Buckner v. E.I. Dupont

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: HANFORD NUCLEAR 

RESERVATION LITIGATION,

BARBARA JEAN PHILLIPS,

Plaintiff,

and

WANDA BUCKNER; SHIRLEY No. 05-35648

CARLISLE,

Plaintiffs-Appellants,  D.C. No.

CV-91-03015-WFN

v.

E.I. DUPONT DE NEMOURS & CO., a

Delaware corporation; GENERAL

ELECTRIC CO., a New York

corporation; UNC NUCLEAR

INDUSTRIES, INC., a Delaware

corporation,

Defendants-Appellees.



9533

9534 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

In re: HANFORD NUCLEAR 

RESERVATION LITIGATION,

BARBARA JEAN PHILLIPS,

Plaintiff,

and

GLORIA HOPE; CLARA REISS;

GLENDA WINSLOW; KATHRYN J. No.05-35651

GOLDBLOOM, aka Kathryn Janelle

Goldbloom,  D.C. No.

Plaintiffs-Appellants, CV-91-03015-WFN

v.

E.I. DUPONT DE NEMOURS & CO., a

Delaware corporation; GENERAL

ELECTRIC CO., a New York

corporation; UNC NUCLEAR

INDUSTRIES, INC., a Delaware

corporation,

Defendants-Appellees.



IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9535

In re: HANFORD NUCLEAR 

RESERVATION LITIGATION,

BARBARA JEAN PHILLIPS,

Plaintiff,

and

GLORIA HOPE; CLARA REISS;

GLENDA WINSLOW; WANDA

BUCKNER; KATHRYN J. VANCAMPEN,

aka Kathryn Janelle Goldbloom; No. 05-35678

SHIRLEY CARLISLE,

Plaintiffs-Appellees,  D.C. No.

CV-91-03015-WFN

v.

E.I. DUPONT DE NEMOURS & CO., a

Delaware corporation; GENERAL

ELECTRIC CO., a New York

corporation,

Defendants-Appellants,

and

UNC NUCLEAR INDUSTRIES, INC., a

Delaware corporation,

Defendant.



9536 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

BARBARA JEAN PHILLIPS, 

Plaintiff,

and

STEVEN STANTON; GLORIA WISE, No. 05-35866

Plaintiffs-Appellees,  D.C. No.

v. CV-91-03015-WFN

E.I. DUPONT DE NEMOURS & CO.;

GENERAL ELECTRIC CO.,

Defendants-Appellants.



IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9537

PAMELA DURFEY; PAULENE ECHO 

HAWK; DOROTHY GEORGE, on their

own behalf and on behalf of a

class of similarly situated persons,

Plaintiffs-Appellants,

v.

E. I. DUPONT DE NEMOURS & CO.,

a Delaware Corporation; GENERAL

ELECTRIC CO., a New York

Corporation, UNC NUCLEAR No. 05-35892

INDUSTRIES, INC., a Delaware  D.C. No.

Corporation, ATLANTIC RICHFIELD CV-93-03087-WFN

COMPANY, ATLANTIC RICHFIELD-

HANFORD CO., a Washington

Corporation; ROCKWELL

INTERNATIONAL CORP., a Delaware

Corporation; WESTINGHOUSE

HANFORD CORP., a Delaware

Corporation; WESTINGHOUSE

ELECTRIC CORP., a Pennsylvania

Corporation,

Defendants-Appellees.



9538 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

In re: HANFORD NUCLEAR 

RESERVATION LITIGATION,

PAMELA DURFEY; PAULINE ECHO

HAWK; DOROTHY GEORGE, on their

own behalf and on behalf of a

class of similarly situated persons,

Plaintiffs-Appellants,

v.

E.I. DUPONT DE NEMOURS & CO., a

Delaware corporation; GENERAL No. 05-35895

ELECTRIC CO., a New York

corporation; UNC NUCLEAR

 D.C. No.

CV-91-03015-WFN

INDUSTRIES, INC., a Delware

corporation; ATLANTIC RICHFIELD

COMPANY; ATLANTIC RICHFIELD-

HANFORD CO., a Washington

corporation; ROCKWELL

INTERNATIONAL CORP., a Deleware

corporation; WESTINGHOUSE

HANFORD CORPORATION, a Delaware

corporation; WESTINGHOUSE

ELECTRIC CORP., a Pennsylvania

corporation,

Defendants-Appellees.



IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9539

In re: HANFORD NUCLEAR 

RESERVATION LITIGATION,

No. 06-35165

D.C. No.

SHANNON C. RHODES,

CV-91-03015-WFN

Plaintiff-Appellant,

v.  ORDER

AMENDING

E.I. DUPONT DE NEMOURS & CO., a OPINION AND

Delaware corporation; GENERAL AMENDED

ELECTRIC CO., a New York OPINION

corporation,

Defendants-Appellees.



Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielsen, Senior Judge, Presiding

Argued and Submitted

February 7, 2007—Pasadena, California

Filed August 14, 2007

Amended April 4, 2008

Second Amendment July 29, 2008

Before: Mary M. Schroeder, Alfred T. Goodwin and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Schroeder

9544 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

COUNSEL

Peter Nordberg, Berger & Montague, P.C., Philadelphia,

Pennsylvania; Roy S. Haber, Roy S. Haber, P.C., Eugene,

Oregon; Daniel Johnson and David Breskin, Short Cressman

& Burgess, PLLC, Seattle, Washington, for the plaintiffs-

appellants-appellees.

Christopher Landau, Kirkland & Ellis, LLP, Washington,

D.C., for the defendants-appellees-appellants.

ORDER

The mandate of this court, issued on April 14, 2008, is

recalled. Our earlier order amending the opinion contained an

inadvertent error. The opinion in this matter, filed August 14,

2007, amended on April 4, 2008, and published at In re Han-

ford Nuclear Reservation Litigation, 521 F.3d 1028 (9th Cir.

2008), is amended as follows: Delete the paragraph beginning

on slip op. p. 3624 and concluding on p. 3625.

No subsequent petition for rehearing or rehearing en banc

may be filed. The mandate shall issue in due course.

OPINION

SCHROEDER, Circuit Judge:

I. Introduction.

The origins of this case trace back more than sixty years to

the height of World War II when the federal government

solicited Appellants E.I. DuPont de Nemours & Co., General

Electric, Inc., UNC Nuclear Industries, Inc., Atlantic Rich-

field Co., and Rockwell International Corp., (collectively

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9545

“Defendants”) to operate the Hanford Nuclear Weapons Res-

ervation (“Hanford”) in southeastern Washington. The Han-

ford Reservation was a plutonium-production facility that

helped make the atomic bomb that dropped on Nagasaki,

Japan in World War II.

A regrettable Hanford byproduct was the radioiodine emit-

ted into the surrounding area. The plaintiffs in this litigation

are over two thousand residents who now claim that these

emissions, known as I-131, caused various cancers and other

life-threatening diseases. The first group of plaintiffs filed a

complaint in 1990 under the federal statute governing nuclear

accidents, the Price-Anderson Act (“PAA”), claiming they

were entitled to damages for injuries arising from a nuclear

incident pursuant to 42 U.S.C. § 2210. The history is dis-

cussed in our earlier opinions in In re Hanford Nuclear Reser-

vation Litigation, 292 F.3d 1124 (9th Cir. 2002) (“In re

Hanford”); and Berg v. E.I. DuPont de Nemours & Co., 293

F.3d 1127 (9th Cir. 2002) (“Berg”). After almost two decades

of litigation, which already has included two appeals to this

court, the parties in 2005 agreed to a bellwether trial. The trial

was designed to produce a verdict that would highlight the

strengths and weaknesses of the parties’ respective cases and

thus focused on six plaintiffs (“Plaintiffs”) who were repre-

sentative of the larger group. The purpose of the trial was to

promote settlement and bring long-overdue resolution to this

litigation.

Before us on appeal is a litany of issues stemming from the

bellwether trial. A threshhold issue is whether Defendants

may seek complete immunity under the common law govern-

ment contractor defense, because they were operating Han-

ford at the request of the federal government. We hold that the

defense is inapplicable as a matter of law, because Congress

enacted the PAA before the courts recognized the government

contractor defense, and the PAA provides a comprehensive

liability scheme that precludes Defendants’ reliance on such

a defense.

9546 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

In the alternative, Defendants argue that even if they are

not immune, they are not strictly liable for any I-131 emis-

sions, because the amounts of the emissions were within

federally-authorized levels; the plutonium-production process

was not an abnormally dangerous activity that would create

strict liability; and even if it were, Defendants qualify for the

“public duty” exception to strict liability. The district court

held that none of Defendants’ contentions were sufficient to

relieve them of strict liability for the injuries they caused. We

agree.

With respect to the trial itself, the district court with admi-

rable diligence ruled on many issues of first impression. We

hold that under Washington law, the district court properly

instructed the jury that to impose liability, it had to find Han-

ford was the “but for” cause of Plaintiffs’ diseases and not

just a contributing cause under the more lenient “substantial

factor” test. The court also made a host of evidentiary rulings

that are before us on appeal. We hold that three of these rul-

ings constitute reversible error with respect to three of the

Bellwether Plaintiffs.

There are statute of limitations issues as well. We hold that

any Hanford Plaintiffs who filed independent suits pending

class certification are entitled to class action tolling.

Lastly, we hold that the district court properly dismissed

any medical monitoring claims as not cognizable under the

PAA. This is consistent with our decision in Berg, 293 F.3d

1127.

II. Background.

The United States government constructed Hanford during

World War II to manufacture plutonium for military purposes.

The facility was a component of the Army Corps of Engi-

neer’s secret Manhattan Project, with the primary objective of

developing an atomic bomb. In 1942, the Army Corps began

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9547

hiring civilian contractors to help build and operate the Han-

ford facility. It first recruited the University of Chicago Met-

allurgical Laboratory (“Met Lab”) to design the process and

equipment to produce plutonium. It then solicited E.I. DuPont

de Nemours & Co. (“DuPont”) to actually run the facility. It

is apparent the government itself did not have the expertise or

resources to operate Hanford.

DuPont initially refused. The government, however, per-

sisted and implored DuPont to run the plutonium-production

facility, because, as the government provided in DuPont’s

contract, the project was of the “utmost importance” and was

“necessary in facilitating the prosecution of the war.” DuPont

eventually acquiesced, stating it would run the facility out of

patriotic considerations. It accepted only one dollar as pay-

ment for its services. Several years later, the Hanford facility

successfully produced the plutonium that was used in 1945 to

drop the atomic bomb on Nagasaki and effectively end World

War II. (The bomb dropped on Hiroshima was uranium-

based, not plutonium-based).

As part of the plutonium-production process, the Hanford

facility emitted I-131, a fission byproduct known as radioio-

dine. I-131 was known at the time to have potential adverse

health effects on humans. Accordingly, the Met Lab scientists

set tolerance doses for human exposure. For example, the Met

Lab determined that the human thyroid should not absorb

more than one rad per day for those individuals subject to

continuous exposure in the area. A rad is a measurement of

the amount of radioiodine absorbed into an organ or tissue.

On the basis of these safe exposure limit estimates, the Met

Lab approved a detailed operating procedure that would

ensure that the plutonium was produced within those emission

limits. The key to decreasing I-131 emissions was to allow for

longer cooling times of the uranium slugs used to produce the

plutonium. This strategy, however, often conflicted with the

federal government’s orders to increase plutonium produc-

tion.

9548 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

On September 1, 1946, DuPont transferred its duties to

General Electric (“GE”), which also agreed to earn no profit

from its work. GE ran the Hanford facility through the Cold

War. During the period of its operation, GE asked the federal

government to increase cooling times to allow for lower emis-

sions of I-131. By this time, Congress had established the

Atomic Energy Commission (“AEC”), see 42 U.S.C.

§§ 2011-2013 (1946), and GE was bound by its determina-

tions. The AEC denied the request for longer cooling times,

and GE continued to produce plutonium consistent with gov-

ernment demands. By the 1950s, however, significant

improvements were made to the production process, and I-

131 emission levels dropped.

In 1987, the United States Department of Energy (“DOE”)

created the Hanford Environmental Dose Reconstruction Proj-

ect (“HEDR”), overseen by the Center for Disease Control

and Prevention. The underlying purpose of the HEDR was to

estimate and reconstruct all radionuclide emissions from Han-

ford from 1944 to 1972 in order to ascertain whether neigh-

boring individuals and animals had been exposed to harmful

doses of radiation. Of particular concern to the HEDR were

the estimated doses of I-131 received by the thyroid glands of

humans, principally through consumption of milk from cows

that ingested contaminated vegetation on neighboring farms

and pastures. The HEDR concluded that I-131 emissions

peaked during the period from 1944 to 1946, when an esti-

mated 88% of Hanford’s total iodine emissions occurred.

HEDR explained that in later years, emissions declined

because of technological advances. In 1990, the Technical

Steering Panel of HEDR released a report entitled Initial Han-

ford Radiation Dose Estimates that publicly disclosed for the

first time that large quantities of radioactive and non-

radioactive substances had been released from Hanford,

beginning in the 1940s.

This disclosure sparked a blaze of litigation. Thousands of

plaintiffs filed suit pursuant to the Price-Anderson Act, 42

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9549

U.S.C. § 2210(n)(2), which had been amended in 1988 to pro-

vide exclusive federal jurisdiction over all claims arising from

a nuclear incident, otherwise known as public liability actions.

The PAA allowed the plaintiffs to sue private parties, such as

DuPont, and to consolidate the claims in federal district court.

Id. While Congress wanted to ensure that victims of nuclear

incidents recovered compensation, it also included govern-

ment indemnification provisions in the PAA to give private

parties an incentive to participate in the nuclear industry. See,

e.g., S. REP. NO. 100-70, at 14 (1988), reprinted in 1988

U.S.C.C.A.N. 1424, 1425-26.

The PAA provides that although federal courts have exclu-

sive and original jurisdiction over claims stemming from

nuclear incidents, the substantive rules of decision are pro-

vided by the law of the state in which the nuclear incident

occurs. See 42 U.S.C. § 2014(hh). Plaintiffs therefore brought

tort claims under Washington law, asserting that because

Defendants were engaged in an abnormally dangerous activ-

ity, they were strictly liable for any Hanford-caused radiation

illness.

On August 6, 1990, a group of plaintiffs filed a joint con-

solidated complaint in the Eastern District of Washington,

alleging a class action against Defendants. In 1991, the dis-

trict court consolidated any and all Hanford-related actions

pending in various courts, directed preparation of one consoli-

dated complaint, and designated specific lead counsel for all

parties. In an order dated September 22, 1994, the district

court addressed the issue of class certification and decided to

reserve decision under Federal Rule of Civil Procedure

23(b)(3) pending further discovery on causation issues.

Accordingly, pending class certification, the litigation pro-

ceeded as a consolidated action. Throughout this period, the

district court entertained a handful of dispositive motions,

which led to two appeals to this court. In 2002, we heard In

re Hanford, 292 F.3d 1124, challenging the district court’s

9550 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

dismissal of plaintiffs who could not establish they received

a “doubling dose” of radiation. We held that Plaintiffs’ claims

should proceed even if they could not show that Hanford radi-

ation doubled their risk of illness, and we remanded for trial.

Id. at 1139.

We also heard the appeal in the related case, Berg, 293 F.3d

1127. The Berg plaintiffs had not yet suffered from any ill-

ness, but sued Defendants for medical monitoring. We held

that medical monitoring claims were not compensable under

the PAA and upheld the district court’s dismissal of those

actions with prejudice. Id. at 1133.

After our decisions in In re Hanford and Berg, Judge Wil-

liam Fremming Nielsen steered the case toward resolution.

The parties agreed to proceed with a bellwether trial, hoping

it would reveal the strengths and weaknesses of their respec-

tive cases and thus pave the way for a settlement. The parties

eventually agreed on twelve bellwether plaintiffs. Six of these

plaintiffs had their claims dismissed on dispositive, pre-trial

motions. The remaining six plaintiffs went to trial in April

2005.

The Bellwether Plaintiffs represent plaintiffs who suffer

from various thyroid diseases they claim were caused by radi-

ation emanating from Hanford. Plaintiffs Gloria Wise and

Steven Stanton have thyroid cancer. Plaintiffs Wanda Buck-

ner, Shirley Carlisle, and Kathryn Goldbloom suffer from

hypothyroidism, a condition that slows the body’s metabo-

lism. Hypothyroidism is most frequently caused by Hashimo-

to’s disease, an illness that Plaintiffs claim was caused by

Hanford radiation. Plaintiff Shannon Rhodes suffers from

lung cancer, which her doctors concluded was a form of

Hurthle cell thyroid cancer that had metastasized from a thy-

roid lobe previously removed.

Prior to trial, the Bellwether Plaintiffs made several

motions to strike Defendants’ affirmative defenses. Defen-

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9551

dants first claimed that the government contractor defense

insulated them from all liability. The district court, in an

unpublished 2003 order, struck the defense under Federal

Rule of Civil Procedure 12(b), holding that the PAA displaced

any such defense as a matter of law. In a published order, the

court also ruled that plutonium production at Hanford was an

abnormally dangerous activity warranting strict liability under

Washington law. In re Hanford Nuclear Res. Litig., 350 F.

Supp. 2d 871, 888 (E.D. Wash. 2004). It then limited the

issues at trial to causation and damages. Id.

The primary dispute at trial was whether the amount of

radiation to which each plaintiff was exposed was sufficient

to be the cause-in-fact of his or her thyroid disease. There was

extensive testimony that I-131 radiation causes Hashimoto’s

disease, a cause of hypothyroidism, and that I-131 can also be

a contributing factor to thyroid cancer. The testimony

revealed, however, that to date epidemiological studies can

establish only that radiation of at least 100 rads is a contribut-

ing factor to thyroid illness. Some epidemiological studies

hypothesize that 40 rads might cause Hashimoto’s disease,

but there are no data beyond that threshold.

Because many Plaintiffs were not exposed to radiation

above 40 rads, and no Plaintiff was exposed to radiation

above 100 rads, Plaintiffs had to present expert testimony that

scientific extrapolation permitted a finding of causation below

40 rads. Their primary experts were Dr. Terry Davies, an

endocrinologist, Dr. Sara Peters, a pathologist, Dr. F. Owen

Hoffman, a causation expert, and Dr. Colin Hill, a radiation

cell biologist. Plaintiffs also proffered the expert testimony of

epidemiologist Dr. A. James Ruttenber, but key parts of his

testimony relating to causation were excluded.

After fourteen days of trial and four days of deliberations,

the jury found in favor of two plaintiffs, Steve Stanton and

Gloria Wise; the jury hung with respect to one plaintiff, Shan-

non Rhodes; and it found in favor of Defendants with respect

9552 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

to the remaining three plaintiffs, Wanda Buckner, Shirley

Carlisle, and Kathryn Goldbloom. As damages for prevailing

plaintiffs, the jury awarded Stanton $227,508 and Wise

$317,251. Because the jury could not reach a verdict with

respect to Plaintiff Rhodes, the district court declared a mis-

trial. Rhodes re-tried her claims in front of a second jury in

November 2005, and the jury entered a defense verdict on all

counts.

Rhodes, along with the three non-prevailing plaintiffs in the

first trial, appeal a variety of evidentiary rulings, as well as

the district court’s jury instruction that under Washington law

Plaintiffs had to prove “but-for” causation, rather than “sub-

stantial factor” causation. Defendants appeal the judgments

entered in favor of the two prevailing plaintiffs, claiming the

district court erred as a matter of law in striking the govern-

ment contractor defense. In the alternative, Defendants argue

that Plaintiffs may not proceed under a strict liability theory,

because the I-131 emissions were within federally-authorized

levels. They also contend the plutonium-production process

was not an abnormally dangerous activity under Washington

law and, even if it were, that Defendants qualify for the nar-

row “public duty” exception to strict liability.

Defendants also contend that prevailing Plaintiff Wise’s

suit was untimely under Washington’s statute of limitations.

See Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974).

Wise had filed an independent action in 1997, likely beyond

the statutory period, but Defendants did not invoke American

Pipe and the district court allowed Wise’s claim to proceed as

part of the pending class action.

Apart from the issues relating to the Bellwether Plaintiffs,

Plaintiffs Pamela Durfey, Paulene Echo Hawk, and Dorothy

George, who do not yet have symptoms of any thyroid dis-

ease, sued Defendants for the costs of medical monitoring.

The district court, following this court’s decision in Berg, 293

F.3d at 1132-33, held that the PAA precluded any medical

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9553

monitoring claims that were unaccompanied by physical

injury. Rather than remanding those claims to state court,

however, the district court held that the PAA bestowed exclu-

sive jurisdiction in the federal courts for claims arising from

a nuclear incident, and that therefore the PAA’s provisions

preempted any state-derived medical monitoring claim.

Accordingly, it directed entry of final judgment for DuPont

under Federal Rule of Civil Procedure 54(b). The plaintiffs

appeal this dismissal.

III. The Government Contractor Defense.

The overarching issue before us is Defendants’ contention

that the government contractor defense is available to them as

a matter of law and that it provides complete immunity from

liability if its substantive requirements are satisfied. The dis-

trict court held that the affirmative defense was inapplicable

as a matter of law because the provisions of the PAA cannot

be reconciled with the defense and implicitly displace it. We

review de novo the district court’s conclusion that the affirma-

tive defense is unavailable, United States v. Griffin, 440 F.3d

1138, 1143 (9th Cir. 2006), and we reach the same conclu-

sion.

[1] The government contractor defense is by now an estab-

lished component of federal common law, but it was first rec-

ognized by the Supreme Court less than twenty years ago in

Boyle v. United Techs. Corp., 487 U.S. 500 (1988). The

defense is intended to implement and protect the discretionary

function exception of the Federal Tort Claims Act (“FTCA”),

28 U.S.C. § 2680(a), which was enacted after World War II.

The defense allows a contractor-defendant to receive the ben-

efits of sovereign immunity when a contractor complies with

the specifications of a federal government contract. Boyle,

487 U.S. at 511-12. As the Court said in Boyle, “[i]t makes

little sense to insulate the Government against financial liabil-

ity for the judgment that . . . equipment is necessary when the

9554 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

Government produces the equipment itself, but not when it

contracts for the production.” Id. at 512.

As a threshold matter, we agree with Defendants that the

government contractor defense applies not only to claims

challenging the physical design of a military product, but also

to the process by which such equipment is produced. Accord-

ingly, a contractor who agrees to operate a production facility

pursuant to government specifications may qualify for the

defense.

The issue here, however, is whether the PAA preempts reli-

ance on the common law doctrine, either because the defense

contradicts the federal statute or because the statute predates

the defense. Congress is presumed to “legislate against a

background of common-law adjudicatory principles.” Astoria

Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108

(1991). A federal statute enacted after a common law doctrine

has been established will not therefore abrogate the federal

common law rule unless the statute speaks directly to the

question addressed by common law. United States v. Texas,

507 U.S. 529, 534 (1993). This is because “where a common-

law principle is well established . . . the courts may take it as

given that Congress has legislated with an expectation that the

principle will apply except when a statutory purpose to the

contrary is evident.” Astoria, 501 U.S. at 108 (internal quota-

tions and citations omitted) (holding that the court should

assume Congress drafted the Age Discrimination in Employ-

ment Act with the common law administrative estoppel doc-

trine in mind); see also Pasquantino v. United States, 544

U.S. 349, 359 (2005).

[2] Whether the PAA preempts the government contractor

defense is therefore a two-step inquiry. We must first deter-

mine whether the government contractor defense was well-

established at the time Congress enacted the operative version

of the PAA. If so, we must determine whether a statutory pur-

pose contrary to the government contractor defense is evident.

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9555

The defense fails the first inquiry. Defendants are not enti-

tled to the government contractor defense, because the statute

predates clear judicial recognition of any such defense. In

addition, the statute’s comprehensive liability scheme is

patently inconsistent with the defense and precludes its opera-

tion in this case.

[3] The Supreme Court’s decision in Boyle was filed on

June 27, 1988. Less than two months later, the PAA was

amended, on August 20, 1988, to include the pertinent lan-

guage establishing exclusive federal jurisdiction for all public

liability claims arising from nuclear incidents. While the gov-

ernment contractor defense was technically a recognized com-

mon law principle at the time Congress enacted the PAA, it

was hardly a well-established doctrine. See Astoria, 501 U.S.

at 108. (noting that courts should presume Congress legislated

with an expectation that a common law doctrine would apply

only if the common-law principle was well-established). Con-

gress did not have the benefit of any well-established com-

mon law principles relating to the government contractor

defense when Congress drafted the relevant provisions of the

PAA. The Supreme Court defined the defense only a few

weeks before the PAA was signed into law.

The origins of the defense in the cases antecedent to Boyle

do not materially affect this analysis. In 1940, the Supreme

Court arguably planted the seeds of the government contractor

defense in Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18,

20-21 (1940). It held that an agent of the government could

not be held liable under the Takings Clause for the defective

construction of a dam that damaged land, as long as the agent

followed government specifications for the dam’s construc-

tion. The Court limited the applicability of the defense to

principal-agent relationships where the agent had no discre-

tion in the design process and completely followed govern-

ment specifications. Nothing in Yearsley extended immunity

to military contractors exercising a discretionary governmen-

tal function. See Boyle, 487 U.S. at 524-25 (J. Brennan, dis-

9556 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

senting) (Yearsley is “a slender reed on which to base so

drastic a departure from precedent” . . . . “[It] has never been

read to immunize the discretionary acts of those who perform

service contracts for the Government”).

While some circuit courts began extending the Yearsley

doctrine to military contractors as early as the 1960s, see

McKay v. Rockwell Int’l Corp., 704 F.2d 444, 448-49 (9th

Cir. 1983) (citing cases), other circuits held that Yearsley was

clearly limited to principal-agent relationships and did not

apply to military contractors, see, e.g., Bynum v. FMC Corp.,

770 F.2d 556, 564 (5th Cir. 1985). In light of the conflicting

authority on the matter, it is clear that neither the scope nor

the contours of the defense were well-defined until the

Supreme Court’s 1988 decision in Boyle. We therefore con-

clude that the government contractor defense was not judi-

cially well-established at the time Congress enacted the PAA.

Because Congress did not enact the PAA against a back-

drop of well-established common law principles that included

the government contractor defense, we cannot grant immunity

from liability.

Defendants argue that even if the doctrine was not judi-

cially well-established, Congress passed the 1988 amend-

ments to the Act with the defense in mind and intended that

it apply. The defendants point to a provision in the PAA relat-

ing to underground detonation. The provision is 42 U.S.C.

§ 2210(d)(7), which states as follows:

A contractor with whom an agreement of indemnifi-

cation has been executed under paragraph (1)(A) and

who is engaged in activities connected with the

underground detonation of a nuclear explosive

device shall be liable, to the extent so indemnified

under this subsection, for injuries or damage sus-

tained as a result of such detonation in the same

manner and to the same extent as would a private

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9557

person acting as principal, and no immunity or

defense founded in the Federal, State, or municipal

character of the contractor or of the work to be per-

formed under the contract shall be effective to bar

such liability.

Defendants contend the provision demonstrates that Congress

intended to eliminate the modern government contractor

defense for underground detonation and further contend that

the provision demonstrates Congress intended the government

contractors defense as we know it today to apply to all other

claims arising out of nuclear incidents.

The language of § 2210(d)(7) is not clear. It refers to “im-

munity or defense” founded on the “character of the contrac-

tor or of the work.” It thus appears to be referring to

traditional sovereign immunity from any liability rather than

the more sophisticated principles of accountability that under-

lie modern exceptions of governmental tort liability. See Fed-

eral Tort Claims Act, 28 U.S.C. § 2680(a); Boyle, 487 U.S. at

512.

Even assuming, however, that Congress intended to ensure

that the modern defense did not apply to underground detona-

tion claims, it does not follow that Congress also intended,

without saying so, that the defense would apply in all other

situations. Such a result would conflict with the Congressio-

nal statutory aim to provide compensation for nuclear injuries.

The defense is therefore inconsistent with Congressional

purpose and the PAA preempts the defense for that reason as

well. Congress drafted a precise, comprehensive litigation

scheme for injuries sustained in a nuclear incident. The fed-

eral courts have recognized this Congressional intent. See

O’Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1099

(7th Cir. 1994); In re TMI Litig. Cases, 940 F.2d 832, 854-55

(3d Cir. 1991) (“In re TMI Litig.”). That scheme governs the

conduct of this litigation. As the district court correctly con-

9558 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

cluded, “Congress has clearly spoken to the claims at issue in

this case and its pronouncement, not a more general court-

created common law defense[,] should govern the resolution

of the claims.” In re Hanford Nuclear Reservation Litig., No.

91-3015, slip op. at 11 (E.D. Wash. Mar. 30, 2004).

[4] Congress enacted the PAA with twin goals in mind: to

provide an incentive to contractors to participate in the

nuclear industry by limiting their liability, and to compensate

victims of nuclear accidents. See, e.g., Pub. L. No. 100-408,

102 Stat. 1066 (1988); S. REP. NO. 100-218, at 4-13 (1987),

reprinted in 1988 U.S.C.C.A.N. 1476, 1479-88. The Act

placed Plaintiffs’ state law claims in federal court and pro-

vided indemnification of Defendants from the federal govern-

ment for any liability to victims of nuclear incidents. See 42

U.S.C. § 2210; S. REP. NO. 100-218, at 13, reprinted in 1988

U.S.C.C.A.N. at 1484, 1488. To allow those entitled to

indemnity as government contractors to disclaim any liability

because they are government contractors would be inconsis-

tent with the goal of the PAA to provide compensation to vic-

tims of nuclear incidents. We will not assume that in enacting

the PAA’s comprehensive scheme, Congress intended, yet

failed to state in the Act, that victims of nuclear incidents can-

not recover tort damages from nuclear operators when the

operators were pursuing government goals. Accordingly, we

hold that the government contractor defense is inapplicable as

a matter of federal law and affirm the district court’s ruling

on this key issue.

IV. Strict Liability.

Defendants next argue that the district court erred as a mat-

ter of Washington state law in holding Defendants strictly lia-

ble for any I-131 emissions from the Hanford facility.

Defendants challenge that ruling on three grounds: (1) that

strict liability pursuant to Washington state law may not be

imposed under the PAA if Defendants released I-131 within

federally-authorized emission levels; (2) even if state liability

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9559

law applies, the Hanford activity did not meet the “abnor-

mally dangerous activity” test that warrants strict liability; and

(3) even if Washington courts would apply a strict liability

regime, Defendants would be exempted under the “public

duty” exception that applies generally to heavily regulated

entities doing potentially hazardous work. For the reasons

below, we affirm the district court’s imposition of strict liabil-

ity.

A. Federally-Authorized Emissions.

[5] It is not disputed that the federal government is in

charge of nuclear safety. “[T]he safety of nuclear technology

[is] the exclusive business of the Federal Government,” which

has “occupied the entire field of nuclear safety concerns.”

Koller v. Pinnacle West Capital Corp., 2007 U.S. Dist.

LEXIS 9186 (D. Ariz. Feb. 7, 2007) (second alteration in

original) (quoting Pac. Gas Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190, 208, 212

(1983)). Every federal circuit that has considered the appro-

priate standard of care under the PAA has concluded that

nuclear operators are not liable unless they breach federally-

imposed dose limits. See, e.g., O’Conner, 13 F.3d at 1105; In

re TMI Litig., 940 F.2d at 859; Roberts v. Fla. Power & Light

Co., 146 F.3d 1305, 1308 (11th Cir. 1998); Nieman v. NLO,

Inc., 108 F.3d 1546, 1553 (6th Cir. 1997).

[6] Defendants are thus correct insofar as they point out

that the clear weight of authority supports the principle that

federal law preempts states from imposing a more stringent

standard of care than federal safety standards. Strict liability

may not be imposed for I-131 releases within federally-

authorized limits, because any federal authorization would

preempt state-derived standards of care. To allow a jury to

decide on the basis of a state’s reasonableness standard of

care would “put juries in charge of deciding the permissible

levels of radiation exposure and, more generally, the ade-

quacy of safety procedures at nuclear plants—issues that have

9560 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

explicitly been reserved to the federal government.” In re TMI

Gen. Publ. Utils. Corp., 67 F.3d 1103, 1115 (3d Cir. 1995)

(citing Pacific Gas, 461 U.S. at 212). This result would under-

mine the purpose of a comprehensive and exclusive federal

scheme for nuclear incident liability.

Defendants then go further, however, and argue that the

district court in this case permitted the jury to substitute its

view of a reasonable emission standard for a government

standard. The problem with Defendants’ argument is that no

federal standards governing emission levels existed at the

time of the I-131 emissions. Defendants try to remedy this

problem by pointing to “tolerance doses” recommended and

implemented by military and government scientists working

on the Hanford project and ask us to equate such recommen-

dations with federally-authorized emission levels. They are

not the same.

These tolerance doses, although established under the aegis

of the United States Army, did not carry the force of law and

thus cannot provide the basis for a safe harbor from liability.

They amounted to no more than site-specific safety rules. The

United States Army instructed the Manhattan Engineering

District to set forth standard, internal operating procedures for

the plutonium-production process at Hanford. The tolerance

doses were part of these procedures. The Met Lab scientists

calculated what they thought were the outer limits of safe

exposure at the plant. These internal guidelines were, how-

ever, exactly and only what they claimed to be: internal. They

were not comprehensive, federal standards governing emis-

sion levels on which Defendants could rely to relieve them

from liability for harm they caused.

Defendants are correct that it would not have been possible

for an agency to establish emission levels in the early 1940s,

because the Atomic Energy Act was not enacted until 1954

and the Nuclear Regulatory Commission was created in 1974.

In fact, the emissions occurred even prior to the enactment of

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9561

the Administrative Procedure Act in 1946. This history, how-

ever, undermines Defendants’ position, because it highlights

the absence of any federal machinery to promulgate legal

standards on which Defendants could have reasonably relied

to insulate them from liability to those living and breathing

twenty-four hours a day in the area surrounding Hanford. The

need for such standards was not recognized until many years

later.

B. Abnormally Dangerous Activity.

Defendants next argue that even if state law standards

apply in this case, the district court erred by holding that

Washington tort law would impose strict liability. Specifi-

cally, Defendants contend that operating the Hanford facility

does not constitute an “abnormally dangerous activity” under

Washington law. We review de novo the question of whether

an activity is abnormally dangerous, Langan v. Valicopters,

Inc., 567 P.2d 218, 221 (Wash. 1977), and we affirm.

Washington has adopted the Restatement (Second) of

Torts, sections 519 and 520, which outline the strict liability

regime for abnormally dangerous activities. Klein v. Pyrodyne

Corp., 810 P.2d 917, 920 (Wash. 1991); New Meadows Hold-

ing Co. v. Wash. Water Power Co., 687 P.2d 212, 215 (Wash.

1984). Section 519 provides:

(1) One who carries on an abnormally dangerous

activity is subject to liability for harm to the person,

land, or chattels of another resulting from the activ-

ity, although he has exercised the utmost care to pre-

vent such harm.

(2) Such strict liability is limited to the kind of

harm, the risk of which makes the activity abnor-

mally dangerous.

Section 520 lists the factors to be used when determining

what constitutes an abnormally dangerous activity:

9562 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

(a) Whether the activity involves a high degree of

risk of some harm to the person, land or chattels of

another;

(b) Whether the gravity of the harm which may

result from it is likely to be great;

(c) Whether the risk cannot be eliminated by the

exercise of reasonable care;

(d) Whether the activity is not a matter of common

usage;

(e) Whether the activity is inappropriate to the

place where it is carried on; and

(f) The value of the activity to the community.

RESTATEMENT (SECOND) OF TORTS §§ 519-20 (1977). A court

does not have to weigh each of the elements listed in § 520

equally. Langan, 567 P.2d at 221. One factor, alone, however,

is generally not sufficient to find an activity abnormally dan-

gerous. Id.

[7] Defendants argue that at the time of the emissions in the

1940s, they did not know the risks that were attributable to

radioiodine exposure, and therefore § 520’s factors (a)-(c)

cannot be weighed against them. Any possible injury from

radiation, however, need not have been actually known by

Defendants at the time of exposure in order to impose strict

liability. Under Washington law, if the actual harm fell within

a general field of danger which should have been anticipated,

strict liability may be appropriate. Whether an injury should

have been anticipated does not depend on whether the particu-

lar harm was actually expected to occur. Koker v. Armstrong

Cork, Inc., 804 P.2d 659, 667-68 (Wash. Ct. App. 1991). It is

sufficient that “the risk created [be] so unusual, either because

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9563

of its magnitude or because of the circumstances surrounding

it. . . .” Langan, 567 P.2d at 221.

[8] There is no question that Defendants should have antici-

pated some of the many risks associated with operating a

nuclear facility, creating plutonium, and releasing I-131 into

the atmosphere. It is exactly because of these risks, and the

potential exposure to liability arising from them, that the gov-

ernment contracted with Defendants to limit liability in case

of an accident. For these same reasons, the Met Lab scientists

recommended dosage limits.

[9] We agree with the district court that Defendants’ con-

duct at Hanford was an abnormally dangerous activity under

the § 520 factors. There was a high degree of risk to people

and property associated with the Hanford facility and the

gravity of any harm was likely to be great. See RESTATEMENT

(SECOND) OF TORTS § 520. Regardless of Defendants’ efforts

to exercise reasonable care, some I-131 would be released,

and developing plutonium is hardly an activity of common

usage. While the value to the community at large, i.e., the

nation, of developing an atomic bomb was perceived as high

and there is pragmatically no very appropriate place to carry

on such an activity, the § 520 factors on balance support hold-

ing that Defendants’ activities were abnormally dangerous.

C. Public Duty Exception to Strict Liability.

Defendants’ final defense is that even if their conduct con-

stituted an abnormally dangerous activity, they are exempted

from strict liability under Washington law pursuant to the

“public duty” exception. See RESTATEMENT (SECOND) OF TORTS

§ 521. While this issue presents a close question, we conclude

that Defendants do not qualify for the exception.

Section 521 of the Restatement provides:

The rules as to strict liability for abnormally danger-

ous activities do not apply if the activity is carried on

9564 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

in pursuance of a public duty imposed upon the actor

as a public officer or employee or as a common car-

rier.

Id. As a threshold matter, Washington courts have not yet

adopted § 521. We must therefore decide what the Washing-

ton Supreme Court would likely do if confronted with the

issue. See NLRB v. Calkins, 187 F.3d 1080, 1089 (9th Cir.

1999). We hold that the court would likely adopt the public

duty exception.

Although they have never explicitly adopted § 521, Wash-

ington courts have adopted § 519, which governs abnormally

dangerous activities generally. The comments to § 519 indi-

cate that the public duty exception is part and parcel of strict

liability. Comment “a” to § 519 states that “[t]he general rule

stated in this Section is subject to exceptions and qualifica-

tions, too numerous to be included within a single section. It

should therefore be read together with §§ 520 to 524A, by

which it is limited.” RESTATEMENT (SECOND) OF TORTS, § 519

cmt. a. Comment “d” further limits the scope of strict liability

and states that persons are accountable only for abnormally

dangerous activities they undertake “for [their] own pur-

poses.” Id. § 519 cmt. d. A key corollary to this point is that

strict liability does not apply to activities carried on in pursu-

ance of a public duty the actor was legally obligated to per-

form. See id. § 521.

Although Washington could adopt § 519 without adopting

the numerous exceptions found in §§ 521-524A, it is unlikely

that it would do so. Washington adopted wholesale the abnor-

mally dangerous activity doctrine and its exceptions when

they existed in the First Restatement. See, e.g., Epperly v.

Seattle, 399 P.2d 591, 595 (Wash. 1965); Foster v. Preston

Mill Co., 268 P.2d 645, 647 (Wash. 1954). Furthermore, of

the states that have adopted §§ 519-20, the vast majority has

also adopted the subsequent exceptions.

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9565

[10] Although widely adopted, the courts that have applied

the public duty exception have generally done so only to the

extent a defendant was legally required to perform the

ultrahazardous activity. See RESTATEMENT (SECOND) OF TORTS,

§ 521, cmt. a. The Washington Supreme Court’s decision in

Siegler v. Kuhlman, 502 P.2d 1181 (Wash. 1972), supports

such an application of the public duty doctrine here. The

defendants in Siegler were a trucking company for Texaco

and its driver, and the company was not legally obligated as

a common carrier to carry materials that eventually caused an

explosive, fatal accident on a highway. The Washington court

held that the activity was abnormally dangerous and that the

defendants could be held strictly liable for the accident. It is

therefore most likely that the Washington Supreme Court

would apply strict liability when the defendant was perform-

ing a dangerous activity for “his own purpose,” and would

apply the public duty exception only in the appropriate case

when the defendant was engaged in a legally-obligated activ-

ity, such as a regulated common carrier bound to carry haz-

ardous substances.

Defendants argue that in light of the exceptional and patri-

otic circumstances under which they operated Hanford, we

should treat them as analogous to public employees who

would qualify for the exception. Although Defendants are

correct that we generally do not parse the language of a

restatement as meticulously as that of a statute, and we will

apply it “when the purposes it seeks to serve dictate its appli-

cation,” McKay, 704 F.2d at 447, Defendants do not satisfy

the exception’s purpose in this case. Defendants are not public

officers or employees or common carriers, see RESTATEMENT

(SECOND) OF TORTS § 521, and they were not legally obligated

to operate Hanford.

The prototypical example of a defendant entitled to the

public duty exception is a utility company that is legally

required to transport an ultrahazardous good, such as electric-

ity, and causes injury to someone during transport. Courts

9566 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

have recognized a public duty exception in such cases,

because common carriers must accept, carry, and deliver all

goods offered to them for transport within the scope of the

operating authority set forth in their permits. See, e.g., 16

U.S.C. § 824 et. seq. (granting the Federal Energy Regulatory

Commission authority to establish guidelines for common

carriers of electricity in interstate commerce); United States v.

W. Processing Co., 756 F. Supp. 1416, 1421 (W.D. Wash.

1991). They cannot discriminate against customers or refuse

to accept commodities that may be dangerous for transport.

Id.

[11] The case law therefore illustrates that the duty

involved is the legal obligation to perform the abnormally

dangerous activity in accordance with government orders.

See, e.g., EAC Timberlane v. Pisces, Ltd., 745 F.2d 715, 721

n.12 (1st Cir. 1984) (noting that the public duty must be one

imposed on the actor) (citing Actiesselskabet Ingrid v. Central

R.R. Co. of New Jersey, 216 F. 72 (2d Cir. 1914); Town of

East Troy v. Soo Line R.R. Co., 409 F. Supp. 326, 329 (E.D.

Wis. 1976) (no strict liability for spillage of carbolic acid by

derailment of common carrier train); Christ Church Parish v.

Cadet Chem. Corp., 199 A.2d 707, 708-09 (Conn. Super. Ct.

1964) (transportation of twenty tons of various chemical sub-

stances); Pecan Shoppe of Springfield v. Tri-State Motor

Transit Co., 573 S.W.2d 431, 438-39 (Mo. Ct. App. 1978)

(transporter of explosives); Pope v. Edward M. Rude Carrier

Corp., 75 S.E.2d 584, 595-96 (W. Va. 1953) (transporter of

explosives). Qualifying entities must be operating pursuant to

the mandate and control of the government; they must have

little discretion over the manner in which they conduct their

activities. See Actiesselskabet Ingrid, 216 F. at 78 (“It cer-

tainly would be an extraordinary doctrine for courts . . . to say

that a common carrier is under legal obligation to transport

dynamite and is an insurer against any damage which may

result in the course of transportation, even though it has been

guilty of no negligence which occasioned the explosion which

caused the injury.”); Pope, 75 S.E. 2d at 591-92 (holding no

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9567

strict liability for common carrier transport of explosives); but

see Lamb v. Martin Marietta Energy Sys., Inc., 835 F. Supp.

959 (W.D. Ky. 1993) (applying the public duty exception to

a nuclear facility because under Kentucky law the public duty

exception includes entities engaged in activities of public

necessity even when there is no legal duty to perform them).

[12] There was no government mandate here. The events

giving rise to this litigation occurred before the government

developed rules or the ability to control nuclear facilities. The

government was relying on the expertise of defendants and

not vice versa.

[13] We should not confuse the legal concept of a public

duty with popular notions of patriotic duty taken at personal

sacrifice. Defendants may well have been acting at the gov-

ernment’s urging during wartime. The public duty exception,

however, was developed under state law in recognition of the

need to protect private actors who are legally required to

engage in ultrahazardous activities. No matter how strongly

Defendants may have felt a patriotic duty, they had no legal

duty to operate Hanford, and they are, therefore, not entitled

to the public duty exception. The district court correctly found

defendants subject to strict liability.

V. Statute of Limitations.

A. Waiver.

Defendants argue for the first time on appeal that Bell-

wether Plaintiff Gloria Wise’s lawsuit was untimely, because

pursuant to Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538

(1974), Wise lost the benefit of any statute of limitations toll-

ing when she filed a separate, individual suit prior to the

denial of class certification. Defendants arguably have waived

this claim, because they did not raise the issue below suffi-

ciently for the district court to rule on the matter. McMillan

v. United States, 112 F.3d 1040, 1047 (9th Cir. 1997); In re

9568 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

E.R. Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989). We have

discretion, however, to overlook any waiver. See United

States v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003). We exer-

cise such discretion in this case, because the issue of whether

Wise’s lawsuit was tolled pending class certification is a

purely legal question, see id.; both parties concede that the

issue is “important,” and addressing the issue is consistent

with the purpose of a bellwether trial in clarifying and stream-

lining the relevant issues. The issue should therefore be set-

tled now.

We recognize that the results of the Hanford bellwether

trial are not binding on the remaining plaintiffs. See, e.g., In

re Hanford Nuclear Res. Litig., No. 91-03015, Dkt. #1294 at

164-65 (E.D. Wash. June 3, 2003). Nevertheless, according to

counsel for the parties, the purpose of the bellwether trial was

to “establish the relative strengths and weaknesses of the par-

ties, spread out mainly for settlement purposes. . . .” Id. at

155, 165. The bellwether trial was meant to be a “learning

process.” Id. at 161. The parties also state in their briefs that

there are “numerous” other plaintiffs who face a similar stat-

ute of limitations hurdle. It would defeat the purpose of a bell-

wether trial and only deter settlement longer to refrain from

deciding this purely legal issue at the earliest possible stage.

Our resolution will save any potentially time-barred plaintiffs

from expending additional resources and energy on futile

legal proceedings.

B. Application of American Pipe.

In April 1994, the Hanford plaintiffs moved for class certi-

fication. The district court reserved ruling on certification

under the opt-out provision of Federal Rule of Civil Proce-

dure 23(b)(3). Plaintiffs eventually withdrew their request for

certification, but not until May 2003, after the first series of

appeals was decided by this circuit. Accordingly, the district

court held that the statute of limitations was tolled for all

putative class members from April 1994 until May 2003.

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9569

Plaintiff Wise was diagnosed with thyroid cancer in April

1993, three years after the first class action complaints were

filed and one year before Plaintiffs moved for class certifica-

tion. Wise filed an individual suit in district court in July

1997. If the date of diagnosis is the triggering date for the

statute of limitations, her individual suit was apparently

untimely, because Washington’s statute of limitations for per-

sonal injury claims is three years. Wise’s suit would have

been timely only if she was entitled to the tolling that began

for the class action plaintiffs on April 15, 1994. Defendants

now contend that Wise forfeited these tolling benefits when

she filed her individual suit prior to the district court granting

or denying class certification. Wise contends she is entitled to

tolling as a member of the class pursuant to American Pipe.

[14] In American Pipe, 414 U.S. at 554, the Supreme Court

held that the commencement of a class action suspends the

applicable statute of limitations as to all asserted members of

the class who would have been parties had the suit been per-

mitted to continue as a class action. Id. The tolling period

ends, and the statute runs anew, once class certification is

granted or denied. Tosti v. City of Los Angeles, 754 F.2d

1485, 1488 (9th Cir. 1985). The issue in this case, which is

one of first impression in our circuit, is whether American

Pipe also permits tolling for a plaintiff who files a separate

action pending class certification.

At the time this case was submitted for decision, the lead-

ing authority in this area was a district court opinion from the

Southern District of New York. In re Worldcom, Inc. Sec.

Litig., 294 F. Supp. 2d 431, 451 (S.D.N.Y. 2003). The Sixth

Circuit agreed with the reasoning of Worldcom and held that

American Pipe tolling is not available to a plaintiff who files

a separate action pending class certification. Wyser-Pratte

Mgmt. Co. v. Telxon Corp., 413 F.3d 553, 569 (6th Cir. 2005).

So did the other district courts that dealt with the issue. See,

e.g., In re Heritage Bond Litig., 289 F. Supp. 2d 1132, 1150

9570 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

(C.D. Cal. 2003); see also Wyser-Pratte Mgmt. Co., 413 F.3d

at 569 (citing cases).

[15] The Second Circuit, however, has vacated the district

court decision in WorldCom. In re Worldcom Sec. Litig., 496

F.3d 245, 256 (2nd Cir. 2007). The Second Circuit has now

held that American Pipe tolling does apply to plaintiffs who

file their actions before a decision on class certification. The

Second Circuit explained that applying American Pipe tolling

to plaintiffs who filed individual suits before certification is

consistent with the purpose underlying statutes of limitations.

Id. at 255. Statutes of limitations are intended to provide

notice to defendants of a claim before the underlying evidence

becomes stale. As the Supreme Court held in American Pipe,

however, the filing of a timely class action provides defen-

dants with notice of the claim, so a follow-on individual suit

cannot surprise defendants. Id.

The Second Circuit also reasoned that although the Ameri-

can Pipe doctrine protects plaintiffs from being forced to file

suit before the certification decision, that doesn’t mean that

plaintiffs who file before certification are not entitled to toll-

ing. Id. at 256. They have a right to file at the time of their

choosing and denying tolling would diminish that right. We

find the Second Circuit’s reasoning persuasive and adopt it.

[16] We therefore conclude that members of the plaintiff-

class who have filed individual suits are entitled to the bene-

fits of American Pipe tolling. This includes Bellwether Plain-

tiff, Wise.

VI. Medical Monitoring Claims.

Plaintiffs Pamela Durfey, Paulene Echo Hawk, and Doro-

thy George’s only claim on appeal is for medical monitoring.

They do not yet have any diseases attributable to Hanford

radiation. Because in all relevant respects Plaintiffs are analo-

gous to the plaintiffs who requested medical monitoring in

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9571

2002 in Berg, 293 F.3d 1127, Plaintiffs’ claims were origi-

nally stayed pending this court’s decision in that case.

We then decided Berg, in which we held that claims for

medical monitoring are not compensable under the PAA,

because they do not constitute claims of “bodily injury, sick-

ness, disease, or death . . .” Berg, 293 F.3d at 1132-33 (citing

42 U.S.C. § 2014(q)). After our decision, Plaintiffs in this

case asked the district court to remand their medical monitor-

ing claims to state court. They claimed that Berg abrogated

subject matter jurisdiction in federal court for all medical

monitoring claims. Defendants opposed remand, arguing that

Berg did not remove the district court’s subject matter juris-

diction, but held only that a medical monitoring claim was not

cognizable under the PAA.

[17] Although in Berg we referred to bodily injury as a

jurisdictional prerequisite, id. at 1131-33, we used the term

“jurisdictional” in the loose sense, perhaps too loose, to mean

that medical monitoring claims were not compensable under

the PAA absent physical injury. We have been guilty of such

expansive use of the term before. See Khalsa v. Weinberger,

779 F.2d 1393, 1396 n.2 (9th Cir. 1985) (“. . . jurisdiction has

many possible meanings, ranging from subject matter juris-

diction to the power to grant the relief requested . . . ”). The

district court in this case clearly had subject matter jurisdic-

tion under the PAA to decide the issue; the district court sim-

ply did not have the power to grant the relief requested

because the plaintiffs have not suffered any physical injury.

[18] The PAA is the exclusive means of compensating vic-

tims for any and all claims arising out of nuclear incidents.

Berg, 293 F.3d at 1132; In re TMI Litig., 940 F.2d at 854; see

also 42 U.S.C. § 2014(hh), (w) (federal courts have jurisdic-

tion over public liability actions, defined as “any suit asserting

. . . any legal liability arising out of or resulting from a nuclear

accident”) (emphasis added). This result is consistent with

Congress’s explicit intent in enacting the 1988 Amendments

9572 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

and avoiding piecemeal litigation arising from nuclear inci-

dents. We therefore affirm the district court’s exercise of

jurisdiction over Plaintiffs’ medical monitoring claims and its

conclusion pursuant to our decision in Berg that they were not

compensable under the Act. The district court properly denied

Plaintiffs’ request for a remand to state court.

VII. First Bellwether Trial.

The remaining issues on appeal stem from a variety of legal

and evidentiary rulings in the two trials. Three of the six Bell-

wether Plaintiffs, Goldbloom, Buckner, and Carlisle, lost at

the first trial. Three of their evidentiary challenges constitute

reversible error; the remaining arguments are meritless.

A. Causation.

We first decide whether under Washington law the district

court properly instructed the jury in the bellwether trial on

“but-for,” and not “substantial factor,” causation. Plaintiffs

contend that the more lenient substantial factor test should

apply because other factors could have contributed to their ill-

nesses, such as smoking and genetics. We review the district

court’s application of Washington law de novo, Ostad v. Or.

Health Scis. Univ., 327 F.3d 876, 883 (9th Cir. 2003), and we

affirm the district court’s instruction on but-for causation.

Under the PAA, Washington state law controls the standard

of causation to be used in this case. See 42 U.S.C. § 2014(hh).

(“A public liability action shall be deemed to be an action

arising under section 170 [42 U.S.C. § 2210], and the substan-

tive 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 provisions of such

section.”). Washington courts will depart from the standard

but-for causation instruction in favor of the substantial factor

test only in three rare circumstances: (1) the plaintiff was

excusably ignorant of the identity of the tortfeasor who

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9573

caused his injury; (2) the plaintiff probably would have been

injured anyway, but lost a significant chance of avoiding the

injury; or (3) the plaintiff has been injured by multiple inde-

pendent causes, each of which would have been sufficient to

cause the injury. Gausvik v. Abbey, 107 P.3d 98, 108 (Wash.

Ct. App. 2005); see also Daugert v. Pappas, 704 P.2d 600,

605-06 (Wash. 1985).

The parties agree that the first and second exceptions are

not at issue here. Plaintiffs know the identity of the tortfeasors

and had no chance to avoid injury. See, e.g., Lockwood v.

AC&S, Inc., 744 P.2d 605, 613 (Wash. 1987) (applying the

substantial factor test when there is no doubt that asbestos was

the cause of a plaintiff’s asbestosis, but the plaintiff cannot

identify which manufacturer is responsible); Mavroudis v.

Pittsburgh-Corning Corp., 935 P.2d 684, 687 (Wash. Ct.

App. 1997).

[19] Plaintiffs therefore appear to rely on the third type of

substantial factor causation, which applies when there have

been “multiple, independent causes,” each of which alone is

sufficient to cause the injury. Gausvik, 107 P.3d at 108. There

are two requirements they must satisfy (1) there must have

been multiple causes of the injury; and (2) any one cause

alone was sufficient to cause the injury. Id. Plaintiffs can not

satisfy the second requirement. Plaintiffs instead ask us to

expand the substantial factor doctrine and apply the test when

there are potentially multiple causes of each plaintiff’s injury,

such as radiation, smoking, genetics, or pregnancy, even

though Plaintiffs cannot show that Hanford radiation alone

would have been sufficient to cause the injury. Their reading

of Washington law would allow the substantial factor test to

supplant but-for causation in virtually all toxic tort cases.

Such a result is inconsistent with existing Washington law,

which applies the substantial factor test in very limited cir-

cumstances. See also RESTATEMENT (THIRD) OF TORTS § 26

cmt. j (Proposed Final Draft 2005) (eliminating the substantial

9574 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

factor test). We therefore hold that the district court properly

instructed the jury on but-for causation.

B. Evidentiary Rulings Constituting Reversible Error.

i. Cross-Examination of Dr. Davies.

Plaintiffs raise two issues with respect to Defendants’

cross-examination of Plaintiffs’ endocrinologist expert Dr.

Terry Davies, in the first bellwether trial. The first issue con-

cerns the district court’s ruling that Dr. Davies could not tes-

tify that he authored articles on I-131’s effect on thyroid cells.

The second issue is Defendants’ cross-examination of Dr.

Davies with deposition testimony of a non-testifying expert.

These errors surrounding Dr. Davies’ testimony, taken

together, were prejudicial to Plaintiffs’ case. We therefore

must remand for a new trial.

With respect to Dr. Davies’ pre-litigation scholarship, the

district court barred Plaintiffs from asking him whether he has

“published any peer reviewed articles or papers regarding the

capacity of I-131 to kill or damage thyroid cells.” The record

reveals that the district court believed Dr. Davies could not

testify about any pre-litigation articles on this subject, because

Dr. Davies had not written any peer-reviewed scientific article

concluding that doses at less than 100 rads can cause autoim-

mune disease.

This ruling was an abuse of discretion, because it deprived

the jury of testimony from Dr. Davies about the extent of his

pre-litigation expertise regarding causes of thyroid illness.

That Dr. Davies had not written any articles specifically

directed to causation below 100 rads does not mean Dr.

Davies’ work on causation generally was inadmissible. Plain-

tiffs’ key witness on causation extensively researched and

authored scholarship on the capacity of I-131 emissions to kill

thyroid cells, and the jury was entitled to know the reach of

his expertise.

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9575

Standing alone, this error might not be prejudicial; there is,

however, a more serious problem with the presentation of Dr.

Davies’ testimony. Defendants were allowed to impeach one

of Plaintiffs’ key expert witnesses with inadmissible evidence,

hearsay statements that Defendants themselves successfully

excluded from Plaintiffs’ case-in-chief.

Prior to trial, Plaintiffs proffered the deposition testimony

of epidemiologist Dr. A. James Ruttenber. According to

Plaintiffs, Dr. Ruttenber would have testified that although

current epidemiological studies prove only that radiation

above 40 rads can cause thyroid disease, those studies do not

preclude causation at lower dosages. On Defendants’ motion,

the district court excluded this testimony, finding it was too

speculative. Having learned that the most probative part of

Dr. Ruttenber’s testimony was no longer admissible, Plaintiffs

chose not to call him to the stand.

Plaintiffs, instead, called Dr. Davies to testify that low dos-

ages of radiation could cause thyroid disease. Dr. Davies had

relied on some of Dr. Ruttenber’s dosage estimates in prepar-

ing his pretrial expert report, but he never read nor relied on

Dr. Ruttenber’s deposition in rendering his expert opinion.

Even though Dr. Ruttenber’s causation testimony has been

ruled inadmissible prior to trial, defense counsel on cross-

examination used Dr. Ruttenber’s deposition to impeach Dr.

Davies’ testimony. Among many other questions, defense

counsel asked the following regarding Dr. Ruttenber’s deposi-

tion:

Q: And doctor, are you aware that Doctor Rutten-

ber has said that the epidemiological literature can

only show an increased risk of autoimmune thyroidi-

tis down to 40 rads? . . . .

Q: Did Doctor Ruttenber ever identify to you any

epidemiological studies that reported that doses at 10

9576 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

rad increased the risk of autoimmune thyroid dis-

ease? . . .

Q: Yeah, and page 75 at the bottom, lines 23 to 25,

“Doctor Ruttenber, is it your testimony that the epi-

demiology gets you down to increased risk of

autoimmune thyroiditis at point 4 gray?” . . . [ ] now,

were you aware that Doctor Ruttenber had taken that

position?”

Plaintiffs made continuing objections to this cross-

examination, but the district court permitted the questions.

Dr. Ruttenber’s statements should not have been used to

impeach Dr. Davies because they were inadmissible hearsay

on which Dr. Davies did not rely. We agree with the Fifth Cir-

cuit that reports of other experts cannot be admitted even as

impeachment evidence unless the testifying expert based his

opinion on the hearsay in the examined report or testified

directly from the report. Bryan v. John Bean, 566 F.2d 541,

546-47 (5th Cir. 1978) (citing Box v. Swindle, 306 F.2d 882

(5th Cir. 1962)); see also United States v. Layton, 549 F.

Supp. 903, 920-21 (N.D. Cal. 1982). Because Dr. Davies did

not rely on Dr. Ruttenber’s deposition, and because the trial

court had excluded the deposition testimony as inadmissible

hearsay, Defendants should not have been allowed to use the

testimony to impeach Dr. Davies’ credibility.

Defendants urge us to find that the error is harmless.

Defendants, however, overlook their own emphasis on the

significance of Dr. Davies’ testimony and his credibility to the

jury. Defendants read a large portion of Dr. Davies’ cross-

examination back to the jury in closing arguments, highlight-

ing how Dr. Ruttenber’s deposition testimony rendered Dr.

Davies’ testimony not credible. They then stated:

[I]f you have Ruttenber saying 40 rads as of today,

based on his review of radiation epidemiology, how

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9577

does Davies get away with saying at 10 rads their

dose; we say it’s closer to 6. How does Davies get

away with offering an opinion on causation? It’s just

not credible.

[20] Dr. Davies was the key witness on causation and

Defendants’ strategy was to cast doubt on his opinion. They

did just that by improperly using Dr. Ruttenber’s deposition.

The prejudice to Plaintiffs was exacerbated by the court’s rul-

ing that Plaintiffs were unable to rehabilitate Dr. Davies’

credibility with evidence of his pre-litigation, peer-reviewed

articles on causation. Dr. Davies’ endocrinologist testimony

on causation was particularly probative, because Plaintiffs

already had lost the key expert’s epidemiological testimony,

Dr. Ruttenber’s opinion, regarding causation. We thus have

no choice but to reverse the verdicts against Plaintiffs Gold-

bloom, Carlisle, and Buckner and remand for a new trial.

ii. Hurthle Cell Evidence.

There is an additional ground for reversal with respect to

Plaintiff Goldbloom. The district court erred when it

instructed the jury to disregard Dr. Peters’ expert testimony

that Goldbloom’s thyroid contained Hurthle cells, which are

indicative of some kind of injury to the thyroid.

Although Dr. Peters’ pretrial expert report contained no

evidence regarding the presence of Hurthle cells in Gold-

bloom’s thyroid, defense counsel did not object to the testi-

mony at trial. Partway through deliberations, the jury astutely

asked whether it could consider Dr. Peters’ testimony even

though evidence regarding Hurthle cells was not in the expert

report. The district court held a conference with the parties to

discuss the jury’s question. Plaintiffs argued that the jury

should be able to consider the Hurthle cell evidence, because

Defendants did not object to its admission at trial. Defendants

argued that the court should instruct the jury to disregard the

evidence, because it was not contained in Dr. Peters’ pretrial

9578 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

report. The district court agreed with Defendants and

instructed the jury to disregard the Hurthle cell testimony.

This ruling was erroneous. It is a rare circumstance when

the court may exclude evidence after the close of the parties’

cases. Jerden v. Amstutz, 430 F.3d 1231, 1236-37 (9th Cir.

2005), amended on other grounds, 2006 U.S. App. LEXIS

673 (9th Cir. Jan. 12, 2006). The reasons for such caution are

clear. If the parties have already rested, they no longer have

a chance to provide a curative response to the excluded evi-

dence. Id. at 1237. They also do not have a chance to present

the testimony in another fashion, such as calling an additional

witness. Id. (citing Bartleson v. United States, 96 F.3d 1270,

1278 (9th Cir. 1996)). And most pertinent to this case, it is

impossible to erase from the jury’s minds any arguments that

were made during closing summation about the belatedly-

excluded evidence.

In this case, not only did Defendants fail to object to the

Hurthle cell evidence, they used the evidence themselves,

pointing to the testimony during closing summation as evi-

dence that Dr. Peters was not a reliable witness. Defendants

should not have been allowed to reap the benefit of a tardy

exclusion of Plaintiff’s evidence after they used the same evi-

dence in their closing argument as a basis for impeachment.

[21] The error in excluding the evidence was prejudicial.

Plaintiff Goldbloom did not have an opportunity to remedy

the error, because the evidence was not excluded until after

the parties had rested. Her only remedy was to seek a mistrial.

The error in excluding the Hurthle cell evidence, when cou-

pled with the errors above, thus warrants a new trial.

C. Remaining Evidentiary Challenges.

Plaintiffs’ remaining claims are all challenges to various

evidentiary rulings. To help facilitate the bellwether process,

we briefly address each, although none has merit.

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9579

i. Dr. Ruttenber’s Testimony.

[22] The district court did not err in prohibiting Plaintiffs’

epidemiologist expert, Dr. Ruttenber, from testifying that sci-

entific extrapolation supports a finding that radiation below

40 rads could cause hypothyroidism or autoimmune thyroidi-

tis. Plaintiffs assert that the district court’s rulings impermiss-

ibly required epidemiological studies to be a prerequisite to

causation testimony. See In re Hanford, 292 F.3d 1124; Ken-

nedy v. Collagen Corp., 161 F.3d 1226, 1229-30 (9th Cir.

1998). The court’s ruling, however, did not go that far. The

court only precluded Dr. Ruttenber from, first, speculating

that such extrapolation would likely produce results showing

causation below 40 rads, and, second, stating that current epi-

demiological data do not contradict or prevent such a finding.

Because the data Dr. Ruttenber used to make these two con-

clusions were not reliable, see Daubert v. Merrell Dow

Pharms., 509 U.S. 579, 589 (1993), the district court did not

abuse its discretion in excluding Dr. Ruttenber’s opinion.

ii. Alternative Causes of Thyroid Disease.

[23] The district court also did not err in permitting Defen-

dants to cross-examine Plaintiffs’ experts on alternative

causes of thyroid disease. Plaintiffs’ chosen methodology for

proving causation was differential diagnosis, which is a pro-

cess by which an expert compiles a comprehensive list of

potential causes and then engages in a process of elimination

to reach the most likely cause. See Clausen v. M/W New Car-

issa, 339 F.3d 1049, 1057-58 (9th Cir. 2003). Plaintiffs’

experts enumerated possible causes of Plaintiffs’ diseases,

such as genetic predisposition, pregnancy, and stress, and then

eliminated them, leaving radioiodine as the only probable

cause. Having put these alternative causes at issue, Plaintiffs

could not expect Defendants not to question the experts’

rejection of them. Defendants were entitled to impeach the

experts’ methodology and their underlying conclusions.

9580 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

iii. Indemnification.

[24] Plaintiffs challenge the district court’s ruling that

Plaintiffs could not tell the jury that the federal government

would indemnify Defendants for any liability imposed. Evi-

dence of indemnification is generally inadmissible but may be

used to show prejudice or bias of a witness. See, e.g., FED. R.

EVID. 411. The only evidence to which a question of govern-

ment bias might have arisen, however, was the Hanford Envi-

ronment Dose Reconstruction Project (“HEDR”) and

Plaintiffs stipulated to the accuracy of this document prior to

trial. That stipulation is binding. U.S. Dep’t of Labor v. Kerr-

McGee Chem. Corp., 15 OSHC (BNA) 2070 (9th Cir. 1993);

Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th

Cir. 1988). There was thus no permissible ground on which

Plaintiffs could introduce evidence of indemnification. The

district court did not err in its application of Rule 411.

iv. Dr. Hill’s Testimony.

[25] Plaintiffs’ final contention on appeal is that the district

court abused its discretion when it prohibited Plaintiffs’

expert Dr. Hill from comparing radioiodine causation in ani-

mals to causation in humans. This ruling was not an abuse of

discretion, because the information was not contained in Dr.

Hill’s pretrial expert report and Defendants were not allowed

to question Dr. Hill regarding animal studies and thyroid dis-

ease at his deposition.

VIII. Rhodes’ Second Trial.

Plaintiff-Appellant Shannon Rhodes suffers from several

thyroid problems, the most serious of which is thyroid cancer.

Pursuant to the stipulation prior to trial, Rhodes was exposed

to Hanford radiation of 2.3 to 17 rads. At the bellwether trial,

she offered the testimony of her expert witness, Dr. Inder

Chopra, who testified that it was more probable than not that

Hanford radiation caused Rhodes’ cancer. The jury failed to

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9581

reach a decision on Rhodes’ claims, however, and the trial

court was forced to order a mistrial. In November 2005,

Rhodes tried her case for a second time, and the second jury

rendered a verdict for Defendants. Rhodes’ appeals several

legal and evidentiary rulings from her second trial.

A. Juror Misconduct.

[26] Rhodes claims that the district court erred in denying

her post-trial motion for a new trial, because the jury improp-

erly considered extrinsic evidence during its deliberations.

Rhodes proffers the signed affidavit of a juror stating that

“during deliberations and immediately after the first of several

votes were taken on the issue of causation, one of the jurors

announced that this was Mrs. Rhodes second trial on the very

issues that we were to decide and that she had lost in the first

trial.”

A party is entitled to a new trial when the jury obtains or

uses evidence that has not been introduced during trial only

if the improperly considered evidence was extrinsic. United

States v. Keating, 147 F.3d 895, 900 (9th Cir. 1998). The dis-

trict court looked at the trial record as a whole and decided

that any evidence regarding Rhodes’ previous trial came from

accidental, off-hand comments during the second trial, and

thus the evidence was not extrinsic.

We have conducted an independent review of the record,

United States v. Madrid, 842 F.2d 1090, 1092 (9th Cir. 1988),

and we affirm. There were several instances during Rhodes’

trial when the first litigation was mistakenly mentioned by

either a witness or an attorney and from which the jurors

could have inferred that Rhodes had litigated these same

claims before and “lost.” We agree with the district court that

because the evidence was not extrinsic, there was no juror

misconduct.

9582 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

B. Voir Dire.

[27] The district court did not err in refusing to hold an evi-

dentiary hearing regarding possible juror misconduct during

voir dire. A motion for a new trial based on juror dishonesty

during voir dire requires a showing that (1) a juror failed to

answer honestly a material question; and (2) a correct answer

would have provided a valid basis for a challenge for cause.

Price v. Kramer, 200 F.3d 1237, 1254 (9th Cir. 2000). Other

than the affidavit, which stated that a juror admitted during

deliberations that he read about Rhodes’ prior trial, Rhodes

does not proffer any evidence that the juror lied during voir

dire. The juror who read about Rhodes’ trial easily could have

done so after the trial began. He also could have read about

it in the medical report that was admitted as evidence, in

which Rhodes’ own doctor at the time of the first bellwether

trial noted that Rhodes was stressed because her litigation was

not going well. Rhodes has not established any juror miscon-

duct entitling her to a new trial.

C. Reference to Impeachment Evidence as “Totally

Collateral.”

During trial, the district court referred to evidence pres-

ented by Rhodes to impeach a defense expert as “totally col-

lateral.” The district court later went on the record and

admitted his comment was a mistake. Rhodes contends that

the district court’s comment unfairly prejudiced the jury in

favor of the defense, entitling her to a new trial. There was no

undue prejudice.

[28] We review a judge’s comments during trial for an

abuse of discretion and reverse only if they “projected to the

jury an appearance of advocacy or partiality.” United States

v. Parker, 241 F.3d 1114, 1119 (9th Cir. 2001). A trial court

has substantial leeway in overseeing the presentation of evi-

dence, because it is most familiar with the dynamics of a pro-

ceeding and the dangers of jury confusion. See, e.g., S.M. v.

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9583

J.K., 262 F.3d 914, 919 (9th Cir. 2001). The district court’s

reference to certain Plaintiff’s testimony as “totally collateral”

when sustaining Defendants’ objection, although an admitted

mistake, did not project an appearance of advocacy or partial-

ity that warrants reversal in this case.

D. “Best Estimate” Requirement.

Plaintiff next contends that the district court erred in requir-

ing Dr. Hoffman to give a “best estimate” of the dose of radi-

ation received by Rhodes. At the bellwether trial, Dr.

Hoffman testified to a range of possible dosages for each indi-

vidual with a certain percentage of confidence (i.e. a confi-

dence interval). Defendants objected to this use of confidence

intervals in Rhodes’ second trial, claiming they would mis-

lead the jury and encourage them mistakenly to believe that

there was a high likelihood that Rhodes was exposed to radia-

tion near the upper-boundary of the dosage range, when in

fact, the expert was only capable of endorsing the entire range

with ninety-percent confidence. Plaintiff agreed to the district

court’s suggestion that Dr. Hoffman testify to a range of pos-

sible dosage exposure, but also give a “best estimate” of indi-

vidual dosage exposure, which was the average of the range.

Rhodes now argues that this ruling was an abuse of discretion.

[29] The district court has discretion to exclude evidence

when its probative value is substantially outweighed by the

danger of misleading the jury or confusing the issues. See

FED. R. EVID. 403. This is especially true with respect to

expert witnesses. Daubert, 509 U.S. at 595; Daubert v. Mer-

rell Dow Pharms., Inc., 43 F.3d 1311, 1321 n.17 (9th Cir.

1995). In reviewing the record of the pre-trial hearing and the

application of the “best estimate” testimony at both trials, the

district court struck a fair balance between probative and mis-

leading testimony. It allowed Dr. Hoffman to explain his con-

fidence interval and to give a range of possible dosage

exposure. It also helped the jury focus on the significance of

such an interval, by having Dr. Hoffman highlight the average

9584 IN RE: HANFORD NUCLEAR RESERVATION LITIGATION

of the possible range. This ruling was not an abuse of discre-

tion.

E. Cross-Examination of Dr. Hoffman.

[30] The district court did not abuse its discretion in allow-

ing Defendants to cross-examine Dr. Hoffman with testimony

he gave at the first bellwether trial. At the first trial, Dr. Hoff-

man testified to each plaintiff’s “probability of causation”

(“PC”). Plaintiff Rhodes apparently decided that Dr. Hoff-

man’s testimony on this issue was more harmful than helpful,

and in a pre-trial motion for her second trial, she asked the

court to exclude all references by either party to Dr. Hoff-

man’s PC analysis. Rhodes, however, still wanted Dr. Hoff-

man to testify on other topics.

The district court properly denied the motion. Dr. Hoff-

man’s testimony at the first bellwether trial was an admission

of a party opponent under Federal Rule of Evidence

801(d)(2)(C). Glendale Fed. Bank, FSB v. United States, 39

Fed. Cl. 422, 424-25 (1997). Plaintiff cannot now exclude

trial testimony that she, herself, proffered. Defendants were

properly permitted to cross-examine Dr. Hoffman on his pre-

vious PC analysis.

F. Cross-Examination of Dr. Chopra.

Rhodes next urges us to hold that the district court abused

its discretion in allowing Defendants to use Dr. Hoffman’s PC

analysis to cross-examine Dr. Chopra and impeach her credi-

bility. We agree with Rhodes that this ruling was an abuse of

discretion, but because the error had little or no effect on the

verdict, there was no reversible error.

Opposing counsel may cross-examine an expert on the facts

or data on which his opinion was based. See FED. R. EVID.

703; United States v. Preciado-Gomez, 529 F.2d 935, 942

(9th Cir. 1976). Because Dr. Chopra did not rely on Dr. Hoff-

IN RE: HANFORD NUCLEAR RESERVATION LITIGATION 9585

man’s PC data, it should not have been admitted under that

rule. See, e.g., Bryan, 566 F.2d at 547; Layton, 549 F. Supp.

at 920; Briggs v. Chi. G. W. R. Co., 57 N.W.2d 572, 583-84

(Minn. 1953).

Rhodes, however, does not show how the PC evidence

could have materially affected the jury’s verdict. Defendants

had already undermined Dr. Chopra’s credibility by highlight-

ing the doctor’s lack of due diligence in uncovering Rhodes’

medical history. There is no reason to believe that Defen-

dants’ use of Dr. Hoffman’s testimony had any additional,

much less, any substantial effect on the verdict.

* * *

[31] The jury’s defense verdict in Rhodes’ second trial

must be affirmed.

IX. Conclusion.

We are mindful of the time and resources both the district

court and the parties have expended in this protracted litiga-

tion. We also realize that resolution is needed. We affirm the

district court’s major rulings. These relate to the government

contractor defense, strict liability, and causation. We also

affirm the district court’s ruling on the medical monitoring

claims and the judgment against Plaintiff Rhodes, as well as

the judgments in favor of Plaintiffs Stanton and Wise. We

reverse, on evidentiary grounds, the judgments against Plain-

tiffs Buckner, Carlisle, and Goldbloom. We remand those

matters for further proceedings.

Each party to bear its own costs on appeal.

AFFIRMED IN PART; REVERSED AND REMANDED

IN PART.