DOE/Contractor Conference Fall 2006 Toxic Tort Defense, Nuclear Facilities and the Price-Anderson Act A. Toxic Tort Civil Suits 1. Typical claims: (a) Causes of Action – state common law – negligence, gross negligence, nuisance, trespass, strict liability. (b) Contamination of persons, property, air and/or water by toxic agents – e.g., PCBs, dioxins, asbestos, silica, benzene, beryllium. (c) Resulting in personal injury, fear of personal injury and/or property damage. 2. Any substance is toxic – depending on exposure and dose. In industrial society, there are at least trace amounts of toxic agents everywhere – in everything, in everyone – e.g., there are PCBs in the tree bark on Isle Royale; the FDA finds and measures the amount of each chemical found in each supermarket food. 3. Where and how to defend and win toxic tort claims on the facts. Toxic tort suits can be won – even suits involving the most hazardous substances filed in the most plaintiff-friendly venues. Plaintiffs’ attorneys “link” a claimant’s ailments and the presence of a hazardous substance glossing lightly over “causation.” Proximate causation is an element of tort causes of action. Proof of causation often is the Achilles heel of the Plaintiff’s toxic tort case. Focus on lack of causation – investigating each of the three types of causation: a. generic causation – exposure to and doses of even massive amounts of that substance (the substance alleged) do not cause the ailments complained of. b. specific causation – the trace amounts of that substance (either exposure or dose) did not actually cause this plaintiff’s ailments. c. alternative causation – science and medicine know substance X causes these ailments. We know this plaintiff was exposed to and received massive doses of substance X. 4. Opportunities to test and expose Plaintiff lawyer science. Each aspect of Plaintiffs’ science may be suspect. Scrutiny of Plaintiffs’ measurements, calculations and linkage may bar the evidence or strip it of all credibility. a. Daubert-type. Federal courts and some state courts will bar as “junk science” Plaintiff-sponsored causation opinions that fail to meet Daubert-type standards. b. Assault on Plaintiffs’ experts and science. Plaintiffs’ experts and their opinions are often slickly packaged and professionally presented. Much of the Plaintiff-sponsored efforts on causation may rest, however, on improper assumptions, sloppy test protocols, inaccurate calculations or worse. Examples: a. asbestos doctors b. silicosis Texas opinion c. Mississippi “conversion factors” Be prepared to directly confront both Plaintiffs’ experts and their science. B. Toxic Tort suits at nuclear facilities in the shadow of the Price Anderson Act. 5. If the tort claims involve events that took place on a federal enclave, the Price-Anderson Act provides an independent basis for federal jurisdiction. (The Golden case infra was so removed.) 6. The Price-Anderson Act vests jurisdiction in the federal courts over any “public liability action arising out of or resulting from a nuclear incident.” 42 U.S.C. $ 2210(n)(2). A “public liability action” is defined as a suit asserting in “any legal liability arising out of or resulting from a nuclear incident.” 42 U.S.C. $ 2014(2), (hh) The Price-Anderson Act provides that, for any public liability action covered by the Act, the United States district court in the district where the nuclear incident takes place, or in the case of a nuclear incident taking place outside the United States, the United States District court for the District of Columbia, shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy. Accordingly, public liability actions filed in state court may be removed pursuant to 28 U.S.C. $ 1446(a). 42 U.S.C. $ 2210(n)(2) 7. The 1988 amendments to the Price-Anderson Act were to: 1) expand and increase the pool of funds available to victims of a nuclear incident; and 2) extend and clarify parts of the existing Price-Anderson scheme. In cases arising under the Price-Anderson Act, “the substantive rules for decision … shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the [Price- Anderson Act].” 42 U.S.C. $2014(hh) Inconsistent state laws will not be applied and are preempted. The Price-Anderson Act does not displace state tort law on issues of liability and recoverable damages for nuclear accidents. Kiick v Metropolitan Edison Co., 784 F.2d 490 (3d Cir. 1986) Federal nuclear safety standards provide the sole measure of defendant’s duty in public liability cause of action. O’Connor v Commonwealth Edison Co., 13 F.3d 1090 (7th Cir. 1994) Federal law governs the nuclear safety standard of care for tort claims arising from nuclear accidents. In re TMI Gen. Pub. Utils. Corp., 67 F.3d 1103 (3d Cir. 1995) The Price-Anderson Act requires a physical injury before a plaintiff may recover for an accompanying emotional injury. See In re Berg Litig., 293 F.3d 1127, 1131 (9th Cir. 2002) Punitive damages are not available under Price-Anderson Action. Kiick v Metropolitan Edison Co., 784 F.2d 490 (3d Cir. 1986) Congress phased out the federal indemnity for nuclear incidents at commercial facilities as part of its 1975 amendment and extension of the Price-Anderson scheme. See Pub. L. No. 94-197, 89 Stat. 111 (1975); S. Rep. No. 100-70 at 15 (1987), reprinted in 1988 U.S.C.C.A.N. at 1428. This second-tier of Price-Anderson financial protection was replaced by an industry-funded self-insurance pool consisting of “retrospective premiums” paid by NRC licensees in the event of an accident exceeding the coverage available from private insurance. See Pub.L. No. 94-197, 89 Stat. 1111 (1975); S. Rep. No. 100-70, at 15 (1087), reprinted in 1988 U.S.C.C.A.N. at 1428. 8. In Cook v Rockwell, et. al., Plaintiffs filed suit in the U. S. District Court for Colorado. Plaintiffs were landowners near the Rocky Flats Arsenal who claimed property damage from releases of plutonium and other hazardous substances. Case was litigated for 15 years against former Rocky Flats contractors, Dow Chemical and Rockwell International. The DOE was found in contempt for discovery transgressions. There was extensive media coverage in Colorado. Plaintiffs’ lead counsel described it as the “most frivolous and expensive defense, possibly in class action history.” Defendant’s counsel said DOE viewed the cases “as frivolous.” Plaintiffs’ claims were tried to a jury in Denver. There was the predictable assortment of experts – on nuclear weapons plant operations, epidemiology and real estate. In February, 2006, the jury returned a verdict on liability for Plaintiffs against the Defendant contractors, awarding compensatory damages of $345,000,000 and punitive damages of an additional $200,000,000. Total verdict was $545,000,000. The contractor defendants have appealed to the 10th Circuit. 9. In Golden v CH2M Hill, Plaintiffs filed suit in State Court in Washington, claiming personal injuries from nuclear hazardous releases at the Hanford Nuclear Reservation Tank Farms. There had been a series of investigations by GAP, DOE and the Washington Attorney General involving alleged hazardous releases at the site. Plaintiffs alleged common law tort claims; the alleged hazardous releases included radiological releases. CH2M Hill, a Hanford contractor, removed the case to U.S. District Court for Eastern District of Washington, asserting that Hanford is a “federal enclave.” After discovery and shortly before trial, the District Court dismissed Plaintiffs’ claims finding that Plaintiffs had failed to link up the hazardous releases to their personal injuries with proof of causation as required under both state common law and the amended Price-Anderson Act. Plaintiffs have appealed to the 9th Circuit. 6. In Cook, the District Court held that the 1988 amendments to the PAA “Congress intended for state law, including state standards of care, continue as the substantive law …” 273 F.Supp. 2d 1175, 1188 (2003) The Court applied Colorado state law on trespass, nuisance, threat of future harm and damages. 273 F.Supp. 2d 1175 7. At the Cook trial, Plaintiffs told the jury of years of plutonium horror at Rocky Flats. “… “lies,” “cover-ups,” “nuclear contamination,” and “2600 missing pounds of plutonium”” Defendants responded with a high-powered, “multi-media,” defense, telling the jury: “This facility was not up to snuff, but it was not up to snuff not because people were asleep at the switch …. It was a complicated balancing situation.” Trial continued for four months, resulting in the “largest environmental award in Colorado history.” 8. (a) Cook did apply the federal nuclear safety standard of care under the PAA 273 F. Supp 2d 1175 (2003). Thus, the application of some state tort law standards and some federal nuclear safety standards in nuclear facility toxic tort suits likely remains to be argued in motions and in jury instruction conferences. (b) As such, toxic tort suits under the PAA will be won or lost the same way that other toxic tort suits are won or lost – jury selection, trial themes, courtroom advocacy and the facts of causation – generic causation, specific causation and alternative causation. The cases may be litigated in the federal district courts, if the Defendants prefer. (c) We have not included an analysis of defendant reimbursement.
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