First Circuit Readies Blow for Fukushima Victims Suing GE

The Fukushima Daini Nuclear Power Plant in Tomiokamachi, Fukushima Prefecture, is seen on Aug. 10, 2006. (Kyodo News via AP, File)

BOSTON (CN) – Victims of the Fukushima nuclear disaster struggled Tuesday to make their case for the First Circuit to revive a lawsuit against the plant’s U.S.-based designer, General Electric Co.

“I’m having great difficulty seeing” why the case should go forward, U.S. Circuit Judge William Kayatta Jr. flatly said, interrupting the plaintiffs’ attorney, Earl M. Forte, almost as soon as he started speaking.

An attorney with the Philadelphia office of Eckert Seamans, Forte seeks compensation for more than 150,000 Japanese individuals and businesses who were “economically devastated and literally ruined” in March 2011 when an earthquake and tsunami overwhelmed the Fukushima nuclear plant, causing an explosion and a massive release of radiation.

The plaintiffs, led by Shinya Imamura, claim that GE was responsible for the plant’s maintenance, in addition to having designed it, and were negligent in choosing a site for the plant with a “long-recorded history of very large earthquakes and tsunamis.”

Chief U.S. District Judge Patti Saris dismissed the suit in April, concluding that an adequate remedy for the plaintiffs’ injuries exists in Japan. They now seek a reversal from the First Circuit in Boston.

Though Japan adopted a compensation system after the Fukushima disaster in which affected people and businesses could bring claims against TEPCO, short for the Tokyo Electric Power Co., the plaintiffs claim that they have no adequate remedy for their claims against GE since the law in Japan entitles them only to sue TEPCO.

But Kayatta, an Obama appointee, said he didn’t see why this mattered. “I see no argument that the loss can’t be adequately compensated for in Japan,” he said. “If you can recover your loss in full, how can you say that’s not an adequate remedy?”

U.S. Circuit Judge Juan Torruella, at age 86 the senior judge on the three-judge panel, raised another problem: Even if the case could be tried in the U.S., he said, an American court might still have to apply Japanese law – in which case the suit would end up getting thrown out anyway.

Forte responded that it wasn’t clear whether American or Japanese law would apply, and the plaintiffs should be allowed to proceed to trial and find out.

But U.S. Circuit Judge Sandra Lynch, a Clinton appointee, peppered Forte with questions trying to pin him down on why the TEPCO remedy wasn’t adequate.

“If we could be fully compensated” in Japan, Forte insisted, “we wouldn’t be here.”

But Lynch said that wasn’t a good enough answer, and wanted to know what specific types of damages were available in the U.S. but not from TEPCO.

“You have to have something other than simply pressuring GE into a settlement – some form of damages,” Lynch stated, added that it wasn’t enough simply to claim that “the Japanese amounts are too low.”

Forte struggled to come up with an answer, finally replying that the TEPCO system is “opaque” and that there are few public records showing what plaintiffs in Japan actually receive.

Arnold & Porter attorney David Weiner argued the case for GE. The judges mostly listened quietly to his arguments and asked him only a few questions on minor points.

The court gave no indication as to when it would issue a ruling.

Japan’s government ultimately plans to make about $121 billion available for the TEPCO compensation fund. As of this past February, TEPCO had paid out about $79 billion in claims.

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