Wednesday, June 19, 2002
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Ninth Circuit Backs Lenient Standard of Causation in Radiation Case
By KENNETH OFGANG, Staff Writer/Appellate Courts
Thousands of “downwinders” who claim to have illnesses caused by emissions from the Hanford nuclear reservation in Washington state do not have to prove that they were exposed to a “double dose” of radiation, contrary to the ruling of a federal district judge, the Ninth U.S. Circuit Courts of Appeals ruled yesterday.
In a pair of decisions yesterday, a three-judge panel revived claims dismissed by U.S. District Judge Alan McDonald of the Eastern District of Washington in 1999, saying the district judge held the plaintiffs to a stricter standard of proving causation than was appropriate in the early stage of the litigation.
More than 5,000 plaintiffs sued after the federal government admitted for the first time, in 1990, that secret radiation releases at Hanford from 1945 to the early 1960s could have harmed people living downwind of the south-central Washington site.
The plaintiffs claim to have developed various types of cancer and other illnesses as a result of exposure to contaminated food, milk and water or from swimming in the Columbia River or breathing chemically polluted air. They sued the five companies that operated Hanford under federal contract at various times between 1943 and 1987—E. I. Du Pont, General Electric, UNC Nuclear Industries, Atlantic Richfield, and Rockwell International.
Potential Recovery
The district judge characterized the potential recovery in the litigation as “almost staggering.”
Hanford was established as part of the top-secret Manhattan Project to build the atomic bomb during World War II. The plutonium used in the atomic bomb that struck Nagasaki was made there.
McDonald divided the pretrial portion of the litigation into three phases. In the first phase, which was projected to last a year but dragged out until 1995, the plaintiffs were to obtain information about Hanford’s operating and emissions history, and the defendants were to conduct discovery pertaining to plaintiffs’ exposures, medical histories, and relevant illnesses and injuries.
Phase II discovery was to focus on causation issues, include designation of expert witnesses and exchange of their reports, and to conclude with dispositive motions on causation issues. General liability and any other issues were to be addressed in Phase III.
In Phase II, McDonald adopted the plaintiffs’ proposal to divide discovery into two parts, beginning with issues of “generic causation” and then going on to “individual causation.” But the parties disagreed as to what constituted which.
The plaintiffs argued that to show generic causation—that emissions from the reservation could have caused damages, without regard to individual claims—they only needed to prove that chemicals emitted from Hanford had the capacity to cause the claimed illnesses.
‘Academic’ Difference
The district judge, however, agreed with the defendants that the difference between generic and individual causation was “academic” and that under Ninth Circuit precedent, no plaintiff could prove causation by preponderance of the evidence unless exposed to a dose of radiation that “doubled [the] risk” of harm.
Relying on models used by the plaintiffs’ experts, McDonald estimated each plaintiff’s exposure according to the person’s age and proximity to Hanford at time of exposure and particular illness alleged. Based on those estimates, he granted summary judgment rejecting most of the plaintiffs’ claims.
But in its main opinion yesterday, authored by Chief Judge Mary M. Schroeder, the appellate panel rejected the district judge’s methodology. The precedents cited by McDonald, including Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311 (9th Cir. 1995), are properly applied only when—as in the case of certain drugs alleged to have caused illnesses to users—the substances involved “are not known to cause harm,” the judge reasoned.
In the case of substances known to cause harm, Schroeder wrote, “we believe the appropriate understanding of generic causation is the one plaintiffs assert: whether exposure to a substance for which a defendant is responsible, such as radiation at the level of exposure alleged by plaintiffs, is capable of causing a particular injury or condition in the general population.”
The district judge, Schroeder went on to explain, “in essence skipped the generic causation inquiry and decided issues of individual causation without the benefit of full discovery or particularized medical evidence” which was not developed because of the pretrial orders. The case was sent back for further discovery on those issues.
Yesterday’s second ruling dealt with about 1,000 of the plaintiffs, whose claims were severed in 1996. Summary judgment in those cases was reversed for the same reasons as in the first case.
The court did, however, uphold a ruling by McDonald that bars plaintiffs who cannot prove physical injury or property damage from recovering damages for emotional distress. Washington law permitting such damages, Schroeder said, is preempted by the Price-Anderson Act, which limits federal jurisdiction over nuclear exposure claims to those involving “bodily injury, sickness, disease, or death…or property damage.”
The plaintiffs’ claims for medical monitoring costs fail for the same reason, Schroeder said.
The cases are In re Hanford Nuclear Reservation Litigation, 98-36142, and In re Berg Litigation, 99-35979.
Copyright 2002, Metropolitan News Company