Wilcox v. Homestake Mining Company

Sep 8: In the U.S. Court of Appeals, Tenth Circuit,  Case No. 08-2282. In the case brought under the Price-Anderson Act, 42 U.S.C. § 2210, the Appeals Court must decide whether Plaintiffs alleging they suffered cancer due to exposure to radiation from Defendants' uranium mill have made a sufficient showing of causation under New Mexico law to survive summary judgment. The Appeals Court said, "We first determine the test for causation in this context, then evaluate whether the evidence submitted by Plaintiffs was sufficient to satisfy this test for summary judgment purposes."

 

    The action was originally brought by several plaintiffs who alleged they or the decedents they represented suffered from a large variety of injuries and diseases as a result of exposure to radioactive and non-radioactive hazardous substances released from Defendants' uranium milling facility in Cibola County, New Mexico. The district court entered a scheduling order requiring each plaintiff to produce expert affidavits making a prima facie showing of harmful exposure and specific causation for each alleged injury, but only three plaintiffs -- the appellants in the current action -- did so. The district court dismissed the other twenty-five plaintiffs from the action with prejudice, and that dismissal is not contested in the current appeal.

 

    The three Plaintiffs involved in the appeal and their experts opined that Plaintiffs' exposure to radiation from Defendants' operations was a substantial factor contributing to each of them developing cancer. The district court concluded that New Mexico law required a showing of "but-for causation" and that Plaintiffs' expert affidavits failed to meet that showing. The court therefore granted summary judgment to Defendants on Plaintiffs' claims. The appeal followed.

 

    The Appeals Court said, the experts evidence was "simply insufficient to meet Plaintiffs' burden of making a prima facie case that Defendants' operations either (1) were a but-for cause of their cancer, either alone or as a necessary part of a combination of different factors, or (2) would have been such a but-for cause were it not for another sufficient coincident cause." The Appeals Court said additionally, "We also note Plaintiffs have neither alleged nor presented evidence that exposure to Defendants' radiation resulted, more probably than not, in the aggravation of their cancer symptoms. Therefore, to the extent Tafoya alters the but-for test in situations where a defendant's actions aggravate but do not cause an injury, it is not applicable in this case. . . we conclude the district court correctly granted summary judgment to Defendants based on Plaintiffs' failure to make a sufficient showing of but-for causation. We therefore affirm the district court's entry of summary judgment in favor of Defendants.

 

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Cook v. Rockwell International Corp

Sep 3: In the U.S. Court of Appeals, Tenth Circuit,  Case No. 08-1224, 08-1226 and 08-1239. The owners of property near the former Rocky Flats Nuclear Weapons Plant (Rocky Flats) filed a class action against the facility's operators under the Price-Anderson Act (PAA), alleging trespass and nuisance claims arising from the release of plutonium particles onto their properties. The district court conducted a lengthy trial, resulting in a jury verdict in favor of the plaintiff class. After a series of post-trial motions, the district court entered judgment in favor of Plaintiffs, awarding a total of just over $926 million, inclusive of compensatory damages, punitive damages, and prejudgment interest. Defendants, Dow Chemical Company (Dow) and Rockwell International Corporation (Rockwell), timely appealed the judgment, and the class members filed a timely

cross-appeal.

 

    The Appeals Court said, "Exercising appellate jurisdiction pursuant to 28 U.S.C. § 1291, this court reverses and remands the case to the district court. We direct the district court to vacate the judgment and conduct further proceedings not inconsistent with this opinion."

    By way of background, Rocky Flats, located near Denver, Colorado, was established by the United States Government in the 1950s to produce nuclear weapon components. The government contracted with Dow to operate the facility from 1952 to 1975, and then with Rockwell from 1975 to 1989. Operations at Rocky Flats ceased in June 1989 after the Federal Bureau of Investigation and the Environmental Protection Agency searched the facility. Rockwell was subsequently charged with, and ultimately pleaded guilty to, certain environmental crimes at the site. The facility has since undergone remediation efforts and is now designated as a wildlife refuge.

 

    In an important part of the Appeals Court ruling the court said, ". . . the date of the occurrence controls when determining whether the nuclear incident took place prior to August 20, 1988. . . While the district court's decision to focus on the date of the occurrence was correct, its instruction failed to instruct the jury how to identify the date of the occurrence. Here, the "occurrence" constituting a nuclear incident in a PAA action must arise from Defendants' release of plutonium onto Plaintiffs' properties. The jury instruction ultimately given, however, permits consideration of Defendants' conduct prior to August 20, 1988, regardless of whether an 'occurrence' causing Plaintiffs' injury took place prior to that date. This is an important distinction, because certain conduct prior to August 20, 1988, might contribute to a nuclear incident, even though the release of plutonium might not have occurred until after August 20, 1988. For instance, if a defendant began improperly storing drums containing nuclear waste in 1987 and consistently failed to maintain them, but no waste leaked from the drums until after August 21, 1988, a jury could not find the 'occurrence' took place prior to August 20, 1988. . ."

 

    Access the complete opinion (click here).