Limits Set on Theories of Nuclear Exposure

PITTSBURGH (CN) - More than a hundred people suing nuclear plant operators must limit their claims to exposure to and inhalation of enriched uranium, a federal judge ruled.

Nuclear Materials Corp. operated two nuclear materials processing facilities in the Borough of Apollo and Parks Township, Pa. That company's successors - Babcock & Wilcox Technical Services Group, B&W Technical Services, and Atlantic Richfield Co. - face nine complaints from area residents who say the plant released toxic waste that made them sick.

Consolidated in the Western District of Pennsylvania, the companies recently accused the residents of disobeying a case management order (CMO) that required them to support their claims with expert affidavits or other such evidence.

Named for the 1986 New Jersey Superior Court decision Lore v. Lone Pine Corp., courts use Lone Pine orders to manage complex discovery issues in mass tort litigation.

After submitting six expert reports this past April and May, the residents said they made a proper prima facie case of recklessness under Pennsylvania law and the Price-Anderson Nuclear Industries Indemnity Act (PAA).

U.S. District Judge Robert Mitchell concluded last week, however, that these arguments "miss the mark."

"Defendants are not arguing that plaintiffs have violated the Lone Pine CMO by failing to present any evidence that any plaintiff suffered radiation from any facility operated by defendants that increased the risk that the individual would contract any cancer, thereby calling for the dismissal of the cases utilizing a standard higher than required under Pennsylvania law or the PAA," Mitchell wrote. "Rather, they are arguing, as anticipated by the CMO, that plaintiff's claims should be narrowed to proceed with the prima facie cases that are met, but not for the radionulides, pathways and exposure doses that are not supported by prima facie evidence."

The companies argued that the expert reports failed so show that the Apollo facility released any radionuclide besides uranium. They asked the court to narrow the issues by holding uranium as the only relevant radionuclide with regard to "exposure, dose, or causation."

Mitchell agreed, finding that the experts did not present prima facie evidence of exposure through pathways other than airborne exposure to uranium.

Though the residents admitted that they are not seeking damages for exposure to radionuclides related to the Shallow Land Disposal Area, they rejected assertions that they had abandoned this claim.

Mitchell found that the evidence limits claims to the Apollo facility, but he said the residents need not present specific dates of exposure.

As the plaintiffs showed, "there was no 'event' such as the accident at Three Mile Island to pinpoint a date of exposure," according to the 28-page ruling.

Identifying the dates of operation at the Apollo facility is narrow enough, Mitchell said.

The court also upheld evidence that "no level of ionizing radiation exposure has been found to be non-carcinogenic in humans." The plaintiffs can pursue their claims even without a specific dose calculation as to each individual.

"Although plaintiffs have not presented prima facie evidence of each plaintiff's specific dose of exposure, such omission shall not preclude them from pursuing their cases relating to an airborne exposure to highly enriched uranium from the Apollo facility during its years of operation," Mitchell wrote.

Without epidemiological evidence, however, the plaintiffs use expert testimony that highly enriched uranium can cause the cancers experienced by the plaintiffs.

Mitchell limited the expert testimony to state that highly enriched uranium "could be expected to constitute a substantial contributing factor towards the causation of plaintiffs' cancers."

Though the companies slammed the experts for presenting "merely generic theories as to how plaintiffs, as a group, were supposedly harmed," the court said there was some evidence in support of the claims.

"However ... they have not produced scientific and medical evidence providing the basis for and supporting each of the prima facie elements of each plaintiff's claim," Mitchell wrote. "They will be required to proceed with the evidence they have produced as to the prima facie elements of each plaintiff's claim."

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