Mining Company Wins Dismissal of Cancer Case

     (CN) – The 10th Circuit rejected a tort claim against a mining company, saying residents and workers failed to prove they got cancer from the company’s uranium mine in New Mexico.

     Several people sued the Homestake Mining Company, claiming that radiation from uranium extraction at a Cibola County mill caused them to develop numerous health problems, including cancer. Some allegedly died from the exposure.
     Three of the plaintiffs submitted expert testimony alleging that exposure to radiation was a substantial contributing factor to their cancer.
     A federal judge ruled that state law requires a stricter test to prove causation, which the plaintiffs failed to meet.
     This stricter test, often called the “but-for” clause, requires the plaintiffs to prove they would not have gotten cancer had they not been exposed to the radiation.
     In separate opinions, each of the three judges in the Denver-based panel agreed that the “but-for” test applied under state law, and that the plaintiffs did not meet this higher standard.
     Judge Monroe McKay wrote that absolute certainty is not required, just “proof to a reasonable degree of medical probability.” He cited a doctor’s claim that all plaintiffs had a less than 50 percent chance of getting cancer from the radiation.
     Calling the state’s “but-for” standard a “substantial hurdle” for toxic tort cases, Judge Carlos Lucero elaborated the manner in which it could be met.
     “[T]he incantation of magic words is not required,” he wrote, referring to a doctor’s use of the phrase “substantial factor,” but doctors must believe that a plaintiff would not have gotten sick had it not been for the negligence of the defendants.
     Judge Jerome Holmes added that the “but-for” test is the only causation test that should apply in this case.
     The panel granted summary judgment to the defendant mining company.

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