Sailors Ask Ninth Circuit to Revive Fukushima Class Action

(CN) – A three-judge panel in the Ninth Circuit considered Tuesday whether a U.S. federal court has jurisdiction over negligence and wrongful-death claims brought by hundreds of U.S. sailors exposed to radiation while rendering humanitarian aid in Fukushima, Japan, following a 2011 tsunami and nuclear meltdown at the Fukushima Daiichi nuclear power plant.

U.S. District Judge Janis Sammartino, a George W. Bush appointee, tossed two class actions last year brought against Tokyo Electric Power Company, or TEPCO – the operator of the power plant – and nuclear reactor manufacturer General Electric, finding Japan should have jurisdiction over the claims.

Smoke billows from wrecked unit 3 at Fukushima Daiichi nuclear power plant in northeastern Japan in 2011. (Tokyo Electric Power Co./Kyodo News via AP, File)

The sailors sued the nuclear power companies in 2012 and again in 2017 over claims they have 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 during Operation Tomodachi.

Former Senator John Edwards, representing the sailors, said Tuesday the claims against GE were brought by “American sailors, with a case against an American corporation, for a product designed in California” and that California – not Japanese law – should apply to the personal injury case.

But when pressed by Senior Circuit Judge Jay Bybee, a George W. Bush appointee, Edwards could not specially name a similar case.

“I think everyone in this courtroom would agree this is a unique situation,” Edwards said.

“What happened here is we have hundreds of sailors, sent at the request of Japan by the president of the United States to another jurisdiction. They didn’t choose to go there; they chose to serve their country,” Edwards said.

Edwards argued that because the sailors were exposed to radiation from Fukushima’s nuclear power plant while aboard U.S. vessels, the injury happened on U.S. soil, according to The Convention on the High Seas international treaty.

Edwards’ co-counsel Cabral Bonner argued via videoconference that U.S. District Judge Janis Sammartino abused the court’s discretion by failing to give the U.S. “due deference” in not giving equal weight to a brief by the U.S. government regarding where the case should be tried.

When asked by Bybee if there was anything to suggest Japan could not administer its nuclear injuries compensation program, Bonner pointed out TEPCO and GE had not confirmed what, if any, amount of the more than $70 billion in compensation paid by the Japanese government for claims related to the Fukushima disaster had settled personal injury disputes.

Bonner said most of the claims were brought by businesses, not individuals.

He added the people, witnesses and documents associated with the claims were in the U.S. and the case should be tried in California.

But Munger Tolles & Olson partner Mark Yohalem, representing TEPCO, said Sammartino did consider the U.S. interest in the case before deciding Japan’s interest tipped in its favor.

“What really has changed?” asked Circuit Judge Kim McLane Wardlaw, a Bill Clinton appointee, in seeking to understand the Southern District of California judge’s dismissal.

“Japan’s interest has grown stronger,” Yohalem noted, pointing to the increasing payouts Japan has made under its Compensation for Nuclear Damage Act.

But when Wardlaw inquired if the sailors’ claims would be foreclosed in Japan by the statute of limitations attached to its compensation act, Yohalem surprised the judge by saying he believed TEPCO would be willing to waive it so the claims could be considered.

Arnold & Porter attorney David Weiner, representing GE, said no other Fukushima lawsuits have been allowed to move forward outside of Japan because of the importance in the country maintaining how nuclear damages liability is handled.

He said the design and manufacturing of GE’s nuclear reactors in California did not have bearing on the case.

“Even if plaintiffs had alleged there was design work done in California, when you evaluate who is most impaired, application still falls in favor of Japanese law,” Weiner said.

But on rebuttal, Edwards pointed out no factual discovery had been conducted in the case, which would reveal the contractual relationship between TEPCO and GE.

“Does it not bother you that there are literally no facts except allegations of a complaint eight years later?” Edwards asked the judges.

He pointed out the plaintiffs cited reporting by The New York Times “because it’s all we know.”

Senior Circuit Judge A. Wallace Tashima, a Bill Clinton appointee, rounded out the panel.

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