Martin Muransky

Rejecting an expert’s findings as “nothing more than a radiation version of the impermissible ‘any breath‘ theory,” a federal appeals court in Pennsylvania has blocked attempts to revive more than 70 cases alleging that a defunct nuclear power plant caused the plaintiffs’ cancer.

On Wednesday, a split three-judge panel of U.S. Court of Appeals for the Third Circuit affirmed a ruling by the Western District of Pennsylvania that dismissed on summary judgment more than 70 cases related to a nuclear power plant in Apollo, Pennsylvania. The 69-page ruling from Chief Judge D. Brooks Smith in McMunn v. Babcock & Wilcox Power Generation Group agreed with the district court that the expert testimony didn’t pass muster.

Smith wrote that plaintiffs’ causation expert, Dr. James Melius, testified that anyone who lived or worked near the Apollo plant had been exposed to a sufficient amount of radiation to cause various forms of cancer, which the plaintiffs developed. However, even in light of the Pennsylvania Supreme Court’s November decision in an asbestos case, Rost v. Ford Motor, which held that experts did not need to distinguish and quantify exposures to each defendant’s products, Smith said Melius’ testimony was deficient.

“Although Rost stresses that causation is an issue for the jury, we have never hesitated to grant summary judgment where one side fails to establish a genuine issue of fact concerning causation,” Smith said. “It is true that demanding more than evidence of ‘any exposure’ makes it more burdensome for most plaintiffs to recover for injuries from radiation. But the evidentiary regime that must apply in these cases necessarily requires that a jury find radiation was a substantial factor in causing a plaintiff’s injury—and requires, now, at summary judgment, that we be able to hold that a reasonable jury could so find.”

Louis Bograd of Motley Rice, who represented the plaintiffs, did not return a call for comment. John Phillips and Peter Meier of Paul Hastings and Nancy Milburn of Arnold & Porter represent Babcock & Wilcox Power Generation Group. A spokesman for Paul Hastings declined to comment. Milburn referred comment to BP’s press office.

According to Smith, the Apollo facility operated from 1953 until 1983. In 1958 it began to manufacture uranium fuel, and decommissioning began in 1978, Smith said.

The facility not been specifically constructed to house radioactive materials, and it emitted radiation that, plaintiffs argued, was over the regulatory limits. The plaintiffs’ allegations focused on radiation emitted from the stacks, vents and fans. Along with disputing the sufficiency of the expert testimony, the parties also disputed the boundary of the “unrestricted area,” which is where the permissible concentration levels of radiation are determined. The plaintiffs argued that emissions from any part of the roof, including the stack, vent or fan, should be less than the maximum permissible concentration, while the defendants contended that the unrestricted area was limited to the boundary of the roof.

Smith agreed with the defendant’s definition of the restricted area, and said much of the data the plaintiffs relied on from the stacks and fans was “legally irrelevant.”

“Plaintiffs failed to provide an expert who could testify that the data upon which they rely (stacks, vents, and readings from outside the facility) could show a violation of the maximum permissible concentration of uranium effluent at the boundary of the roof when averaged annually,” he said.

Judge Luis Felipe Restrepo joined Smith’s decision. Judge Theodore McKee issued a concurring decision, which Restrepo also joined, saying the Price-Anderson Nuclear Industries Indemnity Act, which governed the plaintiffs’ claims, “places an almost insurmountable burden on plaintiffs,” and said state and federal legislators should address the issue.

“I can only hope that the dues that we pay for the comforts of living in the atomic age will one day not require us to forego remedies for the harmful effects of the nuclear byproducts of that modernization, which we are still trying to understand,” McKee said.