*1 20(a) 3. Claims salespeople and Section goodwill between tance customers. 20(a) Ex of the Securities Section bring change permits plaintiffs Act facts, it may plausible
From these against who of action individuals cause or should infer that knew have Globus Sec corporation control a has violated relationship ending its with known that 78t(a). 10(b). “[Liability § tion U.S.C. on its sales. effect could have some Vortex 20(a) is derivative of under Section noted, But, correctly as the District Court 10(b) by the underlying violation Section knowledge sales from one actual Avaya, 564 person.” F.3d controlled might is not the same as source decrease plain affirm the dismissal Because we company’s that the over- knowledge actual 10(b), Section we also tiffs’ claims under projections are false. Silverstein all sales affirm the District Court’s dismissal Medical, Inc., 15-5386,2016 No. v. Globus 20(a) claims. their Section 2016) (E.D. Aug. at *8 Pa. WL (“But knowing that the loss simply IV. CONCLUSION may drop in cause a sales does
distributor not mean that to account Globus failed reasons, plaintiffs have For these failed drop projections.”). its of the plead violation adequately their pleaded any support facts part Act on the its Securities Globus incorporated anticipated claim that Globus affirm the Dis- controlling officers. willWe projections. in its Vortex revenue of all claims. trict Court’s dismissal Indeed, allegations regard- given plaintiffs’ extensive, months-long plan- ing Globus’s relationship of its
ning for the end including company’s broad
Vortex— its force from
strategy transition sales .
independent in-house sales distributors fact in-
representatives and the new place representative sales was in
house geographic territory be-
take over Vortex’s relationship
fore the was terminated —the plausible MCMUNN, personal represen more inference the Amend- Michelle Myers; accounted for Complaint ed that Globus of the Estate Eva tative Steele; Robinson; change strategy when it devised its D. Yvonne Sue Cara Myers; Steele; J. Levi Daniel year. for the Edward projections Globus’s sales Robinson, et Harold al projections of those does not later revision sufficiently knew show Globus partic- projections were false when made —
ularly ultimately when Globus achieved BABCOCK POWER & WILCOX GEN year GROUP, INC.; the fiscal within 1.17% the sales for Tech ERATION B&W original, challenged projection Inc., Services, exceed- fka Nuclear nical B&W Services, Inc.; projection earnings share. per ed its Environmental Atlantic Company, predecessors-in- giving strong facts rise to a infer- Absent Richfield successors-in-interest, scienter, interest, forward-looking subdi ence of Globus’s subsidiaries; Babcock & visions and projections pro- revenue are entitled to Group, Inc. Technical Services safe Wilcox tection PSLRA harbor. *2 Plaintiffs, Facility Appellants Apollo 15-3507, 15-3506, 15-3508, 15-3509,
Nos.
15-3510, 15-3512, 15-3513, 15-3511, 15- 15-3515, 15-3564, 15-4075, 15-4076, 15-4078,
15-4077, 16-1964 16-1965 & Power
Babcock Wilcox Generation
Group, Inc. and & Babcock Wilcox Inc., Group, Appel
Technical Services 15-3640, 15-3642, 15-3644, in Nos.
lants 15-3654,15-3656,
15-3646, 15-3648, 15-3650, 15-3652, 15-3660
15-3658 Company, Appellant Richfield
Atlantic 15-3639, 15-3641, 15-3643, 15- Nos. 15-3651, 15-3653,
3645, 15-3647, 15-3649,
15-3655, 15-3659 15-3657 and 15-3506, 15-3507, 15-3508, 15-3509, 15-
Nos. 15-3513,
3510, 15-3511, 15-3512, 15-3514,
15-3515, 15-3564, 15-3639, 15-3640, 15- 15-3642, 15-3643, 15-3644, 15-3645,
15-3646, 15-3647, 15-3648, 15-3649, 15- 15-3651, 15-3652, 15-3654, 15-3653, 15-3656, 15-3658,
15-3655, 15-3657, 15-
3659, 15-3660, 15-4075, 15-4076, 15-4077,
15-4078, 16-1694, & 16-1965 of Appeals,
United Court States Circuit.
Third August
Filed: *4 [ARGUED], Motley Bograd
Louis M. 450, Street, N.W., Rice, K Suite D. Or- Washington, DC Jonathan Street, ent, Rice, Main Motley 321 South Providence, RI Anne P.O. Box Kearse, Rice, Motley McGinness Pleasant, Boulevard, Mount Bridgeside SC Rodes, Persky Goldberg & David B. Street, P.C., 11 White Stanwix Suite Appel- PA Counsel Pittsburgh, *5 lants. Kinnaird, Hastings
Stephen B. Paul Street, N.W., LLP, Suite 875 15th C, Meier, Washington, DC Peter [ARGUED], Sean D. Un- Phillips John P. LLP, Street, Hastings ger, Paul Second Francisco, Floor, CA Nan- 24th San [ARGUED], Philip H. Cur- cy G. Milburn tis, Koolyk, Porter S. Arnold & Reuben Avenue, LLP, Floor, Park 34th New Michael, York, Geoffrey Ar- J. NY LLP, Porter 601 Massachusetts nold & N.W., Avenue, Washington, DC Appellees. Counsel McKEE, SMITH, Judge, Before: Chief RESTREPO, Judges Circuit THE OF COURT OPINION SMITH, Judge, joined Chief RESTREPO, Judge, joins who also Circuit in the Concurrence. they developed assert
Plaintiffs being exposed to cancer1 excessive after sake, simplicity’s though 1. For refer to indi- even several those individuals diagnosed viduals with as "Plaintiffs” cancer from radiation emissions the Nuclear Ma- BACKGROUND (“NU- Equipment Company terial and
MEC”) facility Apollo, Pennsylvania I. THE AND PARTIES EMISSIONS (the “Apollo facility”). Plaintiffs do not A. The Parties challenge District Court’s conclusions against that their common-law claims De- seventy Plaintiffs are more than individ- preempted by fendants2 were Price- 3 in group uals cases who consolidated Anderson Act and that only their Price- claim radiation emitted excessive “public liability” claims are Anderson Defendants —more specifically, radiation Although appeal. issue the Price- Apollo uranium effluent from the fa- Act preempted Anderson com- Plaintiffs’ cility to develop them various can- —caused claims, negligence mon-law cers. public liability Price-Anderson re- claims quire prove Plaintiffs to versions Almost all of the Plaintiffs lived near (1) negligence duty, traditional elements — Apollo, Pennsylvania, many years, in- (3) causation, (4) breach, damages. 1960s, cluding all almost
The District Court held that Defendants diagnosed Plaintiffs with at least one were to summary judgment were as a entitled form cancer between 2007 and 2011.4 on the matter law Price-Anderson The among similarities Plaintiffs end claims Plaintiffs because failed show count, By alleged there. Plaintiffs our genuine dispute that there was a of materi- suffered more than a dozen duty, breach, al fact as to elements types were different cancer.5 Plaintiffs damages. agree appealed. We widely varying ages the times of their District Court: Plaintiffs are miss- diagnoses at least one individual un- —with elements, ing critical and therefore their der 30 and at least five over individuals claims fail. (81); (82); (88); See JA3460 JA3478 JA3479 *6 (29); (82). Accordingly, judgment (81); we will affirm JA3482 JA3485 JA3491 of the District Many Court. of the smok- Plaintiffs had extensive died and the executors those individuals' cox and Atlantic Richfield Co. Their lawsuit plaintiffs. Docket, have been estates substituted apparently See settled trial. before (W.D. Wilcox, v. & 94-951 Hall Babcock No. Company Atlantic Defendants are Richfield Pa.); Wilcox, see & No. also Hall Babcock & and Babcock Wilcox Power Generation 94-951, (W.D. Pa. 2007 WL June 1740852 Inc., Group, Babcock & Wilcox Technical 2007). diagnosis range may The here date Inc., Group Services and B&W Ser- Technical also reflect statute of limitations concerns. Company vices Inc. Richfield Atlantic and The statute of limitations is not an issue Group, & Power Babcock Wilcox Generation appeal. Inc., facility were owners of the NUMEC See, (stat- e.g,, points in different time. JA1467 5.See, (“Non e.g., Hodgkin’s Lympho- JA3447 ing bought Apollo Richfield that Atlantic ma”); cancer”); (“lung JA3448 JA3449 facility from NUMEC 1967 & and Babcock ("breast cancer”); 1971). (“esophageal purchased facility can- JA3450 Wilcox cer”); cancer”); (“colorectal JA3451 JA3455 argument, 3. At oral even Plaintiffs’ counsel cancer’’); cancer”); ("thyroid (“kidney JA3457 plain- was unable to fix exact number cancer”); ("endometrial JA3458 JA3459 Arg. tiffs. See Oral Tr. at 4:6-19. ("bladder ("melanoma”); cancer”); JA3465 ("metas- cancer”); ("prostate JA3474 JA3479 period 4. This when time most Plaintiffs cancer”); (“squamous ovarian JA3485 tatic may diagnosed were with cancer reflect that pelvis”). cell tumor of her group of developed another individuals who previously cancer had sued & Wil Babcock
252 multiple per can- the relevant maximum histories, some contest had See, e.g., disintegra- their concentration is 8.8 over lifetimes. diagnoses
cer missible per (“smoked pack half a (dpm/m8). about cubic per per minute meter tions JA3474 (“diagnosed JA3463 years”); McMunn, day n.24; for 40 F.Supp.3d at 373 See again in 1986 then cancer with 10; breast Br. JA3642. Pls.’ cf. 67”). age in 2008 at the below, applicable As discussed under regulations, permissible the maximum con- Facility B. The boundary centration is determined (cid:127) facility “warehouse was a Apollo The of the area.” ar- “unrestricted Defendants specifically con- that was style building boundary of the gue unrestricted that fhe complex manufactur- to house structed roof, boundary area is the while involving materi- ing operation radioactive any argue emissions from Plaintiffs emphasize, As Plaintiffs als.” JA1427. any including part of the emission roof— mill adjacent to a steel Apollo facility was stack, vent, or from fan—should be neighborhood of “in immediate permissible con- less the maximum than JA1576. residential areas.” centration. operated ap- facility Apollo The proximately 1953 uranium with point they Plaintiffs beginning in fuel manufacture supports position. their a June believe decommissioning beginning 1978. See 5, letter, Director of the Division JA1467; v. Babcock & Wilcox McMunn and Licensee Relations State Grp., F.Supp.3d Power Generation implied that had not AEC NUMEC 2015). (W.D. Pa. roof shown that the was a restricted area: Energy Commission Atomic facility The roof area the NUMEC “[T]he (“AEC”) body regulatory the federal an unrestricted area unless access'to this overseeing Apollo facility. charge safety area is controlled the radiation Apollo facility During the time that standpoint.” JA5314. Consistent Regulatory Com the Nuclear operated, implying 1964 letter that the entire roof (“NRC”) statutory “the became mission unrestricted, may argue Energy to the Atomic Commis successor AEC’s course of conduct NUMEC and TMI, In re sion.” thought both that stack shows regulatory concern emissions were be compared cause NUMEC and AEC stack as a Apollo emitted radiation facility *7 permissible emissions to the maximum manufacturing of ura- necessary byproduct instance, For in concentration. a 1967 re argue that that radia- nium Plaintiffs fuel. wrote, employee port, “[T]he NUMEC regulatory of limits. The tion excess was in frequently stack on measured concentration dispute radiation emitted focus vents, permissible levels.” JA5201. The on exceeds: stacks, and fans the from the similarly expressed AEC concern about Apollo facility’s roof. stacks, though regula from the releases as of Emissions Evidence Excessive C. limitations on In tions created the stacks. letter, 5,1969 February Director of the of excessive of Plaintiffs’ evidence Much Compliance of of the AEC Division emissions indicates emissions warned, data, your recorded roof “Based exceeded the stacks vents on material re concentrations radioactive maximum concentration permissible facility (“MPC”) facility. through not from the exhaust for Plaintiffs do leased unrestricted, nearby building-and stacks to areas exceed the roof of B, limits specified Appendix II Apollo JA5188, Table facility. Compare 20.105(a), 20, contrary to 10 CFR CFR with JA5189. in effluents unrestricted ‘Concentrations (cid:127) August An internal memo- ” areas.’ JA4700. Apollo facility’s randum about about the evidence- emis- addition states, incinerator “Ever since the vents, sions from the stacks in operation incinerator been has into excessive emissions fits has been a consistent source of air- following catego- one or more three borne causing contamination an over (1) monitoring evidence that ries: operators to the [sic] and completely comprehen- emissions was not air levels above the M.P.C. and - (2) sive; data that there was excessive plant.” out of the JA4428." the area facil- surrounding radiation in ity; showing data radia- excessive (cid:127) letter, In a February. being only tion seemingly but released Director of Compli- the Division of (such short, specific, periods of time as wrote, -of ance the AEC among oth- facility’s when the incinerator being things, er your “Based on recorded used).6 data, the concentrations of radioac- large Plaintiffs marshaled a number tive material released the facil- alleged gen- documents created ity through exhaust stacks unre- highlights uine fact. The issue material stricted exceed the limits areas of Plaintiffs’ documents are below: specified Appendix.B, II of Table (cid:127) letter, April In an NUMEC 10 CFR contrary -to CFR Manager Barry to Eber E.V. wrote 20.105(a), ‘Concentrations in ef- ” R. Price AEC “average at the fluents areas.’ unrestricted yearly proper- concentrations our JA4700. . ty being line” were exceeded “when (cid:127) 30,1972 A November internal memo- are from the south qua- winds memorializing randum a phone call drant” or sections “when the from the AEC that the AEC states quadrant.” winds are from the east commented that “NUMEC has been JA5163. regula- worst offender AEC (cid:127) part year Data shows years,” tions over the that “[t]he high 41.5-dpm/m3 aver considering AEC is strongly impos- But, age dpm/m3. of 13.0 See JA5188. penalties,” civil and mentions admit, “high” refers implementing NUMEC was correc- day. one See Pis.’ Br. 47-48 in,“among tive things, actions other (referring day” to “the same that the “Liquid Management Pro- gave its Waste -sampler “highest reading”). its Additionally, gram,” “Building from a this data Ventilation and comes- *8 summary 6. Our mirrors MEC admitted it sometimes Plaintiffs’ evidence exceeded summary presented Plaintiffs' own at the con- permissible boundary the concentrations at argument. clusion of roof; (3) oral asked about When highlighted concen- airborne "discharges edge," measured roof at plant's trations effluent when the incinera- (1) Defen- Plaintiffs’ counsel asserted that (4) operating; tor was noted “environ- edge monitoring dants' "roof ... is remark- community.” monitors in the Oral mental 20, ably incomplete”; pointed April to an Arg. Tr. at 39:10-40:20. (discussed below) 1964 letter in NU- which a re- Program.” Finally, the NRC issued See JA4439-
Surveillance investigating another NUMEC facili- port Parks, Pennsylvania. ty in See 60 Fed. (cid:127) 12,1974 letter, February In a a NU- (1995). 35,571, 35,573 report, Reg. In that employee Apollo MEC criticized that, despite the 1969 the NRC stated facility releasing too much radia- (“It setting for stack license amendment limits apparent is ... tion. See JA4422 emissions, regulatory limits at from review the data that were set said operations boundary “Accordingly, at the are not of the roof: Apollo Site provide so as to a minimal though conducted even NUMEC was authorized impact on radiological the environ- discharge up to 100 times the at stack ...”). ment. The same letter further B, II, specified in Table Appendix value heightened that there was ra- states amendment,] 1969 license NU- [under the dioactivity Apol- in the area near the required MEC was still to meet the limits facility, many lo multiple times (see 8).” boundary at the site footnote background radiation because of 35,571, 35,573 (1995). Reg. Footnote Fed. “radiologically gaseous contaminated turn, states, “The values set forth in Id. effluents.” B, II, Appendix Part CFR Table (cid:127) 9,1974 JulyA internal memorandum limits regulatory applicable at the site
complains liquid “stack about boundary, Reg. at stack.” Fed. [special nuclear ma- discards SNM (1995). 35,571,35,573 n.8 Apollo from the Plant” terial] losses of uranium
tremendous
OF
II. THE
CANCER
SCIENCE
through “gross irresponsibility.” See
JA4427.
previous opinion,
This
re
Court’s
However,
approved
NU-
Litigation,
TMI
Id. III. THE DISTRICT COURT’S data, state-of-the-art it is im Even with RELEVANT RULINGS certainty possible determine with given of a radiation is cause incidence reviewing are granting We the orders motion, First, of cancer three reasons. numer for summary judg Defendants’ may ous factors other than cause radiation orders, summary judgment ment. its In is, given percentage That “a cancer. a adopted reasoning District Court population defined will contract cancer Magistrate Judge pre all to whom any ionizing even absent radi Order, trial motions had been referred. See Second,- ation.” no Id. a 643-44.8 there is McMunn v. Babcock Power Generation Wilcox & between cancers caused clear difference p., Gr No. 2:10-cv-00143-DSC-RCM by other No radiation or factors. charac (W.D. Aug. 2011), Pa. ECF No. 79. (such given type teristic a cancer its rulings set stage Two earlier severity) suggest are known judgment summary motion. two'rul Those radiation or even “manmade” (1) ings September a 2012 order the cancer’s was cause. See -id. at 643 following management a “Lone Pine” case (“Medical evaluation, itself, can nei order,9 February a order prove disprove specific ther nor that a adopting part rejecting part malignancy by specific caused radia Magistrate Judge’s Third, recommendations with exposure.”). because the rele tion regard level, excluding parties’ experts changes vant occur on cellular Pharmaceuticals, under Daubert v. Dow they are not at the Merrell detected detectable ., many 509 U.S. 113 S.Ct. years— time occur. It can take Inc (1993). 2786, 125 seemingly years— a variable number of L.Ed.2d 469 cancer,” "Carcinogenesis currently Litig., to be will In TMI 193 F.3d 7. believed die re multistep process requiring or more two at 643-44. cell intracellular events to transform normal cell,” Litig., into cancer In re TMI 193 F.3d order, pretrial 9.A Lone order is based Pine (3d 1999). Cir. L-33606-85, Corp., v. Lone Pine No. Lore (N.J. Super. 1986 WL Ct. Law Div. establishing task “[T]he causation 18, 1986), "require[s] plaintiffs Nov. given greatly complicated by reality provide support claims” in facts their percentage population defined will con- cluding having by expert evidence "or risk any exposure tract cancer even to ion- absent their cases dismissed.” In re Asbestos Prods. izing radiation. countries industrialized (No. VI), Litig. & n.2 Liab. expectancy averages where the life about 70 years, population about will devel- 30% the op population cancer and about 20% *10 A, general testimony Lone Pine three of Plaintiffs’ cau- Hu, experts sation Howard Dr. Jo- —Dr. 25, 2012, Magistrate the January On seph Ring, Bernd and Franke —-and .Mr. order, Judge Pine requir- issued the Lone expert, causation Dr. specific provide facie evi- prima Plaintiffs Only rulings the re- James Melius. .with of, among things, “name of dence other the gard testimony directly on to Melius’s bear radionuclide(s) specific released from appeal. this appli- in excess of the Defendants’ facilities permissible expert limits” report cable federal “an Melius’s used method- and exposure pathway(s) ology diagnosis. pro- identification each Melius differential exposed summary each Plaintiff of each through roughly one-page which vided n alleged expo- specific background to each Order at Plaintiffs radionuclide.” and Power each McMunn Babcock & Gen- sure then concluded for Plaintiff: Wilcox and Grp., my opinion eration No. “[I]t 2:10-cv-0143-DSC-RCM professional. medical (W.D. 2012), EOF No. exposures Pa. Jan. to uranium that [Plaintiffs] other materials released from radioactive 12, 2012, following September On facility the Apollo signifi- nuclear made order, parties’ responses Pine to the Lone development cant to the of’ contribution Judge Magistrate issued an order lim- JA3448, 3465, E.g., or his her cancer. iting recovery. Plaintiffs’ theories See Plaintiffs, For most Melius added McMunn v. Power Gen- Babcock & Wilcox substantially -following: like language (W.D. Grp., F.Supp.2d eration Pa. of other “This is reinforced lack order, Judge In-that Magistrate history or his] risk factors [her that the Plaintiffs would be allowed held for the development would account only rely upon “to or pursue, offer evi- E.g., illness.” JA3448.10 referring any or relating dence' claim exposure through based ... upon Judge airborne ex- Magistrate recommended exposure to uranium ... from ... cluding testimony "the because Melius Melius’s Apollo facility years of during its opera- confounding failed factors rule out other 358-61; tion.” Id. see also id. at 364. and did not have information abtiut doses challenge this Plaintiffs do not Pine Lone Plaintiff was of'radiation to which each' on appeal. order exposed. regard confounding fac- With tors, Magistrate Judge criticized Meli- B. Daubert diagnosis” us’s because “differential Melius 12, 2013, July Magistrate Judge explain why out On he did rule “fail[ed] factors, (1) smoking, obesity, that the District Court genetic recommended benzene grant mo- exposure, many possible some of Daubert other Defendants’ radon (2) tions; deny remainder Defen- causes order obvious alternative the. that, motions; deny dants’ Daubert all of conclude each instance uranium is See Plaintiffs’ Daubert motions. McMunn of the individual’s cancer.” cause McMunn, v. Babcock & Wilcox Power at *28. Generation WL With (W.D. 10-143, dose, Grp., regard Magistrate Judge Nos. WL 3487560 criti- 12, 2013). July Magis- Specifically, failing any Pa. cized Melius for to make use Judge excluding trate “or estimate recommended -dose 10. For a-handful of Plaintiffs —but some forced the lack of other risk in his factors history smoking— develop- history for the the Plaintiffs with would account smoking smoking only con- Melius as the ment of this other than which identified illness ("This contribution.’'). founding E.g., factor. JA3451 is rein- have made a also would minimum, maximum amount to Court which also quoted cited and In re Paoli *11 person exposed.” at *29. In- Id. Railroad Litigation, PCB Yard 35 F.3d stead, expo- to determine (3d that Plaintiffs’ 1994); 717 Cir. and Heller v. Shaw “signifi- sures were sufficient serve as a Industries, Inc., (3d 167 146 F.3d Cir. cancers, contribution” to cant their Melius 1999), for propositions that a medical on general testimony relied about radia- expert performing a differential diagnosis tion—Dr. testimony Hu’s that does not need to rule every out alternative from uranium could cause cancer—and the factor and that experts per medical assumption that exposed Plaintiffs were mitted exercise judgments their when dangerous levels of radiation because “the conducting diagnosis. differential See Plaintiffs lived or worked within 1.5 miles McMunn, 814878, 2014 WL at *15. Apollo facility.” at *28. Id. The Second, regard to.dose, with Judge’s Magistrate two criticisms dove- District with a Court held that particular “enough tailed flaw Melius’s there .was support testimony: Melius out contra- “rule[d] oral record for the contention that the ceptive use if the was small and dose Plaintiffs’ levels exceeded the if smoking person quit years 10-15 background normal level” Melius to use ago, thereby taking dose into account.” Id. “qualitative analysis” rather a. than Judge *29. Magistrate at concluded “quantitative analysis.” dose *14. at Id. that methodology Melius’s “has not been - particular, rely Melius could on “NU- generally accepted in the sci- medical and MEC’s failure to monitor emissions.” Id. entific communities” was “untestable.” and Because ,the Melius’s analysis relied (cid:127) Id. at *29. data, absence of the District- Court agreed 27, 2014,
On February the District with Melius a “quantitative cal- dose rejected Magistrate Judge’s Court re ... may culation in fact be far specu- more port and recommendation extent lative a qualitative analysis.” Id. than Magistrate Judge recommended The District Court further held that a granting Daubert motions Defendants’ necessary dose not analysis was for-Plain regard to gen Melius Plaintiffs’ and tiffs’ to' succeed. claims The-District Court regard eral experts.11 causation With Litigation, stated In re TMI F.3d specifically, Melius the District Court (3d 1999), require plain Cir. “did .on, (1). great weight placed this Court’s tiff prove quantified dose order to diagnosis past discussion deferential of. prove injuries personal caused the re methodology and the fact that Melius McMunn, lease of radiation.” 2014 WL did not perfect have access to information. 814878, Then, *13. the District at Court First, District Court held Melius not require cited to other cases did “adequately possible addressed other (quoting citing dose. at *13-14 cancers, Id. causes of Plaintiffs’ both known Int’l, Kannankeril v. Terminix 128 F.3d and unknown” because Melius reviewed (3d 1997), v. Cir. Bonner ISP information about 808-09 the Plaintiffs. McMunn Techs., Inc., (8th 2001), v. Cir. Babcock & Power Wilcox Generation 2:10cv143, Grp., AB, Westberry Nos. 2014 WL at Gislaved Gummi v. (W.D. 2014). (4th 1999)). *14 Pa. Feb. The District Cir. F.3d adopted portion 11. The experts. District Court of most of exclusion See report recommendation which the Babcock & Wilcox Power Genera McMunn Magistrate 2:10cv143, Judge denying the Grp., recommended tion Nos. 2014 WL (W.D. 2014). experts denying exclusion of Defendants’ at *20 Pa. Feb. 1995) “the relevant (applying n.10 District request, At Defendants’ regulations place in ... order for federal the Daubert certified Court v. Bab release caused terlocutory See of the radioactive appeal. McMunn time” issue). Grp., Power Generation Three Mile Island accident cock & Wilcox (W.D. 2:10cv143, 2014 Nos. WL prohibited a licensee 20.106 Section denied Defendants’ May Pa. We to an area radio- “releasing] unrestricted interlocutory See appeal. petition in concentrations ex- active material which Power Gen v. Babcock & McMunn Wilcox *12 ‘B’, specified Appendix ceed the limits (3d Cir. June Grp., No. 14-8074 eration 10 part.” II C.F.R. Table 20.106(a) (1980). regulation § The further Ap- concentration limits states that “the Summary Judgment C. ‘B’, part apply II of this shall pendix Table Magistrate Judge May the On 10 area.” boundary at the the restricted thorough report recommend very filed 20.106(d). § C.F.R. grant Defen Court ing that the District Plain- Magistrate- Judge rejected The summary judgment on motion dants’ II maximum argument tiffs’ that the Table liability public Plaintiffs’ Price-Anderson directly permissible applied concentration judg motion for a claims and Defendants’ from the to the uranium effluent released on all of Plaintiffs’ pleadings on the ment First, Magistrate on the roof. stacks Bab McMunn v. claims. See common-law that the roof Judge determined Grp., 131 & Power Generation cock Wilcox facility a restricted area. Apollo (W.D. Pa. Sept. F.Supp.3d 359-404 McMunn, F.Supp.3d at Sec- 386-87. 2015) report and recomm (republishing ond, Judge that Magistrate held endation).12 of uranium effluent be measurements Judge recommended Magistrate permissible compared to the maximum summary grant the District Court “at should those taken concentration (1) failed “to Plaintiffs judgment because Id. at Because boundary.” the roof 387-88. for trial breach genuine raise a issue expert testimony about Plaintiffs’ proffer “to evidence duty” and failed at limits applied the concentration breach First, 389, 404.13 Id. at exposure and dose.” boundaries, roof the stacks and not duty, regard to the breach Magistrate Judge held that Plaintiffs regula Magistrate Judge held “[t]he expert proffer failed to the emission tory applicable standard genuine mate- issue of breach that raised off- airborne effluent radionuclides See id. at 389. rial fact. facility Apollo ... site areas when dose, the regard § 20.106”— With operated ... was C.F.R. cau Magistrate Judge held Plaintiffs’ regulation, license re “not some other 368-69, sation case failed because failed or other Id. at quirement issue.” 1103, 1108 388; TMI, exposed to each Plaintiff was see also In re 67 F.3d show that Magis- liability public claims. As the appeal Dis- 12. Because Plaintiffs did not Anderson noted, adoption Magistrate Court’s raised other Judge trict Defendants trate Judge’s to dismiss recommendation summary judgment separate motions issues claims, discuss the common-law we need not denied moot Court District common-law claims. prejudice refile. See denied without n.3, McMunn, F.Supp.3d at 361 & 404. Magistrate Judge 13. The did reach not regarding other issues Plaintiffs’ Price- enough his or her cause can Certain related cases were consoli- First, Magistrate Judge granted cer. dated with the main case when the Dis- Defendants’ motion certain facts deem trict Court September issued its 394; admitted. See id. at Plaintiffs’ Local Memorandum Order. The District Court Response, Rule 56.C.1 No. 2:10-cv-001343- ultimately adopting entered orders (W.D. 5, 2014), DSC-RCM Pa. filed Dec. reasoning 15,2015 of the September Mem- Then, Magistrate EOF No. 342. Judge orandum Order in those cases. See JA281- that, explained under In re Litiga TMI 92; SJa3-SJa8. tion, 1999), each Timely appeal notices of followed each Plaintiff had to show that he she was case Additionally, before us.14 Defendants exposed to "inhaled uranium from the cross-appealed many not all—of the —but
Apollo plant in excess of normal back us, requesting cases before that we re- McMunn, ground radiation amounts.” verse the District Court’s Daubert order. 396-97, Thus, F.Supp.3d Magis Judge trate held pro “Plaintiffs must JURISDICTION *13 ... an vide estimate the they dose The subject- Court District had received which caused their Id. cancers.” jurisdiction matter actions over these un above, at 399. As discussed Melius relied 2210(n)(2) § 42 der U.S.C. because this is on Plaintiffs’ experts exposure, other public liability arising action of a out but none of Plaintiffs’ other experts calcu nuclear incident the District of Western exposure or for any lated dose This Pennsylvania. jurisdiction Court has Plaintiffs. See id. over Plaintiffs’ appeals under U.S.C. Further, Magistrate the Judge rejected § 1291. argument Plaintiffs’ that Defendants were “estopped contesting [Plaintiffs’] lack argue Plaintiffs that we did of exposure because dose” jurisdiction have over Defendants’ cross- Defendants failed to keep accurate rec- appeal relating to the District Court’s de at ords. Id. 402-04. Magistrate Judge The nial of regarding their Daubert motion rejected also argument Plaintiffs’ that law ag Melius because are not Defendants required Magistrate Judge the case grieved by that As the Supreme denial. summary to deny judgment on causation Deposit Court observed in Na Guaranty because the District Court had ruled that Roper, “Ordinarily, only tional Bank v. testimony Melius’s was admissible in its party aggrieved by judgment order ruling. Daubert See id. at 399-402. statutory a district court may exercise 15, 2015, September right appeal
On A party District therefrom. who adopted Magistrate Court Judge’s re- all sought generally receives that he has port and recommendation aggrieved affording over Plaintiffs’ not by the judgment objections. See id. at 357. The the relief from it.” 445 appeal District and cannot it Court stated that ... “review[ed] the U.S. S.Ct. 63 L.Ed.2d cases, (1980); Magistrate record these ... see also Nanavati v. Burdette Recommendation, (3d Judge’s 96, 102 Report Hosp., and Tomlin Mem’l F.2d thereto,” 1988) (“Because Objections but no completely offered Cir. further explanation for its and ob judgment decision. Id. satisfied with the final Wing’s Appeal objected presented argument Notices of regarding also no Dr. excluding concerning expert report report, any objections to orders of Dr. issues or waived, See, Wing, e.g., Steve Jal. Because Plaintiffs been have report not allow a conclusory expert would interlocutory rulings only to
ject jury to that Defendants’ find court, jurisdiction lack over reasonable we district factor caus- substantial appeal.”). their Plaintiffs’ cancers. not determine whether we needWe simply follow Third jurisdiction. We DUTY I. dismiss Defendants’ practice and Circuit District Court15 held Smith “superfluous.” cross-appeals as genuine issue Plaintiff failed establish á Johnson, n.2 Johnson & fact to whether Defendants of material as 2010) (“Yet taking party, without agree duty their to Plaintiffs. breached We urge support ah may cross-appeal, Court' that Defendants’ with the District tak appeal has been an order which § duty by 20.106. was defined record, appearing en matter ways, try Plaintiffs In three different on it in the party if the relied district least duty other Defendants owed show such, parties’ court.”). consider As prevent of uranium than release to concern causation Daubert arguments per- exceeds maximum effluent ground for affir- “alternate boundary missible concentrations Nanavati, at 102. Ac F.2d mance.” roof, averaged when effluent disregarded Defen cordingly, we have First, year. argue a full over Plaintiffs their cross- support reply brief dants’ from the roof under any emission counts appeal. Second, argue § 20.106. permissible con- onerous maximum more *14 OF STANDARD REVIEW for roof emissions created were centrations of on standard review sum The li- to by the 1969 amendment NUMEC’s judgment is “Because mary well known: And, third, argue that Plaintiffs cense. reviewing grant summary of we option to decline annual aver- had the plena of review is judgment, our standard of allowing them to aging, find breaches ‘if Summary judgment appropriate ry. is the maxi- duty where emissions exceeded genuine no there is the movant shows that permissible concentration over short mum dispute any as to fact the material below, of time. As these periods discussed as a matter judgment movant is entitled duty the fail attempts redefine because Party Pa. v. of law.’” Constitution of § conflict because they all 20.106 and Cortes, (3d 2016) 824 F.3d Cir. in- Auer deference the NRC’s owe omitted) (citations R. P. (quoting Civ. Fed. § terpretation of 20.106. 56(a)). A, The Roof Area Was Restricted DISCUSSION. 20.106(d), per- § the Under maximum “at Dis- judgment' affirm of the missible concentrations are assessed will the We boundary of the restricted area.” Court failed to the trict because Plaintiffs 20.106(d). § A is “restricted area” of that C.F.R. raise an fact would allow a issue where, ... is controlled area “access jury that Defendants reasonable find protection for of by purposes the licensee duty and Melius’s their because breached (W.D. 2015), F.Supp.3d Pa. will "adopt[ed] "we the District Court the 15. Because adopted opinion Opinion to the that Report the refer as as Recommendation court,” Court,” Corp. Liberty Mut. Ins. Babcock USX District] of McMunn v. district [the Co., Grp., 197 n.8 & Power Wilcox Generation from exposure individuals levels.” JA5201. radiation similarly The AEC ex- and radioactive materials." 10 C.F.R. pressed concern about releases 20.3(a)(14). § argue stacks, Plaintiffs the that en- though regulations created roof tire was unrestricted16 such that on limitations stacks. February anywhere letter, emissions from on the roof- Director Division including the stacks and fans—should Compliance warned, of the AEC “Based on directly against count the limits.-Plaintiffs’ your data, recorded concentrations. argument by a 1995 NRC undermined radioactive material from the fa- released report that that “regulatory lim- states cility through exhaust stacks to unrestrict- applicable boundary, [are] its at the site areas ed exceed the specified limits 35,571, not at the stack.” 60 Reg. Fed. B, Appendix II of 10 Table CFR con- (1995). 35,573 n.8 trary 20.105(a), to 10 CFR ‘Concentrations ” effluents unrestricted areas.’ present arguments two toas Additionally, JA4700. fact NU- (1) why the roof is unrestricted: histori- sought MEC granted the AEC argument cal based a series of on letters —and approval to exceed maximum between the AEC and NUMEC and 1969— permissible by concentration one-hundred argument functional questions that- wheth- “controlled, stack, JA5112, see times suggests er roof access pre-existing there was regulatory protection licensee purposes limit at the stack. individuals radioactive materials.” argument Plaintiffs’ functional fo regard to argument,
With the historical cuses the definition of a restricted area strongest support is a June regulation. regulation states letter, which Director area” is any “restricted area where Division of State and Licensee Relations of ... “access controlled the licensee the AEC stated the roof would be purposes protection of individuals if “unrestricted” access not con- were from exposure to radiation and radioactive roof “[T]he trolled: NUMEC area the. 20.3(a)(14). § 10 C.F.R. materials.” It is facility is an unrestricted unless ac- area roof uncontested' could *15 cess to this area controlled from the by accessed from locked hatches ladders safety standpoint.” JA5314. radiation See JA5035-36 building. located inside the (“There Plaintiffs rely correspon- also on other no ladders on outside NÜ- in dence which property. NUMEC and AEC com- MEC’s have two inside We lad pared stack emissions to applicable normally the ders with closed and locked permissible (“The maximum concentration. For hatches at top.”); the JA5317 roof locked, instance, report, in a 1967 em- kept keys NUMEC hatch is with the pos wrote, ployee “[T]he measured stack con- safety session of health the technic ian.”).17 centration frequently permissible exceeds . definition of argue "unrestricted area” is 17. Plaintiffs that NUMEC conceded merely a mirror of the of- on the.1966 definition "restrict- the roof is unrestricted based " states, letter from AEC NUMEC to the any ed area”: 'Unrestricted area’ means regard "We as the roof area an unrestricted by area access to which is not controlled the area.” JA4649. The District Court.concluded purposes protection licensee for of individ- typographical (cid:127)that "a "unrestricted” was er- uals and radioac- ror.” & McMunn v. Wilcox Genera- Babcock materials, tive area used for residen- 352, (W.D. Grp., F.Supp.3d tion 131 378 Pa. 20.3(a)(17). quarters.” § tial 10 C.F.R. summary judgment, At district courts
262 receive less deference do NRC should argue that these hatches
Plaintiffs
position
1995
con
...
roof was “controlled
extent that the NRC’s
not show that the
evidence. In
expo-
...
flicts
historical
purposes
protection
with Plaintiffs’
radiation,” Relying
case,
on 1965
still
full defer
NU-
we believe we
owe
sure
letter,
argue
safety
certain
Court’s main concern
Supreme
MEC
ence. The
e.g., alpha
survey
switching positions has
agency
instru-
measures —
why
required to show
the ac-
ments —are
in which the new
with circumstances
been
Pis.’ Br. 4CM1.
controlled. See
surprise.”
cess is
“unfair
position could cause
Home,
Coke,
at
Ltd. v.
Long Island Care
expertise
to the
Ultimately, we defer
158, 170-71,
551 U.S.
S.Ct.
ai’ea of
the NRC as where
restricted
(“[A]s
long
interpre
L.Ed.2d
facility ended. In
Apollo
surprise[,]
create no unfair
changes
tive
investigating another
report
NRC issued
change
interpretation
alone
...
Parks, Pennsylvania.
facility in
NUMEC
ground
disregard
separate
no
presents
35,573 (1995).
35,571,
Reg.
Even
60 Fed.
Department’s present
interpreta
report was
the Parks
though the
about
tion.”). Here,
Auer deference would
our
referred
let-
facility, the NRC
any reliance interests.
not harm
regu-
that allowed NUMEC
exceed
ter
facility’s
Apollo
limits at
stacks.
latory
NRC,
if
not
Even we did
defer
that, despite
1969 li-
stated
The NRC
of a
interpretation
“restricted
Defendants’
setting limits for stack
amendment
cense
prece-
is more
with our
area”
consistent
emissions,
regulatory
limits were set
argu-
functional
dent
than
“Accordingly,
boundary of the roof.
that “[t]he
ment. In
we held
defini-
though NUMEC was authorized
even
‘unrestricted areas’
tions
‘restricted’ and
up to 100 times the
discharge at the stack
gov-
sections
that the C.F.R.
demonstrate
II,
B,
Appendix
Table
specified
value
were
erning
‘unrestricted areas’
persons
amendment,]
license
NU-
a 1969
[under
persons
to cover
a nucle-
intended
outside
limits
required
still
to meet the
MEC was
i.e,,
boundaries,
general
plant’s
pub-
ar
8).”
(see
boundary
footnote
Id.
at the site
(footnote
TMI,
In re
F.3d at 1114
lic.”
turn, stated, “The values set
Footnote
omitted).
to the
Although
access
denial
B,
Part
Appendix
in 10 CFR
forth
turn a
“general public” alone does not
II,
regulatory
applica-
limits
are the
Table
area, our under-
space into a restricted
stack.”
boundary,
at the
the site
ble
standing
more on
has been focused
wheth-
35,573
Id. at
n.8.
control rather than
er a licensee exercises
Robbins,
safety
measures chosen
precise
Auer v.
U.S.
Under
state-
452, 461-62,
Other than
isolated
S.Ct.
licensee.
ment will served ing impose it to measure civil dam of requirements conduct ... the ... ad Thomas, age liability.” Frederick L. v. purpose regulation ministrative is whose (3d 513, Cir. n.8 578 F.2d 517 protect exclusively found to to be ... the any of interests the or subdivision of state. per to Negligence se attaches such.”).20 it as duty statutory a administrative its or when to harm prevent direct effect is the 1995, Finally, 'look to as in we other in person allegedly of type issue to circuits’ “instructive.” caselaw as In re Matczak, jured. Byrne v. 254 F.2d See TMI, Here, 67 see F.3d 1113. we that no 1958) (“[T]he (3d general principle 528 Cir. other adopted pro has circuit is a of statute will not the violation v. posed See Chevron standard. Adkins liability unless it is efficient create a 761, 766, Corp., F.Supp.2d 960 772-73 Congini Congini injury.”); of cause ex rel. (E.D. 2012) (holding Tenn. that license vio Co., 504 Pa. ortersville Valve P duty lations do create a not Price- (1983); 470 518 Restatement A.2d action). public liability Anderson (Second) § Torts 286.19We held that “general licensing permit or schemes do history of the license amendment usually compe not of establish standards to shows that its purpose was not create tence; they Usually represent judg do independent duty discharge an minimize to of licensing a ments 'violation 13, 1968, from the On November stacks.- generally scheme will constitute breach Caldwell,- Roger D. Manager, NUMEG person of a to a duty particular rather to a Safety, Health and sent letter Donald Valley Power than to the state.” Beaver A. the AEC. The Nussbaumer at letter Co., Eng’g Contracting Co. v. Nat’l & requested change NUMEC’s license 1989); Cir. F.2d 1221-22 see also up would concentrations “permit[ ] Med., Inc., Talley v. F.3d Danek effluent, providing stack’s any 1999) (“Even (4th if MPCa Cir. regulatory edge roof per- is concentration at designed protect scheme as whole is justified missible.” Caldwell JA5073. public promote safety, or to licens request pointing to empirical data relat- care, ing is not a duty itself standard ing to Apollo diffusion at the facili- requirement.”); Re factors but administrative an (“The (Second) is, ty by showing § of Torts that amounts re- statement —that 20,105 person alleged adopted §§ 10 C.F.R. ... who violation When 19. 20,106 care, standard.”); Re the standard we cited as of.... effluent U.S.C. (Second) proposi 1365(f) Torts statement for the (‘‘[T]he § ‘effluent standard or term adopt regulations tion as the can a court chapter’ means limitation under ... TMI, re F.3d at thereof,... care. See In standard ”); permit or N.Y. Veh. condition 1113 n.24. 509(3) ("Whenever;, permit § & Law Traffic operate or required license is motor argument, Following oral filed vehicle, any operate person shall no motor 28(j) of the Rules letter under Rule Federal vehicle in restriction con violation Appellate Procedure cases with additional to, on, permit applicable- tained or regulations creating duties. tort showed license.”), situations, preemption where contrary reasoning None them here, complete as laws is not alternative Rather, pertain Plaintiffs' 28(j) above. cases Inc., Daig see Jude Medical Div. v. St. Gomez explicitly situations which statutes create á 2006) (discuss (5th violations, 928-30 duty for license see 33 U.S.C. relating preemption 1365(a) scope may ("[A]ny § citizen commence .., Amendments). against any civil on his behalf Device own Medical action *18 stacks be much at varifying leased-at the would less .[sic] compliance ’'with Part 20, edge. the See JA5074-76. roof JA5083-84. 5, 1969, Low, February On Lawrence D. 10, On 1969, March Caldwell submitted AEC, Director, of Compliance Division application “revised to permit concentra- Shapiro, to wrote Zalman NUMEC Presi- effluent,” tion to 100 any in stack’s MPCa dent. wrote that “the Low concentrations JA5087, Again, “justified” Caldwell' the released from radioactive the material proposed by pointing limits to empirical facility through to exhaust stacks unre- data showing dilution factors at roof the stricted areas con- limits ... exceed perimeter. Id. 20.106(a).” trary to 10 CFR In JA5079-80. 26, 1969, May On Nussbaumer at the letter, the same section Low ac- AEC to wrote at grant- Caldwell NUMEC knowledged request NUMEC’s li- its ing the amendment to NUMEC’s license permit cense “be to use amended “to authorize discharge of radioactive dilution factor stack JA6080. effluents.” material stack effluent- ... 25, 1969, On February Shapiro respond- up concentrations to ... one-hundred ed, explaining higher that a concentration applicable times the limits ... in accor- applied limit could be at stacks statements, dance representations with determine whether its NUMEC violated and conditions specified your applica- permissible maximum concentration 5, (em- dated tion March 1969.” JA5112 (cid:127) edge: roof added). phasis added, Nussbaumer “We consider the sampling pro- environmental recognize necessity for an We gram required by Condition 2 above to be amendment our. license which for, providing backup means data and appropriately would reflect means your edge sampling re- of varifying roof [sic] effectiveness are adequately representative sults atmospheric reducing dilution con- concentrations released unrestricted centration In unrestricted areas. added). (emphasis areas.” JA5112-13 connection, on- submitted No- Thus,'even time, AEC, via Nuss- 13, request vember 1968 a for an baumer, accepted “representa- NUMEC’s amendment our license which tions” relationship about the between place primary would reliance on roof discharges stack edge the roof and and perimeter sampling in lieu of stack edge that the roof monitors would be used sampling of measuring as a means re- determine concentrations “released leases areas. At a unrestricted to the unrestricted areas.” meeting January Li- with censing personnel, Compliance agreed the NRC that NU- purpose concluded the off-site envi- MEC’s in seeking the amendment sampling program ronment should be assumed that all requirements-would be included .as a part our license if the at the met emission boundaries were application provide amendment permissible ad- below the maximum concen- respect “By ditional assurance to the tration: application' dated November 13, 1968, atmospheric effectiveness of supplement dilution. dated March 20.106(b), Accordingly, preparing pursuant we are to 10 CFR will submit March 1969 a requested re- NUMEC that License SNM-145 which, application approved, if to permit up vised be amended concentrations provide acceptable should specified means of 100 times the limits Part *19 266 They “The II, greater year.” argue, than one B, ef Table in stack
Appendix mandatory. not fluent, may permissive, that term concentrations at provided requirement is no to take an aver- in local There edge and environment roof (footnote omitted). age.” Pis.’ Br. 43 We 10 Part 20 limits.” complied with CFR Co., “may” permis- that agree 41 re & N.R.C. with Plaintiffs Babcock Wilcox See, Jewelers, (June Kay v. 26, 1995); e.g., Simpson also 10 sive. C.F.R. 492-93 see Inc., Thus, 650-51 20.106(b). Sterling, Div. 142 F.3d § it is clear that the stack- 1998) (3d (comparing “the more flexi- was created Cir. discharge license restriction ” permissive ‘may* to “the manda- for emissions at the ble and a threshold to test ” Casio, Inc., Torre tory (quoting v. boundary restricted area. ‘must’ 1994))). 42 n.6 Cir. F.3d 831 requirement the license was Because single for on only an safe harbor NU- reliance word administrative But Plaintiffs’ compliance ignores with the emissions in fact that it is phrase MEC’s that boundary speaks pas at the of the re- maximum set that part of a sentence area, duty it not pas stricted does create tort constructed sive voice. “Phrases implied subject or actor here. sive voice use an Drilling out the verb.” Sci. who carries C. Plaintiffs Had to Show Maxi- Servs., Int’l, Energy Inc. Pathfinder mum Permissible Concentration H-06-1634, Inc., No. WL Average on Exceeded Over (S.D. Thus, ques *3 Tex. Oct. Full Year to tion is who has the discretion decide states, average annually. whether to pur “For 20.106 Section section[,] may poses of this concentrations regulation, the context Given period greater not than averaged be over is that such discretion lies obvious answer (1980). 20.106(a) § year.” one C.F.R. entity AEC it is the because holding The District Court’s that Plaintiffs determining licen charged whether a with genuine of material show issue failed regulatory Unit see violates its duties. Cf. duty on Plain regarding fact was based Brumbaugh, 909 ed F.2d States v. § to show a violation of 20.106 tiffs’ failure (7th 1990) (“The passive use of the averaged year: over the.course when statutory language requires us voice is pointed genuine no “Plaintiffs have subject; logical the most infer to infer a of material fact that the annual aver sues General, Attorney who has ence is that the age concentration of effluent ever uranium granting credit under charged been "2 x 10 exceeded 1.7 microcuries/milliliter years, thirty section for is the over 1957-1960, during period or that sentence.”). subject of the Plain intended x 10 ever exceeded 4.0 microcuries/mil- AEC assumption tiffs’ that the unwritten during period 1961-1983.” liliter plaintiffs tort or district intended McMunn, F.Supp.3d ap 388. On use annual courts have discretion argue they peal, Plaintiffs continue Giving plain tort averaging is mistaken. a violation on a 'dis could show based retroactively power tiffs the to determine permis charge the maximum exceeds a violation is as period over which any length sible concentration over to fix the stan [them] sessed “would allow wrong. Plaintiffs are plainly time. An by plant. plant case and dard case faith argument entirely acting good in the utmost operator is based itself diligence still find liable “may” phrase the word “concentra- could may averaged failing an elusive and period tions over a meet such undet- TMI, Moreover, erminable standard.” In re argue Plaintiffs 20.106, § at 1115. Under were “entitled” “adverse inferences” al- (and required using a breach them also to show annual low cau- show a breach *20 relating sation). This, See Pis.’ averaging. too, Their data individual Br. 22. fails moments in time fails to a breach. show because Plaintiffs show that the did not District Court abused its de- discretion
* * * nying the adverse inference. attempts expand Defen- duty fail. per- dants’ must The maximum Experts A. Needed Plaintiffs is missible concentration at assessed provide expert failed to an who Plaintiffs roof, boundary of require- license testify upon could that the data which duty, ment not create a does Plaintiffs (stacks, vents, rely readings from out- must the maximal permissible show that facility) of side a violation could show concentration was exceeded when the of permissible concentration maximum averaged annually. emissions are boundary uranium at effluent roof averaged annually. when II. BREACH Expert generally is re The District evidence Court held that quired beyond when issue the ken of Plaintiffs failed dis is show there was an lay jury. instance, moni pute of fact as to a medical whether Defendants For claim, toring explained plaintiff that the emitted excessive radiation at the bound ary prove “signifi of the roof because or she Plaintiffs failed to had he suffered expert cantly appropriate testimony.21 contracting offer On a seri increased risk appeal, again rely entirely Plaintiffs “by almost latent disease” factors ous and other Redland, fans, competent expert testimony.” from the stacks and roof data Club, which, v. Dep’t Army of U.S., Inc. above, legal as Soccer was established are See, 1995).22 e.g., 845-46, (3d ly Pis.’ 15- 55 Reply irrelevant. Br. 852 Cir. F.3d (“NUMEC Similarly, then-Judge Sotomayor 16 officials all too for were aware wrote fans.”). testimony with the roof problem expert Put Second Circuit that data, ting injury “an has “necessary” the stacks and fans we would be where aside v. Am agree argument Wills multiple potential etiologies.” that Plaintiffs’ for breach (2d Hess Corp., erada expert in this Cir. fails lack 379 F.3d highly technical area. McMunn, ("In’ F.Supp.3d expert testimony necessary
21. See to rebut addition, duty, liability to establish a breach Plain products defendants' contention qualified Plans, Inc., case); tiffs must offer evidence ex Fringe Emp. Lentino v. pert Apollo facility’s emissions ex (3d 1979) ("Expert testimo F.2d Cir. limits."). regulatory ceeded ny required stan is to establish relevant complied dard and whether the defendant Kozakiewicz, Boring v. also 833 F.2d Cf. standard, except the matter where 1987) (3d ("In Cir. some situations investigation simple, lack under so injury the seriousness of which illness obvious, range of skill so within to be lay person, apparent expert would be ordinary experience comprehen testimony required, e.g., gun not be would (citations non-professional persons." sion of However, shot those wound. circumstances omitted) malpractice (Pennsylvania medical (citation omitted)); present are not here." case)). Sears, Co., & Breidor v. Roebuck 1983) (stating 1140-41 simply developed argument their recognizing failure to Perhaps their have data, into roof Plain- show an sufficient to abuse discretion. transmute vent data [See try “average 21-22.] an dilution tiffs to borrow Pls.’ Br. cases where from an isolated 1968 docu- argument developed, an factor 50” more adverse Br. 45. But these kinds may appropriate. See Pis.’ See ment. inference United experts best Capitol Supply, suited ex calculations States rel. Scutellaro —not lay Inc., (BAH), factfinders. lawyers or 10-1094 No. 2017 WL (D.D.C. 19, 2017) *11 Apr. Did Not Abuse B. Court The District (noting several circuits held Holding That Its Discretion maintain allows an failure to records Not Were Entitled *21 inference). This can be seen adverse to Survive Inference Sufficient In analogy spoliation spoliation cases. Summary Judgment cases, there is that one where evidence report to the and rec Objecting evidence, destroyed or has party altered “ ommendation, argued Plaintiffs that De party ‘spolia opposing can obtain recordkeeping them allowed poor inference,’ destroyed fendants’ that the tion evidence jury under which a request an inference posi have been unfavorable would that Defendants had breach assume could offending party,” tion of the Schmid v. duty. [See Dist. Ct. ed the 76, above-described Tool Corp., Milwaukee Elec. 13 F.3d 78 376, By adopting 50-53.] ECF No. at (3d Here, because Cir. Plaintiffs Judge’s recommen Magistrate report and discretion, to show an abuse failed dation, rejected this ar the District Court analyze not further. need McMunn, F.Supp.3d 131 gument. See 352. III. CAUSATION the District Court’s de review
We for abuse of adverse inference nial District Court held that See, e.g., Hechinger re Inv. discretion. case must Plaintiffs’ also be dismissed be Inc., Del., Co. 489 F.3d Cir. experts provide cause failed to 2007) (“We [bankruptcy also review the to in “evidence [Plaintiffs’] seeking motion of UFP’s denial court’s] Apollo plant from the uranium and haled evidentiary spoliation inference based they an estimate of the dose received discretion.”); abuse of McMunn, their cancers.” which caused White, (8th 1155, 1160 Davis v. 858 F.3d appeal, On Plaintiffs F.Supp.3d ar 2017) (“The district refusal to court’s they gue though causation even showed officers sanction with an adverse infer any not did show dose individual was not an abuse dis ence instruction (1) plaintiff Plaintiffs because needed cretion.”). “frequency, regularity, prox show (2) imity” to show that the law of Plaintiffs have failed dose—and —not requires Court its case us the District abused discretion assume Melius’s determining testimony that an infer would be sufficient show cau when adverse District not here.23 Plaintiffs sation because the Court ence warranted ruled was malfeasances.”). argument recordkeeping efit from its own Plaintiffs also 23. Plaintiffs’ expert provide evi- relates to failure their have also failed to show the District Court relating dence individual Plaintiff’s when it discretion denied an ad- abused its See, ("NU- exposure. e.g'., Reply Br. 18 Pis.’ regard with verse inference to causation. See to collect data makes calcula- MEC’s failure McMunn, F.Supp.3d at 394-96. impossible not now ben- tions it should —and testimony was in its was a factor in bringing Melius’s admissible about substantial harm,” arguments plaintiffs Rost Ford motion. These are un- v. Motor Daubert _Co., _, Pa. 151 A.3d persuasive experts because Plaintiffs’ (2016); see also any of Summers Certainteed to show that the individual failed Corp., 606 A.2d 1164-65 Pa. exposure looking Plaintiffs had sufficient — (2010) (“[T]he requirements proving frequency, regularity, proximity substantial-factor remain causation to the Plaintiffs radiation —and were same.”). prejudiced by the District Court’s inconsis- reasoning.
tent Pennsylvania Until recently, Su- preme suggested Court proving had Do Not A. Show Sufficient required substantial-factor causation show- Regularity, Frequency, Proxim- plaintiff exposed the dose to which ity “substantiality” because otherwise the the substantial factor would not be shown duty dis Unlike breach jury. to the See Pneumo Abex Betz v. above, for Price- cussed causation LLC, 615 Pa. 44 A.3d public liability actions is Anderson evaluat (“Certainly complete discounting TMI, ed under state See In re law. *22 in substantiality exposure would be funda- (“As
1103, 1117
1995)
n.33
Cir.
we have
mentally
Pennsylvania
inconsistent with
noted,
retroactively
the 1988 Amendments
law.”).
required
applicable
‘public
for
liar
law
of the
in
bility actions’ be ‘the law
State
However, following
argument
oral
in the
occurs,
involved
which the nuclear incident
us,
Pennsylvania Supreme
case before
such law is inconsistent’ with feder
unless
in
Court
its
issued
decision
asbestos
law.”);
al
see also In re
Nuclear
case,
Rost,
Rost v.
Motor
Ford
Co.
Hanford
986, 1010 (9th
Litig.,
Reservation
534 F.3d
Pennsylvania Supreme Court
retreated
2008) (“Under
PAA, Washington
Cir.
statements, emphasizing
from its earlier
of causa
state law controls the standard
previously “adopted
that
the ‘fre
had
case.”). Here,
tion to be
that
used
test,
quency, regularity,
proximity
and
Pennsylvania
is
state law
law.
by the
applied
refined and
United States
Appeals
Court of
for the
Circuit
Seventh
a
Pennsylvania requires
plaintiff
Tragarz
Corp.,
Keene
980 F.2d
to
a
that a defendant’s acts were
show
(7th
1992).” Rost, 151
1043.
Cir.
A.3d at
causing
plaintiffs
substantial factor
Pennsylvania
may
applies
As
injury.
Supreme
Rost
well
It
stated,
only
proxi
Court
“To
because of
recently
establish
in mesothelioma cases
causation,
unique public policy
about meso-
plaintiff
mate
must adduce
concerns
act
Yet we need not
wheth-
evidence to show that the
thelioma.24
decide
defendant’s
asbestos").
See,
Rost,
(de-
e.g.,
applied
exposures
"for
to
This
er veloping mesothelioma.” Id. at 1046. Even not al- Plaintiffs’ evidence because would Lohrmanns—the original frequency, regu jury frequency, to find low sufficient case, Rost larity, proximity regularity. requires and which stated proximity, and creating “a de minimis that the court was summary judgment plaintiff at for proving rule” asbestosis causation un exposure to propounded “evidence that de- explained “a asbestos-containing product Maryland der fendant’s was law — sufficiently ‘frequent, regular, plaintiff prove must more casual proxi- and than product.” contact with the support- jury’s finding mate’ minimum de- Pittsburgh Corning Corp., Lohrmann v. product substantially caus- fendant’s Rost, (4th 1986). Here, ative disease.” 151 A.3d y (1) added). instance, simpl rely on the (emphasis For where any frequency, Rost Court plaintiffs regularity, existence of expert that the noted (2) proximity than fail offer testified to more three months of individu exposure any. given exposure noting showing “while alized evidence of studies Plaintiff, single regular up month of short. Even exposure that a come were air, specific that caused their individual cancer into the the amount evidence needed not.”); regularity frequency to establish the probably see and most cases we do exposure will Cancer, differ case to case. For Risk Cancer also Nat’l Factors for example, plaintiffs cancer, none of the in this case Institute, https gov/about- ww. ://w mesothelioma, diagnosed were an as- (last cancer/causesprevention/risk visited Oct. bestos-related disease which is caused after 15, 2016) alcohol, (identifying age, cancer- minor to asbestos dust. substances, inflammation, causing chronic Indus., Inc., Ill.App.3d v. UNR Wehmeier 6, diet, hormones, immunosuppression, infec- Ill.Dec. 572 N.E.2d radiation, obesity, agents, sunlight, tious (citation omitted). *23 cancer). risk as factors for tobacco “signature” a Mesothelioma is disease relat- 1999, Indeed, explained that establish ing exposure; to asbestos do individuals not given ing causation for cancer was extreme a usually develop mesothelioma without asbes- ly Litig., See TMI 193 F.3d at difficult. In re Chesterton, Daley exposure. See tos v. A.W. evaluation, ("Consequently, by 643 medical 1175, 335, (2012) 614 Pa. 37 A.3d 1177 n.4 itself, prove disprove nor can neither that a (“Moreover, mesothelioma, gener- because specific malignancy by specific caused a al, rare, ‘any occurring is so case after a well exposure.”). secondary Modern exposure substantial asbestos is attested and agree sources assess continue that commonly being accepted as caused that See, Gold, e.g., Certainty C. ”); ment. Steve When exposure.’ see also Ford Co. v. Motor Boomer, 141, 724, Probability: Legal A Vision 285 736 Dissolves into Va. S.E.2d 728 of ("Mesothelioma (2013) Era, signature is a the Post-Genomic 70 disease: Toxic Causation for (2013); it was uncontroverted at trial of that cause & Lee L. Wash. Rev. 279-81 exposure Note, O'Connell, mesothelioma is at some asbestos William D. Causation's Nu lifetime.”). during point an individual’s ApplyingProportional Liability Future: clear contrast, By the cancers suffered the Plain- Act, 333, 357, 64 the Price-Anderson Duke L.J. tiffs have numerous and un- sometimes even (2014) ("Radiation-protection 359 scientists causes, as Melius knowable conceded. See agreement diagnosis are in that differential ("We're evaluating JA3236 multi-causal, a that's disease confidently identify cannot the ultimate any way We don’t have of test- cancer.”); plaintiff's source of Wilcox v. cf. it, cancer to determine what caused Co., Mining Homestake 619 1167 F.3d it.”); specific what factor caused JA3237 (10th 2010) (“[N]or for Cir. do we see basis ("There many cancers where that occur liability potential alternative where one identify the of we don't cause or cancer wrongdoer injury has been and the identified cancer.”); ("In the causes JA3311 simply may resulted from natural patient individual I think it's more appropri- causes.”). implies— ate to use risk factors because it implies otherwise it that we know the factor
271 substantively un permissible background expo- would be a substantial law, Pennsylvania it would fail sure.” Similarly, der JA3315.25 Melius said that, Daubert for three under rea on “[depending you admissible how use the meaning significant,” say” sons. he “would background millirem one above was “sub- First, testimony Melius’s is insufficient stantial.” JA3315-16. genuine regarding issue fact to create nothing more than a causation because Second, Melius failed offer individual “any impermissible radiation version testimony required ized to do for he was Gregg theory in v. Auto Parts breath” V-J instance, each Plaintiff. For in Howard v. (the adopted in which that court first case Co., Pennsylvania A.W. Su Chesterton regularity, proximity frequency, preme explained, Court to the “Relative cases). Summers, in mesothelioma See test testimony expert addressing of an witness (“In Gregg 1161 A.2d at n.14 v. V-J 997 substantial-factor causation dose-re Parts, Co., 596 216 943 A.2d Auto Pa. reasoned, case, sponsive disease some indi (2007), recently rejected this Court plaintiffs assessment vidualized every viability exposure’ of the ‘each and exposure necessary.” history decedent’s theory.”). Gregg ‘any breath’ Court 608; v. A.3d also Black M&W cf. that, “any in a explained so-called breath” (10th Co., 1220, 1237-38 Gear F.3d theory exposure, plaintiff asbestos al 2001) (holding that a not district court did asbestos, no leges “any exposure excluding an ex abuse its discretion minimal, con how is a matter substantial pert’s testimony expert when that “had Gregg tributing factor in asbestos disease.” his conclusion the results tests based Parts, Co., v. Auto Pa. V-J specific plaintiff). or calculations to” the (2007); 216, 226 see also A.2d Howard Although Melius describes each Co., A.3d Chesterton Pa. A.W. smoking history and a other few features curiam) (“Bare (per proof Plaintiffs, any to offer most Melius fails exposure minimus [sic] some de any ... assessment” of individu “reasoned product is insufficient to estab defendant’s uranium exposure al’s to radiation from lish substantial-factor causation dose- See, (relying on e.g., effluent. JA4782-84 diseases.”). responsive reports from the about radiation released anyone facility lived not show Melius assumes who do *24 Plaintiffs). merely offers Apollo facility exposed the the He area was individual “expo of In the to a amount radiation. Mel- conclusion that each Plaintiffs sufficient words, sures to and other radioactive ius’s he “estimated that —that uranium a, um, significant expo- or nuclear Apollo substantial materials released the had to he not a a contribution facility significant sure.” JA3227. Yet did “estimate made or his specific development of ex- of’ her cancer. specific associate a level E.g., a—with those terms.” Id. if a conclusion posure with JA3448. Even such individualized, “significant exposure,” permissibly asked about were When would generate genuine to agreed “any exposure that to a still Melius be insufficient because, Lone Pine plaintiff plaintiffs issue of was above fact under to, instance, twenty percent risk com- This is in contradiction his to increased ten levels of pared admissions that he relied different somebody who has never smoked substantiality. cigarette usage to determine maybe period say twenty years, even after a of JA3300, 3308; (“For ciga- see JA3321 See also years.”). after ten or fifteen cancer, smoking lung it is reduced rette 272
order,
Plaintiff,
is
an
only exposure
unexplained
uranium
conclu
at issue
each
cause, presum
here.
sion
radiation
ably
exposed
Plaintiff was
because each
Although Rost
that causation is
stresses
conclusory
some
opinions
radiation. Such
we
jury,
have never hesi
an issue
causation,
by
even
qualified
of
ex
medical
judgment
grant summary
where
tated
are insufficient
establish
perts,
causa
genuine
-one side fails to establish
issue
See,
by exposure
tion of
to uranium
concerning
e.g.,
re
cancer
fact
causation.
Co.,
(3d
Litig.,
722-23
effluent. See
v. Lincoln
198 F.3d
Cir.
Elec.
TMI
Tamraz
1999)
2010) (“Whatev
summary
(6th
where
(affirming
judgment
Cir.
671
expert
testimony “was
plaintiffs
insuffi
er Dr.
‘with rea
Carlini understood
genuine
cient to create a
issue material
degree of
sonable
certainty,’
-medical
causation);
regarding
fact”
Heller v. Shaw
conclusion
phrase
itself—does not
—the
(3d
Indus., Inc.,
146, 150
F.3d
Cir.
167
opinion
make a causation
admissible'. The
1999) (“[Bjecause the District Court did ‘ipse
expert’
not
dixit
alone
suffi
excluding
not
its
abuse
discretion
opin
permit
cient to
admission of an
key
experts’
testimo
elements Heller’s
Joiner,
ion.” (quoting
Elec.
522
Gen.
Co. v.
ny necessary
causation,
grant
prove
136, 146,
U.S.
118
139
S.Ct.
L.Ed.2d
affirmed.”).
summary judgment
will be
(1997))).
of Evi
Finally,
Federal-Rules
Although
expert
we
held that an
judge
dence
on a district
duty
impose
opinion
can offer an
hard
“absent
testimony
gatekeeper
expert
as a
act
level of
to the
chemical
considering
of a
when
elements
cause
even
question,”
so where
we have
done
law,
For
See
action
derived
state
expert
temporal
rely
could
“on
rela
358 n.9
rest v. Beloit
F.3d
Corp.,
plaintiffs
tionship and the nature of
2005)
“evidentiary
(explaining
Cir.
Heller,
This,
complaints.”
causation under But, matter, fail general insurmountable.”); may which see law to see what difference law the case 56(a). R. also Fed. Civ. P. We can demand stage litigation. makes of the We no less. are not either bound of the District rulings, Court’s and we have addressed B. District Court Case Law Does arguments on their own merits. Court, and, Any Not Bind This Event, Preju- Not Plaintiffs Were events, At all Plaintiffs’ law-of- diced argument the-case fails its own merits.
Pointing inconsistency Two values animate law-of-the-case doc be economy opin- judicial preju the District trine: and unfair tween Court’s Daubert ensure nium Lone 26. Plaintiffs would also have to effluent under Pine order. relating only testimony have sufficient to ura- *26 Ferman, to issues material See, 826 F.3d failed demonstrate e.g., Roberts v. dice. (“We (3d 2016) 117, 126 also have held on Cir. fact causation. not case doctrine does
that ‘the law the CONCLUSION judges to reconsid power limit the trial decisions,’ have noted prior but er their judgment to are entitled Defendants so, explain a court does must that when to Plaintiffs failed a matter of law because doing ‘take why it so and on record genuine of material fact with show a issue parties are steps so that the appropriate breach, causation. regard duty, to prior on the by reliance prejudiced not Therefore, judgment affirm the will we Runyon, (quoting ruling.”’ Williams the District Court. 1997))). (3d Cir. F.3d MCKEE, Here, any concurring, Judge, Plaintiffs have failed show Circuit change RESTREPO, from the District Court’s prejudice Judge. Circuit joined ruled the District Court position. in Had summary judgment I agree While order, Plain- against them its Daubert here, that the I stress appropriate write dismissed as tiffs’ case would have been simply inadequate in this area is law Magistrate Judge recommended. arising the Price- claims under address opportuni- would not had an Plaintiffs have on exposure Act based to excess Anderson reports re- expert to create new ty radiation. ruling to a that more sponse Daubert Majority explains, this is a Public As the legal clearly Court’s reflected the District Liability Action under the Price-Anderson judg- rulings summary on causation controls ment, therefore our Act.1 Federal law owed inquiry into Defendants whether Perhaps argued have Plaintiffs could so, if duty, whether Plaintiffs a they they prejudiced were because controls the duty State law was breached. failing challenge into Defen- lulled were breach, proven, if inquiry into whether But, we dants’ uncontested because facts. injuries.2 As I ex- will caused on rely not those uncontested do existing places an almost insur- plain, law fail to facts we hold that Plaintiffs when try to plaintiffs who mountable burden genuine dispute of material fact show the Price-Anderson Act. recover under causation, not regard even law, cannot existing Plaintiffs Under the facts the uncontested demon- admission causation, if have es- even establish prejudice. strates that Defendants owed them tablished * * * duty that breached. was to offer evi- Because failed resulting injuries allegedly Suits jury find that dence which could analogous no exposure have from radiation exposed plaintiff each law, tort counterpart traditional effluent suffi- Defendants’ uranium unique problems existing ignores law proxi- ciently frequently, regularly, based on inherent claims illness- mately substantially cause their result, plain- As a “manmade” radiation. es, because the law-of-the-case and further ever, rarely, if recover these tiffs to conclude will require us doctrine does actions, continue and this will otherwise, types hold that Defendants Maj. Op. at 250-51. TMI, n.33 2. See In re *27 (or Congress) recognize
unless states the Majority The affirms the District unique problems endemic in proving that a Court’s conclusion of that much Plaintiffs’ plaintiffs illness was proximately is of caused evidence either or limited value irrele- by exposure given to radiation from a facil- vant only expert because the whose testi- event, mony survived the Dmbert motion ity (Dr. or
Melius) primarily on focused lev- els at the stacks not at vents and the I. BREACH DUTY OF top roof boundary.6 Although agree I that Plaintiffs must establish the of levels radi- (as I believe that Plaintiffs’ submissions at ation the roof boundary rather than in Majority Opinion) itemized the are more stacks, levels at the vents or levels at the than survive mo- adequate to Defendants’ could nevertheless be vents stacks very summary judgment tion for as to of breach to establishing relevant levels duty.3 example, For an internal memoran- boundary if prop- had been evidence dum, 29, 1972, regarding dated November erly developed. This follows the fact meeting Compliance NUMEC’s with AEC that different radioactive substances have stated: different I half-lives. will not wade into the P. personnel] opened by [AEC Nelson quantum of mechanical half-lives weeds explaining of purpose meeting. here as that was discussed some detail Compliance He stated that was con- Litiga- in In re TMI in our 1999 opinion recurring cerned about nature and (TMI ).7 Rather, tion II I merely note will seriousness NUMEC violations. He vary half-lives from as short as less explained that the AEC im- could now many than a to as long as billions second pose penalties types civil for those years, in- depending on substance violations... .NUMEC been the has Accordingly, volved.8 byproducts if regulations worst offender AEC produced uranium facility at Defendants’ years.... over given AEC had NU- sufficiently long included substances with grace period MEC a after B&W half-lives, their levels at stacks and takeover, improvement but little very vents would be relevant determin- was evident. The is strongly AEC con- ing exposure at roof boundary sidering imposing penalties against civil beyond. readily A con- fact finder could NUMEC.4 the vents and clude that levels at persisted no Another letter the AEC stated: “It stacks discernable dimi- (even appears your allowing certain of for activities were nution after dilution not conducted in compliance they dispersed surrounding full with ... into com- requirements and the munity) long enough the AEC’s ‘Stan- residents Radiation,’ Against community exposed dards Protection to be to those levels. ‘Special Part probative Nuclear Materi- value this evidence could this, al’....”5 Based there could be if particularly compelling the effluents enough support comprise byproducts of uranium duty. production claimed breach are not otherwise found Maj. Op. Maj. Op. 3.See at 252-53. 6. See 259-61. added). (emphasis
4. JA4439-40
7.
environment.
averaged
that
out
analogous
appear
to toxins
cause
minimal when
more
would
much
I dis-
which
as mesothelioma
is an
more fun-
year.10
diseases such
over a
There
even
detail below.
cuss more
problem with Plaintiffs’ case
damental
surviving summary
them
prevents
However,
the extent to
not know
we do
why
compelled
that is
I feel
judgment, and
production
uranium
byproducts
which
separately.
to write
or
half-life
exceedingly short
have an
exceptionally low ener-
they have
whether
succeed, they
In order
half-
momentary short
a
gies.
they-have
If
than
a breach of
must do more
show
their
energies,
low
exceptionally
life
duty resulting
exposure
to excess radia-
and vents would
the stacks
presence at-
re-
They
show that the breach
tion.
must
determining
at the roof
levels
irrelevant
exposure
proximately
sulted
they
have
would
boundary. This is because
injuries. It
that Plain-
caused their
is here
particles
disintegrated- into sub
before
regardless
quality
claims fail
of the
tiffs’
boundary
like-
reaching
roof
and
would
Thus,
proof.
all of
other
even assum-
their
enough energy
not have had
ly
cause
expo-
of fact as to the
ing genuine
issue
roofs
they
if
reached the
any damage even
breach,
sure levels
Defendants’
community.
into the
beyond
perimeter
evidence is still
sufficient
defeat
not offer
Plaintiffs did
evidence
summary judgment under
the Price-
finder
conclude
allow
would
fact
lacking.
Act
is
because causation
Anderson
persisted at
stacks
at vents and
the.levels
boundary.
roof
Accordingly,
levels,
cannot
at the stacks and vents
II. CAUSATION
establishing
satisfy
burden
their
point
roof
the relevant
breach
—the
Toxicity
The
A.
Problems
Radiation
boundary.
Majority thoroughly
correctly
The
n .
the Ma-
about
I also
reservations
(cid:127)
explains
applies
to “toxic
causation as
,C.F.R.
10 .
jority’s
conclusion
However,
Pennsylvania
torts” under
law.
20.106(a) requires averaging as
.§
opposed
legal
of causation has evolved
principle
average
merely allowing Plaintiffs
arising,
exposure
to man-
from suits
However, here
year.9
over
toxic
asbestos. As
made
substances such as
deficient
again,
proof
because
notes,
Majority
mesothelioma is caused
any evi-
to introduce
attempt
did not
asbestos,
by exposure to
and it is therefore
ura-
content of the
the actual
dence about
“signature”
almost
disease. The disease
discharged. If that
effluent that was
nium
exposure to
occurs absent
asbestos.11
never
were
substances that
effluent contained
problems
proof
in such cases are
(such
plutonium), ex-
particularly toxic
as
problems of
quite similar to
causation
days
given
for a few
posure to
amount
hours)
involving polychlorinated biphenyls
matter of
could cases
(perhaps
for a
even
https://
(Mar.
2011),
Uncertain,
Sci.
Maj.
Am.
Op. at 263-64.
'See
www.scientificamerican.com/article/health-
Voelz,
("Plutonium
graver
George
is of
con-
L.
Plutonium and
10. See
riskfukushima/
Risk?,
exceptionally long
How
Alamos
cern
half-life
Health:
Great
Los
because
its
https://fas,org/sgp/othergov/
24,000
(2000),
(about
years)
propensity to
its
Sci.
.pdf;
doe/lanl/pubs/00818013
inhaled.”).
lung
Har-
cancer if
Katherine
cause
mon,
Japan
Risk Fears Escalate
Health
11. Maj. Op. at 267.
Release Remains
Nuclear Plant’s Radioactive
(black
pneumoconiosis
lung
substantial factor in
plaintiffs
death or
(PCBs)12
to name
patho-
but a few the
injury.14 Radiation is different.
disease),13
logical byproducts of
modernization.
II,
In TMI
we discussed the “scientific
cases,
a pathology
such
con-
is caused-
principles regarding the relationship be-
(usually ingestion)
foreign
tact
with a
sub-
tween
and cancer.”15 As the Ma-
injured.person
stance that
would.not
“[mjanmade
jority explains,
ionizing radia-
*29
to,
exposed
have otherwise been
or would
tion
damage
can
human
An
ion is
cells.”16
only
have been
in
exposed
relatively
nothing more than an electron that has
insignificant quantities,
that pathology
and
displaced
been
from its orbit.17
with
Unlike
almost never occurs in
of ex-
the absence
PCBs,
or
asbestos
tobacco byproducts, we
posure to
According-
that toxic substance.
constantly exposed
are
to radiation on a
ly, causation can
by showing
be established
daily
exposed
basis.
from
We
numer-
(or controlled)
defendant made
a
sub-
ous natural
including
sources
or
sun,18
stance, plaintiff has a disease that almost
naturally occurring radioactive
elements
never occurs absent contact with defen-
such
ground
as radon in the
surrounding
substance,
plaintiff
dant’s
had suffi-
our homes.19
(i.e.
cient contact with defendant’s product
It is
“frequency,
beyond dispute
now
regularity,
proximity
and"
that radiation
can
exposure”)
types
a fact
to con-
cause various
allow
finder
cancer. Howev-
er,
product
clude that
diseases,
defendant’s
was a
unlike with asbestos and
such
Litig.,
gle
12. See In re
displaced
Paoli R.R. Yard PCB
very
electron. A
de
detailed
(3d
1994).
(includ
scription
process
F.3d 717
Cir.
of ionization
Force)
important
the all
Columb
can
Dir.,
13. See Mancia v.
TMI II,
Workers'
found at
Although the disease
described
prove
disprove
specific
nor
that a
ther
quite
for mesothelioma is
similar
above
specific
malignancy
ra-
triggered by
is
radiation after
was caused
that which
expo-
irradiated,
exposure
series
key
diation
[or
the cell is
there is a
differ-
II,
(citing James
O'Connell]
[hereinafter
TMI
sures]. basis has to satisfactorily The address. task specific link specific complicated cancers with radia- is further fact exposures tion is that has been data radiation of parti- includes different kinds (i.e. regarding collected the increased fre- alpha, gamma, beta), cles each with quency malignancies expo- following properties including different different lev- ionizing sure to radiation. In other of energy els having thus a different words, only causation can be established capability damaging human cells.29As (if all) epidemiological studies of explained: NRC has exposed ionizing radia- populations always present [NJatural radiation ... tion.27 in the environment. It includes cosmic radiation which comes from the sun and However, epidemiological of ex- studies stars, terrestrial radiation which comes posed populations can establish the Earth, from the internal percentage by given which the incidence of which things. exists all living population cancers in that the rate exceeds typical average individual popula- those same cancers similar the United States from natural back- exposed tions not source of radia- ground sources is about 300 millirems study tion. No can determine whether the per year.30 given cancer of a member of that popula- of exposure
tion the result to a defen- Yet, although general there scientific dant’s or to product radiation released cancer, agreement that radiation can cause *31 from As .facility. a defendant’s we ex- stages we are still at the of rudimentary II, TMI plained “the task of establish- understanding the of etiology cancers.31 greatly by causation is complicated As if not plaintiffs’ this does make task reality given that a of a percentage defined in enough, such cases difficult two addi- population will contract cancer absent even complicate tional considerations further in- any exposure ionizing This radiation.”28 First, quiries already into cáusation. has probability is more of an conundrum even mentioned, been not all radiation has the try to members of compare issue when we energy same can level. Some radiation population exposed a who have been by filtered out barriers no more substan- of natural radiation with members sunscreen, tissue, yet tial than or surface population exposed same who have been capable some radiation is penetrating of plus emanating radiation radiation Thus, proximity lead.32 mere to a source of product facility. from a defendant’s necessarily radiation does establish
Plaintiffs prove who must link an indi- sufficient “absorbed dose” to of particular proximity.33 source radiation was illness to that This vidual’s injuries point by substantial cause their therefore is illustrated the extreme face an insurmountable task that the law fact that of nuclear submarines “[c]rews II, (citations omitted). reading-rm/basicref/glossary/background- 27. TMI at 643 radiation.html, explanation 28. Id. 643-44. For detailed II, major the two sources of natural radiation TMI 31. See F.3d at 644-48. 644-48, doses, average see id. at n,36. 32. See id. at 637 this, 29. For a detailed discussion of see id. ("The per energy Id. at 637 absorbed unit Comm'n, Regulatory 30. U.S. Nuclear Back- mass of material termed the ‘absorbed radiation, ”). ground https://www.nrc.gov/ dose.’ responses to tox- expo- radiation variation individuals’ possibly the lowest have within a few For anyone, despite living part, ic most has exposures.- sure reactor, (or they since impossible impractical) of a nuclear meters been least background radiar exposed quantify, apart to less-natural identify, tease (the shel- rest of us ocean investigato- [ tion than the possibilities using the these them) ], compartment reactor ters and the toxicology, epi- ry tools environmental is well shielded.”34 biochemistry, demiology, conventional genetics.36 classical
Second, difficulty linking poten- pathology-to a de- tially radiation-related Yet, here, as those must such background fendant instead produce evidence that will establish more difficult exponentially is made likely than not injuries their are more genetic pre- have a people fact that some ura caused effluents Defendants’ disposition to associated with ra- diseases any way plant. nium do not see simply I ge- exposure, diation while others given can the current state do w . to protect composition netic that seems the la harmful effects them from otherwise Congress’s Response B. to Causation Indeed, physician one more than radiation. Issues way guard counseled that the best has to. (cid:127) Congress recognized problems against contracting “choose cancer has to. carefully.”35 attempting prove research causation your parents inherent Genetic that; Liability has researchers conclude Actions almost from the even led Public very beginning attempts of our to. harness genetic [P]erhaps a endow- fortunate Energy power The Atomic of the atom. smokers protects lifelong ment some Act of 1946 the Joint Committee cancer, created mis- lung genetic while Energy to. correct the deficien- Atomic lung cancer in some non- chance induces smokers, Act, including genet- cies of the Price-Anderson Both environmental establishing stringent causa- ap- individuals burden ic differences between *32 also for least some of tion.37The was concerned pear responsible the Committee Meehan]; Ass’n, Flynn, Long A Nuclear Radiation see also Debt 34. World Nuclear Michael world-nuclear, Overdue, Effects, htlp://www. of Atomic Scientists 41- Bulletin the and Health (2001) (The Occupa Energy Employees org/informationlibrary/safety-and-security/ 42 Compensation tional Act acknowl Illness radiation-and-health/nuclear-radiation-and- weapons edged health-effects.aspx. workers were "nuclear building put country’s at risk the arsenal.” Warner, See, e.g., to Huber You Wish 35. R. If Acknowledging the difficulties associated with Health, Long Choose Live a Good Time in Your causation, establishing and the “[b]ecause Biological Gerontology: of Carefully, 62A J. Parents government adequately expo track to failed (2007), https:// 575 is. available Sc sites, [the Act] sures at assumes that these _ www.ncbi.nlm.nih.gov/pubmed/17595411; see related, thus re workers' cancers are work Gold, Certainty C. Dissolves Steve When also lieving near-impossible the the of workers Probability; Legal A Cau into Vision Toxic of having prove connection." Fur task of to the Era, &Wash. the 70 sation Post-Genomic for ther, possibility Act “establishes (2013) Lee Rev. [hereinafter L. may be to other sites illnesses added and Gold]. date.’’); see David at a later also Roc cohort chio, Act: Allocation Price-Anderson The of Gold at 258-59. 36. Extraordinary Elec Generated Risk Nuclear of Provision, Meehan, Damage tricity: Price- A Taylor Model Punitive Lessons (1987) Industry Indemnity 538-39 B.C. Envtl. Aff. Rev. Act L. Anderson Nuclear for Models, (citing Hearings Energy Compensatory [hereinafter Rocchio] Clean Future Before Energy on Pro- on Atomic Ins. Joint Committee [hereinafter L.J. Conn. case, plaintiff state of limitation that could ther statutes still to would (cid:127) nullify given claims pathology meritorious because establish that a was caused latency injuries by to exposure caused radiation.38 defendant’s radia- Consequently, radiation, to background tion rather than amendments he- provision redity Act included waiver of or factor. some other Accordingly, various tort in this legislative defenses under law effort was helpful state event an “extraordinary nuclear oc- the exceedingly rare cases where evi- “extraordinary An oc- gap bridged. currence.” nuclear dentiary could be currence” was as: defined In Congress.created the Presiden- [A]ny discharge causing event or dis- tial Catastrophic Commission on Nuclear ..,
persal byproduct material from comprehensive Accidents to “conduct a its place intended confinement study of appropriate means of fully com- offsite, amounts ... which the.Nuclear pensating of a catastrophic victims nuclear Regulatory or the Commission Secre- aggregate accident that public exceeds tary of ... Energy determines liability in the .... statute....”43 In its substantial, Reg- which the Nuclear report final to Congress, the Commission Secretary or the ulatory Commission “sought identify ap- the ‘next best’ Energy ... determines has resulted proach, attaining solution, since the ‘best’ will result substantial dam- probably compensating only those whose cancers ages persons .40 offsite'... other latent illnesses were caused accident, is- not currently possible.”44 provision “This order enacted options assure that included: the victim’s entitlement compensation A, Option be determined under relaxing traditional notions would liability standard, a strict proof instead of the of causation paying something negligence everyone cancer; standard that most state courts gets B, who Option require.”41 The also retaining amendments included and rigorously applying tradi- provision standards, tional state statutes of waived .which would result few, limitation paying claims; C, that were more limited than the if any, Option three-year limit under adopting proxy established sonie direct proof However, causation, Price-Anderson Act.42 over- such imputing group risk arching problem was not im- actually causation develop individuals who can- pacted augment by attempts paying cer statutes those claims where impose limitation or strict liability. ei- association between *33 posed years Amendments to the Act three from the Price-Anderson date on which claim- Relating Cong., Defenses, knew, to Waiver 89th 2d ant reasonably first or have could of (1966), https://www. Sess. 105-07 known, available at injury damage of his or cause Ioc.gov/resource/conghear08.00170174379/? thereof.”). sp= 43. Catastrophic Presidential Comm’n on Nu- 38. Rocchio 539. Accidents, Congress clear. Report to the 2014(j). § Catastrophic 39. 42 U.S.C. Commission Presidential Accidents, (Au- Nuclear Letter to the Senate 40. Id. 1990) gust Report], [hereinafter available at http://www.state.nv,us/nucwaste/news/rpccna/ 41. Meehan at 347. pcrcna02.htm. Id.; (The 2210(n)(l)(F)(iii) § 42. see 42 U.S.C. "any any Act allows issue or defense based on Id. at ch. 44. 4.IV.B. of statute limitations if suit is instituted within in strongest is this a full award determined accor- particular a cancer level), (or Chapter at some or a fixed at least minimum dance with dollar strong is amount, where a association option, actual reimbursement for award, pay- of also required for a “full” expenses.48 medical ing amounts on those claims with lesser adopted Courts have variations these a association.45 somewhat weaker options as discussed below. and other ultimately The Commission recommended However, efforts, prob- these despite provided possible Option C46 and three establishing lem of causation these suits implement not- ways Option, while approach remains because we continue techniques that better can be devel- way approach such the same claims oped in the future:47 asbestos, injuries resulting from defective pay first The would the full amount brakes, pavement, and falls holes any diagnosed proba- cancer where the neighborhood supermarket. aisles of the (PC) bility greater, is .5 or causation Evolving Relaxing declining amount to a cutoff C. down Case Law: Stan- = .2, compensation of PC which dards award, percent be 20 of the full
would responded by imple- Some courts have Chapter determined accordance with menting analytical a more relaxed frame- 3. ap- for these suits. None of these work pay The second variation the full would proaches yet general acceptance, has won diagnosed amount cancer where and each contains certain flaws.49 greater, declining the PC is .5 or and a .2, to a amount down PC at which Preponderance 1. The Rule compensation percent be 30 would very rule is similar preponderance full award. typical preponderance the evi variation, The third which most like requires plaintiff It above, dence burden. A, Option simply pay a would prove activity defendant’s anyone benefit the affected area likely not either diagnosed more than the but-for with a cancer whose radiation causing percent causation or a factor in indicated a PC 20 substantial Congress greater. might plaintiffs injuries.50 equat elect to make Courts have Brinker]; 45. 1303-04 see Ster- Id. [hereinafter ling Corp., 855 v. Velsicol Chemical F.2d option “probability 46. This is known (6th 1988) (“Whereas numer- causation” rule. rejected jurisdictions ous have medical ex- upon perts' 'probability,' based conclusions 4,11. Report 47. at ch. ‘likelihood,’ opinion something likely is ‘more than not’ as insufficient medi- omitted). (citation Id. at ch. 4.IV.B. adopted proof, cal the Tennessee courts stringent proof a far and have less standard following evolving 49. The discussion law required plaintiffs prove only that the causal Rather, survey. not intended as an exhaustive injuries de- connection between their and the examples I mention offer additional preponder- conduct *34 fendant’s tortious problem and some the solutions that have While, ance of the evidence. in accordance suggested. been law, plaintiffs' proof common with Tennessee Brinker, by certainty requires medical Shelly Opening a reasonable 50. the Door to the particular them their Analysis to establish that the Indeterminate An Plaintiff: injuries by Facing likely than not were caused Causation Barriers Tox- more Environmental water, Plaintiffs, ingesting ic Tort 46 UCLA L. Rev. contaminated their
283 likely not” the “more than element ble to isolate effect of ed source, greater to of certainty particular problems this rule a level same preponderance causation approach merely than 50%.51The rule does remain. This suspends for showing proof everyone plaintiffs reduce burden of causation cause-in-fact, if plaintiff pres anyone prove it allows the to else can group All ent individualized and statistical evidence recover on the show causation. based establish that defendant’s that someone recover. However activities should nearly to the likely impossible proving were a substantial contributor burden plaintiffs injury.52 Moreover, remains. if the causation burden any plain can somehow one be satisfied require- of the 50% Because threshold tiff or a plaintiffs, result subset ment, plaintiffs who cannot demonstrate a imposes “crushing on liability” defendants greater than 50% likelihood that defen- some efforts negatively impact could injuries dant caused their do not recover energy find ad alternative sources.54 However, anything. if plaintiffs are able dition, plaintiffs this approach allows show, example, for that defendant is re- injury genetic whose is due probably sponsible causing injuries to 51% of the background along radiation to recover with exposed population, every plaintiff recov- injury to those who can trace their though ers even only proved evidence But, disputed that one or source. the fact that 51% of exposed the individuals in the plaintiffs given more have in a population injuries population suffered de- because given injured by exposure source been fendant’s activities. certainly everyone does not mean that is basically way This causation Yet, population everyone has been. now in Pennsylvania, determined as ex along on of those would ride the claims of Rost plained Majority’s in the discussion proximately can who show a defendant Co.,53except v. Ford Motor that it allows injury. caused his/her if group recovery any group member of group showing is successful in his/her Proportionality 2. Rule (i.e. proximately disease caused probability) by 51% a defendant. (cid:127) have Alternatively, courts used some presumes problems proportionality There are several obvious rule. This rule above, As approach. explained statisti- plaintiff presents causation when everyone likely that a population showing because will cal exposed during injury have been to radiation an defendant’s activities caused lifetime, yet possi their and since it is not in the proportion of the individuals ex- proofs may speculative conjec- compensation be neither nor comes entitled full those ,.. tural.’’). damages ‘probable’ proved that are (a chance), greater percent but is not than 50 compensation proof if does entitled to Agent Orange Litig., re Prod. 51. In Liab. greater percent not establish than (E.D.N.Y. 1984), F.Supp. 835-37 aff'd chance.”), Agent Orange Litig. sub nom. In re Prod. Liab. 1987) No. F.2d 145 MDL Cir. 52. Id. at 835. (quoting Jackson Sales Johns-Manville (5th 1984), Corp., F.2d Cir. Rost, (5th 1985)) Maj. Op. (citing (The 53. See at 266-68 reh’g, rule " A.3d provides nothing’ approach, 'all or [assuming whereby all other elements of the proven], plaintiff cause of be action are at 1309-10. Brinker
284 approach may, This at is not the same as- causa-
posed population.55 that correlation Allen held Yet, using this first, approach, tion.58 Pennsylva- to also resemble appear that proximity” “frequency, regularity and nia’s [wjhere However, pure implementa- negligently a a
test.
under
defendant who
rule, plaintiffs
radiological
puts
proportionality
tion of
a
hazard which
this
creates
in-
present
to
population group at
required
are not
individualized
an identifiable
.risk,
a
that
alleged
creased
and
member
proof.
example,
plaintiffs
For
-if100
.of
group
develops
biological
at risk
a
condi-
of
disposal
hazardous
defendant’s
having
tion
is consistent with
been
which
injury
their
risk
wastes
and
caused
he has
by
caused
hazard
which
injury
exposed pop-
in the
developing such
subjected,
negligently
such consis-
been
55%,
every plaintiff
ulation
then
will
having
by
tency
been
sub-
demonstrated
However, plaintiffs
like-
will
recover 55%.56
stantial,
persuasive
appropriate,
complete recovery under
ly. never obtain
factors,
may
connecting
fact
finder
addition,
regime.57 In
rule
a tort
such
this
reasonably
conclude
hazard
injuries
plaintiffs
whose
still allows
persuasive
the condition
caused
absent
likely
primarily to
attributable
deaths were
contrary
proof to the
offered
(or
genetics
background
radiation
defendant.59
two) to
recover.
combination
undertaking
inquiry,
this
fact
Rule
3.
A
..The We»
following
finder
non-exhaus-
considers
District
for the
tive list
factors:
States
Court
The United
option
presented another
(1)
District of.Utah
plaintiff
was ex-
probability
States,
Allen
which involved
v. United
ionizing
posed
due
nucle-
arising
testing.
atmospheric
from
dispute
testing
from atmospheric
fallout
ar
shifting. A
resorted
burden
...
That
Test Site at rates
excess
court
liability
radiation;
(2)
if
arises
presumption
background
natural
rebuttable
show a correlation
plaintiff
injury
type
can
between
is of
plaintiffs
consistent
injuries
by expo-
the increased risk
known to be caused
his or
with those
her
radiation;
negligent
re-
plaintiff
defendant’s
sure to
resulting
from
geographical proximity
problem
here is
resided
lease of radiation.
injuiy.
example,
tiffs’ risk of
For
assume
1313.
55.
Id. at
chemical
increases the risk
cancer
15
among
percent
exposed
those
to the toxin. All
Labs., 26
Abbott
Cal.3d
56.
v.
Sindell
exposed
this chemical
who later came
(1980); see
Cal.Rptr.
607 P.2d
cancer would be entitled to recov
Court,
down with
Superior
Cal.App.4th
Cottle v.
percent
damages
of their
er 15
total
(1992) (Johnson, J., dis
Cal.Rptr.2d
responsible
exposure.").
those
(“Instead
choosing
senting)
between
overcompensation
no com
extremes
(citation omitted).
at 1318
57.
plaintiffs
Brinker
pensation
all this solution allows
damages
percentage of
to recover a
their
height
exposure
example,
responsible for their
to the
For
males and fe-
those
58.
they play profes-
respon
this
correlates
whether
toxic. Under
formula defendants
males
However, playing profes-
exposure
sional basketball.'
toxic
liable to all
sible for
are
.
players
basketball
cause
exposed
sional
does
were
and later suffered
those who
grow taller.
may
injury including
those who
suffered
—
injury
had never
near the
even
come
if
States,
F.Supp.
But
liable
defendants
toxic substance.
Allen
United
(D.
1984),
plaintiffs’ damages equal
grounds,
percentage of
Utah
rev’d on other
for a
(10th
plain
increased
sure radiation fac- age special tors such as or sensitivities III. CONCLUSION tissue, organ of the afflicted or retroac- For explained, my reasons I have con- internal or dose tive external estimation cerns about some of District Court’s researchers, by latency current period rulings are not to me sufficient cause to etiology, consistent with or in granting conclude that the court erred an observed statistical of incidence summary judgment against these Plaintiffs greater alleged injury expected than the dismissing complaint. Problems in the same population.60 incidence (and thereof) with the Plaintiffs’ lack proof yule problem this here that because of trying pro- Herculean task to presents several factors that courts can enough get to duce a fact consider, consistency may be elusive and on finder of simply the issue causation are addressing substantially courts identical too claims to formidable these survive. may circumstances different results. reach IAs explained, have this will almost Nevertheless, approach appears this to be always supreme be the case until state promising most and the most consis- courts, legislatures Congress state and/or of tent with the realities the risk created way fairly devise more address the by activity expose population that can very dangers posed real and by substantial may the only radiation. It be that realis- exposing activities that the risk of increase approach compensate tic is to an identified ionizing communities to radiation. Howev- population for risk the increased occa- er, here, I yet agree since that is not day not, activity. I given sioned do howev- summary that Defendants were entitled er, suggest nagging questions that such judgment. I only hope can that the dues identify- compensation, the amount pay living for the comforts of risk, population is at increased age day require atomic will one us or countless other lend factors themselves forego remedies for the harmful effects easy equitable resolution. byproducts nuclear modern- approaches yet None of these ization, trying to which we are still under- and, gained acceptance wide as should be stand. discussion, evident from this none these Rather, approaches perfect. is close to
they are sorely attempts adopt needed
(or augment) requir- rules traditional
ing a direct cause-in-fact rela- and linear Id/, (Second) up operation see ous to the of the Torts and active time also Restatement ("The harm, § following a situation harmless considerations has created upon by are in combination unless other for which themselves or in with one acted forces (c) determining lapse important responsible; another whether the actor- is not time.”); (proposing spe- is a substantial fac- see also [defendant's] conduct O’Connell (a) bringing proportionality tor in cies tests that allows com- about harm another: pensation upon number other which contribute in based increased risk once factors producing the harm risk exceeds a certain threshold. The thresh- extent it; (b) is, course, producing policy effect which have in old matter and can be hearings legislatures has whether actor’s conduct created a determined after issue,). force or series of forces are in which continu-