Petition for Writ of Certiorari — Michelle McMunn, Personal Representative of the Estate of Eva Myers, et al., Petitioners v. Babcock & Wilcox Power Generation Group, Inc., et al.

Supreme Court briefDec 20, 2017

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App. 1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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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

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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

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

App. 2

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

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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, 2-11-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

Motley Rice

3333 K Street, N.W.

Suite 450

Washington, DC 20007

[ARGUED]

App. 3

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

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

Sean D. Unger

Paul Hastings LLP

55 Second Street

24th Floor

San Francisco, CA 94105

[ARGUED]

App. 4

Nancy G. Milburn

Philip H. Curtis

Reuben S. Koolyk

Arnold & Porter LLP

399 Park Avenue

34th Floor

New York, NY 10022

[ARGUED]

Geoffrey J. Michael

Arnold & Porter LLP

601 Massachusetts Avenue, N.W.

Washington, DC 20001

Counsel for Appellees

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OPINION OF THE COURT

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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 Defendants2 were preempted by the Price-Anderson Act

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.

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

App. 5

and that only their Price-Anderson “public liability”

claims are at issue in this appeal. Although the PriceAnderson 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.

Accordingly, we will affirm the judgment of the

District Court.

BACKGROUND

THE PARTIES AND EMISSIONS

A. The Parties

Plaintiffs are more than seventy individuals3 in a

group of consolidated cases who claim that excessive

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).

At oral argument, even Plaintiffs’ counsel was unable to fix

the exact number of plaintiffs. See Oral Arg. Tr. at 4:6-19.

App. 6

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 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

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

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.

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”).

App. 7

day for 40 years”); JA3463 (“diagnosed with breast cancer in 1986 and then again in 2008 at the age of 67”).

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.

App. 8

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 emissions were a regulatory concern because NUMEC and

App. 9

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, periods of time (such as when the facility’s incinerator was being used).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

App. 10

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.

•

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. 4748 (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

plant’s incinerator was operating; and (4) noted “environmental

monitors in the community.” Oral Arg. Tr. at 39:10-40:20.

App. 11

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.

•

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.

•

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

App. 12

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 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,

App. 13

“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

In re TMI Litigation, any increase in radiation exposure above zero is believed to increase the probability

of carcinogenesis7:

“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).

App. 14

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

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

“[T]he 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 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.

App. 15

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.

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-DSCRCM (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

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).

App. 16

parties’ experts under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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-cv0143-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.

App. 17

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

Defendants’ Daubert motions; and (3) deny all of Plaintiffs’ Daubert motions. See McMunn v. Babcock & Wilcox Power Generation Grp., Nos. 10-143, 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 onepage 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

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 (“This is reinforced by the lack of

App. 18

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.” 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 1015 years ago, thereby taking dose into account.” Id. at

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.”).

App. 19

*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 unknown” because Melius reviewed

information about the Plaintiffs. McMunn v. Babcock

& Wilcox Power Generation Grp., Nos. 2:10cv143, 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

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, 2014 WL 814878,

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

App. 20

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 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, 2014 WL 12530940 (W.D. Pa. May 7,

2014). We denied Defendants’ petition for interlocutory

App. 21

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. 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

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.

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.

App. 22

. . . 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) (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.

App. 23

With regard to exposure and dose, the Magistrate

Judge held that Plaintiffs’ causation case failed because 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-cv001343-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.

App. 24

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.

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’ 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.

App. 25

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,

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.

App. 26

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.

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

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).

App. 27

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 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

App. 28

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,

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 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).

App. 29

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 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.”);

App. 30

JA5317 (“The roof hatch is kept locked with keys in the

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

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.

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

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 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.

App. 31

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. 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

App. 32

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 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.”

App. 33

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 PriceAnderson 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 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.

App. 34

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

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.

“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.

App. 35

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., 504 Pa. 157, 470 A.2d 515, 518

(1983); Restatement (Second) Torts § 286.19 We have

held that “general 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

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.

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

App. 36

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 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.

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’ 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).

App. 37

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 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.

App. 38

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 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.”

App. 39

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.

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

App. 40

§ 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 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.

App. 41

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 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.

App. 42

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 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

See McMunn, 131 F. Supp. 3d at 389 (“In addition, to establish a breach of duty, Plaintiffs must offer evidence from a

qualified expert that the Apollo facility’s emissions exceeded regulatory limits.”).

App. 43

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 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, thenJudge 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).

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

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)).

App. 44

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. Supp. 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.”).

Plaintiffs have failed to show that the District

Court abused its discretion when determining that an

App. 45

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

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

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.

App. 46

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,

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. 2008) (“Under the PAA, Washington

state law controls the standard of causation to be used

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

App. 47

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 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.

App. 48

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 whether

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 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 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.”).

App. 49

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

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 multicausal. 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/causesprevention/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 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, 27981 (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.”).

App. 50

“evidence that exposure to defendant’s asbestoscontaining 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

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

App. 51

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

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.”).

App. 52

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 substantialfactor 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 to generate a genuine issue of fact because,

under the Lone Pine order, only exposure to uranium

is at issue here.

App. 53

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 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. . . .”).

App. 54

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 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

App. 55

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

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

Plaintiffs would also have to ensure they have sufficient

testimony relating only to uranium effluent under the Lone Pine

order.

App. 56

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 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

App. 57

the Plaintiffs’ exposure levels exceeded the normal

background level.” McMunn v. Babcock & Wilcox Power

Generation Grp., Nos. 2:10cv143, 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-thecase doctrine: judicial economy and unfair prejudice.

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

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

App. 58

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.

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.

App. 59

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

Maj. Op. at 5.

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

App. 60

illness was proximately caused by exposure to radiation from a given facility or event.

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 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,

See Maj. Op. at 10-12.

JA4439-40 (emphasis added).

App. 61

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 years, depending on the substance involved.8 Accordingly, if byproducts of the uranium produced at Defendants’

facility included substances with sufficiently long halflives, their levels at the stacks and vents would be very

relevant to determining exposure at the roof boundary

JA4693.

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

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

See id. at 632.

App. 62

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

App. 63

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 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

See Maj. Op. at 41-43.

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.”).

App. 64

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 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

Maj. Op. at 50-51.

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

1994).

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

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

App. 65

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 PCBs, asbestos or tobacco

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

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

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.

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 ionization (including the all important Columb Force) can be found at TMI II, 193 F.3d at 63238.

App. 66

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

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.

Id. at 644-47.

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

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

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).

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

App. 67

Asbestos fibers cause mesothelioma by damaging

the “mesothelial cells that control cell reproduction.

Some damaged cells die and tumor suppressor genes

stop others 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

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

Id.

App. 68

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 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

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,%20R̈adiation,%20̈and%20̈Radiation

%20P̈rotection.pdf.

Id. at 350 (citing Turner at 468).

App. 69

[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 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.

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

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

sources of natural radiation and average doses, see id. at 644-48.

App. 70

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

For a detailed discussion of this, see id.

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

https://www.nrc.gov/reading-rm/basic-ref/glossary/backgroundradiation.html.

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

App. 71

has already been mentioned, not all radiation has the

same energy level. Some radiation can be filtered out

by barriers no more substantial 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

See id. at 637 n.36.

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

is termed the ‘absorbed dose.’ ”).

World Nuclear Ass’n, Nuclear Radiation and Health Effects, http://www.world-nuclear.org/informationlibrary/safety-andsecurity/radiation-and-health/nuclear-radiation-and-health-effects.

aspx.

App. 72

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 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.

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].

Gold at 258-59.

App. 73

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 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

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. 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).

Rocchio at 539.

App. 74

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 PriceAnderson Act.42 However, the overarching problem of

causation was not impacted by attempts to augment

statutes of limitation or impose strict liability. In either

case, a plaintiff would still have to establish that a

42 U.S.C. § 2014(j).

Id.

Meehan at 347.

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.”).

App. 75

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

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.

Id. at ch. 4.IV.B.

App. 76

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 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

Id.

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

Report at ch. 4.II.

App. 77

accordance with Chapter 3, or a fixed dollar

amount, or reimbursement for actual medical

expenses.48

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

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

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.

Shelly Brinker, Opening the Door to the Indeterminate Plaintiff: An Analysis of the Causation Barriers Facing Environmental

App. 78

Courts have equated the “more 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

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 ingesting the contaminated water, their proofs

may be neither speculative nor conjectural.”).

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.”).

Id. at 835.

App. 79

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 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

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

App. 80

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,

Brinker at 1309-10.

Id. at 1313.

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

App. 81

plaintiffs will likely never 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

extremes of overcompensation and no compensation at all 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.”).

Brinker at 1318 (citation omitted).

App. 82

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 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

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.

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

1984), rev’d on other grounds, 816 F.2d 1417 (10th Cir. 1987).

App. 83

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

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

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 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.).

App. 84

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, since that day is not yet

here, I agree that Defendants were entitled to

App. 85

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.

App. 86

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

Michelle MCMUNN, Personal )

Representative of the Estate )

of EVA MYERS, et al.,

)

Plaintiffs,

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

JESSI ANN CASELLA, et al., )

)

Plaintiffs,

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

MICHAEL P. HUTH, et al.,

)

Plaintiffs,

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

2:10cv143

Electronic Filing

2:10cv368

Electronic Filing

2:10cv650

Electronic Filing

App. 87

LINDA W. DILIK,

)

Plaintiff,

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

BONNIE AIKENS, et al.,

)

Plaintiffs,

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

PATRICIA ALTIMIRE, et al., )

)

Plaintiffs,

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

2:10cv728

Electronic Filing

2:10cv744

Electronic Filing

2:10cv908

Electronic Filing

App. 88

MARCIA BAUSTERT, et al.,

Plaintiffs,

BABCOCK & WILCOX

POWER GENERATION

GROUP, INC., et al.,

Defendants.

SANDRA L. AMENT, et al.,

Plaintiffs,

BABCOCK & WILCOX

POWER GENERATION

GROUP, INC., et al.,

Defendants.

ELIZABETH MITCHESON,

et al.,

Plaintiffs,

BABCOCK & WILCOX

POWER GENERATION

GROUP, INC., et al.,

Defendants.

)

2:11cv898

Electronic Filing

2:11cv1381

Electronic Filing

2:12cv1221

Electronic Filing

App. 89

KAREN L. SKROUPA, as

personal representative of

HOWARD D. SKROUPA,

deceased,

Plaintiff,

BABCOCK & WILCOX

POWER GENERATION

GROUP, INC., et al.,

Defendants.

HEATHER LORRAINE

BAYNAR, et al.,

Plaintiffs,

BABCOCK & WILCOX

POWER GENERATION

GROUP, INC., et al.,

Defendants.

MARLENE AMENT, et al.,

Plaintiffs,

BABCOCK & WILCOX

POWER GENERATION

GROUP, INC., et al.,

Defendants.

)

2:12cv1459

Electronic Filing

2:10cv1736

Electronic Filing

2:13cv186

Electronic Filing

App. 90

PATRICIA ALDENE WEST,

et al.,

)

Plaintiffs,

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

ALYNDA TALMADGE, et al., )

)

Plaintiffs,

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

MARGARET S. CULP, et al., )

)

Plaintiffs,

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

2:13cv704

Electronic Filing

2:13cv1527

Electronic Filing

2:14cv639

Electronic Filing

App. 91

MEMORANDUM ORDER

September 15, 2015

The above captioned cases were referred to United

States Magistrate Judge Robert C. Mitchell for pretrial

proceedings in accordance with the Magistrate Judges

Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court

for Magistrate Judges. In these actions, Plaintiffs allege that Defendants, Babcock & Wilcox Power Generation Group, Inc., B & W Technical Services, Inc.

(“B & W”) and Atlantic Richfield Co. (“ARC”) (together

“Defendants”), as successors in interest to Nuclear Materials Corporation (“NUMEC”), are responsible for

the release of radioactive uranium from a nuclear processing facility located in Apollo, Pennsylvania and operated from approximately 1953 to 1983. Plaintiffs

further allege that inhalation of radioactive uranium

from the facility caused the Plaintiffs to develop cancer. Plaintiffs assert jurisdiction under the PriceAnderson Act (the “PAA”), 42 U.S.C. § 2210(n)(2), and

the Atomic Energy Act (the “AEA”), 42 U.S.C. § 2011.

The following motions were filed by the Defendants: (1) motions for judgment on the pleadings, filed

in all fifteen (15) cases, contending that the state law

claims in Counts II-V (in some cases, Counts II-VI and

in some cases, Counts II-VII) should be dismissed as

preempted by the Price-Anderson Act claims asserted

in Count I; (2) motions for summary judgment, filed in

the first eleven (11) cases, contending that Plaintiffs

have failed to raise a genuine issue of material fact on

the element of breach of duty (because average annual

App. 92

radioactive airborne releases or uranium never exceeded the amounts set by 10 C.F.R. § 20.106); (3) motions for summary judgment, filed in the first eleven

(11) cases, contending that Plaintiffs have failed to present evidence regarding exposure and dose, as well as

motions (filed with their reply brief ) to have their

statements of undisputed fact deemed admitted; (4)

motions for summary judgment, filed in the first

eleven (11) cases by Defendant Atlantic Richfield, contending that Plaintiffs have failed to demonstrate that

it can be held liable as a successor in interest to NUMEC, as well as motions (filed with its reply brief ) to

have its statements of undisputed fact deemed admitted; and (5) motions for summary judgment, filed in

five of the cases, contending that Plaintiffs failed to

comply with the Court’s order of September 12, 2012,

in that some of the Plaintiffs are continuing to allege

exposure other than to inhalation of uranium from the

Apollo facility, as well as motions (filed with their reply

brief ) to strike the supplemental affidavit of James

Melius, M.D., DR. P.H. that Plaintiffs filed with their

opposition to the motions.

The Magistrate Judge’s Report and Recommendation (Document No. 370 at 2:10cv143), filed on May

7, 2015, recommended as follows: (1) that Defendants’

Motions for Judgment on the Pleadings Based on

Price-Anderson Act Preemption be granted; (2) that

Defendants’ Motions for Summary Judgment Based on

Plaintiffs’ Failure to Raise a Genuine Issue for Trial on

Breach of Duty be granted; (3) that Defendants’ Motions for Summary Judgment Based on Plaintiffs’ Lack

App. 93

of Evidence Regarding Exposure and Dose be granted;

(4) that Defendants’ Motions to Deem Admitted Rule

56.B.1 Statement of Undisputed Facts in Support of

Summary Judgment Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose be granted; (5)

that Defendant Atlantic Richfield Company’s Motions

for Summary Judgment Based on No Shareholder Liability be denied as moot; (6) that Defendant Atlantic

Richfield Company’s Motions to Deem Admitted Its Local Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment Based on No Shareholder

Liability be denied as moot; (7) that Defendants’ Motions for Summary Judgment Due to Plaintiffs’ Failure

to Comply With the Court’s September 12, 2012 Order

be denied as moot; and (8) that Defendants’ Motions to

Strike the Supplemental Affidavit of James Melius,

M.D., DR. P.H. be denied as moot.

Plaintiffs’ filed Objections to the Report and Recommendation in accordance with the Magistrate

Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C) and Rule

72.D.2 of the Local Rules of Court. After a comprehensive review of the record of these cases, and upon consideration of the Magistrate Judge’s Report and

Recommendation, and the Objections thereto, the

Court will adopt the Report and Recommendation as

the Opinion of this Court.

Accordingly

App. 94

ORDER OF COURT

AND NOW, this 15th day of September, 2015, upon

consideration of the motions set forth above,

IT IS HEREBY ORDERED as follows:

(1) Defendants’ Motions for Judgment on the

Pleadings Based on Price-Anderson Act Preemption

(Document No. 308 at 2:10cv143; Document No.

265 at 2:10cv368; Document No. 259 at 2:10cv650;

Document No. 273 at 2:10cv728; Document No. 276

at 2:10cv744; Document No. 295 at 2:10cv908; Document No. 266 at 2:10cv1736; Document No. 205 at

2:11cv898; Document No. 187 at 2:11cv1381; Document No. 137 at 2:12cv1221; Document No. 134 at

2:12cv1459; Document No. 53 at 2:13cv186; Document No. 40 at 2:13cv704; Document No. 31 at

2:13cv1527; and Document No. 19 at 2:14cv639) are

GRANTED;

(2) Defendants’ Motions for Summary Judgment

Based on Plaintiffs’ Failure to Raise a Genuine Issue

for Trial on Breach of Duty (Document No. 314 at

2:10cv143; Document No. 267 at 2:10cv368; Document No. 269 at 2:10cv650; Document No. 275 at

2:10cv728; Document No. 282 at 2:10cv744; Document No. 305 at 2:10cv908; Document No. 272 at

2:10cv1736; Document No. 207 at 2:11cv898; Document No. 189 at 2:11cv1381; Document No. 139 at

2:12cv1221; and Document No. 136 at 2:12cv1459)

are GRANTED;

App. 95

(3) Defendants’ Motions for Summary Judgment

Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose (Document No. 318 at 2:10cv143; Document No. 275 at 2:10cv368; Document No. 273 at

2:10cv650; Document No. 279 at 2:10cv728; Document No. 286 at 2:10cv744; Document No. 309 at

2:10cv908; Document No. 276 at 2:10cv1736; Document No. 216 at 2:11cv898; Document No. 193 at

2:11cv1381; Document No. 143 at 2:12cv1221; and

Document No. 140 at 2:12cv1459) are GRANTED;

(4) Defendants’ Motions to Deem Admitted Rule

56.B.1 Statement of Undisputed Facts in Support of

Summary Judgment Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose (Document No.

361 at 2:10cv143; Document No. 320 at 2:10cv368;

Document No. 323 at 2:10cv650; Document No. 324

at 2:10cv728; Document No. 338 at 2:10cv744; Document No. 363 at 2:10cv908; Document No. 325 at

2:10cv1736; Document No. 268 at 2:11cv898; Document No. 237 at 2:11cv1381; Document No. 178 at

2:12cv1221; and Document No. 175 at 2:12cv1459)

are GRANTED;

(5) Defendant Atlantic Richfield Company’s Motions for Summary Judgment Based on No Shareholder Liability (Document No. 310 at 2:10cv143;

Document No. 279 at 2:10cv368; Document No. 277

at 2:10cv650; Document No. 283 at 2:10cv728; Document No. 290 at 2:10cv744; Document No. 313 at

2:10cv908; Document No. 280 at 2:10cv1736; Document No. 220 at 2:11cv898; Document No. 197 at

2:11cv1381; Document No. 147 at 2:12cv1221; and

App. 96

Document No. 144 at 2:12cv1459) are DENIED as

moot;

(6) Defendant Atlantic Richfield Company’s Motions to Deem Admitted Its Local Rule 56.B.1 Statement of Undisputed Facts in Support of Summary

Judgment Based on No Shareholder Liability (Document No. 358 at 2:10cv143; Document No. 317 at

2:10cv368; Document No. 320 at 2:10cv650; Document No. 320 at 2:10cv728; Document No. 333 at

2:10cv744; Document No. 357 at 2:10cv908; Document No. 319 at 2:10cv1736; Document No. 262 at

2:11cv898; Document No. 231 at 2:11cv1381; Document No. 172 at 2:12cv1221; and Document No. 169

at 2:12cv1459) are DENIED as moot;

(7) Defendants’ Motions for Summary Judgment

Due to Plaintiffs’ Failure to Comply With the Court’s

September 12, 2012 Order (Document No. 265 at

2:10cv650; Document No. 278 at 2:10cv744; Document No. 301 at 2:10cv908; Document No. 268 at

2:10cv1736; and Document No. 209 at 2:11cv898) are

DENIED as moot; and

(8) Defendants’ Motions to Strike the Supplemental Affidavit of James Melius, M.D., DR. P.H. (Document No. 310 at 2:10cv650; Document No. 325 at

2:10cv744; Document No. 350 at 2:10cv908; Document No. 312 at 2:10cv1736; and Document No. 255

at 2:11cv898) are DENIED as moot.

IT IS FURTHER ORDERED that Judgment is

entered in favor of Defendants, Babcock & Wilcox

Power Generation Group, Inc., B & W Technical

App. 97

Services, Inc. and Atlantic Richfield Co. and against

Plaintiffs in cases 2:10cv143; 2:10cv368; 2:10cv650;

2:10cv728; 2:10cv744; 2:10cv908; 2:10cv1736; 2:11cv898;

2:11cv1381; 2:12cv1221; and 2:12cv1459. The Clerk

shall mark these cases closed.

IT IS FURTHER ORDERED that the Report and

Recommendation (Document No. 370 at 2:10cv143)

of Magistrate Judge Robert C. Mitchell, dated May 7,

2015, is hereby ADOPTED as the Opinion of the Court.

s/ David Stewart Cercone

David Stewart Cercone

United States District Judge

cc: Robert C. Mitchell

United States Magistrate Judge

Jason T. Shipp, Esquire

David B. Rodes, Esquire

Anne Kearse, Esquire

Bruce E. Mattock, Esquire

Victoria Antion, Esquire

Fidelma Fitzpatrick, Esquire

Jonathan D. Orent, Esquire

Michaela S. McInnis, Esquire

Chris Michael Temple, Esquire

Christopher M. Mooney, Esquire

John P. Phillips, Esquire

Peter C. Meier, Esquire

Matthew H. Meade, Esquire

Nancy G. Milburn, Esquire

Philip H. Curtis, Esquire

Reuben S. Koolyk, Esquire

Caley M. Heekin, Esquire

Elisa M. Pandolfi, Esquire

App. 98

Jarrod Shaw, Esquire

Edward A. Bayley, Esquire

Joel D. Rohlf, Esquire

Jonathan I. Coronel, Esquire

Sean M. Callagy, Esquire

Simona A. Agnolucci, Esquire

Kevin M. Henley, Esquire

Mary E. Sylvester, Esquire

Matthew D. Grant

Tanya E. Kalivas, Esquire

(Via CM/ECF Electronic Mail)

App. 99

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF PENNSYLVANIA

MICHELLE MCMUNN, et al., )

) Civil Action No.

Plaintiffs,

) 10-143

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

JESSI ANN CASELLA, et al., )

Plaintiffs,

)

) Civil Action No.

) 10-368

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

MICHAEL P. HUTH, et al.,

)

Plaintiffs,

)

) Civil Action No.

) 10-650

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

LINDA W. DILICK, et al.,

)

Plaintiffs,

)

Civil Action No.

)

) 10-728

App. 100

)

BONNIE AIKENS, et al.,

)

Plaintiffs,

)

) Civil Action No.

) 10-744

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

PATRICIA ALTIMIRE, et al., )

)

Plaintiffs,

)

) Civil Action No.

) 10-908

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

HEATHER LORRAINE

)

BAYNAR, et al.,

)

Plaintiffs,

Civil Action No.

)

10-1736

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

BABCOCK & WILCOX

POWER GENERATION

GROUP, INC., et al.,

Defendants.

App. 101

MARCIA BAUSTERT, et al.,

Plaintiffs,

)

) Civil Action No.

) 11-898

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

SANDRA L. AMENT, et al.,

)

Plaintiffs,

)

) Civil Action No.

) 11-1381

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

ELIZABETH MITCHESON, et )

)

al.,

)

Plaintiffs,

) Civil Action No.

) 12-1221

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

KAREN L. SKROUPA,

)

Plaintiffs,

)

Civil Action No.

) 12-1459

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

App. 102

MARLENE AMENT, et al.,

Plaintiffs,

)

) Civil Action No.

) 13-186

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

PATRICIA ALDENE WEST, et )

al.,

)

Plaintiffs,

) Civil Action No.

) 13-704

)

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

ALYNDA TALMADGE, et al., )

)

Plaintiffs,

)

) Civil Action No.

) 13-1527

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

)

MARGARET S. CULP, et al., )

)

Plaintiffs,

) Civil Action No.

) 14-639

BABCOCK & WILCOX

)

POWER GENERATION

)

GROUP, INC., et al.,

)

Defendants.

App. 103

REPORT AND RECOMMENDATION

(Filed May 7, 2015)

Recommendation

It is respectfully recommended that Defendants’

Motion for Judgment on the Pleadings on Counts Two

Through Five/Six/Seven Based on Price-Anderson Act

Preemption be granted. It is further recommended

that Defendants’ Motion for Summary Judgment

Based on Plaintiffs’ Failure to Raise a Genuine Issue

for Trial on Breach of Duty be granted. It is further

recommended that Defendants’ Motion for Summary

Judgment Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose be granted and that Defendants’ Motion to Deem Admitted Rule 56.B.1

Statement of Undisputed Facts in Support of Summary Judgment Based on Plaintiffs’ Lack of Evidence

Regarding Exposure and Dose be granted. It is further

recommended that Defendant Atlantic Richfield Company’s Motion for Summary Judgment Based on No

Shareholder Liability be dismissed as moot and that

Defendant Atlantic Richfield Company’s Motion to

Deem Admitted Its Local Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment

Based on No Shareholder Liability be dismissed as

moot. It is further recommended that Defendants’ Motion for Summary Judgment Due to Plaintiffs’ Failure

to Comply With the Court’s September 12, 2012 Order

be dismissed as moot and that Defendants’ Motion to

Strike the Supplemental Affidavit of James Melius,

M.D., DR. P.H. be dismissed as moot.

App. 104

II.

Report

Plaintiffs brought the fifteen above-captioned actions alleging that Defendants, Babcock & Wilcox

Power Generation Group, Inc., B&W Technical Services, Inc. and Babcock & Wilcox Technical Services

Group, Inc. (together, “B&W”) and Atlantic Richfield

Co., as successors in interest to the Nuclear Materials

Corporation (“NUMEC”), are responsible for the release of radioactive, hazardous and toxic substances

into the environment surrounding two nuclear materials processing facilities located in the Borough of

Apollo and in Parks Township, Pennsylvania, during

the operation, remediation and/or decommissioning of

these facilities. Plaintiffs (at present, approximately

138 individuals who lived and/or worked in the area

near the plants) allege that the releases have contaminated the air, soil, surface water and ground water in

the surrounding communities and caused them personal injuries and property damages.

Plaintiffs assert jurisdiction under the Price-Anderson Act, 42 U.S.C. § 2210(n)(2), and the Atomic Energy Act, 42 U.S.C. § 2011, and also assert state law

claims of negligence, negligence per se, strict liability,

civil conspiracy, misrepresentation and concealment,

and wrongful death and survival, for which supplemental jurisdiction is asserted pursuant to 28 U.S.C.

§ 1367(a). As a result of the discovery process, one facility (Parks) has been eliminated and only personal

injuries that can be linked to inhalation of enriched

uranium (“EU”) released from the Apollo facility

App. 105

during its period of operation (1957-1983) are still at

issue in these cases.

Currently pending before the Court are the followings motions filed by the Defendants: 1) a motion for

judgment on the pleadings, filed in all fifteen of the

cases, contending that the state law claims in Counts

II-V (in some cases, Counts II-VI and in some cases,

Counts II-VII) should be dismissed as preempted by

the Price-Anderson Act claims asserted in Count I; 2)

a motion for summary judgment, filed in the first

eleven cases, contending that Plaintiffs have failed to

raise a genuine issue of material fact on the element of

breach of duty (because average annual radioactive

airborne releases or uranium never exceeded the

amounts set by 10 C.F.R. § 20.106); 3) a motion for

summary judgment, filed in the first eleven cases, contending that Plaintiffs have failed to present evidence

regarding exposure and dose, as well as a motion (filed

with their reply brief ) to have their statements of undisputed fact deemed admitted; 4) a motion for summary judgment, filed in the first eleven cases by

Defendant Atlantic Richfield, contending that Plaintiffs have failed to demonstrate that it can be held liable as a successor in interest to NUMEC, as well as a

motion (filed with its reply brief ) to have its statements of undisputed fact deemed admitted; and 5) a

motion for summary judgment, filed in five of the

cases, contending that Plaintiffs failed to comply with

the Court’s order of September 12, 2012, in that some

of the Plaintiffs are continuing to allege exposure other

than to inhalation of uranium from the Apollo facility,

App. 106

as well as a motion (filed with their reply brief ) to

strike the supplemental affidavit of James Melius,

M.D., DR. P.H. that Plaintiffs filed with their opposition to the motion.

For the reasons that follow, the motion for judgment on the pleadings should be granted, the motion

for summary judgment based on Plaintiffs’ failure to

raise a genuine issue for trial on breach of duty should

be granted, and the motion for summary judgment

based on Plaintiffs’ lack of evidence regarding exposure and dose should be granted (as well as the motion to have Defendants’ facts related to this motion

deemed admitted). The remaining motions should be

dismissed as moot.1

Procedural History

The first case, McMunn v. Babcock & Wilcox Power

Generation Group, Inc., No. 10-143, was filed on January 29, 2010 and assigned to Judge Cercone. Subsequently, ten additional cases were filed and assigned to

various district judges. The undersigned volunteered

to conduct common discovery on these cases and status

conferences were held to set discovery deadlines and

resolve issues that arose. On January 24, 2012, a Case

Although Defendants have requested oral argument for all

of the summary judgment motions, the undersigned has determined that oral argument is not necessary and the motions can

be decided based on the briefs and evidence submitted.

App. 107

Management Order was entered (ECF No. 109)2, which

required Plaintiffs to provide Defendants with admissible evidence establishing the prima facie elements of

their individual claims. After this occurred, Defendants filed motions seeking to limit Plaintiffs’ cases

based upon the alleged failure to submit such evidence.

Pursuant to an order entered on September 12, 2012

(ECF No. 161) and thereafter affirmed by all the district judges, the motions were granted in part and denied in part and Plaintiffs’ claims were limited to

theories of exposure based upon inhalation of EU released from the Apollo facility during its period of operation.

A twelfth case, Ament v. Babcock & Wilcox Power

Generation Group, No. 13-186, was filed on February 5,

2013. A thirteenth case, West v. Babcock & Wilcox

Power Generation Group, No. 13-704, was filed on May

20, 2013. A fourteenth case, Talmadge v. Babcock &

Wilcox Power Generation Group, No. 13-1527, was filed

on October 14, 2013. Finally, a fifteenth case, Culp v.

Babcock & Wilcox Power Generation Group, No. 14-639,

was filed on May 16, 2014. Orders have been entered

in these four more recent cases reassigning the undersigned as magistrate judge and Judge Cercone as the

district judge during the pendency and resolution of

the Daubert motions and any motions for summary

judgment that are filed and applying the September

12, 2012 Memorandum and Order to the cases.

For consistency, all citations are to the docket in the

McMunn case, No. 10-143.

App. 108

In March 2013, cross-motions to exclude expert

opinions were filed pursuant to Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993). The motions were briefed and a hearing was held on April 30

and May 1, 2013 (ECF Nos. 264-265). On July 12, 2013,

a Report and Recommendation was filed (ECF No.

271), which recommended that Plaintiffs’ motions be

denied and that Defendants’ motions (other than the

motion to exclude the damages expert) be granted.

However, upon review, Judge Cercone filed a Memorandum Opinion and Order on February 27, 2014 (ECF

No. 283), in which he declined to adopt the Report and

Recommendation and instead denied the Defendants’

motions. Although the Court certified the matter for

interlocutory appeal (ECF No. 298), on June 6, 2014,

the Court of Appeals for the Third Circuit denied permission to appeal and the cases, which had been closed,

were reopened (ECF No. 300). The parties then attended a mediation on July 30, 2014, which was unsuccessful, and engaged in discovery.

On October 17, 2014, Defendants filed the motions

currently under consideration.3 Plaintiffs filed their responses to the motions on December 5, 2014, and

On that same date, Defendants also filed three other sets

of motions for summary judgment, in which they contended that

all the claims should be dismissed due to insufficiency of evidence

of causation, that certain individual claims were barred by the

statute of limitations and that certain other claims were barred

based on releases the Plaintiffs had signed. On October 15, 2014,

Judge Cercone denied these other motions without prejudice to

refile, if appropriate, after the Court resolved the motions addressed herein (ECF No. 336 in Civ.A.No. 10-143).

App. 109

Defendants filed reply briefs on January 8, 2015.

Plaintiffs filed a response in opposition to the motion

to strike the supplemental affidavit of Dr. Melius on

January 22, 2015. They did not file responses to the

two motions to have Defendants’ undisputed facts

deemed admitted.

The Hall Case

In 1994, a prior case, captioned Hall v. Babcock &

Wilcox Co., No. 94-951 (“the Hall case”), was filed arising out of similar claims. Over 500 plaintiffs sued B&W

and Atlantic Richfield, alleging personal injuries

and/or property damages arising out of emissions released from Apollo and Parks. In August 1998, Judge

Ambrose presided over a jury trial of eight sample

plaintiffs which resulted in a verdict for them. However, afterward the defendants filed a motion for a new

trial, which Judge Ambrose granted on June 29, 1999.

See Hall v. Babcock & Wilcox Co., 69 F. Supp. 2d 716

(W.D. Pa. 1999). In 2000, B&W filed a voluntary petition for protection under Chapter 11 of the Bankruptcy

Code and all proceedings against it were stayed. The

plaintiffs reached a settlement with Atlantic Richfield,

which Judge Ambrose approved on March 18, 2008. Finally, the plaintiffs reached a settlement with the reorganized B&W, which Judge Ambrose approved on April

17, 2009. This background is relevant because some of

the issues raised herein were raised in the Hall litigation and some of the evidence was presented in the

Hall case, as will be discussed below.

App. 110

Price-Anderson Act Preemption

Defendants move for judgment on the pleadings

with respect to all of the state law claims (Counts II-V

in some cases, Counts II-VI in others and Counts IIVII in still others) on the ground that they are

preempted by the Price-Anderson Act claims in Count

I. Plaintiffs respond that the state law claims may be

maintained, either as consistent with the Price-Anderson Act claims or as sub-parts of a Public Liability Action (PLA). For the reasons that follow, Defendants’

motion for preemption should be granted and the state

law claims dismissed.

Standard of Review

The Supreme Court has issued two decisions that

pertain to the standard of review for a motion to dismiss for failure to state a claim upon which relief could

be granted under Federal Rule of Civil Procedure

12(b)(6). The Court held that a complaint must include

factual allegations that “state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). “[W]ithout some factual allegation in

the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice’ but

also the ‘grounds’ on which the claim rests.” Phillips v.

County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).

In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported

by factual allegations, “[t]hreadbare recitals of the

App. 111

elements of a cause of action, supported by mere conclusory statements;” “labels and conclusions;” and

‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678 (citations omitted). Mere

“possibilities” of misconduct are insufficient. Id. at 679.

District courts are required to engage in a two part inquiry:

First, the factual and legal elements of a claim

should be separated. The District Court must

accept all of the complaint’s well-pleaded facts

as true, but may disregard any legal conclusions. . . . Second, a District Court must then

determine whether the facts alleged in the

complaint are sufficient to show the plaintiff

has a “plausible claim for relief.” . . . In other

words, a complaint must do more than allege

the plaintiff ’s entitlement to relief. A complaint has to “show” such an entitlement with

its facts.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d

Cir. 2009) (citations omitted).

A motion for judgment on the pleadings under

Rule 12(c) is treated in the same manner as a motion

to dismiss for failure to state a claim upon which relief

may be granted. The court should “accept the truth of

all factual allegations in the complaint and must draw

all reasonable inferences in favor of the non-movant.”

Revell v. Port Auth. of NY& NJ, 598 F.3d 128, 134 (3d

Cir. 2010) (citing Turbe v. Government of the V.I., 938

F.2d 427, 428 (3d Cir. 1991)).

App. 112

As the Court of Appeals has explained, the PriceAnderson Act (PAA), as amended in 1988, provides a

federal cause of action for “public liability actions,” and

defines “public liability” as “any legal liability arising

out of or resulting from a nuclear incident or precautionary evacuation,” except for certain claims covered

by workers’ compensation, incurred in wartime or that

involve the licensed property where the nuclear incident occurs. In re TMI Litig., 193 F.3d 613, 625 & n.9

(3d Cir. 1999) (citing 42 U.S.C. § 2014(w)). The Act defines the term “nuclear incident” as:

any occurrence, including an extraordinary

nuclear occurrence . . . causing . . . bodily injury, sickness, disease, or death, or loss of or

damage to property, or loss of use of property,

arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct

material[.]

42 U.S.C. § 2014(q). “Source material” includes uranium and uranium ore. 42 U.S.C. § 2014(z).

The Act provides that “the substantive rules of decision in [any public liability action] shall be derived

from the law of the State in which the nuclear incident

involved occurs, unless such law is inconsistent with

the provisions of [the Act].” 42 U.S.C. § 2014(hh). See

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484

n.6 (1999) (noting that the structure of the Act, “in

which a public liability action becomes a federal action,

but one decided under substantive state-law rules of

decision that do not conflict with Price-Anderson Act

App. 113

. . . resembles what we have spoken of as ‘complete preemption doctrine,’ under which ‘the pre-emptive force

of a statute is so “extraordinary” that it converts an ordinary state common-law complaint into one stating a

federal claim for purposes of the well-pleaded complaint rule.’ ” (quoting Caterpillar, Inc. v. Williams, 482

U.S. 386, 393 (1987)). However, the standard of care is

define

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