UPenn Photo: Bryan Y.W. Shin, via Wikimedia Commons

The widow of a University of Pennsylvania scientist who studied the effects of radiation and died of brain cancer allegedly derived from exposure to radiation cannot sue the university for his death.

The U.S. Court of Appeals for the Third Circuit upheld the dismissal of Barbara Boyer’s case against Penn over the death of her husband, Jeffrey Ware, citing the fact that she provided no expert witnesses to support her claims that exposure to radiation during Ware’s research at Penn caused his death at age 47.

One of the central arguments in the case was whether the Price-Anderson Nuclear Industries Indemnity Act applied to Boyer’s claims and whether the case belonged in federal court. The act sets the standard for liability in nuclear facilities.

Boyer argued that Penn was liable for nuclear radiation stemming from Ware’s tests on small animals to study how radiation exposure affects astronauts in orbit.

However, Judge Thomas Ambro wrote in the court’s opinion that, as per the act, the Nuclear Regulatory Commission protects some nongovernmental entities from liability for nuclear-related injuries.

“What is more, the Price-Anderson Act plainly applies in at least some contexts to research universities, as it has provisions that cover specifically institutions like the University of Pennsylvania,” Ambro said, citing language in the act that reads, “‘nonprofit educational institution[s]‘ conducting ‘educational activities’ pursuant ‘to any license issued’ under the federal atomic energy scheme shall be indemnified by the NRC for ‘public liability in excess of $250,000 arising from nuclear incidents.’”

Nor is an explicit agreement with the NRC needed to trigger the indemnification of a nongovernmental entity, Ambro said.

Boyer also claimed that the act only applies to unintentional releases of nuclear energy, relying on a 1995 Ohio federal court ruling, In re Cincinnati Radiation Litigation.

“Boyer contends her claims similarly do not implicate an unintentional release of nuclear energy. But that’s not true,” Ambro said. “Her complaint alleges that Ware was harmed by UPenn’s neglect of its duty to protect him adequately from radiation—that is, negligence, not deliberate exposure. So even if this exception to the act exists, it wouldn’t apply to this case.”

Ambro remarked at the end of the opinion, “The facts of Boyer’s action are tragic: her husband, a 47-year-old researcher whose life’s work was studying the effects of radiation on biological organisms, died from a rare form of brain cancer.”

“But as often happens in the law,” he continued, “this case provides us little opportunity to contemplate Ware’s suffering from his illness or his family’s suffering from his loss. Instead, our review is confined to bloodless questions of statutory interpretation and appropriate management of litigation.”

Boyer is represented by Philadelphia attorney Aaron J. Freiwald, who did not respond to a request for comment. Neither did Penn’s attorney, Teresa F. Sachs of Marshall Dennehey Warner Coleman & Goggin in Philadelphia.

It’s the second time in less than a month that the Third Circuit has ruled on claims under the Price-Anderson Act.

On Aug. 23, in McMunn v. Babcock & Wilcox Power Generation Group, the court blocked attempts to revive more than 70 cases alleging that a defunct nuclear power plant caused the plaintiffs’ cancer.

Judge Luis Felipe Restrepo joined President Judge D. Brooks Smith’s decision in McMunn. 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.