SAN DIEGO (CN) – Hundreds of American sailors who filed two class actions claiming to have suffered physical abnormalities, cancer and death stemming from exposure to radiation while on a humanitarian mission to Fukushima, Japan in 2011 were dealt a blow Monday when their cases were dismissed, paving the way for their claims to be brought in Japan.
U.S. District Judge Janis Sammartino found in a “close call” in two separate orders, class actions brought against Tokyo Electric Power Company, or TEPCO, and General Electric, should be dismissed without prejudice so the service members’ claims could be brought in Japan if they choose to revive them.
The Navy sailors brought two class action cases against TEPCO and GE in 2012 and 2017 over claims they’ve suffered – or will suffer in the future – serious physical injuries, cancer and death due to radiation they were exposed to while serving on the USS Ronald Reagan.
The sailors were sent on a humanitarian mission to deliver aid and supplies following the earthquake, tsunami and nuclear meltdown of a reactor designed by GE and operated by TEPCO that followed the natural disaster in Fukushima in March 2011.
Sammartino previously dismissed the 2017 class action without prejudice, finding the court lacked jurisdiction over the acts related to the meltdown of the Fukushima-Daiichi Nuclear Power Plant.
In November, the parties gathered in Sammartino’s courtroom to argue whether or not the Southern District of California had personal jurisdiction over the claims, which could be brought in Japan under its Compensation for Nuclear Damage Act.
Under Japan’s Compensation for Nuclear Damage Act, GE, as manufacturer of the nuclear reactor, is shielded from liability which falls on the operator of a nuclear plant. Claims can still be brought against TEPCO, however, which has already paid over $70 billion to compensate those affected by the disaster.
Former Sen. John Edwards, an attorney for the class members, previously told Sammartino if the cases were dismissed in the U.S., the sailors wouldn’t “go to Japan and hire Japanese lawyers,” effectively foreclosing their claims.
In her order Monday, Sammartino found under choice-of-law that Japanese law should apply to the claims after weighing the competing interests of California law, which would include product liability claims against GE, and Japanese law, which has an interest in imposing liability “based on and consistent with the Compensation Act” and Japan’s “large investment in responding to the disaster.”
While the judge found both jurisdictions have a “strong interest” in its laws being applied to the claims, Japan’s interest outweighs California’s.
“The court finds no convincing support for plaintiffs’ assertion that Japanese law will leave them with ‘minimal and insufficient damages’ requiring the U.S. Government or California to pick up the financial balance,” Sammartino wrote.
“While plaintiffs’ contention that litigating in the Japanese forum will be exponentially more difficult than litigating in California may be true, plaintiffs have shown no law or facts that indicate that the Japanese forum is closed to any of the named, or unnamed, plaintiffs,” she added.
Sammartino dismissed the claims against GE pursuant to the Compensation Act.
As for the claims against TEPCO, Sammartino echoed her findings regarding the claims against GE finding Japan would be “more impaired” than California if its laws were not applied to the sailors’ claims, especially in light of the Japanese government’s creation of the Nuclear Damage Compensation and Decommissioning Facilitation Fund, NDF, providing $75 billion to TEPCO to resolve claims stemming from the nuclear disaster.
“The Japanese government explained that if United States’ law is applied, it could result in inconsistent adjudication of claims, which would be ‘highly corrosive to the integrity of the compensation system,’ not only for reasons of fairness to the claimants, but also the continued viability of funding of the NDF,” Sammartino wrote.
The class members are represented by former Sen. John Edwards and Catharine Edwards with Edwards Kirby in North Carolina, Charles Bonner and Cabral Bonner of Sausalito, California and Paul Garner of Carlsbad California.
Garner called the dismissal an “incredible travesty of justice.”
“Any suggestion that these U.S. humanitarians, who are sick and dying, are able to or can receive meaningful compensation in Japan is a total fiction. We intend to take further steps to obtain our clients’ American constitutional rights to seek redress for the defendants’ admitted culpability for their wanton harm in the United States justice system,” Garner said in an email.
TEPCO is represented by Gregory Stone with Munger Tolles and Olson.
Ryounosuke Takanori, a global communications manager for TEPCO, said in an email: “We understand that the court agreed with our view. We will look into the court’s ruling and continue to respond to this case appropriately.”
GE is represented by Michael Schissel with Arnold & Porter Kaye Scholer.