IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT NO. 92-2989 JAMES RICHARD O'CONNER Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY and On Appeal from the United States LONDON NUCLEAR SERVICES, INC., District Court for the Central District of Illinois, District Defendants-Appellees. Court No. 8S-C-1272 Honorable Michael K. Mihm Judge Presiding BRIEF FOR APPELLEES DONALD E, JOSE DAVID WIEDIS Jose & Wiedis Goshen Executive Center, Suite 300B 1450 East Boot. Road West Chester, PA 13380 (215) 436-1888 RICHARD F. NELSON Rooks, Pitts & Poust Xerox Centre Suite 1500 55 West Monroe Street Chicago, IL 60603 Attorneys for Appellees, Commonwealth Edison Company and London Nuclear Services, Inc „
Transcript
IN THE UNITED STATES COURT OF APPEALSFOR THE SEVENTH CIRCUIT
NO. 92-2989
JAMES RICHARD O'CONNER
Plaintiff-Appellant,
v.
COMMONWEALTH EDISON COMPANY and On Appeal from the United StatesLONDON NUCLEAR SERVICES, INC., District Court for the Central
District of Illinois, DistrictDefendants-Appellees. Court No. 8S-C-1272
Honorable Michael K. MihmJudge Presiding
BRIEF FOR APPELLEES
DONALD E, JOSEDAVID WIEDISJose & WiedisGoshen Executive Center,Suite 300B1450 East Boot. RoadWest Chester, PA 13380(215) 436-1888
RICHARD F. NELSONRooks, Pitts & PoustXerox CentreSuite 150055 West Monroe StreetChicago, IL 60603
Attorneys for Appellees,Commonwealth Edison Companyand London Nuclear Services,Inc „
UNITED STATES COURT OF APPEALSFOR THE SEVENTH CIRCUIT
JAMES RICHARD O'CONNOR, )
Plaintiff, )) Court No. 92-2989
vs. )
COMMONWEALTH EDISON )COMPANY AND LN TECHNOLOGIES, )
Defendants. )
CERTIFICATE OF INTEREST OF DEFENDANTS-APPFTJ.KES' ATTORNEYS
The undersigned counsel of record for Commonwealth Edison Company and LN
Technologies, Defendants-Appellees, furnish the following list in compliance with Circuit Rule 26.1:
1. COMMONWEALTH EDISON COMPANY AND LN TECHNOLOGIES, INC.:
Defendants-Appellees.
2. Defendant-Appellee Commonwealth Edison is a corporation. Defendant-Appellee
LN Technologies is no longer doing business.
(i) Commonwealth Edison does not have a parent corporation,
(ii) No stockholders which are publicly held.companies presently own
10% or more of the stock in Commonwealth Edison Company.
3. Counsel who have or will appear for Defendants-Appellees:
RICHARD F. NELSON DONALD E. JOSETERRENCE E. KIWALA DAVID WIEDISRooks, Pitts and Poust Jose & Wiedis55 East Monroe, Suite 1500 Gochen Executive CenterChicago, Illinois 60603 1450 E. Boot Road, Suite 300B(312) 372-5600 West Chester, PA 19380-5927
(215) 436-1890
RICHARD F. NELSON DONALD E. JOSE
DATED: £*> ' > / - ? 2—
TABLE OF CONTENTSPage
CERTIFICATE OF INTEREST l
TABLE OF CASES iii
APPELLEES' JURISDICTIONAL STATEMENT 1
COUNTERSTATEMENT OF THE CASE 1
A. Nature of The Case 1
B. Course of the Proceedingsand Disposition in the Court Below 2
COUNTERSTATEMENT OF ISSUES PRESENTED FOR REVIEW 3
REFERENCES TO STATUTES AND REGULATIONS 3a
COUNTERSTATEMENT OF FACTS 4
APPELLATE STANDARD OF REVIEW 7
SUMMARY OF THE ARGUMENT 7
ARGUMENT 11
I. Congress, in Enacting a New Federal Cause of Action(the "public liability action") and Providing forFederal Court Jurisdiction Over Cases Asserting ThatCause of Action, May Provide That the SubstantiveRules of Decision Shall Be Derived From State Law,Unless Such Law is Inconsistent With The OverallExisting Federal Regulatory Scheme, WithoutJeopardizing the Constitutionality of Federal CourtJurisdiction for Such Cases 11
A. Introduction 11
B. Statutory Background and Congressional Intent . 12
C. Congress Has The Power To Direct That New FederalLaw Be Derived From Existing State Law 14
D. Public Liability Actions Necessarily InvolveFederal Questions Sufficient to Support ArticleIII Jurisdiction 18
E. Plaintiff's Other Constitutional Challenges AreFrivolous 23
II. The Standard Of Care In A Public Liability ActionBrought By A Nuclear Worker Alleging RadiationOverexposure At A Federally Licensed Nuclear PowerPlant Is The Federal Permissible Dose LimitsEstablished By The Nuclear Regulatory Commission . . . 27
A. Plaintiff's Claims For Damages Arising FromRadiation Exposure Are Preempted By The Price-Anderson Act 27
B. The District Court Correctly Held That UnderIllinois Law The Federal Permissible Dose LimitsConstitute The Duty Owed 29
III. Dr. Scheribel's Opinion That Only Radiation ExposureCould Have Caused Plaintiff's Cataracts is NotAdmissible 32
A. Introduction 32
B. Federal Rules of Evidence 702 And 703 34
C. The District Court Properly Determined That Dr.Scheribel Was Not Qualified Under Rule 702 . . . 34
D. The District Court Properly Excluded Dr.Scheribel's Opinion Under Rule 703 35
1. There is No Verifiable Scientific SupportFor Dr. Scheribel's Opinion; His Opinion isActually Contradicted By Consensus Science 35
2. Reasonable Experts in The Field OfRadiation Induced Cataracts Would Not RelyOn The Data And Reasoning Used By Dr.Scheribel 36
3. Dr. Scheribel's Methodology Is Not AcceptedIn the Relevant Scientific Community . . . 38
IV. The District Court Properly Entered Summary JudgmentBecause Plaintiff Introduced No Admissible Evidence ofBreach of Duty or Proximate Causation 39
Andrus v. Charlestone Stone Prod. Co., 436 U.S. 604(1978) 25
Arbour v. Jenkins, 903 F.2d 416 (6th Cir. 1990) 24
Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232(7th Cir. 1991) 7
Brock v. Merrel Dow Pharm. Inc., 874 F.2d 307(5th Cir. 1989), cert, denied, 494 U.S. 1046 (1990) 36
Brown v. Kerr-McGee Chem. Corp., 767 F.2d 1234(7th Cir.), cert, denied, 475 U.S. 1066 (1985) 23
Bruner v. United States, 343 U.S. 112 (1952) 25
Carrol v. Otis Elevator Co.,896 F.2d 210 (7th Cir. 1990) 34
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) 7
Chicago & N.W. Ry. Co. v. Whitton's Adm'n.,80 U.S. (13 Wall. ) 270 (1871) 24
Christophersen v. Allied Signal Corp.,939 F.2d 1106 (5th Cir. 1991),petition for cert, denied, 112 S.Ct. 1280 (1992) 37, 38
Cipollone v. Leggett Group, Inc.,112 S.Ct. 2608 (1992) 27, 28
City of Greenwood v. Peacock, 384 U.S. 808 (1966) 24
Cgley v. Commonwealth Edison Co.,768 F. Supp. 625 (1991) . . . 23, 28-30
Commonwealth of Pennsylvania v. GeneralPub. Util. Corp., 710 F.2d 117 (3d Cir. 1983) .. .. 12
111
Page
Duke Power Co. v. Carolina EnvironmentalStudy Group, Inc., 438 U.S. 59, (1978). 12,
lo f £o
English v. General Elec. Co., 496 U.S. 72 (1990) 23
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) 38
Hammond v. United States, 786 F.2d 8 (1st Cir. 1986) 24
Hennessy v. Commonwealth Edison Co.,764 F. Supp. 495 (N.D. 111. 1991) 28, 30
Hughes v. Ford Motor Co.,677 F. Supp. 76 (D. Conn. 1987) 31
Hughes v. Lister Diesels, Inc.,642 F. Supp. 233 (E.D. La. 1986) 17
In re Consol. United States AtmosphericTesting Litig. 820 F.2d 982 (9th Cir. 1987),cert, denied sub nom, Konizeski v. Livermore Labs,485 U.S. 905 (1988) . 24
plaintiff, James 0'Conner, is a contract nuclear worker who developed
small bilateral posterior subcapsular cataracts1 (a heritable
condition) at age forty-four just as his father, who never worked in
the nuclear industry, had developed bilateral posterior subcapsular
1 Appellant's Brief erroneously labels Mr. 0'Conner'scataracts as "subscapular cataracts." There is no such thing. Thescapula is the shoulder blade. Subscapular would mean below theshoulder blade. Mr. 0'Conner has posterior subcapsular cataracts.This is an opacity (cataract) in the rear (posterior) part of the lensof the eye and located below (sub) the rear surface membrane (capsule)of the lens.
cataracts by the age of thirty-nine.' Mr. O'Conner brought this
negligence action against Commonwealth Edison Company, the owner of
Quad Cities Nuclear Station ("Quad Cities"), and London Nuclear
Services Inc., a contractor that provided nuclear services there,
alleging that his cataracts were caused by an excess radiation
exposure that he received while working at Quad Cities.
B. Course of the Proceedings and Disposition in the Court Below
This action was commenced in state court on October 1, 1983
and was removed on September 13, 1988 to the United States District
Court for the Central District of Illinois pursuant to the provisions
of-a-mr the Amendments Act, 42 U.S.C. § 2210 (n) (2). On May 25, 1989,
defendants filed a motion for summary judgment because there was no
evidence that plaintiff had received a dose in excess of the Federal
Permissible Dose Limits set forth at 10 C.F.R. § 20.101 (1992), and
£itar there was no evidence that plaintiff's occupational radiation
exposure caused any injuries to him. After years of discovery and many
rulings and motions, the District Court entered summary judgment for
the defendants on July 23, 1992.3 The three rulings from which this
appeal arises can be found at: O'Conner v. Commonwealth Edison Co.,
748 F. Supp. 672, 678 (C.D. 111. 1990) petition for appeal denied,
2 Aff. of Dr. McGrath (attached to Supplement to Defendants'Reply to Plaintiff's Motion in Limine to Exclude Evidence or Referenceto Dr. Philip McGrath or Plaintiff's Father's Eye Condition); Dr.0'Brian's Dep. at 52-53 (attached as Exhibit M to Defendants' Motionfor Summary Judgment).
3 The procedural history of this case is set forth in detailin the District Court's Findings of Fact and Conclusions of Law.O'Conner v. Commonwealth Edison Co., No. 88-1272 (C.D. 111. July 23,1992)at 3-7(attached to Appendix to Appellant's Brief.)
F. Supp. 448 (C. D. 111. 1991); and 0'Conner v. Commonwealth Edison
Co., No. 88-1272 (C.D. 111. July 23, 1992). A copy of the first two
decisions are attached to the Supplemental Appendix to Appellant's
Brief and a copy of the slip opinion is attached to the Appendix to
Appellant's Brief.
COUNTERSTATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Whether Congress, in enacting a new federal cause of
action (the "public liability action") and providing for federal court
jurisdiction over cases asserting that cause of action, may provide
that the substantive rules of decision shall be derived from State
law, unless such law is inconsistent with the overall existing federal
regulatory scheme, without jeopardizing the constitutionality of
federal court jurisdiction for such cases?
2. Whether the standard of care in a public liability
action brought by a nuclear worker alleging radiation overexposure at
a federally licensed nuclear power plant is the Permissible Dose
Limits established by the United States Nuclear Regulatory Commission?
3. Whether the District Court properly excluded
plaintiff's expert's opinion based on Federal Rule of Evidence 702,
Rule 703, and Frye v. United States?
4. Whether the District Court properly entered summary
judgment for the defendants where the plaintiff introduced no
admissible evidence of breach of duty or proximate causation?
(a) . . . no licensee shall possess, use, or transfer licensedmaterial in such a manner as to cause any individual in arestricted area to receive in any period of one calendar quarterfrom radioactive material and other sources of radiation a totaloccupational dose in excess of the standards specified in thefollowing table:
Rems Per Calendar Quarter
1. Whole body; head and trunk; active bloodforming organs; lens ofeyes; or gonads . . . . 1 *<
2. Hands and forearms; feet and ankles . . . 18 43. Skin of whole body 7 %
(b) A licensee may permit an individual in a restricted area toreceive a total occupational dose to the whole body greater thanthat permitted under paragraph (a) of this section, provided:
(1) During any calendar quarter the total occupational dose tothe whole body shall not exceed 3 rems; and
(2) The dose to the whole body; when added to the accumulatedoccupational dose to the whole body, shall not exceed 5 (N-18)rems where "N" equals the individual's age in years at his lastbirthday . . . .
42 U.S.C. § 2214 (w).
(w) The term "public liability" means any legal liabilityarising out of or resulting from a nuclear incident . . . .
42 U.S.C. § 2014 (hh).
(hh) The term "public liability action", as used in section 2210of this title, means any suit asserting public liability. A publicliability action shall be deemed to be an action arising under section2210 of this title, and the substantive rules for decision in suchaction shall be derived from the law of the State in which the nuclearincident involved occurs, unless such law is inconsistent with theprovisions of such section.
42 U.S.C. § 2014 (j).
The term "extraordinary nuclear occurrence" means any eventcausing a discharge or dispersal of source, special nuclear, orbyproduct material from its intended place of confinement in amountsoffsite, or causing radiation levels offsite, which the NuclearRegulatory Commission or the Secretary of Energy, as appropriate,determines to be substantial, and which the Nuclear Regulatory
3a
Commission or the Secretary of Energy, as appropriate, determines hasresulted or will probably result in substantial damages to personsoffsite or property offsite. Any determination by the NuclearRegulatory Commission or the Secretary of Energy, as appropriate, thatsuch an event has, or has not, occurred shall be final and conclusive,and no other official or any court shall have power or jurisdiction toreview any such determination. The Nuclear Regulatory Commission orthe Secretary of Energy, as appropriate, shall establish criteria inwriting setting forth the basis upon which such determination shall bemade. As used in this subsection, "offsite" means away from "thelocation" or "the contract location" as defined in the applicableNuclear Regulatory Commission or the Secretary of Energy, asappropriate, indemnity agreement, entered into pursuant to section2210 of this title.
42 U.S.C. § 2210(n) (2) .
(2) With respect to any public liability action arising out ofor resulting from a nuclear incident, the United States district courtin the district where the nuclear incident takes place . . . shallhave original jurisdiction without regard to the citizenship of anyparty or the amount in controversy. Upon.motion of the defendant . .. any such action pending in any State court (including any suchaction pending on August 20, 1988) or United States district courtshall be removed or transferred to the United States district courthaving venue under this subsection. Process of such district courtshall be effective throughout the United States. In any action that isor becomes removable pursuant to this paragraph, a petition forremoval shall be filed within the period provided in section 1446 ofTitle 28, or within the 30-day period beginning on August 20, 1988,whichever occurs later.
3b
COUNTERSTATEMENT OF FACTS
The plaintiff-, James 0'Conner, is a pipefitter who worked as
a contract nuclear worker at Quad Cities in September and October 1983
when he was forty-three years old. Mr. O'Conner alleges that he
received excess radiation exposure while working on October 3, 1985.4
This allegation is based solely on the fact that he felt warm at work.5
But radiation cannot be seen or felt; no human senses can detect it.
As admitted in Appellant's Brief, Mr. O'Conner always wore three
separate and independent scientific instruments (dosimeters)6 that
scientifically measured his radiation exposure. Appellant's Brief at
6-7. On the night that he felt warm, Mr. 0'Conner's dosimeters
measured only a small fraction of the radiation that nuclear workers
are permitted to receive pursuant to the Federal Permissible Dose
Limits set by the Nuclear Regulatory Commission. As admitted in
Appellant's Brief, Mr. O'Conner received a dose of only 45 millirem''
(or the equivalent of two chest x-rays) that night; the Federal
Permissible Dose Limits allow a nuclear worker to receive 12,000
Amended Complaint at SI 8.
5 Mr. O'Conner's Dep. at 35-36 (attached as Exhibit B toDefendants' Motion for Summary Judgment).
6 Mr. O'Conner's Dep. at 58.
Radiation is commonly measured in units of rem and millirem,just as distance is commonly measured in units of yards and inches ormeters and millimeters. One rem contains 1,000 millirem just as onemeter contains 1,000 millimeters. A millirem is a very tiny unit justas a millimeter is a very tiny distance. Many reported radiationcases generally use the larger and more common unit of rem rather thanthe much smaller unit of millirem. Because the amount of radiationthat Mr. O'Conner received on the night he felt "warm" was so tiny,all radiation measurements in this brief are expressed in the smallunits of millirem to aid in comparison.
millirem per year.6 Appellant's Brief at 7. Plaintiff's dose expert,
Dr. Martin Welt, agreed that his exposure could not have been any
greater than 65 millirem on the night of the alleged incident.9
Although very high doses of radiation, such as 400,000 millirem, can
cause posterior subcapsular cataracts, doses within the Federal
Permissible Dose Limits cannot.10
About ten months later, Mr. 0'Conner was diagnosed with
early posterior subcapsular cataracts.11 Plaintiff's other expert, Dr,
Karl Scheribel, an ophthalmologist, opined that Mr. 0'Conner's
cataracts were caused by his radiation "overexposure." He based his
conclusion on his scientifically invalid and unverifiable belief that
all posterior subcapsular cataracts are caused by radiation -and
"cannot be mistaken for anything else."12 The threshold radiation dose
10 C.F.R. § 20.101(b)(1)(1992).
9 Dr. Welt also testified that Mr. 0'Conner total dose for theentire time period that he worked at Quad Cities never exceeded theFederal Permissible Dose Limits, that it is "highly unlikely" thatplaintiff received the dose of 400,000 millirem that plaintiffrepresented to his doctors he had received, that the maximum dose hecould have received was only 50% more than the dosimeters recorded,and that there was no violation of the standard of care here. Dr.Welt's Dep. at 47; 49; 55-56 (attached as Exhibit 2 to Plaintiff'sResponse to Defendants' Motion for Summary Judgment).
10 The Federal Safety Standards have always been set at a levelwhere no effect was ever expected to be observable in the entirenuclear worker population exposed to radiation within thosepermissible dose limits. Johnston v. United States, 597 F. Supp. 374,424 (D. Kan. 1984) .
11 Dr. Cogan's Aff. at SI 21 (attached as Exhibit K toDefendants' Motion for Summary Judgment). Posterior subcapsularcataracts are a common type of cataract occurring in 26.7 % of menbetween the ages of 40 and 49. Aff. of Dr. George R. Merriam, Jr. at 519 (attached as Exhibit L to Defendants' Motion for Summary Judgment).These cataracts are progressive, growing larger until they impairvision and are surgically removed.
12 Dr. Scheribel's Evidence Dep. at 27-28, 53 (attached asExhibit Z to Defendants' Motion for Summary Judgment).
for inducing cataracts is 200,000 millirem received all at once or
400,000 millirem spread over time.13 Plaintiff rests his entire case on
this single inference: since [they assume that] Mr. O'Conner has
radiation induced cataracts, his dose somehow must have exceeded
200,000 millirem. Plaintiff would therefore argue that his dose must
have exceeded the Federal Permissible Dose Limits of 12,000 millirem
per year. Consequently, Dr. Scheribel's causation opinion is
necessary in order for plaintiff to create a genuine issue of material
fact on the essential elements of breach of duty and causation.
In response to the District Court's Order dated December 22,
1989 requesting the bases of Dr. Scheribel's opinion that all
posterior subcapsular cataracts are caused only by radiation, Dr.
Scheribel cited four different medical treatises, including a textbook
written by ophthalmologist Dr. David Apple.14 The District Court
examined these sources and found that none provided any support for
Dr. Scheribel's opinion. In fact, each source flatly contradicted Dr.
Scheribel's premise. One author, Dr. Apple, filed an affidavit with
the Court stating that Dr. Scheribel's premise was wrong and was not
supported by his book.15 Accordingly, the District Court ruled Dr.
Scheribel's testimony on this point inadmissible and determined that
without this testimony, there was no evidence from which a reasonable
jury could determine either that Mr. O'Conner had received a radiation
exposure in excess of the Federal Permissible Dose Limits or that Mr.
13 Aff. of Dr. Cogan at SI 20; Aff. of Dr. Merriam at SI 14.
14 Aff. of Dr. Scheribel (attached as Exhibit D to Defendants'Response To Plaintiff's Brief Re: Clarified Issues of Admissibility ofDr. Scheribel's Testimony, hereafter "Defendants' Response Re:Clarified Issues").
15 Aff. of Dr. Apple (attached as Exhibit A to Defendants'Response Re: Clarified Issues).
O'Conner's radiation exposure caused his cataracts or any other
condition. The Court therefore granted defendants' motion for summary
judgment.
APPELLATE STANDARD OF REVIEW
1. The constitutionality of the 1988 Price-Anderson Amendments
Act is a pure question of law and the standard of review is plenary.
2. The standard of review of a district court's determination
of state law is de novo; "the courts of appeals are vested with
plenary appellate authority over final decisions of district courts."
Salve Regina College v. Russell, 111 S.Ct. 1217 (1991).
3. The standard of review on the admissibility of an expert's
opinion is whether the District Court abused its discretion. Spray-
Rite Service Corp. v. Monsanto Co., 684 F.2d 1226 (7th Cir. 1982)
("district court is vested with broad discretion to determine whether
a proffered expert is qualified to testify. We will reverse the
court's ruling on the admissibility of expert testimony only upon a
clear showing of abuse of discretion.").
4. The standard of review for an entry of summary judgment is a
de novo review using the same standards that the trial court used in
making its ruling. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232,
234 (7th Cir. 1991); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
SUMMARY OF THE ARGUMENT
I. The 1988 Price-Anderson Amendments Act is Constitutional.
In 1988 Congress amended the Price-Anderson Act (the
"Amendments Act") to create a new, wholly federal cause of action (the
"public liability action") for injuries alleged to result from the
hazardous properties of nuclear material. Congress granted federal
courts original jurisdiction over such causes of action, concurrent
with state courts, and provided for removal of cases commenced in
state courts. Congress made these amendments effective immediately,
applying to cases currently pending as well as to those filed later.
Congress also provided that the substantive rules for decision to be
applied in such actions were to be derived from the law of the State
where the underlying "nuclear incident" occurred, unless such law was
inconsistent with the other provisions of the overall federal
regulatory scheme. Thus, in a "public liability action," state law
does not operate of its own force but only as the source from which
federal law is derived.
Article III of the Constitution does not require that the
reach of constitutional "arising under" jurisdiction be limited to
cases in which federal rules of decision determine every, or even
most, issues that are presented in a class of cases. The leading
case, Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983)
was itself one in which state law supplied the rules of decision, yet
constitutional "arising under" jurisdiction was sustained because of
the federal "ingredients" in the case. There are demonstrably as
important federal ingredients in public liability actions as there
were in Verlinden.
II. The Standard of Care in a Public Liability Action AllegingRadiation Overexposure of a Nuclear Worker at a FederallyLicensed Nuclear Power Plant is the Permissible Dose LimitsEstablished by the Nuclear Regulatory Commission.
The new "public liability action" created by the Amendments
Act completely occupies the field of personal injury litigation
arising out of the hazardous properties of nuclear material. There is
no longer the "tension" between federal preemption of all aspects of
nuclear safety, declared in Pacific Gas & Electric Co. v. State Energy
8
Conservation and Development Commission, 461 U.S. 190, 212 (1983) and
state law tort remedies, described in Silkwood v. Kerr McGee Corp.,
464 U.S. 238 (1984). After the Amendments Act, only state law rules
of decision that are consistent with the overall federal regulatory
scheme can be borrowed for application in the public liability action.
It is not consistent with Congress' preemption of all safety
aspects of nuclear power, and Congress' total occupation of the field
of nuclear hazard litigation, to adopt a standard of care different
from the applicable Nuclear Regulatory Commission regulation precisely
dealing with the question of permissible exposures to the precise
hazard involved. The court below was correct in this aspect of its
analysis. The court below was also correct in ruling that in the
alternative, as a matter of traditional state law rules of decision,
the standard of care would be based on the same federal regulation.
III. Dr. Scheribel's Opinion That Only Radiation Could Have CausedPlaintiff's Cataracts is Not Admissible.
As to causation, the particular narrow field of expertise
here is radiation induced cataracts. Plaintiff's proffered expert,
Dr. Scheribel, would testify that only radiation could have caused
plaintiff's cataracts. The sole basis for his opinion is his
erroneous belief that "radiation cataracts are [a] clinically
describable and definable condition which, when present, cannot be
mistaken for anything else."16 This opinion is inadmissible on three
independent bases. First, he does not qualify as an expert in
radiation induced cataracts under Rule 702 because he has no training,
education or experience in the scientifically sophisticated field of
radiation cataracts.
16Dr. Scheribel's Evidence Dep. at 27-28, 53.
9
1988 Amendments Act, see e.g., Silkwood v. Kerr McGee Corp., 464 U.S.
Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223,
1225 (5th Cir. 1985); Hughes v. Lister Diesels, Inc., 642 F. Supp. 233
(E.D. La. 1986).
Another example of a federal cause of action that derives
elements from state law is the Federal Tort Claims Act ("FTCA"). See
28 U.S.C. § 1346(b). The FTCA grants exclusive federal jurisdiction
to district courts over actions against the United States for acts of
17
its employees where the "United States, if a private person, would be
liable to the claimant in accordance with the law of the place where
the act or omission occurred." However, state law will not be applied
if inconsistent with an overriding federal policy. 28 U.S.C. § 2680.
The Price-Anderson Act, the Outer Continental Shelf Lands
Act and the ETCA all follow the same pattern of deriving the new
federal law to be applied from existing state law (which when so
derived becomes federal law) unless that state law is inconsistent
with overriding federal policy.25 This is entirely within Congress'
power and does not render the Amendments Act unconstitutional.
D. Public Liability Actions Necessarily Involve FederalQuestions Sufficient to Support Article III Jurisdiction.
The forgoing argument rests on the well-established rule
that Congress' legislative choices are not limited to creating wholly
new substantive federal law, but may instead incorporate state law as
federal law, and on the premise that the Amendments Act does precisely
that. But even if that interpretation of the Amendments Act is
rejected and it is concluded (contrary to both the language of the
Amendments Act and its legislative history) that Congress intended
state law to operate of its own force in public liability actions,
25 Congress has not always been so explicit, however, andfederal courts are often required to decide whether to refer toexisting state law, or fashion new federal law, to fill in theinterstitial gaps in congressional enactments. In re TMI Litig., 940F.2d at 855; United States v. Little Lake Misere Land Co., 412 U.S.580 (1973) (declining to apply state law as substantive rule ofdecision in construction of Migratory Bird Conservation Act);Reconstruction Fin. Corp. v. Beaver County, 328 U.S. 204 (1946)(determining that Congressional purpose of Reconstruction FinanceCorporation Act could best be accomplished by reference to state lawdefinitions of "real property" for tax purposes); see also TextileWorkers Union of Am. v. Lincoln Mills, 353 U.S. 448 (1957) (sustainingjurisdictional grant of section 301 of the Labor Management RelationsAct as impliedly directing that state law be absorbed as federal law).
18
there are so many "ingredients" of federal law in public liability
actions that federal jurisdiction must be sustained.
The leading modern case is Verlinden B.V. v. Central Bank of
Nigeria, 461 U.S. 480 (1983), which involved an Article III challenge
to the constitutionality of the federal jurisdictional provisions of
the Foreign Sovereign Immunities Act. The very'issue for decision in
Verlinden was "whether Congress exceeded the scope of Art. Ill of the
Constitution by granting federal courts subject-matter jurisdiction
over certain civil actions by foreign plaintiffs against foreign
sovereigns where the rule of decision may be provided by state law."
Id. at 491, 103 S.Ct. at 1970 (emphasis added).
Quoting from the seminal case of Osborne v. Bank-of the
United States, 22 U.S. 738 (1824), the Court in Verlinden stated:
The rule was laid down that 'it [is] a sufficientfoundation for jurisdiction, that the title or rightset up by the party, may be defeated by oneconstruction of the constitution or law[s] of theUnited States, and sustained by the oppositeconstruction.'
Verlinden, 461 U.S. at 492. The Court recognized that at its
broadest, this formulation might permit federal jurisdiction "on the
remote possibility of presentation of a federal question." Id. at
492, (quoting Textile Workers v. Lincoln Mills, 353 U.S. 448, 482
(1957) (Frankfurter, J., dissenting)). But, reasoned the Court:
We need not resolve that issue or decide theprecise boundaries of Art. Ill jurisdiction,however, since the present case does not involvea mere speculative possibility that a federalquestion may arise at some point in theproceeding. Rather, a suit against a foreignstate under this Act necessarily raises questionsof substantive federal law at the very outset,and hence clearly "arises under" federal law, asthat term is used in Art. III.
Verlinden, 461 U.S. at 493.
19
The Court then emphasized that the reach of Art. Ill
"arising under" jurisdiction is not limited by cases interpreting
Particularly, the "well-pleaded complaint" rule applicable in the
statutory context has no place in the Art. Ill context. Id. at 494-
95. The Court then noted that the Foreign Sovereign Immunities Act,
although articulated as a jurisdictional provision, in fact
represented an exercise of Congress' powers under several substantive
provisions of the Constitution, and the jurisdictional element of the
Act was "simply one part" of a "comprehensive scheme" governing the
"types of actions for which foreign sovereigns may be held liable in
[any] court in the United States, federal or state." Id. at 496-97.
The resulting jurisdictional grant is within thebounds of Art. Ill, since every action against aforeign sovereign necessarily involvesapplication of substantive federal law, andaccordingly "arises under" federal law, withinthe meaning of Art. III.
Id. at 497.
The Price-Anderson Act clearly "calls for the application of
federal law" in several ways. First, a court must decide, as a
threshold matter of federal law, whether the action involves a claim
for one of the enumerated kinds of injuries arising out of the special
hazardous properties of nuclear material. The definition of "public
liability" is "any legal liability arising out of or resulting from a
definition of "nuclear incident," in turn, is "any occurrence . . .
causing . . . bodily injury, sickness, disease, or death . . .
resulting from the radioactive . . . properties of" nuclear material.
42 U.S.C. § 2014(q) (emphasis added). If the action arises from the
special hazards of radiation, then the financial protection system of
20
the Act applies, deciding who will pay,26 who the parties may be, and
what substantive rules of decision will apply. In short, if the
action arises out of the special hazard addressed by the Act, very
different rules may apply and very different results may follow.
Whether the action arises out of the special hazard may be easy or
difficult to decide in a particular case, but whether difficult or -
easy, it will always be a federal question that must be decided at the
threshold.
Second, and centrally involved in this very case, if the
action arises out of the special hazard — and a claim that radiation
caused cataracts plainly arises out of the special hazardous
properties of nuclear material — then, in the words of the Court of
Appeals for the Third Circuit, "plaintiff's rights will necessarily be
determined, in part, by reference to federal law, namely the federal
statutes and regulations governing the safety and operation of nuclear
facilities." In re TMI Litig., 940 F.2d at 860. This is because
Congress has entirely occupied the field of "the safety and 'nuclear'
aspects of energy generation . . . ." Pacific Gas & Elec. Co. v.
State Energy Conservation and Development Commission, 461 U.S. 190,
212 (1983).
Here, for example, the NRC has promulgated regulations
dealing with permissible exposures of workers, such as plaintiff, to
radiation on the jobsite (see infra at Section III) . Plaintiff claims
his exposure while on the jobsite caused him to develop cataracts.
Cataracts may be so mild they do not impair vision, or so advanced
they seriously impair vision. How a cataract affects vision might be
Under the channeling provision of the Act, all legalliability ultimately is born by the insurer of the licensee, no matterwhose conduct occasioned the injury. 42 U.S.C. § 2210(b)(l).
21
important in deciding whether the cataract is "bodily injury" within
the meaning of the definition of "nuclear incident." That is plainly
a federal question. Assume plaintiff's particular cataract is not
sufficiently advanced that it is regarded as "bodily injury." The
consequence is that plaintiff cannot recover, as a matter of federal
law, although state law might otherwise allow recovery for mere
exposure to radiation under a theory of increased risk, battery, or
nuisance.
On the other hand, assume plaintiff's particular cataract
has advanced sufficiently that it is regarded as "bodily injury," and
the question is whether it was caused by a breach of any duty owed
plaintiff. Attention must then turn to the federal regulations
establishing permissible exposures to workers. Some level of exposure
to radiation is an inescapable necessity of nuclear energy. If
plaintiff's exposure was appropriately monitored and was kept within
the permissible levels, then consistent with the federal preemption of
nuclear safety, a court should conclude that defendant complied with
the duty owed to that plaintiff.
Most importantly, no matter which way one resolves either of
the above questions on the merits, they are questions of federal law
and fully warrant the grant of subject-matter jurisdiction to the
federal courts for those and like decisions.
On another level, the Amendments Act provides that other
rules, such as causation and damages, "shall be derived from the law
of the state in which the nuclear incident involved occurs, unless
such law is inconsistent with the provisions of [the Act.]" 42 U.S.C.e,fH^K. -JjJ
§ 2014 (hh)^ Thus, if the claim is one within the federal compensation
scheme, it remains to be decided, as a matter of federal law, which
22
state rules will be incorporated as the substantive federal law to be
applied because they are determined not to be "inconsistent" with
federal law and policy embodied in the Price-Anderson Act or the
Atomic Energy Act of which it is a part.27 That "consistency"
determination clearly limits state law and itself raises a federal
question that must be resolved before any law for use in a public
liability action is derived from state law. There can be no serious
question that multiple federal "ingredients" exist in public liability
actions and accordingly that Article III jurisdiction properly
exists ,28
E. Plaintiff's Other Constitutional Challenges Are Frivolous.
Plaintiff's claims that the Amendments Act violates state
sovereignty and that the retrospective application of the removal
provision violates his due process rights are based on two fundamental
misconceptions: first, that a state court may never be divested of
its jurisdiction and second, that no legitimate purpose is served by
27 As numerous courts have demonstrated in ruling on thestandard of care to be applied in these types of actions, determiningthe basic duty owed will require an examination of federal law. In reTMI Litig., 940 F.2d at 859; Coley v. Commonwealth Edison Co., 768 F.Supp. 625, 629 (1991); Akins v. Sacramento Mun. Util. Dist., 6 Cal.App. 4th 1605, 1638, 8 Cal. Rptr. 2d 785, 805, petition for reviewgranted, 11 Cal. Rptr. 2d 329, 834 P.2d 1147 (1992); cf. Pacific~Gas &Elec. Co., 461 U.S. at 204. This examination must include, at aminimum, the substantive provisions of the Amendments Act itself aswell as the federal regulations issued pursuant to the Atomic EnergyAct. A line of cases holds that matters involving the radiologicalsafety aspects of the construction and operation of nuclear powerplants must be derived from federal law, or at least must not beinconsistent with those regulations. See English v. General Elec.Co., 496 U.S. 72 (1990); Pacific Gas &~Elec. Co., 461 U.S. 190 (1983);Kerr-McGee Chem. Corp. v/ City of West Chicago,~914 F.2d 820 (7th Cir.1990); Brown v. Kerr-McGee Chem. Corp., 767 F.2d 1234 (7th Cir. 1985),cert, denied, 475 U.S. 1066 (1986).
28 Defendants agree with the position of the United States,Intervenor-Appellee, that Congress also has the authority to createprotective jurisdiction over cases which arise in the context ofpervasive federal programs. See Brief for Intervenor-Appellee at 32.
23
the Price-Anderson statutory scheme. As to the first misconception,
the constitutional validity of the general removal statutes destroys
any notion that a state court's jurisdiction may never be withdrawn.
As stated in Tennessee v. Davis, 100 U.S. 257 (1880):
The removal of cases arising under those laws,from State into Federal courts, is, therefore, noinvasion of State domain.
Id. at 267. See also Chicago & N.W. Ry. Co. v. Whitton's Adm'n., 80
U.S. (13 Wall.) 270 (1871) (Congress is authorized to extend removarl
rights to plaintiffs in diversity cases pending in state court even
where defendants opposed removal); Greenwood v. Peacock, 384 U.S. 808,
833 (1966) ("Congress is constitutionally fully free to establish the
conditions under which civil or criminal proceedings involving federal
issues may be removed from one court to another.").
As to plaintiff's second misconception, five circuit courts
of appeals have rejected the very retroactivity issues plaintiff
raises here. See In re TMI Litig., 940 F.2d 832; In re Consol.
United States Atmospheric Testing Litig., 820 F.2d 982 (9th Cir.
1987), cert, denied sub nom. Konizeski v. Livermore Labs, 485 U.S. 905
(1988); Hammond v. United States, 786 F.2d 8 (1st Cir. 1986); Arbour
v. Jenkins, 903 F.2d 416 (6th Cir. 1990); Sowell v. American Cyanamid
Co., 888 F.2d 802 (llth Cir. 1989). The constitutional propriety of
retroactive application of the Amendments Act does not turn on the
fact that pending actions are somehow affected by the retroactive
nature of the legislation. Rather, the issue is whether the
retroactive provisions of the legislation are arbitrary or irrational.
The retroactive aspects of a statute comport with due process if they
are a rational means of serving a legitimate congressional purpose.
Pension Benefit Guaranty Corp. v. R. A. Gray & Co., 467 U.S. 717
24
(1984); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15-19 (1976).
Moreover, absent a final judgment one has no "vested" right
in a cause of action. Rather, any "property" interest is merely an
inchoate possibility. See, e.g., Duke Power Co., 438 U.S. at 88 n.32
-fJ & /'Smallwood v. Gallardo, 275 U.S. 56, 61 (1927). And from the
foregoing principles comes the familiar admonition that a court "must
apply the law in effect at the time it renders its decision." Thorpe
v. Housing Auth. of Durham, 393 U.S. 268, 281 (1969); United States v.
The Schooner Peggy, 5 U.S. 103 (1801). This rule applies as well to
changes in the law which affect jurisdiction. Andrus v. Charlestone
Stone Prod. Co., 436 U.S. 604, 608 n.6 (1978); Bruner v. United
States, 343 U.S. 112, 116-17 (1952).
The District Court properly examined Congress1 purpose here
and applied the rational basis test. It decided that
Under the Price-Anderson Act Amendments, Congresswanted to facilitate equitable and uniformtreatment of victims of nuclear incidents withintheir own states to insure the orderlydistribution of funds to such victims and toencourage consolidation of public liabilityactions that presented similar issues . . . Thesegoals are plainly legitimate, and creatingremoval jurisdiction over pending publicliability actions was a rational means to achievethese goals.
O'Conner, 770 F. Supp. at 456 (citations omitted).
Plaintiff complains that the Amendments Act was a reaction
to the experience following the Three Mile Island accident, and should
be limited to that event (Appellant's Brief at 11), but the Act is not
so limited, either in its language or evident intent. The plain
language of Section 2210 (n) (2) applies to "any public liability action
arising out of a nuclear incident . . . ." The removal language
25
applies to "any such action pending in any State court (including any
such action pending on" the effective date of the Act).
While it is true that the Amendments Act was prompted in
part by the judicial decisions generated by the Three Mile Island
litigation, that is hardly the only impetus for the Act.29 For
example, one substantive change effected by the Amendments Act was a
specific federal rule relative to punitive damages, declaring that
punitive damages may not be awarded in any public liability action
against "a person on behalf of whom the United States is obligated to
make payments under an agreement of indemnification . . . ." 42 U.S.C.
§ 2210 (s). This was evidently a reaction not to Three Mile Island,
but to Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984), where the
Court had narrowly determined that state common law punitive damage
remedies were not preempted by the original Price-Anderson Act. The
Amendments Act also introduced a new form of remedy, for
"precautionary evacuations." 42 U.S.C. § 2014 (gg). And it eliminated
potential liability for lessors of nuclear plants who did not operate
the plant, thus expanding lease financing alternatives for the
industry. 42 U.S.C. § 2010 (r). Given the many substantive and
procedural changes effected by the Amendments Act, most notably the
creation of the federal public liability action itself, it was plainly
rational for Congress to extend federal removal jurisdiction to cases
that involved that new exclusively federal action.
29 Plaintiff's contention that the Amendments Act's expandedfederal jurisdiction was a result of the TMI defendants' lobbying tobring the TMI litigation into federal court is frivolous. Appellants'Brief at 11. Attorneys for both TMI plaintiffs and defendantstestified that resolving those cases in federal court would bebeneficial. In re TMI Litig., 940 F.2d at 853, n.18.
26
II. The Standard Of Care In A Public Liability Action Brought By ANuclear Worker Alleging Radiation Overexposure At A FederallyLicensed Nuclear Power Plant Is The Federal Permissible DoseLimits Established By The Nuclear Regulatory Commission.
Plaintiff's confusion about Price-Anderson leads him to
argue erroneously that the Amendments Act created a strict liability
cause of action,30 and in the alternative, that compliance with the
Permissible Dose Standards is only evidence of due care. Both
assertions are clearly wrong and serve as excellent examples of
threshold federal questions.
A. Plaintiff's Claims For Damages Arising From RadiationExposure Are Preempted By The Price-Anderson Act.
The "purpose of Congress is the ultimate touchstone" in
determining whether preemption applies. Cipollone v. Leggett Group,
Inc., 112 S.Ct. 2608, 2617 (1992) (quoting Retail Clerks v.
Schermerhorn, 375 U.S. 96, 103 (1963)). Congress' intent may be
"explicitly stated in the statute's language or implicitly contained
in its structure and purpose." Cipollone, 112 S.Ct. at 2617 (quoting
Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). Where Congress'
purpose is not explicitly stated, state law is preempted "'if that law
actually conflicts with federal law, or if federal law so thoroughly
30 Plaintiff fails to distinguish between actions arising outof a nuclear incident, governed by negligence law, and actions arisingout of an extraordinary nuclear occurrence, to which the federalwaiver of defenses applies. A "nuclear incident" is defined as "anyoccurrence, including an extraordinary nuclear occurrence . . .causing . . . bodily injury . . . resulting from nuclear . . .material . . ." 42 U.S.C. § 2014(1)(a). An "extraordinary nuclearoccurrence" is defined as "any event causing a discharge . . . of[nuclear material] . . . offsite, or causing radiation levels offsitewhich the [NRC] determines has resulted or will probably result insubstantial damages to persons offsite and property offsite. 42U.S.C. § 2014 (j) (emphasis addedT^Because the plaintiff's cataractswere allegedly caused by his occupational exposure to radiation atQuad Cities, he has alleged liability resulting from a nuclearincident. Only in the case of an ENO do the defendants "waive (i) anyissue or defense as to conduct of the claimant or fault of personsindemnified . . . ." 42 U.S.C. § 2210(n)(1).
27
occupies a legislative field 'as to make reasonable the inference that
Congress left no room for the States to supplement it.'" Cipollone,
112 S.Ct. at 2617 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947) ) (citation omitted).
Through the Amendments Act, Congress explicitly expressed
its purpose to create an exclusive federal cause of action for any
alleged personal injury arising from radiation exposure at a facility
covered by the Act. In re TMI Litig., 940 F.2d at 854 (consequence of
determination that a plaintiff has failed to state a public liability
claim is that he has no claim at all). Moreover, Congress removed any
"tension" that previously existed between the application of state or
federal law by explicitly providing that this new federal law was to
be derived from the incident state as long as that state law was not
inconsistent with the overall federal regulatory scheme. 42 U.S.C. §
2014 (hh). Thus, the Amendments Act fully satisfies the Cippolone
preemption test.
Here, plaintiff asserts that the jury should be allowed to
disregard the federal standards and substitute their own standards.
But clearly, "[p]ermitting the states to apply their own nuclear
regulatory standards, in the form of the duty owed by nuclear
defendants in tort, would . . .'frustrate' the objectives of the
federal law.'" In re TMI Litig., 940 F.2d at 859. See also Coley v.
Commonwealth Edison Co., 768 F. Supp. 625, 629 (1991) (Price-Anderson
regulatory scheme indicates a paramount federal interest; "a state
rule setting a broader standard of care could disturb" the federal
scheme and "must be rejected as contrary" to the Act); Hennessy v.
P.2d 1147 (1992). C.f., Pacific Gas & Elec. Co., 461 U.S. at 204
(state law is preempted where compliance with both federal and state
regulations is impossible). Accordingly, the District Court properly
concluded that if Illinois law was inconsistent with the Federal Dose
Limits, "federal law would have to take precedence." 0'Conner, 748 F.
Supp. at 678.
B. The District Court Correctly Held That Under Illinois LawThe Federal Permissible Dose Limits Constitute The DutyOwed.
The District Court's analysis of the duty owed under state
law correctly began with the thoughtful consideration of the policy
reasons for imposing a duty in the first place. 0'Conner, 748 F.
Supp. at 677. The Court then determined that the Federal Permissible
Dose Limits were specifically designed to establish standards that
adequately protect workers "against unreasonable risk of harm." Id.
at 677. See also Coley, 768 F. Supp. at 627 (federal dose limits are
based on the existing national and international consensus regarding
the levels of radiation at which no appreciable bodily injury was
expected); Johnston v. United States, 597 F. Supp. 374, 424 (D. Kan.
1984) (permissible dose defined as the dose that is not expected to
cause appreciable bodily injury to those exposed); Akins, 6 Cal. App.
4th at 1620 n.5, 11 Cal. Rptr. 2d at 793 n.5 (NRC conservatively set
29
permissible dose limits so that no injury will occur unless the limits
are exceeded by a significant multiple).
Relying on sound Illinois precedent explicitly adopting the
Restatement (Second) of Torts § 286,31 the District Court correctly
held that, absent preemption, Illinois law would adopt the Federal
Permissible Limits as the standard of care because each of the four
section 286 elements applied to this case. O'Conner, 748 F. Supp. at
677. E.g., Hennessy, 764 F. Supp. at 501 (Federal Permissible Dose
Limits governing internal exposure constitutes standard of care;
compliance with same conclusively establishes standard of care was
met); Coley, 768 F. Supp. at 625 (adoption of the Federal Dose Limits
are both reasonable and consistent with Illinois law).
There is nothing strange or unique about adopting the
minimum standard prescribed by legislation as the standard of care as
a matter of law. The Restatement provides that:
Where there are no ... special circumstances,the minimum standard prescribed by thelegislation or regulation may be accepted . . .by the court as a matter of law, as sufficientfor the occasion.
31 Section 286 of the Second Restatement of Torts providesthat:
The court may adopt as the standard of conduct ofa reasonable man the requirements of alegislative enactment or an administrativeregulation whose purpose is found to beexclusively or in part(a) to protect a class of persons which
includes the one whose interest is invaded,and
(b) to protect the particular interest which isinvaded, and
(c) to protect that interest against the kindof harm that has resulted, and
(d) to protect that interest against theparticular hazard from which the harmresults.
Restatement (Second) of Torts § 286 (1965).
30
Restatement (Second) of Torts § 288C comment A. Similarly, leading
tort commentators have recognized:
Where there is a normal situation, clearlyidentical with that contemplated by the statuteor regulation, it ... can be ruled as a matterof law that an actor has done his full duty bycomplying with the statute and nothing more isrequired.
W.P. Keeton, Prosser and Keeton on the Law of Torts § 36, at 233 (5th
ed. 1984). Accord 2 F. Harper & F. James, The Law of Torts § 17.6,
at 1014 (1956) ("conformity to the legislative standard . . . may so
clearly constitute due care under the circumstances of any given case
that the court will decide it does as a matter of law"). See Hughes
v. Ford Motor Co., 677 F. Supp. 76, 84 (D. Conn. 1987) (federal
regulations requiring seat belts provided the relevant common-law
standard, requiring summary judgment against claim that automobile
should have had air bags); Salvatore v. Cunningham, 305 Md. 421, 425-
supplier's adherence to statute regarding organization of natural gas
required entry of summary judgment against claim that gas was
defective for being insufficiently odorized).
This Court should affirm the District Court's adoption of
the Federal Regulations as the standard governing permissible
radiation dose limits both as a matter of federal preemption and as a
matter of state law. In a routine negligence case, the jury is able to
rely on their life experience to determine what a reasonable person
31
would do under the circumstances. But no jury will have experience or
expertise upon which to decide the highly technical issue of what
amount of radiation exposure should be allowed for a nuclear worker.
Nor would a Court. As Judge Kelly stated in Johnston:
This Court is certainly ill-equipped to secondguess those scientists by setting differentstandards of safety in these tort suits . . .this Court readily adopts these exposurestandards.
597 F. Supp. at 391-92. Accordingly, the District Court's
determination that the Federal Permissible Dose Limits constituted the
standard of care required in this case should be affirmed.
III. Dr. Scheribel's Opinion That Only Radiation Exposure Could HaveCaused Plaintiff's Cataracts is Not Admissible.
A. Introduction.
This Court has noted that "there is not much difficulty in
finding a medical expert-witness to testify to virtually any theory of
medical causation short of the fantastic." Stoleson v. United States,
708 F.2d 1212, 1222 (7th Cir. 1983). That is true here. Plaintiff's
causation expert, Dr. Karl Scheribel, an ophthalmologist with no
specialized training, education or experience in radiation induced
cataracts, would offer the "fantastic" causation opinion that only
radiation could have caused Mr. 0'Conner's cataracts. He bases his
opinion on his erroneous belief that:
I know what cataracts look like when they havebeen induced by radiation, by what ever dosage ortime of exposure there was. Radiation cataractsare [a] clinically describable and definablecondition which, when present, cannot be mistakenfor anything else.
Dr. Scheribel's Evidence Deposition at 69.32 There is no scientific
Plaintiff erroneously claims that the District Courtexcluded Dr. Scheribel's opinion because it was not "epidemiologicallyaccepted by the scientific community." Appellant's Brief at 38.
32
basis to claim that radiation cataracts are pathognomonic (the medical
term for a specifically distinctive characteristic of a disease or
pathologic condition on which a diagnosis can be made. Borland's
Medical Dictionary (26th ed. 1985) at 977). To the contrary, a review
of all the published scientific material on radiation induced
cataracts, including the articles and books that Dr. Scheribel claimed
to rely upon, reveals that Dr. Scheribel is the only doctor in the
world who would offer an opinion that directly contradicts the
scientific consensus that radiation induced cataracts are not
pathognomonic. Plaintiff's counsel admit as much when they
characterize him as a "lone voice" and when they defiantly maintain
that they "will not attempt to enter into a scientific argument with
Defendants" (because there is no science on their side). Appellant's
Brief at 38.
Rather than providing any scientific support for Dr.
Scheribel's opinion, as requested by the District Court, plaintiff
essentially argues that because Dr. Scheribel was a "treating
physician" who personally observed the plaintiff's eye condition, he
is exempt from the requirements of Rules 702, 703 and Frye. But
plaintiff does not offer Dr. Scheribel as a fact witness to testify as
to a condition, posterior subcapsular cataracts, which he observed.
Rather, plaintiff offers Dr. Scheribel as an expert witness to render
his opinion that only radiation could have caused Mr. 0'Conner's
cataracts. Surely the federal courts have had enough trouble with
what even the lay press now ridicules as "junk science" to allow a
litigant to put any dishonest person with a medical degree on the
Actually, there is no epidemiology involved in Dr. Scheribel'sopinion.
33
witness stand and let him claim anything he pleases to a jury. See
e.g., The Lawsuit Cha-Cha, Newsweek, August 26, 1991, at 58-59. Junk
Science in the Courtroom, Forbes, July 8, 1991, at 68-72. Science in
Court, Science, Vol. 243, at 1658-1659. Fortunately, Federal Rules of
Evidence 702 and 703 provide courts with the means to screen proffered
expert opinion testimony that has no scientific basis and guard
against the admission of such testimony that, when clothed with the
appearance of "expertise," can unreasonably sway a jury.
B. Federal Rules of Evidence 702 And 703.
The law regarding qualifications and admissibility of expert
testimony is well established in this Circuit, was cogently set forth
by the District Court below and need not be repeated here. O'Conner,
slip op. at 29-38.
C. The District Court Properly Determined That Dr. ScheribelWas Not Qualified Under Rule 702.
The District Court determined that the field of radiation
induced cataracts is a highly specialized field and "not part of the
routine practice of ordinary ophthalmologists. It requires a
demonstrated expertise, if not by experience, at least by a study of
all the published literature." O'Conner, slip op. at 35. Pursuant to
its Rule 702 duty, the Court then examined Dr. Scheribel' s
qualifications, comparing them with his proffered testimony. See
Carrol v. Otis Elevator Co., 896 F.2d 210, 212 (7th Cir. 1990). The
Court concluded that Dr. Scheribel had never performed research in
radiation physics, had never conducted any studies on the medical
effects of radiation on the eye, did not know the threshold dose
required to cause cataracts, and did not even have a rudimentary
knowledge of the dose response curves, for radiation effects.
O'Conner, slip op. at 34. Accordingly, the Court properly ruled that
34
Dr. Scheribel failed to qualify as an expert in the unique field
through "personal experience, specific education, or even study of the
relevant literature." Id. at 33. This determination was well within
the Court's broad discretion. Spray-Rite Service Corp. v. Monsanto
Co., 684 F.2d 1226 (7th Cir. 1982).
D. The District Court Properly Excluded Dr. Scheribel's OpinionUnder Rule 703.
1. There is No Verifiable Scientific Support For Dr.Scheribel's Opinion; His Opinion is ActuallyContradicted By Consensus Science.
In response to the District Court's Order requesting
plaintiff to supplement the information that provided the basis for
his opinion that "radiation cataracts cannot be mistaken for anything
else,"33 plaintiff submitted an affidavit by Dr. Scheribel that stated:
"Regarding my opinion . . . I rely on scientific articles such as
those attached to this affidavit" (which he admitted that he had not
read before coming to his opinion). O'Conner, slip op. at 35. The
District Court examined carefully each of these references as well as
Dr. Scheribel's affidavits and concluded
that not one of these articles or excerptssupported Dr. ,Scheribel's opinion that aradiation induced cataract "cannot be mistakenfor anything else." To the contrary, the threeattached articles all stated what consensusscience has discovered through years of research:posterior subcapsular cataracts have acharacteristic appearance in that radiationinduced cataracts are of the posteriorsubcapsular type, but not all posteriorsubcapsular cataracts are radiation induced.
O'Conner, slip op. at 38-39 (citations omitted). The Court further
reviewed the affidavits of the scientific pioneers in the field of
radiation cataracts and concluded that Dr. Scheribel's opinion "is not
Court Order dated December 22, 1989.
35
only without verifiable scientific support, it is actually directly
contradicted by his own claimed sources and by consensus medical
science.34 Such a scientifically erroneous 'opinion' cannot help the
jury discover the truth here. It could only serve to mislead them."
O'Conner, slip op. at 44-45. Such judicial scrutiny of an expert's
foundation is mandated by Rule 703 and is well within the sound
discretion of the Court.
2. Reasonable Experts in The Field Of Radiation InducedCataracts Would Not Rely On The Data And ReasoningUsed By Dr. Scheribel.
The District Court also excluded Dr. Scheribel's opinion
because experts in the field would not rely on the data and reasoning
process he used in arriving at his opinion. The Court set forth three
reasons, each of which alone would sustain the decision to exclude his
opinion. First, the Court critically evaluated the reasoning process
by which Dr. Scheribel concluded that only radiation could have caused
310 (5th Cir. 1989), cert, denied, 494 U.S. 1046 (1990). The Court
found that Dr. Scheribel committed the logical fallacy known as
"Converse Accident (hasty generalization)" when he generated his
"binding universal rule" that only radiation could have caused
plaintiff's cataracts. O'Conner, slip op. at 46.35
34 Aff. of Dr. Apple at SI 13 (attached as Exhibit A toDefendants' Response Re: Clarified Issues.); Aff. of Dr. Silbersteinat f 18 (attached as Exhibit B to Defendants' Response Re: ClarifiedIssues); Aff. of Dr. Cogan at SI 25; Aff. of Dr. Casarett at SI 11(attached as Exhibit P to Defendants' Motion for Summary Judgment);Aff. of Dr. Merriam at SIS! 23-26.
35 "Converse Accident (hasty generalization)" is defined inO'Conner, slip op. at 34.
36
Second, the Court concluded that Dr. Scheribel failed to
assess properly Mr. O'Conner's radiation dose before concluding that
the radiation caused his cataracts:
[A]ny expert with even rudimentary knowledge ofthis field would know that radiation inducedcataracts require a certain threshold dose andwould carefully seek to discover the exact doseinvolved before giving a causation opinion.36
Dr. Scheribel did the opposite: he presumed thatthe cataracts were radiation induced, and thenpresumed that the plaintiff must have somehowbeen exposed to a high enough dose to exceed thethreshold in order to have caused the cataracts,thereby justifying his initial diagnosis. Thisis circular reasoning.
slip op. at 47 (emphasis in original). A reliable expert would review
the patient's actual dosimetry records and examine or perform the
appropriate medical tests to determine the dose received. The Court
noted that plaintiff's "extensive dosimetry records" and blood sample
results were available for examination but that Dr. Scheribel failed
to examine these as well as Mr. O'Conner's "chromosome analysis or the
scientific literature." Id. at 51. The Court, relying on
Christophersen v. Allied Signal Corp., 939 F.2d 1106 (5th Cir. 1991),
petition for cert, denied, 112 S.Ct. 1280 (1992), therefore held that
Dr. Scheribel's opinion was based on "critically incomplete and
grossly inaccurate dose data" that a reliable expert would not rely
upon.
Third, the Court ruled that an expert would not reasonably
rely on the mere presence of posterior subcapsular cataracts to opine
Eggar v. Burlington Northern Railroad, 1991 WL 315487 (D.Mont. Dec. 18,1991)(diagnosing a condition prior to reviewingscientific literature or having expertise in an area "is hardly anapproach that leads to reliable and objective scientificconclusions"); Viterbo v. Dow'Chem. Co., 826 F.2d 420 (5th Cir. 1987)("a scientist who forms an opinion before beginning his research lacksthe objectivity needed to produce reliable scientific records.").
37
that they were radiation induced.37 Rather, the reliable expert would
know that there are many causes of such cataracts38 and that radiation
induced cataracts have a characteristic appearance, but not all
cataracts with such characteristic appearance are caused by radiation:
An expert would attempt to rule out each otherpossible cause of posterior subcapsularcataracts. By making such inquiries the expertwould learn the true dose received, realize thatthe dose was insufficient to cause cataracts, andinvestigate other more likely causes for Mr.O'Conner's cataracts such as simple genetics.39
O'Conner, slip op. at 51-52. Having exercised its duty mandated by
Rule 703 to examine the basis of expert opinion testimony and the
reasoning process used, the District Court properly found that Dr.
Scheribel's opinion had no verifiable scientific basis and no
verifiable scientific reasoning process.
3. Dr. Scheribel's Methodology Is Not Accepted In theRelevant Scientific Community.
It is well established in this Circuit that the methodology
and reasoning used by an expert to reach his conclusion must be
generally accepted within the relevant scientific community. United
States v. Smith, 869 F.2d 348, 351 (7th Cir. 1989); United States v.
at 1113; Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).
Each expert in the field of radiation induced cataracts,
including Dr. Apple, on whose work Dr. Scheribel claimed to rely,
testified that Dr. Scheribel's reasoning and methodology are not
37 Aff. of Dr. Silberstein at I 17; Aff. of Dr. Apple at If 14,J. 3 .
38 Aff. of Dr. Apple at SI 14. Dr. Scheribel merely had to readthe very articles and excerpts that he cited to the Court to discoverthat radiation cataracts are not pathognomonic.
Aff. of Dr. Silberstein at 5 26.
38
accepted in the scientific community.40 The District Court properly
ruled that Dr. Scheribel based his opinion on an underlying erroneous
premise that radiation induced cataracts are pathognomonic and that
this premise is not accepted by scientists who specialize in the field
accepted in the scientific community." The District Court properly
ruled that Dr. Scheribel based his opinion on an underlying erroneous
premise that radiation induced cataracts are pathognomonic and that
this premise is not accepted by scientists who specialize in the field
of radiation induced cataracts.41 The Court further determined that Dr.
Scheribel failed to consider the many variables (such as all of the
other conditions in plaintiff's medical history that made it likely
that his cataracts resulted from other conditions rather than his tiny
radiation exposure)42 that should have been considered before
determining cause. 0'Conner, slip op. at 58. Accordingly, the Court
properly concluded that Dr. Scheribel's opinion violated Frye.
IV. The District Court Properly Entered Summary Judgment BecausePlaintiff Introduced No Admissible Evidence of Breach ofDuty or Proximate Causation.
After excluding Dr. Scheribel's opinion, the District Court
examined the remaining evidence in the case and determined that no
other medical witnesses had testified with a reasonable degree of
medical certainty that Mr. 0'Conner had been exposed to levels of
radiation beyond the Federal Dose Limits or that he had received any
Aff. of Dr. Apple at 55 15-19; Aff. of Dr. Casarett at 5 11;Aff. of Dr. Cogan at 55 24-25; Aff. of Dr. Merriam at 55 22-26; Aff.of Dr. Silberstein at 55 17-26.
41 Aff. of Dr. Apple at 513; Aff. of Dr. Silberstein at 5 22;Aff. of Dr. Casarett at 5 11; Aff. of Dr. Cogan at 55 24-25; Aff. ofDr. Merriam at 55 22-26.
42 Among the many conditions that can cause posteriorsubcapsular cataracts (and that are applicable to Mr. 0'Conner) arecongenital and hereditary factors, eye trauma, cortisone, prednisone,obesity, drugs prescribed for hypertension, sunlight, galactosemia,prolonged use of eye drops, chronic diarrhea and elevated triglyceridelevels. Aff. of Dr. Apple at 5 12; Aff. of Dr. Merriam at 5 19; Dr.Bond's Dep. at 17 (attached as Exhibit y to Defendants' Motion forSummary Judgment); Dr. Nelson'-s Dep. at 23, 29, 32 47; Dr. Ward's Dep.at 15-16, 18-19, 21-22, 29-30; Dr. Reardon's Dep. at 19-21.
39
physical injury as a result of his radiation exposure.43 The Court
accordingly entered summary judgment for the defendants since there
was no evidence upon which a reasonable jury could conclude that
defendants breached any duty owed or that the plaintiff had been
injured by exposure to occupational levels of radiation.
CONCLUSION
For all the foregoing reasons, the District Court's Order
granting summary judgment for the defendants should be affirmed.
Respectfully submitted,
C. w~DONALD E. JOSEDAVID WIEDISJose & WiedisGoshen Executive Center, Suite 300B1450 East Boot RoadWest Chester, PA 19380(215) 436-1888
RICHARD F. NELSONRooks, Pitts & PoustXerox CentreSuite 150055 West Monroe StreetChicago, IL 60603
Attorneys for Defendants, CommonwealthEdison Company and London NuclearServices, Inc.
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