McMunn v. Babcock & Wilcox Power Generation Group, Inc.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 15-3506, 15-3507, 15-3508, 15-3509, 15-3510,

15-3511, 15-3512, 15-3513, 15-3514, 15-3515, 15-3564,

15-3639, 15-3640, 15-3641, 15-3642, 15-3643, 15-3644,

15-3645, 15-3646, 15-3647, 15-3648, 15-3649, 15-3650,

15-3651, 15-3652, 15-3653, 15-3654, 15-3655, 15-3656,

15-3657, 15-3658, 15-3659, 15-3660, 15-4075, 15-4076,

15-4077, 15-4078, 16-1694, & 16-1965

_____________

MICHELLE MCMUNN, personal representative of the

Estate of Eva Myers;

CARA D. STEELE; YVONNE SUE ROBINSON;

EDWARD J. MYERS;

LEVI DANIEL STEELE; HAROLD ROBINSON, et al

v.

BABCOCK & WILCOX POWER GENERATION

GROUP, INC.;

B&W TECHNICAL SERVICES, INC., FKA B&W

Nuclear Environmental

Services, Inc.; ATLANTIC RICHFIELD COMPANY,

predecessors-in-interest,

successors-in-interest, subdivisions and subsidiaries;

BABCOCK & WILCOX TECHNICAL SERVICES

GROUP, INC.

Apollo Facility Plaintiffs, Appellants

in Nos. 15-3506, 15-3507, 15-3508,

15-3509, 15-3510, 15-3511, 15-3512,

15-3513, 15-3514, 15-3515, 15-3564,

15-4075, 15-4076, 15-4077, 15-4078,

16-1964 and 16-1965

Babcock & Wilcox Power Generation

Group, Inc. and Babcock & Wilcox

Technical Services Group, Inc., Appellants

in Nos. 15-3640, 15-3642, 15-3644,

15-3646, 15-3648, 15-3650, 15-3652,

15-3654,15-3656, 15-3658 and 15-3660

Atlantic Richfield Company, Appellant in

Nos. 15-3639, 15-3641, 15-3643, 15-3645,

15-3647, 15-3649, 15-3651, 15-3653,

15-3655, 15-3657 and 15-3659

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court Nos. 2-10-cv-00143, 2-10-cv-00368,

2-10-cv-00650, 2-10-cv-00728, 2-10-cv-00744,

2-10-cv-00908, 2-10-cv-01736, 2-11-cv-00898,

2

2-11-cv-01381, 2-12-cv-01221, 2-12-cv-01459,

2-13-cv-00186, 2-13-cv-00704, 2-13-cv-01527,

2-14-cv-00639, 2-15-cv-00844, 2-15-cv-01423

District Judge: The Honorable David S. Cercone

Argued November 10, 2016

Before: SMITH, Chief Judge, McKEE, and RESTREPO,

Circuit Judges

(Filed: August 23, 2017)

Louis M. Bograd [ARGUED]

Motley Rice

3333 K Street, N.W.

Suite 450

Washington, DC 20007

Jonathan D. Orent

Motley Rice

321 South Main Street

P.O. Box 6067

Providence, RI 02904

Anne McGinness Kearse

Motley Rice

28 Bridgeside Boulevard

Mount Pleasant, SC 29464

3

David B. Rodes

Goldberg Persky & White P.C.

11 Stanwix Street

Suite 1800

Pittsburgh, PA 15222

Counsel for Appellants

Stephen B. Kinnaird

Paul Hastings LLP

875 15th Street, N.W.

Suite 1000

Washington, DC 20005

Peter C. Meier

John P. Phillips [ARGUED]

Sean D. Unger

Paul Hastings LLP

55 Second Street

24th Floor

San Francisco, CA 94105

Nancy G. Milburn [ARGUED]

Philip H. Curtis

Reuben S. Koolyk

Arnold & Porter LLP

399 Park Avenue

34th Floor

New York, NY 10022

4

Geoffrey J. Michael

Arnold & Porter LLP

601 Massachusetts Avenue, N.W.

Washington, DC 20001

Counsel for Appellees

_____________________________

OPINION OF THE COURT

_____________________________

SMITH, Chief Judge, joined by RESTREPO, Circuit

Judge, who also joins in the Concurrence.

Plaintiffs assert that they developed cancer1 after

being exposed to excessive radiation emissions from the

Nuclear Material and Equipment Company (“NUMEC”)

facility in Apollo, Pennsylvania (the “Apollo facility”).

Plaintiffs do not challenge the District Court’s

conclusions that their common-law claims against

1

For simplicity’s sake, we refer to the individuals

diagnosed with cancer as “Plaintiffs” even though several

of those individuals have died and the executors of those

individuals’ estates have been substituted as plaintiffs.

5

Defendants2 were preempted by the Price-Anderson Act

and that only their Price-Anderson “public liability”

claims are at issue in this appeal. Although the Price-

Anderson Act preempted Plaintiffs’ common-law

negligence claims, Plaintiffs’ Price-Anderson public

liability claims require Plaintiffs to prove versions of the

traditional negligence elements—(1) duty, (2) breach,

(3) causation, and (4) damages.

The District Court held that Defendants were

entitled to summary judgment as a matter of law on the

Price-Anderson claims because Plaintiffs failed to show

that there was a genuine dispute of material fact as to

elements of duty, breach, and damages. Plaintiffs

appealed. We agree with the District Court: Plaintiffs

are missing critical elements, and therefore their claims

fail.

2

Defendants are Atlantic Richfield Company and

Babcock & Wilcox Power Generation Group, Inc.,

Babcock & Wilcox Technical Services Group Inc., and

B&W Technical Services Inc. Atlantic Richfield

Company and Babcock & Wilcox Power Generation

Group, Inc., were owners of the NUMEC facility at

different points in time. See, e.g., JA1467 (stating that

Atlantic Richfield bought the Apollo facility from

NUMEC in 1967 and Babcock & Wilcox purchased the

facility in 1971).

6

Accordingly, we will affirm the judgment of the

District Court.

BACKGROUND

I. THE PARTIES AND EMISSIONS

A. The Parties

Plaintiffs are more than seventy individuals3 in a

group of consolidated cases who claim that excessive

radiation emitted by Defendants—more specifically,

radiation from uranium effluent from the Apollo

facility—caused them to develop various cancers.

Almost all of the Plaintiffs lived near Apollo,

Pennsylvania, for many years, including the 1960s, and

almost all of the Plaintiffs were diagnosed with at least

one form of cancer between 2007 and 2011.4 The

3

At oral argument, even Plaintiffs’ counsel was unable to

fix the exact number of plaintiffs. See Oral Arg. Tr. at

4:6–19.

4

This period of time when most Plaintiffs were

diagnosed with cancer may reflect that another group of

individuals who developed cancer had previously sued

Babcock & Wilcox and Atlantic Richfield Co. Their

lawsuit apparently settled before trial. See Docket, Hall

v. Babcock & Wilcox, No. 94-951 (W.D. Pa.); see also

7

similarities among the Plaintiffs end there. By our count,

Plaintiffs alleged that they suffered from more than a

dozen different types of cancer.5 Plaintiffs were of

widely varying ages at the times of their diagnoses—with

at least one individual under 30 and at least five

individuals over 80. See JA3460 (81); JA3478 (82);

JA3479 (88); JA3482 (81); JA3485 (29); JA3491 (82).

Many of the Plaintiffs had extensive smoking histories,

and some had multiple cancer diagnoses over their

lifetimes. See, e.g., JA3474 (“smoked about half a pack

per day for 40 years”); JA3463 (“diagnosed with breast

cancer in 1986 and then again in 2008 at the age of 67”).

Hall v. Babcock & Wilcox, No. 94-951, 2007 WL

1740852 (W.D. Pa. June 14, 2007). The diagnosis date

range here may also reflect statute of limitations

concerns. The statute of limitations is not an issue in this

appeal.

5

See, e.g., JA3447 (“Non Hodgkin’s Lymphoma”);

JA3448 (“lung cancer”); JA3449 (“breast cancer”);

JA3450 (“esophageal cancer”); JA3451 (“colorectal

cancer”); JA3455 (“thyroid cancer”); JA3457 (“kidney

cancer”); JA3458 (“endometrial cancer”); JA3459

(“bladder cancer”); JA3465 (“melanoma”); JA3474

(“prostate cancer”); JA3479 (“metastatic ovarian

cancer”); JA3485 (“squamous cell tumor of her pelvis”).

8

B. The Facility

The Apollo facility was a “warehouse style

building that was not specifically constructed to house

the complex manufacturing operation involving

radioactive materials.” JA1427. As Plaintiffs

emphasize, the Apollo facility was adjacent to a steel mill

and “in the immediate neighborhood of residential

areas.” JA1576.

The Apollo facility operated from approximately

1953 to 1983 with uranium fuel manufacture beginning

in 1958 and decommissioning beginning in 1978. See

JA1467; McMunn v. Babcock & Wilcox Power

Generation Grp., 131 F. Supp. 3d 352, 356 (W.D. Pa.

2015).

The Atomic Energy Commission (“AEC”) was the

federal regulatory body in charge of overseeing the

Apollo facility. During the time that the Apollo facility

operated, the Nuclear Regulatory Commission (“NRC”)

became “the statutory successor to the Atomic Energy

Commission.” In re TMI, 67 F.3d 1103, 1112 (3d Cir.

1995).

The Apollo facility emitted radiation as a

necessary byproduct of manufacturing uranium fuel.

Plaintiffs argue that that radiation was in excess of

regulatory limits. The focus in this dispute is on

radiation emitted from the stacks, vents, and fans on the

Apollo facility’s roof.

9

C. Evidence of Excessive Emissions

Much of Plaintiffs’ evidence of excessive

emissions indicates that emissions from the stacks or

vents on the roof exceeded the maximum permissible

concentration (“MPC”) for the facility. Plaintiffs do not

contest that the relevant maximum permissible

concentration is 8.8 disintegrations per minute per cubic

meter (dpm/m3). See McMunn, 131 F. Supp. 3d at 373

n.24; Pls.’ Br. 10; cf. JA3642.

As discussed below, under the applicable

regulations, the maximum permissible concentration is

determined at the boundary of the “unrestricted area.”

Defendants argue that the boundary of the unrestricted

area is the boundary of the roof, while Plaintiffs argue

that any emissions from any part of the roof—including

emission from any stack, vent, or fan—should be less

than the maximum permissible concentration.

Plaintiffs point to evidence that they believe

supports their position. In a June 5, 1964 letter, the

Director of the Division of State and Licensee Relations

of the AEC implied that the NUMEC had not shown that

the roof was a restricted area: “[T]he roof area of the

NUMEC facility is an unrestricted area unless access to

this area is controlled from the radiation safety

standpoint.” JA5314. Consistent with the 1964 letter

implying that the entire roof may be unrestricted,

Plaintiffs argue that NUMEC and AEC’s course of

conduct shows that they both thought that stack

10

emissions were a regulatory concern because NUMEC

and AEC compared stack emissions to the maximum

permissible concentration. For instance, in a 1967 report,

a NUMEC employee wrote, “[T]he measured stack

concentration frequently exceeds permissible levels.”

JA5201. The AEC similarly expressed concern about

releases from stacks, as though the regulations created

limitations on the stacks. In a February 5, 1969 letter, the

Director of the Division of Compliance of the AEC

warned, “Based on your recorded data, the concentrations

of radioactive material released from the facility through

exhaust stacks to unrestricted areas exceed the limits

specified in Appendix B, Table II of 10 CFR 20, contrary

to 10 CFR 20.105(a), ‘Concentrations in effluents to

unrestricted areas.’” JA4700.

In addition to the evidence about emissions from

the stacks or vents, Plaintiffs’ evidence of excessive

emissions fits into one or more of the following three

categories: (1) evidence that the monitoring of emissions

was not completely comprehensive; (2) data that there

was excessive radiation in the area surrounding the

facility; and (3) data showing excessive radiation being

released but seemingly only for specific, and short,

11

periods of time (such as when the facility’s incinerator

was being used).6

Plaintiffs marshaled a large number of documents

that they alleged created a genuine issue of material fact.

The highlights of Plaintiffs’ documents are below:

 In an April 20, 1964 letter, NUMEC

Manager E.V. Barry wrote to Eber R. Price

at the AEC that “average yearly

concentrations at our property line” were

being exceeded “when the winds are from

the south quadrant” or in sections “when the

winds are from the east quadrant.” JA5163.

6

Our summary of Plaintiffs’ evidence mirrors Plaintiffs’

own summary presented at the conclusion of oral

argument. When asked about “discharges measured at

the roof edge,” Plaintiffs’ counsel (1) asserted that

Defendants’ “roof edge monitoring . . . is remarkably

incomplete”; (2) pointed to an April 20, 1964 letter

(discussed below) in which NUMEC admitted that it

sometimes exceeded permissible concentrations at the

boundary of the roof; (3) highlighted the airborne

concentrations of effluent when the plant’s incinerator

was operating; and (4) noted “environmental monitors in

the community.” Oral Arg. Tr. at 39:10–40:20.

12

 Data for part of the year 1966 shows a high

of 41.5 dpm/m3 and an average of 13.0

dpm/m3. See JA5188. But, as Plaintiffs

admit, the “high” refers to only one day.

See Pls.’ Br. 47–48 (referring to “the same

day” that the sampler gave its “highest

reading”). Additionally, this data comes

from a nearby building and not the roof of

the Apollo facility. Compare JA5188, with

JA5189.

 An August 18, 1967 internal memorandum

about the Apollo facility’s incinerator states,

“Ever since the incinerator has been in

operation it has been a consistent source of

airborne contamination causing an over

exposure [sic] to the operators and air levels

above the M.P.C. in and out of the plant.”

JA4428.

 In a February 5, 1969 letter, the Director of

the Division of Compliance of the AEC

wrote, among other things, “Based on your

recorded data, the concentrations of

radioactive material released from the

facility through exhaust stacks to

unrestricted areas exceed the limits specified

in Appendix B, Table II of 10 CFR 20,

contrary to 10 CFR 20.105(a),

13

‘Concentrations in effluents to unrestricted

areas.’” JA4700.

 A November 30, 1972 internal

memorandum memorializing a phone call

from the AEC states that the AEC

commented that “NUMEC has been the

worst offender of AEC regulations over the

years,” that “[t]he AEC is strongly

considering imposing civil penalties,” and

mentions NUMEC was implementing

corrective actions in, among other things, its

“Liquid Waste Management Program,” and

“Building Ventilation and Surveillance

Program.” See JA4439–40.

 In a February 12, 1974 letter, a NUMEC

employee criticized the Apollo facility for

releasing too much radiation. See JA4422

(“It is . . . apparent from review of the data

that said operations at the Apollo Site are

not conducted so as to provide a minimal

radiological impact on the

environment . . . .”). The same letter further

states that there was heightened radioactivity

in the area near the Apollo facility, many

times in multiple of the background

radiation because of “radiologically

contaminated gaseous effluents.” Id.

14

 A July 9, 1974 internal memorandum

complains about “stack and liquid discards

of SNM [special nuclear material] from the

Apollo Plant” and tremendous losses of

uranium through “gross irresponsibility.”

See JA4427.

However, AEC/NRC approved NUMEC’s

operations at least three times. First, in a report

timestamped July 29, 1966, the AEC wrote, “No item of

noncompliance with respect to [NUMEC’s]

concentrations of radioactive effluents released to

unrestricted areas was noted as a result of this

investigation.” JA5051. Second, in 1968, the AEC

concluded that NUMEC’s roof edge samples were below

the maximum permissible concentrations. JA5057 (“As

can be seen, these average sample results are below 8.8

[dpm/m3].”). On May 26, 1969, the AEC granted an

amendment to NUMEC’s license, “authoriz[ing] the

discharge of radioactive material from any stack

effluent . . . in concentrations up to one-hundred . . .

times the applicable limits . . . in accordance with the

statements, representations and conditions specified in

your application dated March 5, 1969.” JA5112.

Finally, in 1995, the NRC issued a report

investigating another NUMEC facility in Parks,

Pennsylvania. See 60 Fed. Reg. 35,571, 35,573 (1995).

In that report, the NRC stated that, despite the 1969

license amendment setting limits for stack emissions, the

15

regulatory limits were set at the boundary of the roof:

“Accordingly, even though NUMEC was authorized to

discharge at the stack up to 100 times the value specified

in Appendix B, Table II, [under the 1969 license

amendment,] NUMEC was still required to meet the

limits at the site boundary (see footnote 8).” 60 Fed.

Reg. 35,571, 35,573 (1995). Footnote 8, in turn, states,

“The values set forth in 10 CFR Part 20, Appendix B,

Table II, are the regulatory limits applicable at the site

boundary, not at the stack.” 60 Fed. Reg. 35,571, 35,573

n.8 (1995).

II. THE SCIENCE OF CANCER

This Court’s previous opinion, In re TMI

Litigation, 193 F.3d 613 (3d Cir. 1999), set forth the

basic scientific principles regarding the relationship

between radiation and cancer. See 193 F.3d at 629–55.

No party disputes those background principles. Because

we rely on these principles here, we consider it helpful to

summarize them. Ionizing radiation can damage human

cells. Id. at 639–40. “If cellular damage is not repaired,

[the damage] may prevent the cell from surviving or

reproducing, or it may result in a viable but modified

cell.” Id. at 640. When an irradiated cell is only

“modified rather than killed,” stochastic (or probabilistic)

effects result. Id. at 642.

As the word “probabilistic” indicates, what

happens next to the modified cell is uncertain. In some

cases, “cancer induction” occurs. Id. As we explained in

16

In re TMI Litigation, any increase in radiation exposure

above zero is believed to increase the probability of

carcinogenesis7:

The probability that cancer will result from

radiation increases proportionally with dose.

However, it is currently believed that there

is no threshold dose below which the

probability of cancer induction is zero. . . .

The linear risk model posits that each time

energy is deposited in a cell or tissue, there

is a probability of the induction of cancer.

Id. at 642–43 (citations omitted).

Even with state-of-the-art data, it is impossible to

determine with certainty that radiation is the cause of a

given incidence of cancer for three reasons. First,

numerous factors other than radiation may cause cancer.

That is, “a given percentage of a defined population will

contract cancer even absent any exposure to ionizing

radiation.” Id. a 643–44.8 Second, there is no clear

7

“Carcinogenesis is currently believed to be a multistep

process requiring two or more intracellular events to

transform a normal cell into a cancer cell.” In re TMI

Litig., 193 F.3d 613, 643 (3d Cir. 1999).

8

“[T]he task of establishing causation is greatly

complicated by the reality that a given percentage of a

17

difference between cancers caused by radiation or by

other factors. No characteristic of a given cancer (such

as its type or severity) are known to suggest that

“manmade” radiation or even any radiation was the

cancer’s cause. See id. at 643 (“[M]edical evaluation, by

itself, can neither prove nor disprove that a specific

malignancy was caused by a specific radiation

exposure.”). Third, because the relevant changes occur

on the cellular level, they are not detected or detectable at

the time they occur. It can take many years—seemingly

a variable number of years—between an exposure to

radiation and the “possible detection of a resulting

cancer.” Id. (defining the “latency period” as “[t]he

period between exposure to radiation and possible

detection”). Thus, in a case like this one, the factfinder

will always have to use ex-post data to ascertain whether

any radiation—let alone any particular radioactive

exposure—disrupted the cell in the past.

defined population will contract cancer even absent any

exposure to ionizing radiation. In industrialized

countries where the life expectancy averages about 70

years, about 30% of the population will develop cancer

and about 20% of the population will die of cancer.” In

re TMI Litig., 193 F.3d at 643–44.

18

III. THE DISTRICT COURT’S RELEVANT

RULINGS

We are reviewing the orders granting Defendants’

motion for summary judgment. In its summary judgment

orders, the District Court adopted the reasoning of the

Magistrate Judge to whom all pretrial motions had been

referred. See Order, McMunn v. Babcock & Wilcox

Power Generation Grp., No. 2:10-cv-00143-DSC-RCM

(W.D. Pa. Aug. 24, 2011), ECF No. 79.

Two earlier rulings set the stage for the summary

judgment motion. Those two rulings are (1) a September

12, 2012 order following a “Lone Pine” case

management order,9 and (2) a February 27, 2014 order

adopting in part and rejecting in part the Magistrate

Judge’s recommendations with regard to excluding the

parties’ experts under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993).

9

A Lone Pine order is a pretrial order, based on Lore v.

Lone Pine Corp., No. L-33606-85, 1986 WL 637507

(N.J. Super. Ct. Law Div. Nov. 18, 1986), that “require[s]

plaintiffs to provide facts in support of their claims”

including by expert evidence “or risk having their cases

dismissed.” In re Asbestos Prods. Liab. Litig. (No. VI),

718 F.3d 236, 240 & n.2 (3d Cir. 2013).

19

A. Lone Pine

On January 25, 2012, the Magistrate Judge issued

the Lone Pine order, requiring Plaintiffs to provide prima

facie evidence of, among other things, the “name of the

specific radionuclide(s) released from Defendants’

facilities in excess of the applicable federal permissible

limits” and “an identification of each exposure

pathway(s) through which each Plaintiff was exposed to

each specific radionuclide.” Order at 1, McMunn v.

Babcock & Wilcox Power Generation Grp., No. 2:10-cv-

0143-DSC-RCM (W.D. Pa. Jan. 25, 2012), ECF No. 109.

On September 12, 2012, following the parties’

responses to the Lone Pine order, the Magistrate Judge

issued an order limiting Plaintiffs’ theories of recovery.

See McMunn v. Babcock & Wilcox Power Generation

Grp., 896 F. Supp. 2d 347 (W.D. Pa. 2012). In that

order, the Magistrate Judge held that the Plaintiffs would

be allowed only “to pursue, offer or rely upon evidence

referring or relating to any claim based upon exposure

through . . . airborne exposure to uranium . . . from . . .

the Apollo facility during its years of operation.” Id. at

358–61; see also id. at 364. Plaintiffs do not challenge

this Lone Pine order on appeal.

B. Daubert

On July 12, 2013, the Magistrate Judge

recommended that the District Court (1) grant some of

Defendants’ Daubert motions; (2) deny the remainder of

20

Defendants’ Daubert motions; and (3) deny all of

Plaintiffs’ Daubert motions. See McMunn v. Babcock &

Wilcox Power Generation Grp., Nos. 10-143 et al., 2013

WL 3487560 (W.D. Pa. July 12, 2013). Specifically, the

Magistrate Judge recommended excluding the testimony

of Plaintiffs’ three general causation experts—Dr.

Howard Hu, Dr. Joseph Ring, and Mr. Bernd Franke—

and Plaintiffs’ specific causation expert, Dr. James

Melius. Only the rulings with regard to Melius’s

testimony bear directly on this appeal.

Melius’s expert report used the methodology of

differential diagnosis. Melius provided a roughly one-

page summary of each Plaintiff’s background and alleged

exposure and then concluded for each Plaintiff: “[I]t is

my professional medical opinion that [Plaintiff’s]

exposures to uranium and other radioactive materials

released from the Apollo nuclear facility made a

significant contribution to the development of” his or her

cancer. E.g., JA3448, 3465, 3490. For most of the

Plaintiffs, Melius added language substantially like the

following: “This is reinforced by the lack of other risk

factors in [her or his] history that would account for the

development of this illness.” E.g., JA3448.10

10

For a handful of Plaintiffs—but only some of the

Plaintiffs with a history of smoking—Melius identified

smoking as the only confounding factor. E.g., JA3451

21

The Magistrate Judge recommended excluding

Melius’s testimony because Melius failed to rule out

other confounding factors and did not have information

about doses of radiation to which each Plaintiff was

exposed. With regard to confounding factors, the

Magistrate Judge criticized Melius’s “differential

diagnosis” because Melius “fail[ed] to explain why he

did not rule out smoking, obesity, genetic factors,

benzene exposure, radon and many other possible and

obvious alternative causes in order to conclude in each

instance that uranium is the cause of the individual’s

cancer.” McMunn, 2013 WL 3487560, at *28. With

regard to dose, the Magistrate Judge criticized Melius for

failing to make or use any estimate of any Plaintiff’s dose

“or the maximum or minimum amount to which the

person was exposed.” Id. at *29. Instead, to determine

that Plaintiffs’ exposures were sufficient to serve as a

“significant contribution” to their cancers, Melius relied

on general testimony about radiation—Dr. Hu’s

testimony that radiation from uranium could cause

cancer—and the assumption that Plaintiffs were exposed

to dangerous levels of radiation because “the Plaintiffs

lived or worked within 1.5 miles of the Apollo facility.”

(“This is reinforced by the lack of other risk factors in his

history that would account for the development of this

illness other than smoking which also would have made a

contribution.”).

22

Id. at *28. The Magistrate Judge’s two criticisms

dovetailed with a particular flaw in Melius’s testimony:

Melius “rule[d] out oral contraceptive use if the dose was

small and smoking if the person quit 10–15 years ago,

thereby taking dose into account.” Id. at *29. The

Magistrate Judge concluded that Melius’s methodology

“has not been generally accepted in the medical and

scientific communities” and was “untestable.” Id. at *29.

On February 27, 2014, the District Court rejected

the Magistrate Judge’s report and recommendation to the

extent that the Magistrate Judge recommended granting

Defendants’ Daubert motions with regard to Melius and

Plaintiffs’ general causation experts.11 With regard to

Melius specifically, the District Court placed great

weight on (1) this Court’s past discussion of differential

diagnosis methodology and (2) the fact that Melius did

not have access to perfect information. First, the District

Court held that Melius “adequately addressed other

possible causes of Plaintiffs’ cancers, both known and

11

The District Court adopted the portion of the report and

recommendation in which the Magistrate Judge

recommended denying the exclusion of Defendants’

experts and denying the exclusion of most of Plaintiffs’

experts. See McMunn v. Babcock & Wilcox Power

Generation Grp., Nos. 2:10cv143 et al., 2014 WL

814878, at *20 (W.D. Pa. Feb. 27, 2014).

23

unknown” because Melius reviewed information about

the Plaintiffs. McMunn v. Babcock & Wilcox Power

Generation Grp., Nos. 2:10cv143 et al., 2014 WL

814878, at *14 (W.D. Pa. Feb. 27, 2014). The District

Court also cited and quoted In re Paoli Railroad Yard

PCB Litigation, 35 F.3d 717 (3d Cir. 1994), and Heller v.

Shaw Industries, Inc., 167 F.3d 146 (3d Cir. 1999), for

the propositions that a medical expert performing a

differential diagnosis does not need to rule out every

alternative factor and that medical experts are permitted

to exercise their judgments when conducting a

differential diagnosis. See McMunn, 2014 WL 814878,

at *15.

Second, with regard to dose, the District Court

held that there was “enough support in the record for the

contention that the Plaintiffs’ exposure levels exceeded

the normal background level” for Melius to use a

“qualitative analysis” rather than a “quantitative dose

analysis.” Id. at *14. In particular, Melius could rely on

“NUMEC’s failure to monitor emissions.” Id. Because

Melius’s analysis relied on the absence of data, the

District Court agreed with Melius that a “quantitative

dose calculation . . . may in fact be far more speculative

than a qualitative analysis.” Id.

The District Court further held that a dose analysis

was not necessary for Plaintiffs’ claims to succeed. The

District Court stated that In re TMI Litigation, 193 F.3d

613 (3d Cir. 1999), “did not require a plaintiff prove a

24

quantified dose in order to prove personal injuries caused

by the release of radiation.” McMunn, 2014 WL 814878,

at *13. Then, the District Court cited to other cases that

did not require a dose. Id. at *13–14 (quoting and citing

Kannankeril v. Terminix Int’l, 128 F.3d 802, 808–09 (3d

Cir. 1997), Bonner v. ISP Techs., Inc., 259 F.3d 924 (8th

Cir. 2001), and Westberry v. Gislaved Gummi AB, 178

F.3d 257 (4th Cir. 1999)).

At Defendants’ request, the District Court certified

the Daubert order for interlocutory appeal. See McMunn

v. Babcock & Wilcox Power Generation Grp., Nos.

2:10cv143 et al., 2014 WL 12530940 (W.D. Pa. May 7,

2014). We denied Defendants’ petition for interlocutory

appeal. See McMunn v. Babcock & Wilcox Power

Generation Grp., No. 14-8074 (3d Cir. June 16, 2014).

C. Summary Judgment

On May 7, 2015, the Magistrate Judge filed a very

thorough report recommending that the District Court

grant Defendants’ motion for summary judgment on

Plaintiffs’ Price-Anderson public liability claims and

Defendants’ motion for a judgment on the pleadings on

all of Plaintiffs’ common-law claims. See McMunn v.

Babcock & Wilcox Power Generation Grp., 131 F. Supp.

25

3d 352, 359–404 (W.D. Pa. Sept. 15, 2015) (republishing

the report and recommendation).12

The Magistrate Judge recommended that the

District Court grant summary judgment because

Plaintiffs (1) failed “to raise a genuine issue for trial on

breach of duty” and (2) failed “to proffer evidence of

exposure and dose.” Id. at 389, 404.13 First, with regard

to the breach of duty, the Magistrate Judge held that

“[t]he regulatory standard applicable to the emission of

radionuclides in airborne effluent to off-site areas . . .

when the Apollo facility operated . . . was 10 C.F.R.

§ 20.106”—“not some other regulation, license

requirement or other issue.” Id. at 368–69, 388; see also

In re TMI, 67 F.3d 1103, 1108 n.10 (3d Cir. 1995)

12

Because Plaintiffs did not appeal the District Court’s

adoption of the Magistrate Judge’s recommendation to

dismiss Plaintiffs’ common-law claims, we need not

discuss the common-law claims.

13

The Magistrate Judge did not reach any other issues

regarding Plaintiffs’ Price-Anderson public liability

claims. As the Magistrate Judge noted, Defendants

raised other issues in separate summary judgment

motions that the District Court denied as moot or denied

without prejudice to refile. See McMunn, 131 F. Supp.

3d at 361 & n.3, 404.

26

(applying “the relevant federal regulations . . . in place at

the time” of the radioactive release caused by Three Mile

Island accident at issue).

Section 20.106 prohibited a licensee from

“releas[ing] to an unrestricted area radioactive material in

concentrations which exceed the limits specified in

Appendix ‘B’, Table II of this part.” 10 C.F.R.

§ 20.106(a) (1980). The regulation further states that

“the concentration limits in Appendix ‘B’, Table II of

this part shall apply at the boundary of the restricted

area.” 10 C.F.R. § 20.106(d).

The Magistrate Judge rejected Plaintiffs’ argument

that the Table II maximum permissible concentration

applied directly to the uranium effluent released from the

stacks on the roof. First, the Magistrate Judge

determined that the roof of the Apollo facility was a

restricted area. McMunn, 131 F. Supp. 3d at 386–87.

Second, the Magistrate Judge held that the measurements

of uranium effluent to be compared to the maximum

permissible concentration should be those taken “at the

roof boundary.” Id. at 387–88. Because Plaintiffs’ only

expert testimony about breach applied the concentration

limits at the stacks and not at the roof boundaries, the

Magistrate Judge held that Plaintiffs failed to proffer

expert evidence of a breach that raised a genuine issue of

material fact. See id. at 389.

With regard to exposure and dose, the Magistrate

Judge held that Plaintiffs’ causation case failed because

27

Plaintiffs failed to show that each Plaintiff was exposed

to enough radiation to cause his or her cancer. First, the

Magistrate Judge granted Defendants’ motion to deem

certain facts admitted. See id. at 394; Plaintiffs’ Local

Rule 56.C.1 Response, No. 2:10-cv-001343-DSC-RCM

(W.D. Pa. filed Dec. 5, 2014), ECF No. 342. Then, the

Magistrate Judge explained that, under In re TMI

Litigation, 193 F.3d 613 (3d Cir. 1999), each Plaintiff

had to show that he or she was exposed to “inhaled

uranium from the Apollo plant in excess of normal

background radiation amounts.” McMunn, 131 F. Supp.

3d at 396–97, 399. Thus, the Magistrate Judge held that

“Plaintiffs must provide . . . an estimate of the dose they

received which caused their cancers.” Id. at 399. As

discussed above, Melius relied on Plaintiffs’ other

experts for exposure, but none of Plaintiffs’ other experts

calculated exposure or dose for any of the Plaintiffs. See

id.

Further, the Magistrate Judge rejected Plaintiffs’

argument that Defendants were “estopped from

contesting [Plaintiffs’] lack of evidence of exposure and

dose” because Defendants failed to keep accurate

records. Id. at 402–04. The Magistrate Judge also

rejected Plaintiffs’ argument that law of the case required

the Magistrate Judge to deny summary judgment on

causation because the District Court had ruled that

Melius’s testimony was admissible in its Daubert ruling.

See id. at 399–402.

28

On September 15, 2015, the District Court adopted

the Magistrate Judge’s report and recommendation over

Plaintiffs’ objections. See id. at 357. The District Court

stated that it “review[ed] . . . the record of these

cases, . . . the Magistrate Judge’s Report and

Recommendation, and the Objections thereto,” but

offered no further explanation for its decision. Id.

Certain related cases were not consolidated with

the main case when the District Court issued its

September 15, 2015 Memorandum Order. The District

Court ultimately entered orders adopting the reasoning of

the September 15, 2015 Memorandum Order in those

cases. See JA281–92; SJa3–SJa8.

Timely notices of appeal followed in each case

before us.14 Additionally, Defendants cross-appealed

many—but not all—of the cases before us, requesting

that we reverse the District Court’s Daubert order.

14

Plaintiffs’ Notices of Appeal also objected to orders

excluding the expert report of Dr. Steve Wing. See, e.g.,

Ja1. Because Plaintiffs presented no argument regarding

Dr. Wing’s report, any issues or objections concerning it

have been waived.

29

JURISDICTION

The District Court had subject-matter jurisdiction

over these actions under 42 U.S.C. § 2210(n)(2) because

this is a public liability action arising out of a nuclear

incident in the Western District of Pennsylvania. This

Court has jurisdiction over Plaintiffs’ appeals under 28

U.S.C. § 1291.

Plaintiffs argue that we did not have jurisdiction

over Defendants’ cross-appeal relating to the District

Court’s denial of their Daubert motion regarding Melius

because Defendants are not aggrieved by that denial. As

the Supreme Court observed in Deposit Guaranty

National Bank v. Roper, “Ordinarily, only a party

aggrieved by a judgment or order of a district court may

exercise the statutory right to appeal therefrom. A party

who receives all that he has sought generally is not

aggrieved by the judgment affording the relief and cannot

appeal from it.” 445 U.S. 326, 333 (1980); see also

Nanavati v. Burdette Tomlin Mem’l Hosp., 857 F.2d 96,

102 (3d Cir. 1988) (“Because they are completely

satisfied with the final judgment and object only to

interlocutory rulings of the district court, we lack

jurisdiction over their appeal.”).

We need not determine whether we have

jurisdiction. We simply follow Third Circuit practice and

dismiss Defendants’ cross-appeals as “superfluous.”

Smith v. Johnson & Johnson, 593 F.3d 280, 283 n.2 (3d

Cir. 2010) (“Yet a party, without taking a cross-appeal,

30

may urge in support of an order from which an appeal

has been taken any matter appearing in the record, at

least if the party relied on it in the district court.”). As

such, we consider the parties’ Daubert arguments to

concern causation only as an “alternate ground for

affirmance.” Nanavati, 857 F.2d at 102. Accordingly,

we have disregarded Defendants’ reply brief in support

of their cross-appeal.

STANDARD OF REVIEW

The standard of review on summary judgment is

well known: “Because we are reviewing a grant of

summary judgment, our standard of review is plenary.

Summary judgment is appropriate ‘if the movant shows

that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of

law.’” Constitution Party of Pa. v. Cortes, 824 F.3d 386,

393 (3d Cir. 2016) (citations omitted) (quoting Fed. R.

Civ. P. 56(a)).

DISCUSSION

We will affirm the judgment of the District Court

because Plaintiffs failed to raise an issue of fact that

would allow a reasonable jury to find that Defendants

breached their duty and because Melius’s conclusory

expert report would not allow a reasonable jury to find

that Defendants’ radiation was a substantial factor in

causing Plaintiffs’ cancers.

31

I. DUTY

The District Court15 held that Plaintiff failed to

establish a genuine issue of material fact as to whether

Defendants breached their duty to Plaintiffs. We agree

with the District Court that Defendants’ duty was defined

by § 20.106.

In three different ways, Plaintiffs try to show that

Defendants owed a duty other than to prevent the release

of uranium effluent that exceeds the maximum

permissible concentrations at the boundary of the roof,

when the effluent is averaged over a full year. First,

Plaintiffs argue that any emission from the roof counts

under § 20.106. Second, Plaintiffs argue that more

onerous maximum permissible concentrations for roof

emissions were created by the 1969 amendment to

NUMEC’s license. And, third, Plaintiffs argue that they

had the option to decline annual averaging, allowing

them to find breaches of duty where emissions exceeded

15

Because the District Court “adopt[ed] the Report and

Recommendation as the Opinion of [the District] Court,”

McMunn v. Babcock & Wilcox Power Generation Grp.,

131 F. Supp. 3d 352, 357 (W.D. Pa. 2015), “we will refer

to the adopted opinion as that of the district court,” USX

Corp. v. Liberty Mut. Ins. Co., 444 F.3d 192, 197 n.8 (3d

Cir. 2006).

32

the maximum permissible concentration over short

periods of time. As discussed below, these attempts to

redefine the duty fail because they all conflict with

§ 20.106 and because we owe Auer deference to the

NRC’s interpretation of § 20.106.

A. The Roof Was a Restricted Area

Under § 20.106(d), the maximum permissible

concentrations are assessed “at the boundary of the

restricted area.” 10 C.F.R. § 20.106(d). A “restricted

area” is any area where “access . . . is controlled by the

licensee for purposes of protection of individuals from

exposure to radiation and radioactive materials.” 10

C.F.R. § 20.3(a)(14). Plaintiffs argue that the entire roof

was unrestricted16 such that emissions from anywhere on

the roof—including the stacks and fans—should count

directly against the limits. Plaintiffs’ argument is

undermined by a 1995 NRC report that states that the

“regulatory limits [are] applicable at the site boundary,

16

The definition of “unrestricted area” is merely a mirror

of the definition of “restricted area”: “‘Unrestricted area’

means any area access to which is not controlled by the

licensee for purposes of protection of individuals from

exposure to radiation and radioactive materials, and any

area used for residential quarters.” 10 C.F.R.

§ 20.3(a)(17).

33

not at the stack.” 60 Fed. Reg. 35,571, 35,573 n.8

(1995).

Plaintiffs present two arguments as to why the roof

is unrestricted: (1) an historical argument based on a

series of letters between the AEC and NUMEC and (2) a

functional argument that questions whether access to the

roof was “controlled by the licensee for purposes of

protection of individuals from exposure to radiation and

radioactive materials.”

With regard to the historical argument, Plaintiffs’

strongest support is a June 5, 1964 letter, in which the

Director of the Division of State and Licensee Relations

of the AEC stated that the roof would be “unrestricted” if

access were not controlled: “[T]he roof area of the

NUMEC facility is an unrestricted area unless access to

this area is controlled from the radiation safety

standpoint.” JA5314.

Plaintiffs also rely on other correspondence in

which NUMEC and AEC compared stack emissions to

the applicable maximum permissible concentration. For

instance, in a 1967 report, a NUMEC employee wrote,

“[T]he measured stack concentration frequently exceeds

permissible levels.” JA5201. The AEC similarly

expressed concern about releases from stacks, as though

the regulations created limitations on the stacks. In a

February 5, 1969 letter, the Director of the Division of

Compliance of the AEC warned, “Based on your

recorded data, the concentrations of radioactive material

34

released from the facility through exhaust stacks to

unrestricted areas exceed the limits specified in Appendix

B, Table II of 10 CFR 20, contrary to 10 CFR 20.105(a),

‘Concentrations in effluents to unrestricted areas.’”

JA4700. Additionally, the fact that NUMEC sought—

and the AEC granted in 1969—approval to exceed the

maximum permissible concentration by one-hundred

times at the stack, see JA5112, suggests that there was a

pre-existing regulatory limit at the stack.

Plaintiffs’ functional argument focuses on the

definition of a restricted area in the regulation. The

regulation states that a “restricted area” is any area where

“access . . . is controlled by the licensee for purposes of

protection of individuals from exposure to radiation and

radioactive materials.” 10 C.F.R. § 20.3(a)(14). It is

uncontested that the roof could only be accessed by

locked hatches from ladders located inside the building.

See JA5035–36 (“There are no outside ladders on

NUMEC’s property. We have two inside ladders with

normally closed and locked hatches at the top.”); JA5317

(“The roof hatch is kept locked with keys in the

possession of the health and safety technician.”).17

17

Plaintiffs argue that NUMEC conceded that the roof is

unrestricted based on the 1966 letter from NUMEC to the

AEC that states, “We regard the roof area as an

unrestricted area.” JA4649. The District Court

35

Plaintiffs argue that these hatches do not show that

the roof was “controlled . . . for purposes of

protection . . . from exposure to radiation.” Relying on a

1965 NUMEC letter, they argue that certain safety

measures—e.g., alpha survey instruments—are required

to show why the access is controlled. See Pls.’ Br. 40–

41.

concluded that “unrestricted” was “a typographical

error.” McMunn v. Babcock & Wilcox Generation Grp.,

131 F. Supp. 3d 352, 378 (W.D. Pa. 2015). At summary

judgment, district courts should not determine whether a

particular phrasing is a scrivener’s error when other

possibilities are reasonable. See, e.g., Coffill v. Coffill,

656 F.3d 93, 95–96 (1st Cir. 2011) (holding that it was

error to rule that a purported scrivener’s error existed

“without evidentiary hearing and evidentiary basis”). We

agree with the District Court that, in the context of the

correspondence in the record and the surrounding

sentences, it would be unreasonable or absurd to read that

sentence in the 1966 letter as a concession that NUMEC

considered the roof “unrestricted.” The same paragraph

explains the unrestricted areas were at the “roof edge”:

“[T]he roof edge air samplers are measuring directly the

concentration being discharged to unrestricted areas.”

JA5317.

36

Ultimately, we defer to the expertise of the NRC as

to where the restricted area of the Apollo facility ended.

In 1995, the NRC issued a report investigating another

NUMEC facility in Parks, Pennsylvania. 60 Fed. Reg.

35,571, 35,573 (1995). Even though the report was about

the Parks facility, the NRC referred to the 1969 letter that

allowed NUMEC to exceed regulatory limits at the

Apollo facility’s stacks. The NRC stated that, despite a

1969 license amendment setting limits for stack

emissions, the regulatory limits were set at the boundary

of the roof. “Accordingly, even though NUMEC was

authorized to discharge at the stack up to 100 times the

value specified in Appendix B, Table II, [under a 1969

license amendment,] NUMEC was still required to meet

the limits at the site boundary (see footnote 8).” Id.

Footnote 8, in turn, stated, “The values set forth in 10

CFR Part 20, Appendix B, Table II, are the regulatory

limits applicable at the site boundary, not at the stack.”

Id. at 35,573 n.8.

Under Auer v. Robbins, 519 U.S. 452, 461–62

(1997), we defer to the NRC’s “fair and considered

judgment” of its interpretation of its regulation. One

could argue that the NRC should receive less deference

to the extent that the NRC’s 1995 position conflicts with

Plaintiffs’ historical evidence. In this case, we believe

we still owe full deference. The Supreme Court’s main

concern with an agency switching positions has been

with circumstances in which the new position could

cause “unfair surprise.” Long Island Care at Home, Ltd.

37

v. Coke, 551 U.S. 158, 170–71 (2007) (“[A]s long as

interpretive changes create no unfair surprise[,] . . . the

change in interpretation alone presents no separate

ground for disregarding the Department’s present

interpretation.”). Here, our Auer deference would not

harm any reliance interests.

Even if we did not defer to the NRC, Defendants’

interpretation of a “restricted area” is more consistent

with our precedent than is Plaintiffs’ functional

argument. In 1995, we held that “[t]he definitions of

‘restricted’ and ‘unrestricted areas’ demonstrate that the

C.F.R. sections governing persons in ‘unrestricted areas’

were intended to cover persons outside a nuclear plant’s

boundaries, i.e., the general public.” In re TMI, 67 F.3d

at 1114 (footnote omitted). Although denial of access to

the “general public” alone does not turn a space into a

restricted area, our understanding has been focused more

on whether a licensee exercises control rather than on the

precise safety measures chosen by the licensee. Other

than the isolated statements by NUMEC, Plaintiffs give

us no reason to believe that more than locked hatches

were needed to control access to the roof for purposes of

protecting individuals from radiation.

B. The License Did Not Create a Duty

As noted above, in 1969, the AEC approved

NUMEC’s request to amend its license to allow “the

discharge of radioactive material from any stack . . . in

concentrations up to one-hundred (100) times the

38

applicable limits specified in Appendix B, Table II,”

contingent on satisfactory sampling “at the plant roof

perimeter” and “in the neighboring unrestricted areas of

[the] plant.” JA5112. Plaintiffs argue that this 1969

license amendment now creates a tort duty that

Defendants violated by discharging more than 100 times

the maximum permissible concentration at the stacks.

In a Price-Anderson public liability claim, “federal

law preempts state tort law on the standard of care.” In

re TMI, 67 F.3d at 1107. Our 1995 opinion in In re TMI

instructs that the duty that survives preemption must be a

regulatory requirement meant to protect people like

Plaintiffs. Following In re TMI, we look to the principles

of negligence per se (by analogy) and to other courts’

interpretation of duty under the Price-Anderson Act.

Because this license requirement was only meant to make

it easier to assess whether NUMEC violated 10 C.F.R.

§ 20.106 at the boundary of the restricted area—not to

create an independent obligation—we hold this license

requirement does not supply a tort duty.

In the 1995 TMI case, plaintiffs argued that the “as

low as is reasonably achievable” principle (“ALARA”)

established the tort duty. This Court held instead that 10

C.F.R. §§ 20.105, 106 established the relevant duty. Two

of our major considerations were that (1) §§ 20.105 and

20.106 indicated they should apply to effluent emissions

to the public, In re TMI, 67 F.3d at 1114, and (2) the

ALARA regulation states that it was not “to be construed

39

as radiation protection standards” but was rather meant to

be a discretionary tool for regulatory agencies, id. at

1114–15 (internal quotation mark omitted). Thus, we see

that our concerns in 1995 reflected (1) whether the

regulation was meant to cover the persons allegedly

affected and (2) whether the regulation was meant to

establish actual standards or operating principles for the

agency. These same considerations are not present here.

The limitations on the stacks were meant to show levels

below which there could not be a violation at the

boundary. Thus, they were not directly protective of

persons in unrestricted areas and were a discretionary

choice by the AEC to make policing NUMEC easier.

The 1995 TMI case also instructs us to consider

principles from negligence per se. In that case, we

explained that the duty analysis under the Price-Anderson

Act “is analogous to the practice followed by many

jurisdictions with negligence per se cases. In such cases,

where defendants violated the relevant statute or

regulation, courts have held as a matter of law that

plaintiffs have satisfied the first two elements of their

cause of action: the duty and breach of duty.” In re TMI,

67 F.3d at 1118.

Plaintiffs’ objection that we would nullify the

license requirements if we refused to use them as the

40

standard of care18 assumes that every legal requirement

must be enforceable by a civil plaintiff. That assumption

is contrary to fundamental principles of negligence per

se, under which courts must ask “whether the policy

behind the legislative enactment will be appropriately

served by using it to impose and measure civil damage

liability.” Frederick L. v. Thomas, 578 F.2d 513, 517 n.8

(3d Cir. 1978).

Negligence per se only attaches to a statutory or

administrative duty when its direct effect is to prevent the

harm at issue to the type of person allegedly injured. See

Byrne v. Matczak, 254 F.2d 525, 528 (3d Cir. 1958)

(“[T]he general principle is that the violation of a statute

will not create a liability unless it is the efficient cause of

the injury.”); Congini ex rel. Congini v. Portersville

Valve Co., 470 A.2d 515, 518 (Pa. 1983); Restatement

(Second) Torts § 286.19 We have held that “general

18

“To hold that NUMEC had no duty to obey the AEC’s

regulatory caps stated in its license would be tantamount

to holding that the AEC had no authority to set those

limits.” Pls.’ Br. 35.

19

When we adopted 10 C.F.R. §§ 20.105 and 20.106 as

the standard of care, we cited Restatement (Second) of

Torts for the proposition that a court can adopt

regulations as the standard of care. See In re TMI, 67

F.3d at 1113 n.24.

41

licensing or permit schemes do not usually establish

standards of competence; they do not usually represent

judgments that a violation of the licensing scheme will

generally constitute the breach of a duty to a particular

person rather than to the state.” Beaver Valley Power

Co. v. Nat’l Eng’g & Contracting Co., 883 F.2d 1210,

1221–22 (3d Cir. 1989); see also Talley v. Danek Med.,

Inc., 179 F.3d 154, 159 (4th Cir. 1999) (“Even if the

regulatory scheme as a whole is designed to protect the

public or to promote safety, the licensing duty itself is not

a standard of care, but an administrative requirement.”);

Restatement (Second) of Torts § 288 (“The court will not

adopt as the standard of conduct . . . the requirements

of . . . administrative regulation whose purpose is found

to be exclusively . . . to protect the interests of the state or

any subdivision of it as such.”).20

20

Following oral argument, Plaintiffs filed a letter under

Rule 28(j) of the Federal Rules of Appellate Procedure

with additional cases that showed regulations creating

tort duties. None of them is contrary to the reasoning

above. Rather, Plaintiffs’ 28(j) cases pertain to situations

in which statutes explicitly create a duty for license

violations, see 33 U.S.C. § 1365(a) (“[A]ny citizen may

commence a civil action on his own behalf . . . against

any person . . . who is alleged to be in violation of . . . .

an effluent standard.”); 33 U.S.C. § 1365(f) (“[T]he term

‘effluent standard or limitation under this chapter’

42

Finally, as in 1995, we look to other circuits’

caselaw as “instructive.” In re TMI, 67 F.3d at 1113.

Here, we see that no other circuit has adopted Plaintiffs’

proposed standard. See Adkins v. Chevron Corp., 960 F.

Supp. 2d 761, 766, 772–73 (E.D. Tenn. 2012) (holding

that license violations do not create duty in a Price-

Anderson public liability action).

The history of the license amendment shows that

its purpose was not to create an independent duty to

minimize discharge from the stacks. On November 13,

1968, Roger D. Caldwell, NUMEC Manager, Health and

Safety, sent a letter to Donald A. Nussbaumer at the

AEC. The letter requested a change to NUMEC’s license

that would “permit[] concentrations up to 100 MPCa in

any stack’s effluent, providing the concentration at the

roof edge is permissible.” JA5073. Caldwell justified

means . . . a permit or condition thereof . . . .”); N.Y.

Veh. & Traffic Law § 509(3) (“Whenever a permit or

license is required to operate a motor vehicle, no person

shall operate any motor vehicle in violation of any

restriction contained on, or applicable to, the permit or

license.”), or situations where preemption of alternative

laws is not as complete as here, see Gomez v. St. Jude

Medical Daig Div. Inc., 442 F.3d 919, 928–30 (5th Cir.

2006) (discussing the scope of preemption relating to the

Medical Device Amendments).

43

the request by pointing to empirical data relating to

diffusion factors at the Apollo facility—that is, by

showing that amounts released at the stacks would be

much less at the roof edge. See JA5074–76.

On February 5, 1969, Lawrence D. Low, AEC,

Director, Division of Compliance wrote to Zalman

Shapiro, NUMEC President. Low wrote that “the

concentrations of radioactive material released from the

facility through exhaust stacks to unrestricted areas

exceed the limits . . . contrary to 10 CFR 20.106(a).”

JA5079–80. In the same section of the letter, Low

acknowledged NUMEC’s request that its license “be

amended to permit use of a dilution factor for stack

effluents.” JA6080.

On February 25, 1969, Shapiro responded,

explaining that a higher concentration limit could be

applied at the stacks to determine whether NUMEC

violated its maximum permissible concentration at the

roof edge:

We recognize the necessity for an

amendment to our license which would

reflect appropriately the means of varifying

[sic] the effectiveness of atmospheric

dilution in reducing concentration in

unrestricted areas. In this connection, we

submitted on November 13, 1968 a request

for an amendment to our license which

would place primary reliance on roof

44

perimeter sampling in lieu of stack sampling

as a means of measuring releases to

unrestricted areas. At a meeting on January

17, 1969 with Licensing and Compliance

personnel, it was concluded that the off-site

environment sampling program should be

included as a part of our license amendment

application to provide additional assurance

with respect to the effectiveness of

atmospheric dilution. Accordingly, we are

preparing and will submit by March 7, 1969

a revised application which, if approved,

should provide an acceptable means of

varifying [sic] compliance with Part 20.

JA5083–84.

On March 10, 1969, Caldwell submitted a “revised

application to permit concentration to 100 MPCa in any

stack’s effluent.” JA5087. Again, Caldwell “justified”

the proposed limits by pointing to empirical data showing

dilution factors at the roof perimeter. Id.

On May 26, 1969, Nussbaumer at the AEC wrote

to Caldwell at NUMEC granting the amendment to

NUMEC’s license “to authorize the discharge of

radioactive material from any stack effluent . . . in

concentrations up to one-hundred . . . times the

applicable limits . . . in accordance with the statements,

representations and conditions specified in your

application dated March 5, 1969.” JA5112 (emphasis

45

added). Nussbaumer added, “We consider the

environmental sampling program required by Condition

2 above to be a means for providing backup data and

evidence that your roof edge sampling results are

adequately representative of the concentrations released

to the unrestricted areas.” JA5112–13 (emphasis added).

Thus, even at the time, the AEC, via Nussbaumer,

accepted NUMEC’s “representations” about the

relationship between the stack discharges and the roof

edge and that the roof edge monitors would be used to

determine the concentrations “released to the unrestricted

areas.”

In 1995, the NRC agreed that NUMEC’s purpose

in seeking the amendment assumed that all requirements

would be met if the emission at the boundaries were

below the maximum permissible concentration: “By

application dated November 13, 1968, and supplement

dated March 5, 1969, and pursuant to 10 CFR 20.106(b),

NUMEC requested that License SNM-145 be amended to

permit concentrations up to 100 times the limits specified

in Part 20, Appendix B, Table II, in any stack effluent,

provided that concentrations at the roof edge and in the

local environment complied with 10 CFR Part 20 limits.”

In re Babcock & Wilcox Co., 41 N.R.C. 489, 492–93

(June 26, 1995); see also 10 C.F.R. § 20.106(b). Thus, it

is clear that the stack-discharge license restriction was

created as a threshold to test for emissions at the

boundary of the restricted area.

46

Because the license requirement was only an

administrative safe harbor for NUMEC’s compliance

with the emissions maximum set at the boundary of the

restricted area, it does not create a tort duty here.

C. Plaintiffs Had to Show that Maximum Permissible

Concentration was Exceeded on Average Over a Full

Year

Section 20.106 states, “For purposes of this

section[,] concentrations may be averaged over a period

not greater than one year.” 10 C.F.R. § 20.106(a) (1980).

The District Court’s holding that Plaintiffs failed to show

a genuine issue of material fact regarding duty was based

on Plaintiffs’ failure to show a violation of § 20.106

when averaged over the course of a year: “Plaintiffs

have pointed to no genuine issues of material fact that the

annual average concentration of uranium effluent ever

exceeded 1.7 x 10-2 microcuries/milliliter during the

period 1957–1960, or that it ever exceeded 4.0 x 10-12

microcuries/milliliter during the period 1961–1983.”

McMunn, 131 F. Supp. 3d at 388. On appeal, Plaintiffs

continue to argue that they could show a violation based

on a discharge that exceeds the maximum permissible

concentration over any length of time. Plaintiffs are

plainly wrong.

Plaintiffs’ argument is based entirely on the word

“may” in the phrase “concentrations may be averaged

over a period not greater than one year.” They argue,

“The term may is permissive, not mandatory. There is no

47

requirement to take an average.” Pls.’ Br. 43 (footnote

omitted). We agree with Plaintiffs that “may” is

permissive. See, e.g., Simpson v. Kay Jewelers, Div. of

Sterling, Inc., 142 F.3d 639, 650–51 (3d Cir. 1998)

(comparing “the more flexible and permissive ‘may’” to

“the mandatory ‘must’” (quoting Torre v. Casio, Inc., 42

F.3d 825, 831 n.6 (3d Cir. 1994))).

But Plaintiffs’ reliance on a single word in that

phrase ignores the fact that it is part of a sentence that

speaks in the passive voice. “Phrases constructed in the

passive voice use an implied subject or actor who carries

out the verb.” Sci. Drilling Int’l, Inc. v. Pathfinder

Energy Servs., Inc., No. H-06-1634, 2006 WL 2882863,

at *3 (S.D. Tex. Oct. 4, 2006). Thus, the question is who

has the discretion to decide whether to average annually.

Given the context of the regulation, the obvious

answer is that such discretion lies in the AEC because it

is the entity charged with determining whether a licensee

violates its regulatory duties. Cf. United States v.

Brumbaugh, 909 F.2d 289, 291 (7th Cir. 1990) (“The use

of the passive voice in the statutory language requires us

to infer a subject; the most logical inference is that the

Attorney General, who has been charged with granting

credit under section 3568 for over thirty years, is the

intended subject of the sentence.”). Plaintiffs’ unwritten

assumption that the AEC intended for tort plaintiffs or

district courts to have discretion to use annual averaging

is mistaken. Giving tort plaintiffs the power to determine

48

retroactively the period over which a violation is assessed

“would allow [them] to fix the standard case by case and

plant by plant. An operator acting in the utmost good

faith and diligence could still find itself liable for failing

to meet such an elusive and undeterminable standard.”

In re TMI, 67 F.3d at 1115. Under § 20.106, Plaintiffs

were required to show a breach using annual averaging.

Their data relating to individual moments in time fails to

show a breach.

***

Plaintiffs’ attempts to expand Defendants’ duty

must fail. The maximum permissible concentration is

assessed at the boundary of the roof, the license

requirement does not create a duty, and Plaintiffs must

show that the maximal permissible concentration was

exceeded when the emissions are averaged annually.

II. BREACH

The District Court held that Plaintiffs failed to

show there was a dispute of fact as to whether

Defendants emitted excessive radiation at the boundary

of the roof because Plaintiffs failed to offer appropriate

expert testimony.21 On appeal, Plaintiffs again rely

21

See McMunn, 131 F. Supp. 3d at 389 (“In addition, to

establish a breach of duty, Plaintiffs must offer evidence

49

almost entirely on data from the stacks and roof fans,

which, as was established above, are legally irrelevant.

See, e.g., Pls.’ Reply Br. 15–16 (“NUMEC officials were

all too aware of the problem with the roof fans.”).

Putting aside the stacks and fans data, we agree that

Plaintiffs’ argument for breach fails for lack of expert

evidence in this highly technical area.

Moreover, Plaintiffs argue that they are “entitled”

to “adverse inferences” that allow them to show a breach

(and also causation). See Pls.’ Br. 22. This, too, fails

because Plaintiffs did not show that the District Court

abused its discretion in denying the adverse inference.

A. Plaintiffs Needed Experts

Plaintiffs failed to provide an expert who could

testify that the data upon which they rely (stacks, vents,

and readings from outside the facility) could show a

violation of the maximum permissible concentration of

uranium effluent at the boundary of the roof when

averaged annually.

Expert evidence is generally required when an

issue is beyond the ken of a lay jury. For instance, in a

medical monitoring claim, we explained that the plaintiff

from a qualified expert that the Apollo facility’s

emissions exceeded regulatory limits.”).

50

had to prove he or she suffered a “significantly increased

risk of contracting a serious latent disease” and other

factors “by competent expert testimony.” Redland

Soccer Club, Inc. v. Dep’t of Army of U.S., 55 F.3d 827,

845–46, 852 (3d Cir. 1995).22 Similarly, then-Judge

Sotomayor wrote for the Second Circuit that expert

testimony would be “necessary” where “an injury has

multiple potential etiologies.” Wills v. Amerada Hess

Corp., 379 F.3d 32, 46 (2d Cir. 2004).

22

Cf. also Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d

Cir. 1987) (“In some situations in which the seriousness

of injury or illness would be apparent to a lay person,

expert testimony would not be required, e.g., a gunshot

wound. However, those circumstances are not present

here.” (citation omitted)); Breidor v. Sears, Roebuck &

Co., 722 F.2d 1134, 1140–41 (3d Cir. 1983) (stating that

expert testimony was necessary to rebut the defendants’

contention in a products liability case); Lentino v. Fringe

Emp. Plans, Inc., 611 F.2d 474, 480 (3d Cir. 1979)

(“Expert testimony is required to establish the relevant

standard and whether the defendant complied with that

standard, except where the matter under investigation is

so simple, and the lack of skill so obvious, as to be within

the range of the ordinary experience and comprehension

of non-professional persons.” (citations omitted)

(Pennsylvania medical malpractice case)).

51

Perhaps recognizing their failure to transmute vent

data into roof data, Plaintiffs try to borrow an “average

dilution factor of 50” from an isolated 1968 document.

See Pls.’ Br. 45. But these kinds of calculations are best

suited to experts—not lawyers or lay factfinders.

B. The District Court Did Not Abuse Its Discretion in

Holding That Plaintiffs Were Not Entitled to an

Inference Sufficient to Survive Summary Judgment

Objecting to the report and recommendation,

Plaintiffs argued that Defendants’ poor recordkeeping

allowed them to request an inference under which a jury

could assume that Defendants had breached the above-

described duty. [See Dist. Ct. ECF No. 376, at 50–53.]

By adopting the Magistrate Judge’s report and

recommendation, the District Court rejected this

argument. See McMunn, 131 F. Sup. 3d 352.

We review the District Court’s denial of the

adverse inference for abuse of discretion. See, e.g., In re

Hechinger Inv. Co. of Del., Inc., 489 F.3d 568, 574 (3d

Cir. 2007) (“We also review the [bankruptcy court’s]

denial of UFP's motion seeking an evidentiary inference

based on spoliation of evidence for abuse of discretion.”);

Davis v. White, 858 F.3d 1155, 1160 (8th Cir. 2017)

(“The district court’s refusal to sanction the officers with

an adverse inference instruction was not an abuse of

discretion.”).

52

Plaintiffs have failed to show that the District

Court abused its discretion when determining that an

adverse inference was not warranted here.23 Plaintiffs

simply have not developed their argument sufficient to

show an abuse of discretion. [See Pls.’ Br. 21–22.] In

cases where this argument is more developed, an adverse

inference may be appropriate. See United States ex rel.

Scutellaro v. Capitol Supply, Inc., No. 10-1094 (BAH),

2017 WL 1422364, at *11 (D.D.C. Apr. 19, 2017)

(noting several circuits have held that the failure to

maintain records allows for an adverse inference). This

can be seen by analogy to spoliation cases. In spoliation

cases, where there is evidence that one party has

destroyed or altered evidence, the opposing party can

obtain a “‘spoliation inference,’ that the destroyed

evidence would have been unfavorable to the position of

the offending party.” Schmid v. Milwaukee Elec. Tool

Corp., 13 F.3d 76, 78 (3d Cir. 1994). Here, because

23

Plaintiffs’ recordkeeping argument also relates to their

failure to provide expert evidence relating to any

individual Plaintiff’s exposure. See, e.g., Pls.’ Reply Br.

18 (“NUMEC’s failure to collect data makes calculations

impossible—and it should not now benefit from its own

malfeasances.”). Plaintiffs have also failed to show the

District Court abused its discretion when it denied an

adverse inference with regard to causation. See

McMunn, 131 F. Supp. 3d at 394–96.

53

Plaintiffs failed to show an abuse of discretion, we need

not analyze further.

III. CAUSATION

The District Court held that Plaintiffs’ case also

must be dismissed because Plaintiffs’ experts failed to

provide “evidence of [Plaintiffs’] exposure to inhaled

uranium from the Apollo plant and an estimate of the

dose they received which caused their cancers.”

McMunn, 131 F. Supp. 3d at 399. On appeal, Plaintiffs

argue they showed causation even though they did not

show a dose for any individual plaintiff because (1)

Plaintiffs needed only to show “frequency, regularity,

and proximity”—not dose—and (2) the law of the case

requires us to assume that Melius’s testimony would be

sufficient to show causation because the District Court

ruled Melius’s testimony was admissible in its Daubert

motion. These arguments are unpersuasive because

Plaintiffs’ experts failed to show that any of the

individual Plaintiffs had sufficient exposure—looking at

the frequency, regularity, and proximity to the

radiation—and Plaintiffs were not prejudiced by the

District Court’s inconsistent reasoning.

A. Plaintiffs Do Not Show Sufficient Frequency,

Regularity, and Proximity

Unlike with duty and breach discussed above,

causation for Price-Anderson public liability actions is

evaluated under state law. See In re TMI, 67 F.3d 1103,

54

1117 n.33 (3d Cir. 1995) (“As we have noted, the 1988

Amendments retroactively required the applicable law

for ‘public liability actions’ be ‘the law of the State in

which the nuclear incident involved occurs, unless such

law is inconsistent’ with federal law.”); see also In re

Hanford Nuclear Reservation Litig., 534 F.3d 986, 1010

(9th Cir. 2007) (“Under the PAA, Washington state law

controls the standard of causation to be used in this

case.”). Here, that state law is Pennsylvania law.

Pennsylvania requires a plaintiff to show that a

defendant’s acts were a substantial factor in causing a

plaintiff’s injury. As the Pennsylvania Supreme Court

recently stated, “To establish proximate causation, a

plaintiff must adduce evidence to show that the

defendant’s act was a substantial factor in bringing about

the plaintiff’s harm.” Rost v. Ford Motor Co., 151 A.3d

1032, 1049 (Pa. 2016); see also Summers v. Certainteed

Corp., 997 A.2d 1152, 1164–65 (Pa. 2010) (“[T]he

requirements of proving substantial-factor causation

remain the same.”).

Until recently, the Pennsylvania Supreme Court

had suggested that proving substantial-factor causation

required showing the dose to which plaintiff was exposed

because otherwise the “substantiality” of the substantial

factor would not be shown to the jury. See Betz v.

Pneumo Abex LLC, 44 A.3d 27, 58 (Pa. 2012)

(“Certainly a complete discounting of the substantiality

55

in exposure would be fundamentally inconsistent with

Pennsylvania law.”).

However, following oral argument in the case

before us, the Pennsylvania Supreme Court issued its

decision in an asbestos case, Rost v. Ford Motor Co. In

Rost, the Pennsylvania Supreme Court retreated from its

earlier statements, emphasizing that it had previously

“adopted the ‘frequency, regularity, and proximity’ test,

as refined and applied by the United States Court of

Appeals for the Seventh Circuit in Tragarz v. Keene

Corp., 980 F.2d 411 (7th Cir. 1992).” Rost, 151 A.3d at

1043.

It may well be that Rost applies only in

mesothelioma cases because of unique public policy

concerns about mesothelioma.24 Yet we need not decide

24

See, e.g., Rost, 151 A.3d at 1042–43 (describing the

“test on motions for summary judgment in mesothelioma

cases”); id. at 1044 n.7 (“It is important to recognize that

this Court settled on these principles based on a policy

concern: that it is fundamentally unfair to hold a

defendant jointly and severally liable for a mesothelioma

plaintiff’s injuries for a de minimis contribution to the

plaintiff’s overall exposure.”); id. at 1052 (stating that the

frequency, regularity, and proximity test applied “for all

exposures to asbestos”). This makes particular sense to

the extent that Rost relies on Tragarz, which, in turn is

56

based on an Illinois appellate court’s reliance on the

nature of asbestos-related diseases:

Given the various diseases which are

associated with asbestos exposure, the

medical evidence presented, the types of

asbestos involved, the manner in which the

products are handled, and the tendency of

those asbestos products to release asbestos

fibers into the air, the amount of evidence

needed to establish the regularity and

frequency of exposure will differ from case

to case. For example, none of the plaintiffs

in this case were diagnosed with

mesothelioma, an asbestos-related disease

which is caused after only minor exposure to

asbestos dust.

Wehmeier v. UNR Indus., Inc., 572 N.E.2d 320, 337 (Ill.

App. Ct. 1991) (citation omitted).

Mesothelioma is a “signature” disease relating to

asbestos exposure; individuals do not usually develop

mesothelioma without asbestos exposure. See Daley v.

A.W. Chesterton, 37 A.3d 1175, 1177 n.4 (Pa. 2012)

(“Moreover, because mesothelioma, in general, is so rare,

‘any case occurring after a well attested and substantial

asbestos exposure is commonly accepted as being caused

57

by that exposure.’”); see also Ford Motor Co. v. Boomer,

736 S.E.2d 724, 728 (Va. 2013) (“Mesothelioma is a

signature disease: it was uncontroverted at trial that the

cause of mesothelioma is exposure to asbestos at some

point during an individual's lifetime.”).

By contrast, the cancers suffered by the Plaintiffs have

numerous and sometimes even unknowable causes, as

Melius conceded. See JA3236 (“We're evaluating a

disease that’s multi-causal. We don’t have any way of

testing the cancer to determine what caused it, what

specific factor caused it.”); JA3237 (“There are many

cancers that occur where we don’t identify the cause of

that cancer or the causes of that cancer.”); JA3311 (“In

an individual patient I think it’s more appropriate to use

risk factors because it implies -- otherwise it implies that

we know the factor that caused their specific individual

cancer and in most cases we probably do not.”); see also

Risk Factors for Cancer, Nat’l Cancer Institute,

https://www.cancer.gov/about-cancer/causes-

prevention/risk (last visited Oct. 15, 2016) (identifying

age, alcohol, cancer-causing substances, chronic

inflammation, diet, hormones, immunosuppression,

infectious agents, obesity, radiation, sunlight, and

tobacco as risk factors for cancer).

Indeed, in 1999, we explained that establishing causation

for a given cancer was extremely difficult. See In re TMI

58

whether Rost is limited to mesothelioma cases because

Plaintiffs’ evidence would not allow a jury to find

sufficient frequency, proximity, and regularity. Rost

requires a plaintiff at summary judgment to have

propounded “evidence that exposure to defendant’s

asbestos-containing product was sufficiently ‘frequent,

regular, and proximate’ to support a jury’s finding that

defendant’s product was substantially causative of the

disease.” Rost, 151 A.3d at 1044 (emphasis added). For

Litig., 193 F.3d at 643 (“Consequently, medical

evaluation, by itself, can neither prove nor disprove that a

specific malignancy was caused by a specific radiation

exposure.”). Modern secondary sources continue to

agree with that assessment. See, e.g., Steve C. Gold,

When Certainty Dissolves into Probability: A Legal

Vision of Toxic Causation for the Post-Genomic Era, 70

Wash. & Lee L. Rev. 237, 279–81 (2013); William D.

O’Connell, Note, Causation’s Nuclear Future: Applying

Proportional Liability to the Price-Anderson Act, 64

Duke L.J. 333, 357, 359 (2014) (“Radiation-protection

scientists are in agreement that differential diagnosis

cannot confidently identify the ultimate source of a

plaintiff’s cancer.”); cf. Wilcox v. Homestake Mining Co.,

619 F.3d 1165, 1167 (10th Cir. 2010) (“[N]or do we see

a basis for alternative liability where only one potential

wrongdoer has been identified and the injury may simply

have resulted from natural causes.”).

59

instance, the Rost Court noted that the plaintiff’s expert

testified to more than three months of exposure “while

noting studies showing that a single month of regular

exposure to asbestos can double one’s likelihood of

developing mesothelioma.” Id. at 1046. Even

Lohrmann—the original frequency, regularity, and

proximity case, which stated that the court was creating

“a de minimis rule” for proving asbestosis causation

under Maryland law—explained that “a plaintiff must

prove more than a casual or minimum contact with the

product.” Lohrmann v. Pittsburgh Corning Corp., 782

F.2d 1156, 1162 (4th Cir. 1986). Here, where Plaintiffs

(1) simply rely on the existence of any frequency,

regularity, and proximity and (2) fail to offer any

individualized evidence of exposure for any given

Plaintiff, they come up short. Even were this evidence

substantively permissible under Pennsylvania law, it

would fail to be admissible under Daubert for three

reasons.

First, Melius’s testimony is insufficient to create a

genuine issue of fact regarding causation because it is

nothing more than a radiation version of the

impermissible “any breath” theory in Gregg v. V-J Auto

Parts (the case in which that court first adopted the

frequency, regularity, and proximity test in mesothelioma

cases). See Summers, 997 A.2d at 1161 n.14 (“In Gregg

v. V-J Auto Parts, Co., 596 Pa. 274, 943 A.2d 216

(2007), this Court recently rejected the viability of the

‘each and every exposure’ or ‘any breath’ theory.”). The

60

Gregg Court explained that, in a so-called “any breath”

theory of asbestos exposure, a plaintiff alleges that “any

exposure to asbestos, no matter how minimal, is a

substantial contributing factor in asbestos disease.”

Gregg v. V-J Auto Parts, Co., 943 A.2d 216, 226 (Pa.

2007); see also Howard v. A.W. Chesterton Co., 78 A.3d

605, 608 (Pa. 2013) (per curiam) (“Bare proof of some de

minimus [sic] exposure to a defendant’s product is

insufficient to establish substantial-factor causation for

dose-responsive diseases.”).

Melius assumes that anyone who lived in the area

of the Apollo facility was exposed to a sufficient amount

of radiation. In Melius’s words, he “estimated that -- that

they had a, um, substantial or significant exposure.”

JA3227. Yet he did not “estimate a specific or associate

a specific level of exposure with a -- with those terms.”

Id. When asked about “significant exposure,” Melius

agreed that “any exposure to a plaintiff that was above

that plaintiff’s background would be a substantial

exposure.” JA3315.25 Similarly, Melius said that,

25

This is in contradiction to, for instance, his admissions

that he relied on different levels of cigarette usage to

determine substantiality. See JA3300, 3308; see also

JA3321 (“For cigarette smoking and lung cancer, it is

reduced to ten or twenty percent increased risk compared

to somebody who has never smoked after a period of say

twenty years, maybe even after ten or fifteen years.”).

61

“[d]epending on how you use the meaning of

significant,” he “would say” one millirem above

background was “substantial.” JA3315–16.

Second, Melius failed to offer individualized

testimony as he was required to do for each Plaintiff. For

instance, in Howard v. A.W. Chesterton Co., the

Pennsylvania Supreme Court explained, “Relative to the

testimony of an expert witness addressing substantial-

factor causation in a dose-responsive disease case, some

reasoned, individualized assessment of a plaintiff’s or

decedent’s exposure history is necessary.” 78 A.3d at

608; cf. also Black v. M&W Gear Co., 269 F.3d 1220,

1237–38 (10th Cir. 2001) (holding that a district court

did not abuse its discretion in excluding an expert’s

testimony when that expert “had not based his conclusion

on the results of tests or calculations specific to” the

plaintiff). Although Melius describes each Plaintiff’s

smoking history and a few other features for most

Plaintiffs, Melius fails to offer any “reasoned . . .

assessment” of any individual’s exposure to radiation

from uranium effluent. See, e.g., JA4782–84 (relying on

reports about radiation released from the facility that do

not show exposure to any of the individual Plaintiffs).

He merely offers the conclusion that each Plaintiff’s

“exposures to uranium and other radioactive materials

released from the Apollo nuclear facility made a

significant contribution to the development of” her or his

cancer. E.g., JA3448. Even if such a conclusion were

permissibly individualized, it would still be insufficient

62

to generate a genuine issue of fact because, under the

Lone Pine order, only exposure to uranium is at issue

here.

Although Rost stresses that causation is an issue

for the jury, we have never hesitated to grant summary

judgment where one side fails to establish a genuine issue

of fact concerning causation. See, e.g., In re TMI Litig.,

193 F.3d 613, 722–23 (3d Cir. 1999) (affirming summary

judgment where plaintiff’s expert testimony “was

insufficient to create a genuine issue of material fact”

regarding causation); Heller v. Shaw Indus., Inc., 167

F.3d 146, 150 (3d Cir. 1999) (“[B]ecause the District

Court did not abuse its discretion in excluding the key

elements of Heller’s experts’ testimony necessary to

prove causation, the grant of summary judgment will be

affirmed.”).

Finally, the Federal Rules of Evidence impose a

duty on a district judge to act as a gatekeeper of expert

testimony even when considering elements of a cause of

action derived from state law. See Forrest v. Beloit

Corp., 424 F.3d 344, 358 n.9 (3d Cir. 2005) (explaining

that “evidentiary issues in this case are governed by

federal . . . law” while Pennsylvania substantive law

affected what facts would be relevant); see also Hendrix

ex rel. G.P. v. Evenflo Co., Inc., 609 F.3d 1183, 1193

(11th Cir. 2010) (“Although the standards for finding

causation are governed by Florida law, we apply federal

law to determine whether the expert testimony proffered

63

to prove causation is sufficiently reliable to submit it to

the jury.”); cf. Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579, 597 (1993) (“[A] gatekeeping role for the

judge . . . is the balance that is struck by Rules of

Evidence . . . .”).

Thus, even assuming arguendo that Rost

resuscitated “any breath” causation, Melius’s testimony

would be too insubstantial to survive Daubert. Melius’s

testimony provides only a perfunctory narrative for each

Plaintiff, and an unexplained conclusion that radiation

was the cause, presumably because each Plaintiff was

exposed to some radiation. Such conclusory opinions of

medical causation, even by qualified experts, are

insufficient to establish causation of cancer by exposure

to uranium effluent. See Tamraz v. Lincoln Elec. Co.,

620 F.3d 665, 671 (6th Cir. 2010) (“Whatever Dr. Carlini

understood by ‘with a reasonable degree of medical

certainty,’ the phrase—the conclusion by itself—does not

make a causation opinion admissible. The ‘ipse dixit of

the expert’ alone is not sufficient to permit the admission

of an opinion.” (quoting Gen. Elec. Co. v. Joiner, 522

U.S. 136, 146 (1997))).

Although we have held that an expert can offer an

opinion “absent hard evidence of the level of exposure to

the chemical in question,” we have only done so where

an expert could rely “on the temporal relationship and the

nature of the plaintiff’s complaints.” Heller, 167 F.3d at

157. This, too, does not require a dose. But it requires

64

more than an assumption about the effect of living within

a mile of the Apollo facility.

***

Consider how a trial would unfold. Plaintiffs

would present a general causation expert who opines that

any amount of ionizing radiation could cause cancer.

Then, Plaintiffs would present Melius who would state

that each of the Plaintiffs lived or worked near the Apollo

facility and would therefore be assumed to have been

exposed to some radiation from airborne uranium

effluent from the Apollo facility. Melius would then

presumably testify that he is certain that the additional

radiation specifically from the airborne uranium was a

substantial factor in causing the cancer of each of the

Plaintiffs.26 Finally, the jury would decide whether more

than a dozen different illnesses suffered by more than

seventy people were each caused by the radiation from

the airborne uranium from the Apollo facility.

How? Without any ability to compare any

plaintiff’s frequency, proximity, or regularity to any

evidence showing that a given frequency, proximity, or

regularity is correlated with any particular increase in

26

Plaintiffs would also have to ensure they have

sufficient testimony relating only to uranium effluent

under the Lone Pine order.

65

risk—let alone the ability to perform the ideal

comparison between dose and the dose-responsiveness of

a given illness—the jury would be engaging in rank

speculation.

It is true that demanding more than evidence of

“any exposure” makes it more burdensome for most

plaintiffs to recover for injuries from radiation. But the

evidentiary regime that must apply in these cases

necessarily requires that a jury find radiation was a

substantial factor in causing a plaintiff’s injury—and

requires, now, at summary judgment, that we be able to

hold that a reasonable jury could so find. See Gregg, 943

A.2d at 225–26 (“We appreciate the difficulties facing

plaintiffs in this and similar settings, where they have

unquestionably suffered harm on account of a disease

having a long latency period and must bear a burden of

proving specific causation under prevailing Pennsylvania

law which may be insurmountable.”); see also Fed. R.

Civ. P. 56(a). We can demand no less.

B. District Court Law of the Case Does Not Bind This

Court, and, in Any Event, Plaintiffs Were Not

Prejudiced

Pointing to the inconsistency between the District

Court’s Daubert opinion, which suggested Melius’s

testimony was strong, and the District Court’s opinion

granting summary judgment to Defendants, which held

that Melius’s testimony did not create a genuine issue of

material fact, Plaintiffs argue that the District Court was

66

bound to adhere to its Daubert opinion at summary

judgment. Such concerns are irrelevant where, as here,

(a) this Court is not bound by the District Court’s

Daubert opinion and (b) Plaintiff cannot show prejudice.

Plaintiffs are correct that the District Court’s

Daubert opinion appears to be inconsistent with its

summary judgment opinion. The Daubert opinion

strongly implied that Melius’s testimony would be

enough to get the case to the jury, holding that his

testimony should not be excluded because there was

“enough support in the record for the contention that the

Plaintiffs’ exposure levels exceeded the normal

background level.” McMunn v. Babcock & Wilcox

Power Generation Grp., Nos. 2:10cv143 et al., 2014 WL

814878, at *14 (W.D. Pa. Feb. 27, 2014). By contrast,

the District Court’s summary judgment opinion held that

“Plaintiffs must provide . . . an estimate of the dose they

received which caused their cancers.” McMunn, 131 F.

Supp. 3d at 399.

But, as a general matter, we fail to see what

difference law of the case makes at this stage of the

litigation. We are not bound by either of the District

Court’s rulings, and we have addressed the Plaintiffs’

arguments on their own merits.

At all events, Plaintiffs’ law-of-the-case argument

fails on its own merits. Two values animate law-of-the-

case doctrine: judicial economy and unfair prejudice.

See, e.g., Roberts v. Ferman, 826 F.3d 117, 126 (3d Cir.

67

2016) (“We also have held that ‘the law of the case

doctrine does not limit the power of trial judges to

reconsider their prior decisions,’ but have noted that

when a court does so, it must explain on the record why it

is doing so and ‘take appropriate steps so that the parties

are not prejudiced by reliance on the prior ruling.’”

(quoting Williams v. Runyon, 130 F.3d 568, 573 (3d Cir.

1997))).

Here, Plaintiffs have failed to show any prejudice

from the District Court’s change in position. Had the

District Court ruled against them in its Daubert order,

Plaintiffs’ case would have been dismissed as the

Magistrate Judge recommended. Plaintiffs would not

have had an opportunity to create new expert reports in

response to a Daubert ruling that more clearly reflected

the District Court’s legal rulings on causation at

summary judgment.

Perhaps Plaintiffs could have argued that they

were prejudiced because they were lulled into failing to

challenge Defendants’ uncontested facts. But, because

we do not rely on any of those uncontested facts when we

hold that Plaintiffs fail to show a genuine dispute of

material fact with regard to causation, not even the

admission of the uncontested facts demonstrates

prejudice.

***

68

Because Plaintiffs failed to offer evidence from

which a jury could find that each plaintiff was exposed to

radiation from Defendants’ uranium effluent sufficiently

frequently, regularly, and proximately to substantially

cause their illnesses, and further because the law-of-the-

case doctrine does not require us to conclude otherwise,

we hold that Defendants have failed to demonstrate

issues of material fact on causation.

CONCLUSION

Defendants are entitled to judgment as a matter of

law because Plaintiffs failed to show a genuine issue of

material fact with regard to duty, breach, and causation.

Therefore, we will affirm the judgment of the District

Court.

69

McMunn, et al. v. Babcock & Wilcox Power Generation

Group, Inc., et al., No. 15-3506

MCKEE, Circuit Judge, concurring, joined by RESTREPO,

Circuit Judge.

While I agree that summary judgment is appropriate here,

I write to stress that the law in this area is simply inadequate

to address claims arising under the Price-Anderson Act based

on exposure to excess radiation.

As the Majority explains, this is a Public Liability Action

under the Price-Anderson Act.1 Federal law therefore

controls our inquiry into whether Defendants owed Plaintiffs

a duty, and if so, whether the duty was breached. State law

controls the inquiry into whether the breach, if proven, caused

Plaintiffs’ injuries.2 As I will explain, existing law places an

almost insurmountable burden on plaintiffs who try to recover

under the Price-Anderson Act. Under the existing law,

Plaintiffs cannot establish causation, even if they have

established that Defendants owed them a duty that was

breached.

Suits for injuries allegedly resulting from radiation

exposure have no analogous counterpart in traditional tort

law, and existing law ignores the unique problems inherent in

claims based on exposure to “manmade” radiation. As a

result, plaintiffs will rarely, if ever, recover in these types of

actions, and this will continue unless states (or Congress)

recognize the unique problems endemic in proving that a

plaintiff’s illness was proximately caused by exposure to

radiation from a given facility or event.

I. BREACH OF DUTY

I believe that Plaintiffs’ submissions (as itemized in

the Majority Opinion) are more than adequate to survive

Defendants’ motion for summary judgment as to breach of

duty.3 For example, an internal memorandum, dated

1

Maj. Op. at 5.

2

See In re TMI, 67 F.3d 1103, 1117 n.33 (3d Cir. 1995).

3

See Maj. Op. at 10-12.

1

November 29, 1972, regarding NUMEC’s meeting with AEC

Compliance stated:

P. Nelson [AEC personnel] opened by

explaining the purpose of the meeting. He

stated that Compliance was concerned about the

recurring nature and seriousness of NUMEC

violations. He explained that the AEC could

now impose civil penalties for those types of

violations. . . . NUMEC has been the worst

offender of AEC regulations over the years. .

. . AEC had given NUMEC a grace period after

the B&W takeover, but that little improvement

was evident. The AEC is strongly considering

imposing civil penalties against NUMEC.4

Another letter from the AEC stated: “It appears that certain of

your activities were not conducted in full compliance with . . .

and the requirements of the AEC’s ‘Standards for Protection

Against Radiation,’ Part 20, and ‘Special Nuclear Material’ . .

. .”5 Based on this, there could be enough evidence to support

Plaintiffs’ claimed breach of duty.

The Majority affirms the District Court’s conclusion

that much of Plaintiffs’ evidence is of either limited value or

irrelevant because the only expert whose testimony survived

the Daubert motion (Dr. Melius) primarily focused on

radiation levels at the stacks or vents and not at the roof top

boundary.6 Although I agree that Plaintiffs must establish the

levels of radiation at the roof boundary rather than levels at

the vents or stacks, levels at the vents or stacks could

nevertheless be very relevant to establishing levels at the

boundary if that evidence had been properly developed. This

follows from the fact that different radioactive substances

have different half-lives. I will not wade into the quantum

mechanical weeds of half-lives here as that was discussed in

some detail in our 1999 opinion in In re TMI Litigation (TMI

II).7 Rather, I will merely note that half-lives vary from as

short as less than a second to as long as many billions of

4

JA4439-40 (emphasis added).

5

JA4693.

6

See Maj. Op. at 23, 29-34.

7

193 F.3d 613 (3d Cir. 1999).

2

2

years, depending on the substance involved.8 Accordingly, if

byproducts of the uranium produced at Defendants’ facility

included substances with sufficiently long half-lives, their

levels at the stacks and vents would be very relevant to

determining exposure at the roof boundary and beyond. A

fact finder could readily conclude that the levels at the vents

and stacks persisted with no discernable diminution (even

after allowing for dilution as they dispersed into the

surrounding community) long enough for residents of the

community to be exposed to those levels. The probative

value of this evidence could be particularly compelling if the

effluents that comprise the byproducts of uranium production

are not otherwise found in the environment. They would thus

become much more analogous to toxins that cause diseases

such as mesothelioma which I discuss in more detail below.

However, we do not know the extent to which

byproducts of uranium production have an exceedingly short

half-life or whether they have exceptionally low energies. If

they have a momentary short half-life or exceptionally low

energies, their presence at the stacks and vents would be

irrelevant to determining levels at the roof boundary. This is

because they would have disintegrated into sub particles

before reaching the roof boundary and would likely not have

had enough energy to cause any damage even if they reached

the roof’s perimeter and beyond into the community.

Plaintiffs did not offer any evidence that would allow a fact

finder to conclude that the levels at vents and stacks persisted

at the roof boundary. Accordingly, evidence of the levels at

the stacks and vents cannot satisfy their burden of

establishing a breach at the relevant point—the roof

boundary.

I also have reservations about the Majority’s

conclusion that 10 C.F.R. § 20.106(a) requires averaging as

opposed to merely allowing Plaintiffs to average exposure

over a year.9 However, here again, Plaintiffs’ proof is

deficient because they did not attempt to introduce any

evidence about the actual content of the uranium effluent that

was discharged. If that effluent contained substances that

8

See id. at 632.

9

See Maj. Op. at 41-43.

3

were particularly toxic (such as plutonium), exposure to a

given amount for a few days (perhaps even for a matter of

hours) could cause cancer even though the exposure would

appear minimal when averaged out over a year.10 There is an

even more fundamental problem with Plaintiffs’ case that

prevents them from surviving summary judgment, and that is

why I feel compelled to write separately.

In order for Plaintiffs to succeed, they must do more

than show a breach of a duty resulting in exposure to excess

radiation. They must show that the breach resulted in an

exposure that proximately caused their injuries. It is here that

Plaintiffs’ claims fail regardless of the quality of all of their

other proof. Thus, even assuming a genuine issue of fact as

to the exposure levels and Defendants’ breach, the evidence is

still not sufficient to defeat summary judgment under the

Price-Anderson Act because causation is lacking.

II. CAUSATION

A. The Problems of Radiation Toxicity

The Majority thoroughly and correctly explains

causation as it applies to “toxic torts” under Pennsylvania

law. However, the legal principle of causation has evolved

from suits arising from exposure to manmade toxic

substances such as asbestos. As the Majority notes,

mesothelioma is caused by exposure to asbestos, and it is

therefore a “signature” disease. The disease almost never

occurs absent exposure to asbestos.11 The problems of proof

in such cases are quite similar to problems of causation in

cases involving polychlorinated biphenyls (PCBs)12 or

10

See George L. Voelz, Plutonium and Health: How Great is

the Risk?, Los Alamos Sci. 83 (2000),

https://fas.org/sgp/othergov/doe/lanl/pubs/00818013.pdf;

Katherine Harmon, Health Risk Fears Escalate as Japan

Nuclear Plant’s Radioactive Release Remains Uncertain, Sci.

Am. (Mar. 18, 2011),

https://www.scientificamerican.com/article/health-risk-

fukushima/ (“Plutonium is of graver concern because of its

exceptionally long half-life (about 24,000 years) and its

propensity to cause lung cancer if inhaled.”).

11

Maj. Op. at 50-51.

12

See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir.

1994).

4

4

pneumoconiosis (black lung disease),13 to name but a few of

the pathological byproducts of modernization. In such cases,

a pathology is caused by contact (usually ingestion) with a

foreign substance that the injured person would not have

otherwise been exposed to, or would have been exposed to

only in relatively insignificant quantities, and that pathology

almost never occurs in the absence of exposure to that toxic

substance. Accordingly, causation can be established by

showing that defendant made (or controlled) a substance,

plaintiff has a disease that almost never occurs absent contact

with defendant’s substance, and plaintiff had sufficient

contact with defendant’s product (i.e. “frequency, regularity,

and proximity of exposure”) to allow a fact finder to conclude

that the defendant’s product was a substantial factor in the

plaintiff’s death or injury.14 Radiation is different.

In TMI II, we discussed the “scientific principles

regarding the relationship between radiation and cancer.” 15

As the Majority explains, “[m]anmade ionizing radiation can

damage human cells.”16 An ion is nothing more than an

electron that has been displaced from its orbit.17 Unlike with

13

See Mancia v. Dir., Office of Workers’ Comp. Programs,

U.S. Dep’t of Labor, 130 F.3d 579 (3d Cir. 1997).

14

See Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016).

15

Maj. Op. at 13-15; see TMI II, 193 F.3d 613.

16

Maj. Op. at 13 (citing TMI II, 193 F.3d at 639-40).

Although we used the term “manmade” in TMI II, it is

actually a misnomer that obscures some of the very important

distinctions between environmental radiation naturally

occurring and radiation from substances that are, in fact,

manmade. The latter radiation is not actually “manmade.” It

consists of natural elementary particles that are transformed

by human activity. The resulting radiation is nevertheless the

result of quantum mechanical processes. However, for the

sake of convenience, we will also refer to this radiation as

“manmade” as we did in TMI II.

17

TMI II, 193 F.3d at 639 (“[A]n atom is ionized when an

electron is ejected from its orbit and expelled from the

atom.”). It is actually a sweeping generalization to refer to all

ionizing radiation as resulting from a single displaced

electron. A very detailed description of the process of

5

PCBs, asbestos or tobacco byproducts, we are constantly

exposed to radiation on a daily basis. We are exposed from

numerous natural sources including the sun,18 or naturally

occurring radioactive elements such as radon in the ground

surrounding our homes.19

It is now beyond dispute that radiation can cause

various types of cancer. However, unlike with asbestos and

diseases, such as mesothelioma, radiation wreaks havoc with

our bodies, not because it is a foreign substance (it is not), but

because it transfers extra energy to our cells. This energy

can, in turn, damage our DNA in numerous ways that are

described in detail in TMI II.20

Asbestos fibers cause mesothelioma by damaging the

“mesothelial cells that control cell reproduction. Some

damaged cells die and tumor suppressor genes stop others

ionization (including the all important Columb Force) can be

found at TMI II, 193 F.3d at 632-38.

However, the complex distinctions are not important for

purposes of this discussion. Therefore, rather than attempt

more precision by distinguishing between the different types

of ionizing particles and ionizing energy as we did in TMI II,

we will refer to all ions as if they only consisted of electrons

without attempting to distinguish between alpha, beta or

gamma radiation or between orbital electrons and electrons

created through nuclear reactions. The important thing for

purposes of this discussion is that “[w]hen a charged particle

passes through matter, it excites and ionizes atoms in its

path.” Id. at 635. This is what happens to human tissue that

is exposed to radiation.

18

Id. at 644-47.

19

See Natural background radiation, Am. Cancer Soc’y,

https://www.cancer.org/cancer/cancer-causes/radiation-

exposure/x-rays-gamma-rays/natural-background-

radiation.html (last revised Feb. 24, 2015) (explaining that

radon is but one source of the background radiation that we

are potentially exposed to on a daily basis and is listed only

for purposes of illustration).

20

See TMI II, 193 F.3d at 640.

6

6

from reproducing.”21 However, “[w]here suppressor genes do

not stop the reproduction process, . . . the damaged cells

divide, replicating the damage in the sister cells.”22 Over

decades of continued growth of these cells, tumors develop.

“This explains why mesothelioma has an extremely long

latency period, as mesothelial cells have a very slow growth

rate.”23 As expert testimony in a recent case from the

Supreme Court of Pennsylvania established, “it is not

scientifically possible to identify the particular exposure or

exposures that caused a patient’s mesothelioma[.] . . .

[I]nstead, the causative agent is ‘the series of exposures.’”24

However, even though it is not possible to identify a

particular exposure as causing a given occurrence of the

disease, there is now no dispute that asbestos is responsible

for mesothelioma.

Although the disease process described above for

mesothelioma is quite similar to that which is triggered by

radiation after the cell is irradiated, there is a key difference

that is very relevant to our discussion. As noted above, we do

not normally develop diseases such as mesothelioma in the

absence of exposure to the manmade carcinogens that can

cause it. Thus, if a plaintiff can produce evidence of

sufficient frequency, regularity, and proximity of exposure to

asbestos to establish that it is more likely than not that that

exposure was a substantial cause of subsequent disease, the

plaintiff then need only prove that defendant manufactured or

controlled the substance that plaintiff had been exposed to in

order to recover. The same is true with any other “signature”

disease.

Unlike products such as asbestos and PCBs, radiation

is not a foreign substance. All of us are exposed to it every

second of every day both inside of buildings and outdoors.

Yet, radiation can “damage structures within the human body

as cells are disrupted or killed by the ionizing radiation

[energy] itself, and as energy is transferred to cells triggering

21

Rost, 151 A.3d at 1039 (citations omitted).

22

Id.

23

Id.

24

Id.

7

second-order chemical changes.”25 “Unlike a chemical

product, which may be traceable to a particular manufacturer,

different sources of radiation are not distinguishable, nor is

there any noticeable difference between cancers caused by

nuclear-power production and those caused by other sources

of radiation.”26

[M]edical evaluation, by itself, can neither

prove nor disprove that a specific malignancy

was caused by a specific radiation exposure [or

series of exposures]. Therefore, the primary

basis to link specific cancers with specific

radiation exposures is data that has been

collected regarding the increased frequency of

malignancies following exposure to ionizing

radiation. In other words, causation can only be

established (if at all) from epidemiological

studies of populations exposed to ionizing

radiation.27

However, epidemiological studies of exposed

populations can only establish the percentage by which the

incidence of given cancers in that population exceeds the rate

for those same cancers in similar populations not exposed to

the source of radiation. No study can determine whether the

cancer of a given member of that population was the result of

exposure to a defendant’s product or to radiation released

from a defendant’s facility. As we explained in TMI II, “the

task of establishing causation is greatly complicated by the

reality that a given percentage of a defined population will

contract cancer even absent any exposure to ionizing

25

William D. O’Connell, Causation’s Nuclear Future:

Applying Proportional Liability to the Price-Anderson Act, 64

Duke L.J. 333, 348 (2014) [hereinafter O’Connell] (citing

James E. Turner, Atoms, Radiation, and Radiation Protection

421 (3d ed. 2007) [hereinafter Turner], available at

http://nuclear.dababneh.com/Radiation-Undergrad-

2/Atoms,%20Radiation,%20and%20Radiation%20Protection.

pdf.

26

Id. at 350 (citing Turner at 468).

27

TMI II, 193 F.3d at 643 (citations omitted).

8

8

radiation.”28 This probability conundrum is even more of an

issue when we try to compare members of a population who

have only been exposed to natural radiation with members of

the same population who have been exposed to that radiation

plus radiation emanating from a defendant’s product or

facility.

Plaintiffs who must prove that exposure to a particular

source of radiation was a substantial cause of their injuries

therefore face an insurmountable task that the law has yet to

satisfactorily address. The task is further complicated by the

fact that radiation includes different kinds of particles (i.e.

alpha, gamma, beta), each with different properties including

different levels of energy and thus having a different

capability of damaging human cells.29 As the NRC has

explained:

[N]atural radiation . . . is always present in the

environment. It includes cosmic radiation which

comes from the sun and stars, terrestrial

radiation which comes from the Earth,

and internal radiation which exists in all living

things. The typical average individual exposure

in the United States from natural background

sources is about 300 millirems per year.30

Yet, although there is general scientific agreement that

radiation can cause cancer, we are still at the rudimentary

stages of understanding the etiology of cancers. 31

As if this does not make plaintiffs’ task in such cases

difficult enough, two additional considerations further

complicate inquiries into causation. First, as has already been

mentioned, not all radiation has the same energy level. Some

radiation can be filtered out by barriers no more substantial

28

Id. at 643-44. For a detailed explanation of the two major

sources of natural radiation and average doses, see id. at 644-

48.

29

For a detailed discussion of this, see id.

30

U.S. Nuclear Regulatory Comm’n, Background radiation,

https://www.nrc.gov/reading-rm/basic-

ref/glossary/background-radiation.html.

31

See TMI II, 193 F.3d at 644-48.

9

than sunscreen, or surface tissue, yet some radiation is

capable of penetrating lead.32 Thus, mere proximity to a

source of radiation does not necessarily establish a sufficient

“absorbed dose” to link an individual’s illness to that

proximity.33 This point is illustrated in the extreme by the

fact that “[c]rews of nuclear submarines have possibly the

lowest radiation exposure of anyone, despite living within a

few meters of a nuclear reactor, since they are exposed to less

natural background radiation than the rest of us [(the ocean

shelters them)], and the reactor compartment is well

shielded.”34

Second, the difficulty of linking a potentially

radiation-related pathology to a defendant instead of to

background radiation is made exponentially more difficult by

the fact that some people have a genetic predisposition to

diseases associated with radiation exposure, while others have

a genetic composition that seems to protect them from the

otherwise harmful effects of radiation. Indeed, more than one

physician has counseled that the best way to guard against

contracting cancer is to “choose your parents carefully.”35

Genetic research has even led researchers to conclude that:

[P]erhaps a fortunate genetic endowment

protects some lifelong smokers from lung

cancer, while a genetic mischance induces lung

cancer in some non-smokers. Both

environmental and genetic differences between

individuals appear responsible for at least some

32

See id. at 637 n.36.

33

Id. at 637 (“The absorbed energy per unit mass of material

is termed the ‘absorbed dose.’”).

34

World Nuclear Ass’n, Nuclear Radiation and Health

Effects, http://www.world-nuclear.org/information-

library/safety-and-security/radiation-and-health/nuclear-

radiation-and-health-effects.aspx.

35

See, e.g., Huber R. Warner, If You Wish to Live a Long

Time in Good Health, Choose Your Parents Carefully, 62A J.

of Gerontology: Biological Scis. 575 (2007), available at

https://www.ncbi.nlm.nih.gov/pubmed/17595411; see also

Steve C. Gold, When Certainty Dissolves into Probability: A

Legal Vision of Toxic Causation for the Post-Genomic Era,

70 Wash. & Lee L. Rev. 237, 259 (2013) [hereinafter Gold].

10

10

of the variation in individuals’ responses to

toxic exposures. For the most part, it has been

impossible (or at least impractical) to identify,

quantify, and tease apart these possibilities

using the investigatory tools of toxicology,

environmental epidemiology, conventional

biochemistry, and classical genetics.36

Yet, Plaintiffs such as those here, must produce evidence that

will establish that their injuries are more likely than not

caused by effluents from Defendants’ uranium plant. I

simply do not see any way they can do that given the current

state of the law.

B. Congress’s Response to Causation Issues

Congress has recognized the problems inherent in

attempting to prove causation in Public Liability Actions

almost from the very beginning of our attempts to harness the

power of the atom. The Atomic Energy Act of 1946 created

the Joint Committee on Atomic Energy to correct the

deficiencies of the Price-Anderson Act, including the

stringent burden of establishing causation.37 The Committee

36

Gold at 258-59.

37

Taylor Meehan, Lessons from the Price-Anderson Nuclear

Industry Indemnity Act for Future Clean Energy

Compensatory Models, 18 Conn. Ins. L.J. 339, 346 (2012)

[hereinafter Meehan]; see also Michael Flynn, A Debt Long

Overdue, Bulletin of the Atomic Scientists 41-42 (2001) (The

Energy Employees Occupational Illness Compensation Act

acknowledged that “nuclear weapons workers were put at risk

building the country’s arsenal.” Acknowledging the

difficulties associated with establishing causation, and

“[b]ecause the government failed to adequately track

exposures at these sites, [the Act] assumes that workers’

cancers are work related, thus relieving the workers of the

near-impossible task of having to prove the connection.”

Further, the Act “establishes the possibility that other sites

and illnesses may be added to the cohort at a later date.”); see

also David Rocchio, The Price-Anderson Act: Allocation of

the Extraordinary Risk of Nuclear Generated Electricity: A

Model Punitive Damage Provision, 14 B.C. Envtl. Aff. L.

11

was also concerned with state statutes of limitation that could

nullify meritorious claims because of the latency of injuries

caused by radiation.38 Consequently, the 1966 amendments

to the Act included a provision for the waiver of various

defenses under state tort law in the event of an “extraordinary

nuclear occurrence.”39 An “extraordinary nuclear occurrence”

was defined as:

[A]ny event causing a discharge or dispersal of .

. . byproduct material from its intended place of

confinement in amounts offsite, . . . which the

Nuclear Regulatory Commission or the

Secretary of Energy. . . determines to be

substantial, and which the Nuclear Regulatory

Commission or the Secretary of Energy. . .

determines has resulted or will probably result

in substantial damages to persons offsite . . ..40

“This provision was enacted in order to assure that the

victim’s entitlement to compensation would be determined

under a strict liability standard, instead of the negligence

standard that most state courts require.”41 The amendments

also included a provision that waived state statutes of

limitation that were more limited than the three-year limit

established under the Price-Anderson Act.42 However, the

overarching problem of causation was not impacted by

attempts to augment statutes of limitation or impose strict

Rev. 521, 538-39 (1987) [hereinafter Rocchio] (citing

Hearings Before the Joint Committee on Atomic Energy on

Proposed Amendments to the Price-Anderson Act Relating to

Waiver of Defenses, 89th Cong., 2d Sess. 105-07 (1966),

available at

https://www.loc.gov/resource/conghear08.00170174379/?sp=

10).

38

Rocchio at 539.

39

42 U.S.C. § 2014(j).

40

Id.

41

Meehan at 347.

42

Id.; see 42 U.S.C. § 2210(n)(1)(F)(iii) (The Act allows “any

issue or defense based on any statute of limitations if suit is

instituted within three years from the date on which the

claimant first knew, or reasonably could have known, of his

injury or damage and the cause thereof.”).

12

12

liability. In either case, a plaintiff would still have to

establish that a given pathology was caused by exposure to a

defendant’s radiation rather than background radiation,

heredity or some other factor. Accordingly, this legislative

effort was only helpful in the exceedingly rare cases where

that evidentiary gap could be bridged.

In 1988, Congress created the Presidential

Commission on Catastrophic Nuclear Accidents to “conduct a

comprehensive study of appropriate means of fully

compensating victims of a catastrophic nuclear accident that

exceeds the aggregate public liability . . . in the statute . . . .”43

In its final report to Congress, the Commission “sought to

identify the ‘next best’ approach, since attaining the ‘best’

solution, compensating only those whose cancers or other

latent illnesses were caused by the accident, is not currently

possible.”44 The options included:

Option A, relaxing traditional

notions of proof of causation and

paying something to everyone

who gets cancer; Option B,

retaining and rigorously applying

traditional standards, which would

result in paying few, if any,

claims; and Option C, adopting

some proxy for direct proof of

causation, such as imputing group

risk to individuals who actually

develop cancer and paying those

claims where the association

between radiation exposure and a

particular cancer is the strongest

(or at least at some minimum

level), with the option, where a

strong association is required for a

“full” award, of also paying lesser

43

Presidential Comm’n on Catastrophic Nuclear Accidents,

Report to the Congress from the Presidential Commission on

Catastrophic Nuclear Accidents, Letter to the Senate (August

1990) [hereinafter Report], available at

http://www.state.nv.us/nucwaste/news/rpccna/pcrcna02.htm.

44

Id. at ch. 4.IV.B.

13

amounts on those claims with a

somewhat weaker association.45

The Commission ultimately recommended Option C46 and

provided three possible ways to implement that Option, while

noting that better techniques can be developed in the future: 47

The first would pay the full

amount for any diagnosed cancer

where the probability of causation

(PC) is .5 or greater, and a

declining amount down to a cutoff

of PC = .2, at which compensation

would be 20 percent of the full

award, determined in accordance

with Chapter 3.

The second variation would pay

the full amount for any diagnosed

cancer where the PC is .5 or

greater, and a declining amount

down to a PC of .2, at which

compensation would be 30

percent of a full award.

The third variation, which is most

like Option A, above, would

simply pay a benefit to anyone in

the affected area with a diagnosed

cancer whose radiation exposure

indicated a PC of 20 percent or

greater. Congress might elect to

make this a full award determined

in accordance with Chapter 3, or a

fixed dollar amount, or

reimbursement for actual medical

expenses.48

45

Id.

46

This option is known as the “probability of causation” rule.

47

Report at ch. 4.II.

48

Id. at ch. 4.IV.B. (citation omitted).

14

14

Courts have adopted variations of these and other options as

discussed below. However, despite these efforts, the problem

of establishing causation in these suits remains because we

continue to approach such claims the same way we approach

injuries resulting from asbestos, defective brakes, holes in

pavement, and falls in the aisles of the neighborhood

supermarket.

C. Evolving Case Law: Relaxing Standards

Some courts have responded by implementing a more

relaxed analytical framework for these suits. None of these

approaches has yet won general acceptance, and each

contains certain flaws.49

1. The Preponderance Rule

The preponderance rule is very similar to the typical

preponderance of the evidence burden. It requires a plaintiff

to prove that the defendant’s activity was more likely than not

either the but-for causation or a substantial factor in causing

the plaintiff’s injuries.50 Courts have equated the “more

49

The following discussion of evolving law is not intended as

an exhaustive survey. Rather, I mention it only to offer

additional examples of the problem and some solutions that

have been suggested.

50

Shelly Brinker, Opening the Door to the Indeterminate

Plaintiff: An Analysis of the Causation Barriers Facing

Environmental Toxic Tort Plaintiffs, 46 UCLA L. Rev. 1289,

1303-04 (1999) [hereinafter Brinker]; see Sterling v. Velsicol

Chemical Corp., 855 F.2d 1188, 1201 (6th Cir. 1988)

(“Whereas numerous jurisdictions have rejected medical

experts’ conclusions based upon a ‘probability,’ a

‘likelihood,’ and an opinion that something is ‘more likely

than not’ as insufficient medical proof, the Tennessee courts

have adopted a far less stringent standard of proof and have

required only that the plaintiffs prove a causal connection

between their injuries and the defendant’s tortious conduct by

a preponderance of the evidence. While, in accordance with

Tennessee common law, plaintiffs’ proof by a reasonable

medical certainty requires them only to establish that their

particular injuries more likely than not were caused by

15

likely than not” element of this rule to a level of certainty

greater than 50%.51 The preponderance rule does not reduce a

plaintiff’s burden of showing cause-in-fact, it allows the

plaintiff to present individualized and statistical evidence to

establish that the defendant’s activities were likely a

substantial contributor to plaintiff’s injury.52

Because of the 50% threshold requirement, plaintiffs

who cannot demonstrate a greater than 50% likelihood that

the defendant caused their injuries do not recover anything.

However, if plaintiffs are able to show, for example, that

defendant is responsible for causing injuries to 51% of the

exposed population, every plaintiff recovers even though the

evidence only proved that 51% of the individuals in the

exposed population suffered injuries because of defendant’s

activities.

This is basically the way causation is now determined

in Pennsylvania, as explained in the Majority’s discussion of

Rost v. Ford Motor Co.,53 except that it allows group recovery

if any group member of the group is successful in showing

his/her disease was proximately caused (i.e. by a 51%

probability) by a defendant.

There are several obvious problems with this

approach. As we have explained above, because everyone in

ingesting the contaminated water, their proofs may be neither

speculative nor conjectural.”).

51

In re Agent Orange Prod. Liab. Litig., 597 F. Supp. 740,

835-37 (E.D.N.Y. 1984), aff’d sub nom. In re Agent Orange

Prod. Liab. Litig. MDL No. 381, 818 F.2d 145 (2d Cir. 1987)

(quoting Jackson v. Johns-Manville Sales Corp., 727 F.2d

506, 516 (5th Cir. 1984), on reh'g, 750 F.2d 1314 (5th Cir.

1985)) (The rule provides an “‘all or nothing’ approach,

whereby [assuming all other elements of the cause of action

are proven], the plaintiff becomes entitled to full

compensation for those . . . damages that are proved to be

‘probable’ (a greater than 50 percent chance), but is not

entitled to any compensation if the proof does not establish a

greater than 50 percent chance.”).

52

Id. at 835.

53

See Maj. Op. at 49-52 (citing Rost, 151 A.3d 1032).

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the population will have been exposed to radiation during

their lifetime, and since it is not yet possible to isolate the

effect of radiation from a particular source, the same

problems of causation remain. This approach merely

suspends proof of causation for everyone else if anyone in the

group can prove causation. All recover based on the showing

that someone should recover. However the nearly impossible

burden of proving causation remains. Moreover, if the

burden can somehow be satisfied by any one plaintiff or a

subset of plaintiffs, the result imposes “crushing liability” on

defendants that could negatively impact some efforts to find

alternative energy sources.54 In addition, this approach

allows plaintiffs whose injury is probably genetic or due to

background radiation to recover along with those who can

trace their injury to the disputed source. But, the fact that one

or more plaintiffs in a given population have been injured by

exposure to a given source certainly does not mean that

everyone in that population has been. Yet, everyone would

ride along on the claims of those who can show a defendant

proximately caused his/her injury.

2. The Proportionality Rule

Alternatively, some courts have used the

proportionality rule. This rule presumes causation when a

plaintiff presents statistical evidence showing that it is likely

that a defendant’s activities caused an injury to a proportion

of the individuals in the exposed population.55 This approach

may, at first, also appear to resemble Pennsylvania’s

“frequency, regularity and proximity” test. However, under a

pure implementation of this proportionality rule, plaintiffs are

not required to present individualized proof. For example, if

100 plaintiffs alleged that defendant’s disposal of hazardous

wastes caused their injury and the risk of developing such

injury in the exposed population is 55%, then every plaintiff

will recover 55%.56 However, plaintiffs will likely never

54

Brinker at 1309-10.

55

Id. at 1313.

56

Sindell v. Abbott Labs., 607 P.2d 924, 937 (Cal. 1980); see

Cottle v. Superior Court, 5 Cal. Rptr. 2d 882, 905 (Ct. App.

1992) (Johnson, J., dissenting) (“Instead of choosing between

the extremes of overcompensation and no compensation at all

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obtain complete recovery under such a tort regime.57 In

addition, this rule still allows plaintiffs whose injuries or

deaths were likely attributable primarily to background

radiation or genetics (or a combination of the two) to recover.

3. The Allen Rule

The United States District Court for the District of Utah

presented another option in Allen v. United States, which

involved a dispute arising from atmospheric testing. That

court resorted to burden shifting. A rebuttable presumption of

liability arises if a plaintiff can show a correlation between

his or her injuries and the increased risk resulting from a

defendant’s negligent release of radiation. The problem here

is that correlation is not the same as causation.58 Yet, using

this approach, Allen held that

[w]here a defendant who negligently creates a

radiological hazard which puts an identifiable

population group at increased risk, and a

member of that group at risk develops a

biological condition which is consistent with

having been caused by the hazard to which he

has been negligently subjected, such

consistency having been demonstrated by

this solution allows plaintiffs to recover a percentage of their

damages from those responsible for their exposure to the

toxic. Under this formula defendants responsible for the toxic

exposure are liable to all those who were exposed and later

suffered injury—including those who may have suffered the

injury even if they had never come near the toxic

substance. But defendants are only liable for a percentage of

plaintiffs’ damages equal to the degree this exposure

increased plaintiffs’ risk of injury. For example, assume a

chemical increases the risk of cancer by 15 percent among

those exposed to the toxin. All exposed to this chemical who

later came down with cancer would be entitled to recover 15

percent of their total damages from those responsible for the

exposure.”).

57

Brinker at 1318 (citation omitted).

58

For example, the height of males and females correlates to

whether they play professional basketball. However, playing

professional basketball does not cause players to grow taller.

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substantial, appropriate, persuasive and

connecting factors, a fact finder may reasonably

conclude that the hazard caused the condition

absent persuasive proof to the contrary offered

by the defendant.59

In undertaking this inquiry, the fact finder considers

the following non-exhaustive list of factors:

(1) the probability that plaintiff was exposed to

ionizing radiation due to nuclear fallout from

atmospheric testing at the . . . Test Site at rates

in excess of natural background radiation; (2)

that plaintiff's injury is of a type consistent with

those known to be caused by exposure to

radiation; and (3) that plaintiff resided in

geographical proximity to the . . . Test Site . . . .

Other factual connections may include but are

not limited to such things as time and extent of

exposure to fallout, radiation sensitivity factors

such as age or special sensitivities of the

afflicted organ or tissue, retroactive internal or

external dose estimation by current researchers,

a latency period consistent with a radiation

etiology, or an observed statistical incidence of

the alleged injury greater than the expected

incidence in the same population.60

59

Allen v. United States, 588 F. Supp. 247, 415 (D. Utah

1984), rev’d on other grounds, 816 F.2d 1417 (10th Cir.

1987).

60

Id.; see also Restatement (Second) of Torts § 433 (1965)

(“The following considerations are in themselves or in

combination with one another important in determining

whether the [defendant’s] conduct is a substantial factor in

bringing about harm to another: (a) the number of other

factors which contribute in producing the harm and the extent

of the effect which they have in producing it; (b) whether the

actor’s conduct has created a force or series of forces which

are in continuous and active operation up to the time of the

harm, or has created a situation harmless unless acted upon by

other forces for which the actor is not responsible; (c) lapse of

time.”); see also O’Connell (proposing a species of

proportionality tests that allows compensation based upon

19

The problem here is that because this rule presents several

factors that courts can consider, consistency may be elusive

and courts addressing substantially identical circumstances

may reach different results. Nevertheless, this approach

appears to be the most promising and the most consistent with

the realities of the risk created by an activity that can expose a

population to radiation. It may be that the only realistic

approach is to compensate an identified population for the

increased risk occasioned by a given activity. I do not,

however, suggest that such nagging questions as the amount

of that compensation, identifying the population that is at

increased risk, or countless other factors lend themselves to

easy or equitable resolution.

None of these approaches have yet gained wide

acceptance and, as should be evident from this discussion,

none of these approaches is close to perfect. Rather, they are

sorely needed attempts to adopt (or augment) the traditional

rules requiring a direct and linear cause-in-fact relationship

with no intervening causes, to the reality of exposure to

ionizing radiation resulting from human activities.

III. CONCLUSION

For reasons I have explained, my concerns about some

of the District Court’s rulings are not sufficient to cause me to

conclude that the court erred in granting summary judgment

against these Plaintiffs and dismissing the complaint.

Problems with the Plaintiffs’ proof (and lack thereof) and the

Herculean task of trying to produce enough evidence to get to

a fact finder on the issue of causation are simply too

formidable for these claims to survive.

As I have explained, this will almost always be the

case until state supreme courts, state legislatures and/or

Congress devise a way to more fairly address the very real

and substantial dangers posed by activities that increase the

risk of exposing communities to ionizing radiation. However,

increased risk once that risk exceeds a certain threshold. The

threshold is, of course, a policy matter and can be determined

by legislatures after hearings on this issue.).

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since that day is not yet here, I agree that Defendants were

entitled to summary judgment. I can only hope that the dues

that we pay for the comforts of living in the atomic age will

one day not require us to forego remedies for the harmful

effects of the nuclear byproducts of that modernization, which

we are still trying to understand.

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