Panel Refuses to Revive Lawsuit Linking Child Cancer to Aerospace Plant

The Elbert P. Tuttle U.S. Courthouse in Atlanta, home of the 11th Circuit Court of Appeals. (Photo via Eoghanacht/Wikipedia Commons)

ATLANTA (CN) — The family of a 20-year-old woman who died after developing a brain tumor as a child cannot sue the Florida aerospace company they claim exposed her to radioactive chemicals, an 11th Circuit panel ruled Monday.

A unanimous three-judge panel of the Atlanta-based appeals court upheld a Florida federal court’s order tossing out the 2014 lawsuit brought by the family of Cynthia Santiago, ruling that state law required the family to file their lawsuit against Pratt & Whitney within four years of Santiago’s 2009 cancer diagnosis.

During oral arguments before the Atlanta-based appeals court in April, an attorney for the Santiago family argued that the lower court applied the wrong statute when deciding whether the case was time-barred.

Santiago was diagnosed with brain cancer in November 2009 at the age of 13 while living in The Acreage, a Palm Beach County community which has become notorious for its elevated levels of brain cancer among children and teens.

Santiago and her family lived in a home located about 10 miles from an undeveloped tract of land owned by Pratt & Whitney. The company conducted research and development tests on the site, which contaminated the soil.

According to the family’s complaint, Pratt & Whitney excavated tens of thousands of tons of contaminated soil from the area between 1993 and 2000. The soil was later sold as fill soil and used in the construction and development of The Acreage community.

The family says runoff from the contaminated soil leached into The Acreage’s water supply, eventually exposing Santiago to a radioactive isotope known as radionuclide.

More than a dozen children developed brain cancer in the community of less than 40,000 people between 2001 and 2009. A subset of the cases were designated as an official pediatric cancer cluster by Florida health department officials in 2009.

When Santiago turned 18 in March 2014, she sued Pratt & Whitney in Florida federal court. Her family took up the case after her death, alleging that the company caused Cynthia’s wrongful death through negligence and trespass.

On Monday, the 11th Circuit rejected the family’s attempts to revive the lawsuit, finding that a discovery-tolling provision in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, a federal statute abbreviated as CERCLA, does not apply in the case because the lawsuit was filed months after Cynthia turned 18 and discovered the cause of her cancer.

The panel found that CERCLA’s tolling provision applies only to actions brought under state law for personal injuries which are “caused or contributed to by exposure to any hazardous substance.” The family’s lawsuit instead qualifies as a public liability action arising under the Price-Anderson Act, the court held.

“The trouble with the argument is that public liability actions cannot be ‘brought under state law,’ as § 9658 requires. Because this action was instead brought exclusively under federal law — the PAA — the Santiagos cannot avail themselves of CERCLA’s discovery-tolling provision,” Senior U.S. Circuit Judge Stanley Marcus, a Bill Clinton appointee, wrote on behalf of the panel.

“Congress left no room for the Santiagos’ argument — instead, as we have explained, Congress directed that all public liability actions must be brought only under federal law,” Marcus wrote.

An attorney representing the Santiago family did not immediately respond to a request for comment.

Marcus was joined on the panel by U.S. Circuit Judge Robert Luck, a Donald Trump appointee, and Chief U.S. Circuit Judge Ed Carnes, a George H.W. Bush appointee.

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