Dassig v. Honeywell International, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

SHANNON DASSIG, individually and as )

executrix of STEPHEN KRUEGER, )

deceased, )

)

Plaintiff, )

) Case No. 21-cv-485-SMY

vs. )

)

HONEYWELL INTERNATIONAL, INC., )

)

Defendant. )

MEMORANDUM AND ORDER

YANDLE, District Judge:

Stephen Krueger died from metastatic adenocarcinoma of the colon in 2019. His daughter,

Shannon Dassig, individually and as executrix on behalf of Krueger, brings this wrongful death

and property damage action against Defendant Honeywell International, Inc. (“Honeywell”),

alleging Krueger’s cancer was caused by his exposure to excessive levels of radiative and other

toxic materials emanating from Honeywell’s facility in Metropolis, Illinois. In the Complaint,

Plaintiff asserts violations of the Price Anderson Act (“PAA”), 42 U.S.C. § 2210 et seq. (Count I)

and alleges state law claims of negligence/gross negligence (Count II), ultra-hazardous

activity/strict liability (Count III), and wrongful death (Count IV) (Doc. 1).

Now pending before the Court is Honeywell’s Motion to Dismiss for Failure to State a

Claim (Doc. 14). For the following reasons, the Motion is GRANTED in part and DENIED in

part.

Background

The following facts are taken from Plaintiff’s Complaint and are deemed true for the

purposes of this motion. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008):

Honeywell and its predecessor operated a nuclear plant on the outskirts of Metropolis, Illinois from

1959 until late 2017 (the “Plant”). The Plant processed uranium ore into uranium hexafluoride

(“UF6”). The UF6 generated by the Plant was highly toxic radioactive gas that other facilities

acquired for purposes of enriching or purifying into fuel for nuclear reactors or bombs.

Honeywell’s source term (and therefore dose) reporting was vastly underestimated due to the

faulty and inadequate air monitoring system inside the Plant, its historic underreporting of

emissions, violations of permits setting allowable emission limits from licensed stacks and vents,

and worker accounts of regular leaks and spills. Even after operations ceased, the Plant continues

to leak radioactive and hazardous contamination offsite into the Metropolis community through

air and groundwater.

Decedent Stephen Krueger lived within 0.6 miles of the Plant. He did not know he was

being exposed continuously for decades to air laden with radioactive particles and toxic chemicals

blown out of the Plant into Krueger’s home, neighborhood and community. Scientific analysis

reveals levels of radiation in dust and soil samples from Krueger’s property that far exceed the

federal annual dose limits established in 10 CFR 20 for protection of the public. Soil sampling

also reveals substantial levels of contamination to the surrounding environment far in excess of

what Honeywell reported to federal regulators.

Discussion

The federal system of notice pleading requires only that a plaintiff provide a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, the allegations must be “more than labels and conclusions.” Pugh v. Tribune Co., 521

F.3d 686, 699 (7th Cir. 2008). This requirement is satisfied if the Complaint (1) describes the

claim in sufficient detail to give the defendant fair notice of what the claim is and the grounds upon

which it rests and (2) plausibly suggests that the plaintiff has a right to relief above a speculative

level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556).

Honeywell argues that Plaintiff’s state-law negligence, strict liability and wrongful death

claims are inconsistent with the PAA and must be dismissed. Honeywell further asserts that

Plaintiff has failed to state a cognizable claim under the PAA.

State Law Claims

The Price Anderson Act was enacted in furtherance of the Atomic Energy Act of 1954, 42

U.S.C. § 2011, et seq., to encourage private investment in nuclear energy by ensuring that public

funds are available to compensate affected parties in the event of a nuclear incident and to limit

liability for such nuclear incidents. 42 U.S.C. § 2012; Duke Power Co. v. Carolina Environmental

Study Group, Inc., 438 U.S. 59, 64-65 (1978). At the time of its enactment, the Atomic Energy

Act provided for the licensing of privately constructed and operated nuclear power plants that

would be supervised by the Atomic Energy Commission (now the NRC). Id. at 63. The PAA

subsequently required such licensed facilities to purchase private liability insurance in exchange

for indemnification by the federal government for damages more than the amount covered by

private insurance. Id. 64-5; 42 U.S.C. § 2210(a - c). Through various amendments, the funds used

to compensate victims were broadened to include indemnification from a fund subsidized by

nuclear reactor owners. Id.

In the Price-Anderson Amendments Act of 1988 (“Amendments Act”), Congress gave

federal courts original jurisdiction over “any public liability action arising out of or resulting from

a nuclear incident.” 42 U.S.C. § 2210(n)(2); In re TMI Litigation Cases Consol. II, 940 F.2d 832,

856-857 (3rd Cir. 1991). The Amendments Act further provides that “the substantive rules for

decision in such action shall be derived from the law of the State in which the nuclear incident

involved occurs, unless such law is inconsistent with [the Act].” 42 U.S.C. § 2014(hh). Thus,

while there appears to be only one recognized federal claim for relief, several state law theories

can be used to support the claim as long as they are not deemed inconsistent with the Act itself.

See In re TMI, 67 F.3d 1103, 1106 (3d. Cir.1995); O'Conner v. Commonwealth Edison Co., 13

F.3d 1090, 1099 (7th Cir. 1994). Generally, courts have held that claims of intentional torts, fraud,

and negligence are not inconsistent with the PAA. See Wilcox v. Homestake Mining Co, 401

F.Supp.2d 1196, 1199–1200 (D.N.M. 2005) (collecting cases). Here, Plaintiff’s Complaint alleges

a PAA cause of action with sub-parts based on state law theories of negligence, strict liability, and

wrongful death.

Negligence/Gross Negligence1

To state a claim for negligence under Illinois law, a plaintiff must establish “the existence

of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury

proximately caused by that breach.” Buechel v. United States, 746 F.3d 753, 763–64 (7th Cir.

2014) (citing Thompson v. Gordon, 948 N.E.2d 39, 45 (2011)). Negligence claims are not

inconsistent with the PAA as long as the standard of care is provided by the federal regulations.

O’Connor, 13 F.3d at 1105.

In this case, Plaintiff has alleged a cause of action for negligence under the PAA utilizing

the federal regulations as the standard of care. Specifically, Plaintiff alleges violations of the

1 Illinois does not recognize gross negligence as an independent ground for recovery. See Merit Ins. Co. v. Colao, 603

F.2d 654, 659 (7th Cir. 1979). Accordingly, to the extent Plaintiff is asserting a separate claim for “gross negligence”,

the claim is dismissed.

applicable federal regulations in effect at the time of Honeywell’s operations and that Honeywell’s

violations proximately caused Plaintiff injuries:

Defendant contributed to the Decedent’s overexposure to radiation through actions

which contributed to airborne particulate matter containing radionuclides to

contaminate the Decedent’s property in excess of 10 C.F.R. § 20.1301, et seq. (and its

predecessors) by: (1) failing to properly contain enormous clouds of dust and excessive

airborne particulate matter containing radioactive isotopes of uranium, thorium,

radium, plutonium and their daughter products, which now contaminate Decedent’s

property; and (2) failing to properly design, manage, repair, and operate the Plant.

Id. 25-26 ¶ 30.

Plaintiff has alleged sufficiently stated a negligence action under the Act. Accordingly,

Honeywell’s motion to dismiss is denied as to Plaintiff’s negligence claim.

Ultrahazardous/Strict Liability

In Illinois, “[a] defendant who performs an abnormally dangerous or ultrahazardous

activity is subject to liability for harm to the person, land, or chattels of a plaintiff resulting from

the activity, although the defendant has exercised the utmost care to prevent the harm.” In re

Chicago Flood Litig., 176 Ill. 2d 179, 208, 680 N.E.2d 265, 279 (1997), holding modified by

Andrews v. Metro. Water Reclamation Dist. of Greater Chicago, 2019 IL 124283, 160 N.E.3d 895;

See Restatement (Second) of Torts § 519, at 34 (1977).

Allowing a claim for ultrahazardous/strict liability would be inconsistent with the PAA and

would create the possibility that Honeywell would meet the federal standard of care mandated, but

still be held strict liable under Illinois state law. See Wilcox, 401 F.Supp.2d at 1201; Koller v.

Pinnacle West Capital Corp., 2007 WL 446357, at *3 (D. Ariz. Feb. 6, 2007) (granting motion to

dismiss strict liability count); McLandrich v. So. Cal. Edison Co., 942 F.Supp. 457, 465 n. 7 (S.D.

Cal. 1996) (noting that “applying the ‘ultrahazardous activities' doctrine here would be clearly

inconsistent with the Price–Anderson Act.”); Adkins, 960 F.Supp.2d at 766, 768 (same in uranium

exposure case). Therefore, Plaintiff’s ultrahazardous/strict liability claim is dismissed with

prejudice as preempted by the PAA.

Wrongful Death

The Illinois Wrongful Death Act provides a cause of action, “[w]henever the death of a

person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such

as would, if death had not ensued, have entitled the party injured to maintain an action and recover

damages in respect thereof.” 740 Ill. Comp. Stat. 180/1; Williams v. Manchester, 888 N.E.2d 1,

10 (2008). The Act “incorporates into the statutory right of action the familiar concepts of tort

liability – negligence, contributory negligence, and the like.” Williams, 888 N.E.2d at 12. A

wrongful death action allows the next of kin “to recover damages for their own loss based on the

wrongful actions of another,” and “is premised on the deceased's potential, at the time of death, to

initiate an action for injury.” Wyness v. Armstrong World Indus., Inc., 546 N.E.2d 568, 571 (1989).

Here, Plaintiff’s wrongful death claim is based on Honeywell’s alleged negligence in

violating the applicable federal regulations by, among other actions, emitting enough uranium to

cause a dose at Decedent’s property in excess of federal limits. Given that Plaintiff’s negligence

action is not inconsistent with the PAA, the wrongful death claim also survives.

The Price Anderson Act

A plaintiff must establish four elements to prevail on a claim under the PAA: (1) defendant

released radiation into the environment in excess of federal regulatory limits; (2) plaintiff was

exposed to this radiation; (3) plaintiff has injuries; and (4) radiation was the cause of those injuries.

See In re TMI, 67 F.3d at 1119. Honeywell argues that Plaintiff has failed to state a cognizable

claim under the PAA because: (1) Plaintiff fails to allege that Decedent was exposed to radiation

in excess of the Nuclear Regulatory Commission (“NRC”) qualifying radiation dose limits; (2)

Plaintiff has failed to plead exposure in terms of a “total effective dose equivalent” (“TEDE”) –

which Honeywell maintains is “a necessary element of a PAA claim”; and (3) Plaintiff failed to

plead actually exposure to an NRC-defined qualifying level of radiation.

Honeywell’s arguments place a higher burden on Plaintiff than required under the federal

rules. It cites O’Conner v. Commonwealth Edison Co., 13 F.3d at 1105 and Carey v. Kerr-McGee

Chem. Corp., 60 F.Supp.2d 800, 811 (N.D. Ill. 1999) for the proposition that failure to plead

specific exposures that exceed the NRC-defined limits is a basis for dismissal. In O’Connor, the

Seventh Circuit affirmed summary judgment for the defendant because plaintiff could not show

that federal safety standards regarding permissible radiation doses were exceeded. O’Conner, 13

F.3d at 1107. Similarly, Carey was also decided on summary judgment after extensive discovery

failed to establish evidence that defendant exceeded the federal dose limits. Carey, 60 F.Supp.2d

at 811.

True, Plaintiff will ultimately need to prove exposure to radiation in excess of the

maximums established by the federal safety regulations to prevail on a PAA claim. But, at the

pleading stage, Plaintiff is not required to identify the specific doses and regulations underlying

the alleged violations. See Johnson v. Wattenbarger, 361 F.3d 991, 994 (7th Cir. 2004) (“the

federal rules do not require plaintiffs to plead either facts or law.”). F.R.C.P. 8 only requires notice

pleading, and Plaintiff’s allegations are more than adequate to put Honeywell on notice of the

claims asserted against it. Viewed in the light most favorable to Plaintiff, the Complaint states a

viable claim.

Conclusion

For the foregoing reasons, Defendant Honeywell International, Inc.’s Motion to Dismiss

(Doc. 14) is GRANTED as to Plaintiffs ultrahazardous/strict liability claim and otherwise

DENIED.

IT IS SO ORDERED.

DATED: October 5, 2022 Gale

STACI M. YANDLE

United States District Judge

Page 8 of 8