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In a major blow to the remaining plaintiffs in the long-running suit over alleged exposure to radiation in the March 1979 nuclear reactor accident at Three Mile Island outside Harrisburg, Pa., a federal appeals court ruled Wednesday that the trial judge properly barred the plaintiffs from pursuing any “new theories” or finding new medical experts. In a 16-page unpublished decision in In Re: TMI Litigation: All Plaintiffs v. General Public Utility Corp., a unanimous three-judge panel found that U.S. District Judge Sylvia H. Rambo of the Middle District of Pennsylvania had correctly interpreted the appellate court’s 1999 opinion that revived the claims of 1,990 plaintiffs. In its 1999 opinion, the 3rd Circuit ruled that Rambo had properly tossed out the claims of the first 10 plaintiffs whose cases were set to be tried as a test case when she found that their expert witnesses could not establish a key fact — that the TMI accident had caused them to be exposed to radiation. But in what appeared at the time to be a major victory for the plaintiffs, the appeals court said Rambo went too far when she tossed out the claims of all of the remaining plaintiffs, all of whom claim they have “neoplasms,” or abnormal tissue growths, that resulted from TMI radiation exposure. Writing for the court, U.S. Circuit Judge Theodore A. McKee said, “The TMI personal injury litigation here involves a ‘test plaintiff’ approach to trying a mass tort case. However, there is nothing here to indicate that the non-trial plaintiffs were given an opportunity to object [to] the defendants’ motion for summary judgment or otherwise protect their substantive claims.” But when the case was sent back to Rambo, the plaintiffs say they were denied their right to develop the cases for the remaining plaintiffs to conform with the guidance they had received from the appeals court. Rambo said she read the appellate court’s ruling as precluding any further discovery of “new theories, new studies, medical causation theories and opinions, and dose information.” But Rambo allowed the plaintiffs to take an immediate appeal of her ruling. In the appeal, plaintiffs’ attorneys Arnold Levin, Laurence S. Berman and Scott Levensten of Levin Fishbein Sedran & Berman argued that the 3rd Circuit’s prior ruling allows the remaining plaintiffs to attempt to show that low levels of radiation caused their cancers and other pathologies. To do that, they argued, the plaintiffs must be allowed to present experts “who accept the theory that exposure to ionizing radiation at levels below 10 rems may cause cancer,” and that they cannot be forced to rely on the previous expert reports that were premised on higher exposure levels. The remaining plaintiffs, they argued, “were never bound by the theories adopted by the test plaintiffs.” Since causation is a “highly individualized question,” they argued, the experts for the remaining plaintiffs must be entitled to additional discovery. But defense attorney Alfred H. Wilcox of Philadelphia-based Pepper Hamilton argued that all of the plaintiffs — both the “test” plaintiffs and the remaining plaintiffs — were bound by discovery deadlines that had long passed before the 3rd Circuit’s 1999 opinion. Wilcox argued that Rambo correctly interpreted the appellate court’s opinion as not requiring that discovery be reopened. Now the 3rd Circuit has agreed with Wilcox and held that Rambo was correct in saying that discovery was closed. “In our previous decision, we repeatedly acknowledged that discovery was closed to all plaintiffs,” U.S. Circuit Judge Richard L. Nygaard wrote in an unpublished opinion joined by U.S. Circuit Judges Samuel A. Alito and Marjorie O. Rendell. The plaintiffs’ lawyers quoted language from the 3rd Circuit’s prior opinion that said the remaining plaintiffs “ought to be able to establish that doses below the threshold selected by the [test] plaintiffs has induced their neoplasms, or caused their pathologies.” By implication, the plaintiffs’ lawyers argued, the appellate court was endorsing “discovery as to new theories, new studies and new experts.” But Nygaard said the plaintiffs’ use of the isolated quote from the prior opinion was “misplaced and ignores its context.” Instead of endorsing discovery of new causation theories, he said, “this statement merely indicates that the [remaining] plaintiffs could proceed on a theory previously excluded (low dose causation), as long as it was supported by already discovered evidence.” At the time of the prior ruling, Nygaard said, the appellate court “did not know” the theory relied on by the remaining plaintiffs. Joining the Levin Fishbein firm on the brief for the plaintiffs were attorneys Lee C. Swartz of Tucker Arensberg & Swartz in Harrisburg, Pa., and attorney Louis M. Tarasi Jr. of Pittsburgh. Joining Wilcox on the defense brief were attorneys Ellen Kittredge Scott of Pepper Hamilton’s office in Berwyn, Pa., and attorneys Thomas B. Schmidt III and Donna L. Fisher of the firm’s Harrisburg office.

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