Friday, September 12, 2008

Dumontier v. Schlumberger Technology Corp

Sep 11: In the U.S. Court of Appeals, Ninth Circuit, Case No. 05-36005. In this case, the Appeals Court considers whether "subcellular damage" amounts to bodily injury under the Price-Anderson Act. As explained by the Appeals Court Schlumberger Technology Corporation’s employees carelessly left some cesium-137 on a drilling rig. Plaintiffs later worked on the rig and were exposed. Though less well known than uranium or plutonium, cesium exposure can cause burns, radiation sickness and cancer; if ingested, it causes mania. Plaintiffs have not developed cancer or any other illness; however, they sued Schlumberger, claiming that the radiation caused "subcellular damage," including to their DNA. They brought a claim under Montana law seeking damages for emotional distress, medical monitoring and actual malice.

Schlumberger argued that this claim was preempted and moved to replace it with a Federal cause of action under the Price-Anderson Act, 42 U.S.C. § 2014(hh); it also moved for summary judgment on the Price-Anderson claim. The district court granted both motions and the Appeals Court affirmed the decision.

A "nuclear incident" is defined in the Act as “any occurrence . . . causing . . . bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material.” Exposure to radioactive materials is compensable only if it causes one of the harms on the list. Plaintiffs claim that they suffered a listed harm -- namely bodily injury.

The Ninth Circuit says, "The Act [Price-Anderson] was designed to safeguard the nuclear industry from expansive liability under state law. . . plaintiffs’ interpretation would permit an end run." On the critical question of "bodily injury," the Appeals Court says, "
not every alteration of the body is an injury. Thinking causes synapses to fire and the brain to experience tiny electric shocks; fear stimulates the production of chemicals associated with the fight-or-flight response. All life is change, but all change is not injurious. Adopting plaintiffs’ interpretation of bodily injury would render the term surplusage, as every exposure to radiation would perforce cause injury."

The Appeals Court continues saying, "X-ray technicians, for example, are routinely exposed to more radiation than the public dose limit allows. Compare 10 C.F.R. § 20.1201(a)(1)(i) (limiting occupational exposure to 5 rem per year) with 10 C.F.R. § 20.1301(a)(1) (limiting exposure for members of the public to 0.1 rem per year). This reading would make exceeding the federal dose limit a strict liability offense, with damages determined by the extent of emotional distress. The Act would cease to be a liability limit and become an unlocked cash register."

Access the complete opinion (click here).