surely con- our more to create two classes had intended action,” "public Congress’s intent than the one liability but sonant with in a dissent, place liability” which would subject only "public proposed nu- plain- absolutely the claims that a most no limits on provisions in section merous "public recover for in a likely expressly so. tiff could would have said clear, problem To with the be rence which causes a harm in listed addi- not, claims is “offensive contact” defen tion to other harms not thereby does cease argue, dants that the PAA forbids courts Thus, be a “nuclear incident.” the stat- entertaining claims whose elements a ute sets minimum of injury threshold illness, physical injury, do not include an that occurrence must cause before property damage harms the statute —the a pur- constitutes “nuclear incident” for uses to define a “nuclear incident.” See id. poses of the PAA. Reading this to limit Rather, claims are inconsistent these with the recoverable harms contravenes because, case, particular the PAA this statute, plain language of the which explic- they recovery would allow without a show itly provides “public that liability” encom- ing a that nuclear incident occurred. passes “any legal liability out of or words, plaintiffs successfully other had the resulting a nuclear incident.” proven bodily injury claims and thus 2014(w) added). (emphasis We occurrence a established the of nuclear reject therefore defendants’ assertion that incident, recovery a on their “offensive only the listed harms compensable are un- claims would be inconsistent agree der the PAA. We instead with with the PAA.13 Tenth Circuit that it is “the occurrence of certainly The defendants correct incident, a nuclear and thus a sufficient that the statute defines a “nuclear inci- injury under 2014(q)” required that is part by dent” in referring to certain plaintiffs public liability order to make a statute, however, Nothing harms. in the Cook, specifies a action consistent with may “nuclear the PAA.14 incident” only cause An those listed harms. occur- 618 F.3d at 1139-40. compels action.” The dissent contends that the defini- text "public the conclusion that lia- “public liability” bility” tion of only “nuclear inci- liability Congress is the kind of dent,” although throughout used contemplated section "public a action.” merely Thus, jurisdic- nevertheless relate to recovery any in such an action must be bearing tion and then have upon no further “public liability,” limited to claims for such as the claims can succeed under the PAA. those a from “nuclear incident.” Thus, under reading, plaintiff dissent's assert, Arguably, plaintiff need had even one prove, but never success- the occur- 13. claim, fully proven bodily injury of plaintiff rence a nuclear incident. The would incident,” would then be render the occurrence a availability assured the "nuclear any plaintiffs' federal forum for make all the other and all claims claims con- action—even sistent relationship those that bear with the PAA. We need no not decide the question alleged Recovery any appeal, to the to resolve incident. on this however. claims which do not arise from nuclear dissent, incident and do not relying precedent amount devel- "public liability” subject oped would not be under the Outer Continental Shelf Lands damage caps, recovery (OCSLA), pooling, or Act improperly insurance accuses us re- provisions of placing section 2210. The substantive newly rules of decision with rules for decision for these claims would be created federal common law. Similar to the derived from law the state in imports which OCSLA state law rules deci- alleged up- incident occurred. The sion to the extent are not inconsistent by merely shot all alleging this is that provision with certain OCSLA federal incident,” "nuclear pursue 1333(a)(2)(A). could law. See 43 U.S.C. Under claim, almost statutory however unrelated to regime, Supreme Court re- incident, court, recovery in federal versed a Fifth Circuit decision which held dependent entirely choice law on where the that Louisiana’s statute of limitations was in-

plaintiff alleges laches, the incident occurred. Sure- consistent with the doctrine of ly, applied this cannot what envisioned the court as a matter of federal com- view, Huson, when it enacted the PAA. In our mon law. Chevron Oil v. U.S. ted) Berg Litig., In re 293 (citing F.3d a con- The Circuit reached similar Ninth (9th Cir.2002)). 1127, long case factually analogous of As as in the 1132-33 clusion Group, CH2M Hill v. Golden the caused an sufficient to exposure Hanford (9th Cir.2008). Inc., 681, F.3d 683-84 incident,” 528 a “nuclear make the occurrence There, law claims Golden asserted plaintiffs a claims for non-listed harms injuries, well emotional as as physical for of are not in- arising out that occurrence expo- distress, resulting his allegedly (“Gold- id. See PAA.15 consistent with the Id. at 682-83. sure nuclear radiation. exposure caused his en can’t show that the case, court Golden in this the Just inju- physical injuries physical and without summary court’s the district affirmed harm ry, psychic he can’t recover for aris- physical judgment on Golden’s claims for ing exposure to radioactive materi- prove injury, that he had failed agreeing als.”). injuries. his exposure that caused case, In plaintiffs’ public this the Id. rejected at The then his 683. court they proven action fails because have not so, doing claims. In emotional distress the occurrence incident. As exposure “claims for that concluded summary judgment on their in- compen- are only materials to radioactive reflects, jury they have not shown Act if the Price-Anderson sable under exposure their radiation caused their injury”— physical exposure such Thus, alleged injuries. they have physical is, exposure if the was a “nuclear exposure not that their constitutes a the PAA. shown meaning incident” within (internal they Accordingly, may nuclear incident.16 quotation at marks omit- 683 101, (1971), respectfully disagree we for the reasons al- 296 S.Ct. 30 L.Ed.2d 92 disagreement ready Whether a ac- grounds Harper Virginia discussed. on other overruled exists, however, Taxation, entirely tually is not clear. 113 S.Ct. ept. D 509 U.S. case, (1993). Supreme “claims In the court stated that 125 L.Ed.2d monitoring compensable not medical are un- that federal courts must Court admonished PAA, not constitute der the because do not new federal common law over create disease, sickness, 'bodily injury, or claims of of state law under OCSLA. Id. at ride rules case, 103-05, (quoting 2014(q)). this our death ....’” Id. at 1009 92 S.Ct. 349. In hold teaching. page, Yet the court clarified that ing on the same not run afoul of Court's does Berg its in re meant "that medical We a new rule of federal decision have not created compensable monitoring not un- old claims [are] law—or even identified an rule common (em- physical injury.” Id. der PAAabsent law—and concluded that federal common added). Furthermore, subsequent phasis recovery on the contact” claims is “offensive Rather, In re engaging Circuit case cited with that rule. Ninth inconsistent Hanford itself, "[e]xposure proposition that to radioactive statutory interpretation of the PAA only recovery compensable it causes materials is if one we that such a is have concluded list,” statutory] harms on [the 2210. See U.S.C. inconsistent section ("[T]he 2014(hh) compensable. Du- the listed harms substantive rules deci Schlumberger Corp., Tech. public liability be de montier v. action] sion shall [a (9th Cir.2008). the law of the State in rived from occurs, unless such nuclear incident involved whether, upon to provisions decide [sec 16. We are called law inconsistent with is 2210].”). appear which injuries later should further tion from their radiation believe result plaintiffs may bring exposure, then new language extent Ninth To the some note, however, public liability We action. In re Nuclear Circuit's decision in Hanford in their brief and at Litig. (Phillips v. DuPont de that defendants conceded E.I. Reservation Co.), (9th Cir.2008), plaintiffs may argument do oral that the so: F.3d Nemours & diagnosed at might suggest "If ... with cancer claims for non-listed time, point statute of limi- compensable some future are never harms sickness, their “offensive “bodily injury, not recover on or incidental to recovery disease, death, claims because such would be loss damage of or the PAA. inconsistent with property, loss of use of property.” § 2014(q). Had intended

III. recovery to limit categories to these claims, personal injury easily could have reasons, panel For these this unani- probably and have plainly would and ex- mously the AFFIRMS district court’s Instead, however, pressly § so.2 said 2014 summary dismissing plain- the judgment clearly bodily injury of the PAA uses the bodily injury and tiffs’ illness claims with only property damage and for a terms prejudice, the and VACATES district specific jurisdictional purpose: disposition plaintiffs’ court’s of the “offen- (1) defines a “nuclear incident” as an oc- claims; majority sive contact” and a of this bodily sickness, causing injury, currence panel plaintiffs’ the REMANDS “offensive disease, death, or property damage or battery claims with or instructions to resulting loss from prejudice. dismiss them with the radioactive or other material, of properties specified nuclear DENNIS, Judge, concurring Circuit in (2) § 2014(q); U.S.C. defines “public liabil- part dissenting in part: and ity” “any legal liability as out of or from resulting a nuclear or pre- incident majority

I in opinion’s concur affir- evacuation,” cautionary except for certain of mance the district court’s summary that are covered workers’ com- judgment dismissing plaintiffs’ physical pensation, war, that arise from an act of and illness claims because that harm involve to the property licensed failed adduce evidence to occurs, where the nuclear incident that id. genuine dispute show there ais as to 2014(w); (3) § and a “public material defines liabili- fact issue of specific indi- ty causation; “any asserting action” as suit is, they public vidualized failed to liability,” which be show that a “shall to be an reasonable trier of fact deemed could alleged injuries find that their action under” bodily id. and 2014(hh). § Contrary by overexposure majority illnesses were caused to the opinion, radiation.1 I do respectfully Congress But I dissent not think from intended majority’s jurisdictional dismissal of the for these terms to serve the battery “offensive contact” purpose claims on additional of limiting types of theory the PAA implicitly abrogates may claims that brought public in a personal injury claims that liability based action or providing ordinary an begin tations will to run applied when the cause of should be in the instant nuclear radia accrues, requires action which a manifest in- tion case. See In re Nuclear Reserva Hanford jury. preclude plaintiffs (9th This Litig., suit does not tion 292 F.3d 1136-37 Cir. bringing 2002) a claim for a injury, (distinguishing distinct Bendectin cases from diagnosed point "[rjadiation at a later in time.” radiation cases capa because illnesses, causing range ble broad even respectfully disagree part doses”) 1. I in with the (citing Litig., ma at the lowest In re TMI jority's reasoning basing (3d Cir.1999)). in its decision on derived rules decision from Merrell Dow Pharmaceuticals, Havner, Indeed, Congress Inc. v. spoke plainly express- S.W.2d and (Tex.1997). ly That excluding was Bendectin "public from the definition applicable general claims, case which compensation rules of liability” workers’ act generic claims, and specif causation individual or property of war and certain claims. 2014(w). ic causation are different from those it, application limit the regulations tort against state-law defense preemption insurance, indemnity, objectives PAA’s text claims. coverage against liability cap provisions to reading. majority’s

contradict sickness, bodily injury, resulting from dis- not set forth itself does The PAA death, ease, damage; property but a defendant’s scope grounds for or this, course, thing is not the same torts; rather, all all other exempting defendants 2014(hh) “the substantive provides Rather, injury liability. personal forms liability ac- in a rules for decision” recognized it indicates from the law of “shall be derived tion protections, without such licensees occurs, incident a nuclear State” which could be mulcted dam- and contractors law is inconsistent with “unless such sickness, causing injury, ages PAA 2210. The of’ U.S.C. provisions disease, death, loss; damage or property or types three of excludes expressly important Congress that considered it and liability: com- public workers’ claims from and contractors vehicles to offer licensees claims, claims, and act of war pensation “[wjith liability protection from such property claims. types certain object ‘encouraging] private sector 2014(w). § development in become involved to ” excludes, § expressly 2210 Nothing energy peaceful purposes,’ for id. atomic kind abrogates any particular or modifies (second 476, 119 1430 alteration in at S.Ct. public against of claim defendant Duke original) (quoting Power Co. Car- Further, liability action. substantive Inc., Study Group, Envtl. 438 olina U.S. from law rules for derived Texas decision 59, 63, 98 L.Ed.2d 595 S.Ct. 57 bat (1978)). “offensive contact” § for 2210 li- Nothing immunizes tery liability in this case are inconsistent claims and for censees contractors from §of any 2210. Section provision prevents with kinds of harms or them other awith their own or “provide[s] providing certain federal licensees from self-insurance insurance, liability. against private private Government insurance such system of indemnification, liability for and limited to majority opinion point The cannot ” ‘publicliability.’ El Paso Natu claims exempts § clearly of 2210 that nucle- part Neztsosie, 526 U.S. ral Gas Co. v. liability from ar licensees and contractors (1999). 1430, 143 L.Ed.2d 119 S.Ct. causing to suffer harms other persons for § two provides classes Specifically, disease, death, sickness, bodily injury, than Regulatory defendants —Nuclear Commis Instead, or damage loss. property or permittees, sion licensees and construction majority points to the coincidence that the Energy and contractors— Department perils of one of those named assertion by protection against public liability jurisdiction for a federal essential both to (1) 2014(hh), shall maintain requiring action, licensees per § and liability public by liability prescribed insurance as protection of licensees and contractors (2) Commission, requiring insurance, Commis liability- and by indemnity, li Department indemnify Maj. Op. sion and the cap provisions of 2210. See lia against public Contrary majority’s censees and contractors rea- 195-97. liability however, bility prescribed this does not soning, excess coincidence (3) coverage, providing and that licensees and contractors are insurance indicate single liability having for public liability exempt for a aggregate bodily injury, not involve certain harms did nuclear incident shall exceed sickness, disease, statute, property death or dam- amounts. specified dollar Instead, clearly implies only Energy it that ment of age. required of licensees Thus, Congress crucially important it considered contractors majority opinion’s pro- that licensees and contractors be offered of the PAA reading liability for those harms at two protection duces least effects that through likely § 2210. did not overprotects intend: it nucle- ar licensees exempting and contractors By reading the PAA to exclude or bar them from for causing types any claim that is not based on or incidental injuries for Congress expected them sickness, death, disease, bodily injury, provide pri- their own or self-insurance loss, property damage majority insurance; vate protects persons opinion gives those terms the effect of an than other licensees and contractors ordinary preemption defense extin- barring injuries personal However, guishes all other claims.3 as the sickness, disease, other than injury, Supreme clear in El Court made Paso death, loss, or property despite damage Gas, provides Natural the PAA not for having requirements their not met the ordinary but preemption “complete places on licensees and contractors. preemption,” 526 at n. U.S. 1430, which S.Ct. converts all state-law 1. Complete Preemption into claims that are remova- that, removed, Supreme ble to federal court and if The Court in El Paso Natural there, must adjudicated explained be id. at Gas that the see 484- PAA is an instance 85, 119 “complete S.Ct. 1430. The majority’s reading preemption,” under contrary Congress is therefore Supreme public liability has converted a interpretation Court’s of the action and PAA. its individual claims into federal actions removable federal court majority The opinion’s interpretation of and, removed, adjudicated when be must produce the PAA will other results that supports there. This the view of the PAA Congress unlikely is to have intended. By plain that its words person- indicate —that reading a into PAA blanket exclusion al plaintiffs are not restricted to bar recovery to the of damages that are recovery only bodily injury, sickness, for not based types on incidental to the disease, death, or property damage, but injuries Act, named in the the majority may injuries recover for according to rules opinion grants ordinary an preemption de- for law, decision derived from state unless any fense to defendant sued under the Act. such law is inconsistent with 2210. This words, persons In other other than nuclear also corroborates the conclusion that re- licensees and will exempted contractors be covery for personal injuries other than causing for personal injuries bodily injury, sickness, disease, death, or sickness, disease, bodily injury, other than property damage is not inconsistent with death, loss, or property damage or al- 2210, which is discussed more detail though they qualified have not for or ob- in the next partial section of this dissent. contracts, tained licenses or although paid have not for the Ordinarily, insurance or may when a claim indemnity contracted for Depart- with the brought court, either state or federal is, majority The depicts personal list of a injury plaintiff harms in allege must 2014(q) a proof as "threshold” of causing must occurrence aof nuclear incident death, plaintiff may disease, sickness, be met a before recover for bodily injury, or personal injury. loss, other kind property damage But list is a in order to assert a prerequisite only jurisdictional purposes; public liability for action under the PAA. a federal preference unmistakable for fo- the selection of master of plaintiff is rum, defending party, to a at the plaintiff A is entitled behest jurisdiction. most adjudication a litigating forum for Price-Anderson claim state both law, even when arising under state determining claims whether on the merits and law contends that federal the defendant a falls under Price-Anderson when claim brought claims. In suit those preempts 484-85, at is contested.” Id. removal “[fjederal law, under court in state (citations omitted). The S.Ct. Court ordinarily a federal defense pre-emption “structure, statutory this stated defense, it does suit. As public liability which a action becomes a appear well-pleaded on the face of action, one but decided sub- federal therefore, and, not author- does complaint, state-law rules of decision that do stantive federal court.” Metro. ize removal to Life Act, not conflict with Price-Anderson 58, 63, 107 Taylor, Ins. Co. v. 481 U.S. spoken what we have of as resembles ‘ ” (1987). 1542, Howev- L.Ed.2d 55 S.Ct. pre-emption” “complete doctrine.’ er, general making rule this (citations at 484 n. 119 S.Ct. 1430 omit- subject impor- claim is an master his ted) Williams, (quoting Caterpillar Inc. v. “complete pre- known as exception, tant U.S. S.Ct. occasionally deems emption.” (1987)).4 L.Ed.2d 318 to be common-law claims defined class of consequence complete law and enti- principal under federal distinguished a federal fo- preemption, choose ordi- tles defendant adjudication just for ultimate rum —not is that a nary preemption, defendant sued merits, but also for of such claims may immediately remove the in state inquiry particu- into whether the threshold court; federal case to have preempted class. lar claims fall within the any dispute court resolve about whether Alan Wright, 14B Charles generally See fall the scope claims within Miller, Cooper H. and Robert E. Edward scheme; and, complete preemption Steinman, E. and Federal Practice Joan do, they adjudi- the federal court if have (4th 2009). § ed. Procedure 3722.2 case if the cate the merits (and proceed proceed) elects to can with Gas, Supreme El Paso Natural Caterpillar, law. claims under federal See PAA, “[b]y its confirmed Court 2425; 393-94, at 107 482 U.S. S.Ct. Metro. ... trans- preemption provision, unusual 63-65, 1542. Life, 481 at 107 S.Ct. U.S. public ‘any lia- forms into a federal action ” action____’ right to imme- Significantly, a defendant’s 484, at 119 bility 526 U.S. preemp- of a diate federal court resolution 42 (quoting U.S.C. S.Ct. claim not on whether that depends tion 2210(n)(2)). only gives “The a § Act outset, at the “obviousfly]” claim is correct original jurisdiction over district court 66, 107 Life, Metro. at S.Ct. see U.S. claim, provides for removal to but such ultimately or even on whether it is if a right putative as of federal court meritorious, see, e.g., Caterpillar, U.S. brought in a action is Price-Anderson it is expressed an but on whether Congress thus at S.Ct. state court. Anderson, provides expressly but also nuclear accidents See Nat'l Bank also Beneficial 6,1, brought 156 L.Ed.2d 1 539 U.S. (2003) ("[T]he 123 S.Ct. in state for removal of such actions Act contains Price-Anderson even state-law when assert provision, pre-emption Gas, an unusual (citing El Paso 526 U.S. claims.” Natural 2014(hh), only gives § federal courts 484-85, 1430)). at 119 S.Ct. jurisdiction arising tort out of over actions licensees, subject complete, Regula- rather than Nuclear claim allows the tory to require Commission other licen- ordinary, preemption. sees, specified to maintain financial protec- effect, in majority, erroneously claims,” “public liability tion to cover jurisdictional requirement reads 2210(a); § provides U.S.C. Com- (to liability of a public assertion action mission agree indemnify shall and hold liability “bodily injury, sick- enforce for specified per- harmless licensees other ness, disease, death,” property or or dam- damages “public liability sons from for incident) loss, age a nuclear arising from nuclear incidents which is ordinary preemption provision as an protection excess of the level of financial extinguishes personal injury all other them, 2210(c); required” id. and lim- majority’s interpretation claims. The its aggregate “the for a disregards PAA contradicts and El single nuclear persons incident of indemni- complete Paso Natural and the PAA’s Gas amounts, specified fied” to dollar id. preemption provision, 2210(e). Nothing §in 2210 is inconsis- 2014(hh). could in- not have tent with a state holding or federal court jurisdictional tended requirement kind, defendant of including a nuclear asserting public liability action do contractor, licensee liable nuclear- duty ordinary preemption double as an injuries personal radiation-caused not re- provision extinguishes, en- instead of sulting sickness, disease, injury, forcing, “offensive contact” death, property damage. Section 2210 Instead, battery claims. legislative in- on providing focused nuclear licensees tent complete preemption inherent protection pub- contractors with provision of PAA replace is to incidents, lic plaintiffs’ state-law claims but does not exclude or types bar other claims derived may from state law which harms from reparation state or fed- removed, and, adju- if removed must be eral courts. dicated federal court. Until the 1988 amendments to the personal from nuclear 2. The Purposes PAA’s Text and law, brought radiation were under state majority opinion identify The does although preempted federal law state law any provision of any purpose nor important Therefore, in some respects. for which the PAA was enacted or amend- complete absent diversity, the federal ed, that is actually any- inconsistent with original jurisdiction courts lacked to hear thing plaintiffs’ in the “offensive contact” most such claims. See In re Litig. TMI battery claims derived from Texas law. II, (3d 832, Cases Consol. provisions “While the PAA are com- Cir.1991). jurisdictional That impediment plex, its chief feature is the creation of a particular assumed importance after the public/private system covering insurance nuclear accident at Three Mile in Island accidents, reactor accompanied by a limita- 1979, gave which separate rise to “150 (or ‘cap’) tion aggregate liability on to the against cases Mile defen- [Three Island] in public major of a event accident.” dants, claimants, 3,000 with over in various Goldsmith, Richard Regulatory S.Rep. state and Federal courts.” No. Reform Power, and the Revival 20 100-218, Nuclear at Cong. U.S.Code & Ad- (1991). Hofstra L.Rev. (1987). 163 n. 11 Sec- pp. min.News tion is titled “Indemnification and There was then no mechanism for remov- of liability.” requires limitation It ing some cases to a single those federal court. the substantive rules for accordance with and consolida- then-existing removal The law, the PAA were confined derived from state because decision provisions tion occurrences,” see “extraordinary nuclear have failed to show that the to the defendants 2014(j), Commission § and the those are incon- rules for decision of claims the Three Mile Island had not declared §with 2210. sistent The an occurrence. incident to be such PAA whether an action The determines uncoordinated resulting proliferation of liability action” on “public is a based what PAA’s Congress to amend the lawsuits led “assert[s],” on plaintiff based to en- provisions removal and consolidation plaintiff ultimately is what able to any “nuclear compass cases out 2014(hh). § prove. Id. This determina- 2014(hh); § id. incident.” See tion has to made at the time the action 2210(n)(2). removability, To ensure in, to, filed is either removed asserting “any converted suit court, the federal court because has into for a nuclear incident public liability” jurisdiction it has over determine whether the PAA. Id. “an action under” Any the case. case which 2014(hh). a “pub- a nuclear incident is asserted is case, brought plaintiffs In this suit adjudicated action” to be ac- lic alleging sustained state cording to “substantive rules decision” injuries offensive contact physical both law, “unless such law is drawn inci- the result of a nuclear batteries as §of’ provisions inconsistent with the dent, advan- taking defendants — provision There is no of 2210 that is case PAA—removed entire tage the rules for decision de- inconsistent with because it is “suit assert- to federal court in plaintiffs’ law “offen- rived Texas liability” the PAA. ing public The battery this case. sive partial sum- federal district court rendered any provision is of the PAA Nor there against plaintiffs be- mary judgment requires prove that a genuine issue as of the absence of a cause has he “nuclear incident” occurred before injuries physical causation can claim.5 There- or she recover Now, nuclear incident. alleged fore, pro- should be able those majority holds the dismissal of battery claims the feder- ceed with their remaining causes the claims also court under the rules of decision al district battery by “offen- claims—which involve from Texas law. derived require proof contact” and do not sive “ objec- ‘The majority recognizes, As the essentially be physical injury preempt- —to interpret upon to tive of a court called majority holds extinguished. ed and intent congressional ascertain statute remaining claims must be dis- that those legislative will.’ The give effect to missed, though has no there been even of intent congressional indication to clearest showing plaintiffs unable statute itself.” Davis is the words of the those any of the elements of establish (5th Johnson, F.3d 810-11 Cir. those I instead hold that claims. would omitted) (citation 1998) Johnson adjudicated (quoting in remaining claims must matter, provides that state-law rules of deci- many state- PAA practical a kinds of 5. As sion, require plaintiff 2014(q)’s a to a law radiation tort claims of "nuclear definition incident,” allege kind that he or she has suffered some what a must determine illness, damage, property bodily injury, of recover a tort claim in prove in order to coincidentally may meet definition liability "public action.” § 2014(q). But incident” under of "nuclear Airlines, Inc., aged majority’s v. Am. interpretation of (5th Cir.1984)). The words of separate of the PAA to non-bodily injury file PAA not require plaintiffs do to suits in state court and avoid pleading to prove that “nuclear incident” has oc- public case, every action in so as to pursue curred in order to their “offensive prevent or deter the removal of their battery claims derived state state-law suits to federal court and the Furthermore, legislative law. statute’s extinguishment automatic of claims that history the intention of shows Con- are not based on or to incidental successful gress enacting amending in the PAA bodily injury property damage claims. preserve to state tort was law much as likely multiplication The artfully pleaded of report The of possible. the House Com- court apt suits is seriously to under- mittee on Interior and Insular Affairs con- cut the 1988 goal amendments’ clear cerning the bill that became the Price- removal and consolidation of radiation Anderson Amendments Act of 1988 de- efficient, to promote suits fair and policy only interfering clared that “the consistent resolution of with state tort law the minimum extent alleged asserted nuclear incidents. necessary a principle [is] which has been Indeed, majority’s reading of the in embodied the Price-Anderson Act for impede PAA would Congress’s purposes in years.” 100-104, H.R.Rep. the last 30 No. exactly event a future accident like (1987). pt. at 20 Consistent with this Three Mile Ultimately, Island. Three clearly congressional stated policy, courts Mile Island appear does not to have ought impliedly read the PAA as any bodily sickness, injuries, dis- putting up additional hurdles that are not ease, Pogue, or death. Eric R. The Catas- found in either the relevant state law or trophe Model Risk Regulation and the the text PAA. Regulatory Legacy Three Mile Island majority’s The reading of the PAA con- Canal, and Love 15 Penn St. Envtl. L.Rev. purpose travenes the main of the 1988 (2007); 467-72 see In re TMI Litig., amendments, in which in Congress light of (3d Cir.1999) 193 F.3d 613 grant (affirming Three Mile Island provided that actions summary judgment in defendants’ favor involving of liability assertions from “nu- on some Three Mile person- Island-related clear “public incidents” would be claims). Therefore, al injury if a similar actions” deemed to arise under the PAA incident were to occur in this circuit and to be and fully litigable removable future, likely numerous would file purpose court. The was to im- separate suits in state alleging only prove manageability and fairness of harms, non-physical order avoid hav- litigation arising from nuclear accidents ing brought those claims into federal court like by making Three Mile Island possi- extinguished. majority thus en- multiple ble consolidate in single suits courages proliferation sepa- the same Gas, federal court. See El Paso Natural rate state-court lawsuits that 477, 486, 526 U.S. at 119 S.Ct. 1430. This sought prevent. goal is not furthered the majority’s holding analogous statutory the PAA an exempts context suit liability, Congress defendants from all except similarly provided claims based on or state law to bodily incidental serve as the source for federal decision, or property damage. Future rules for our radia- court and the Su- tion prefer litigate victims who preme their Court have emphasized that courts radiation claims in state court are encour- applicable should follow the state law and

207 re- reading into the Act of a threshold of creating additional rules refrain from that the must succeed quirement the Out Similar to law. federal (OCSLA) death, sickness, bodily injury, Act Lands with er Shelf Continental pursue state claim in application property damage of law as order provides for Litig. battery by In re TMI Cases contact law. See offensive federal (3d Cir.1991) 832, II, of majority’s interpretation 940 F.2d 856 claims. Consol. 1333(a)(2)). In an Congress’s Act stated (citing conflicts with Huson, case, Co. v. minimizing Chevron Oil with policies OCSLA interference of 349, 97, 92 S.Ct. 30 L.Ed.2d 296 fostering 404 U.S. PAA state law under the and of (1971),6 Supreme explained: Court removal, liti- consolidation and uniform comprehensive specified that “Congress alleged or gation of claims out of adopted by law should be body of state nuclear incidents. The asserted existing courts the absence federal battery by “offensive Thus, Congress ... did law---- federal rules should be resolved under substantive fill courts in ... intend federal law, derived from Texas as decision by creating new ‘gaps’ statutes] federal [in 2014(hh), are required by because 104-05, Id. at federal common law.” because, not inconsistent with 2210 and Thus, courts should “federal S. Ct. Court clear El Supreme as made common law create interstitial federal Gas, they subject Paso Natural Congress has directed that a when the removal, liti- complete and full preemption, apply.” body of law shall Id. whole gation, extinguishment, than in the rather 8, Accordingly, 105 n. 92 S.Ct. 349. at court under PAA. federal district Co., Drilling Dual v. Fontenot (5th Cir.1999), that “our we observed consistently rejected attempts Circuit has common laV litigants to have ‘federal law” rules of Louisiana tort in the

override 977; context. at see also Ol OCSLA OLD RIVER HYDRO CATALYST (5th Co., F.2d sen v. Shell Oil LIMITED PARTNER ELECTRIC Cir.1983) deploring (following Huson SHIP, Plaintiff-Appellant, of new common law in the creation v. context). case, majority’s In this this CO.; Doe; BA INGRAM BARGE John of an threshold re imposition additional Co.; Roe; Y ZX injury, C Insurance James quirement proof sick Co.; Trans disease, death, American River ness, damage Insurance property portation Co., Defendants-Appellees. example of these instruc fails to follow cases, and likewise fails to tive OCSLA No. 10-30466. “only carry out intent of Appeals, Court of United States law to the mini state tort interfer[e] Fifth Circuit. necessary” through PAA. mum extent (1987). 100-104, 1, at 20 pt. No. H.R.Rep. 15, 2011. April short, pur- nor neither the words poses support majority’s the PAA recognized Reynoldsville v. part, Casket Co.

6. Huson was overruled in on other here, 749, 753, by Harper grounds Hyde, that are not relevant 514 U.S. 115 S.Ct. Taxation, Virginia Department (1995). U.S. L.Ed.2d 820 (1993), L.Ed.2d 74 113 S.Ct.

Case Details

Case Name: Cotroneo v. Shaw Environment & Infra-Structure, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 14, 2011

Citation: 639 F.3d 186

Docket Number: 07-20939

Court Abbreviation: 5th Cir.