Jurisdictional Statement — Silkwood v. Kerr-McGee Corp.
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OctToBer TERM, 1981
BILL M. SILKWOOD, Administrator of the Estate of
KAREN G. SILKWOOD, Deceased,
Appellant,
VERSUS
THE KERR-McGEE CORPORATION,
a Delaware Corporation, and
THE KERR-McGEE NUCLEAR CORPORATION,
a Delaware Corporation,
Appellees.
On Appeal from the United States Court of
Appeals for the Tenth Circuit
JURISDICTIONAL STATEMENT
ARTHUR R. ANGEL*
301 First Life Assurance Building
Oklahoma City, Oklahoma 73102
(405) 232-2060
JAMES A. IKARD
4420 North Lincoln Blvd.
Oklahoma City, Oklahoma 73105
GERALD L. SPENCE
265 Pearl Street
Jackson, Wyoming 83001
DANIEL P. SHEEHAN
1324 North Capitol Street
Washington, D.C. 20002
May, 1982 Counsel for Appellant
1. Did the court below misapply Northern States
Pcwer Co. v. Minnesota* and err in finding a general state
punitive damages statute to be federally preempted as re-
pugnant to the Atomic Energy Act.
2. Does nullification of a jury’s $10 million punitive
damage verdict on preemption grounds represent a denial
of due process and of equal protection of the laws, un-
sanctioned by Duke Power Co. v. Carolina Environmental
Study Group.**
PARTIES BELOW
The only parties to this proceeding in the court below
are those indicated by the caption of this jurisdictional
statement.
*447 F.2d 1143 (8th Cir. 1971), aff'd mem. 405 US. 1035 (1972).
**438 US. 59 (1978).
—),;—
TABLE OF CONTENTS
QUESTIONS PRESENTED .........
PARTIES BELOW ._._._. . —_ —_
TABLE OF AUTHORITIES —...__ =
OPINIONS BELOW
GROUNDS FOR JURISDICTION 0
CONSTITUTIONAL PROVISIONS AND
Rn _
STATEMENT OF THE CASE ~.
Qa 0a w P
TENE GUIS TTI aececcccescccccccercectrresceecene
Appellate Proceedings —.._»_»_>»__
Basic Facts - _
Federal Licensing and Regulation ...__.
Contamination of Karen Silkwood —..__.__
Evidence of Reckless and Wanton Conduct __
Evidence of Actual Malice
H. Evidence of Violation of Regulations _.___
WHY THIS COURT SHOULD EXERCISE
ITS PLENARY POWER
A. Introduction
B.
The Tenth Circuit’s ruling erroneously inter-
preted Northern States Power Co. v. Minnesota
as requiring the court to hold state law puni-
tive damages to be absolutely preempted ___
The decision below violated the standards re-
specting the preemption of common-law signs
recognized by this Court
The Circuit Court erroneously assumed that the
Price-Anderson Act precludes punitive dam-
ages
to
onouwnr »&
10
11
11
12
12
15
17
TABLE OF CONTENTS CONTINUED __ PAGE(S)
E. The nullification of the jury’s punitive damage
verdict on preemption grounds represents a
denial cf due process and of a ——
of the laws - iiniiaitsheesiibaiiiasiiedatbtpesideiliatinmpinis
CONCLUSION
APPENDIX:
Court of Appeals Opinion
Order Denying Petition for Rehearing and Sugges-
tion for Rehearing in Banc
APPENDIX — Part II:
District Court Opinion
Notice of Appeal
Addendum A to Petition for Rehearing and Sug-
gestion for Rehearing in Banc
Addendum B to Petition for Rehearing and Sug-
gestion for Rehearing in Banc
Article VI, Clause 2 of the United States Consti-
tution —
Fifth Amendment to the United States Constitu-
tion
28 U.S.C. §1254
28 U.S.C. §1257
28 U.S.C. §2103
42 U.S.C. §2011
42 U.S.C. §2012
42 U.S.C. §2013
42 U.S.C. §2014
42 U.S.C. §2021
42 U.S.C. §2210
23 Oxxa.Stat. §9
24
4la
127a
128a
132a
137a
137a
137a
138a
138a
138a
139a
140a
l4la
144a
144a
15la
—jy—-
TABLE OF AUTHORITIES
Cases PAGE(S)
Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504
(1982) eataatiaa 2
Askew v. American Waterway Operators, Inc., 411 U.S.
SO sieatininaniaainen ay
Automobile Workers v. Russell, 356 U.S. 634 (1958) _. 20
Brunswick Corporation v. Pueblo Bowl-O-Mat, Inc.,
429 U.S. 477 (1977) 6
City of Burbank v. Lockheed Air Terminal, Inc., 411
U.S. 624 (1973) —
Cox v. Theus, 569 P.2d 447 (Ok. 1977) baa 27
Cox Broadcasting Corp v. Cohn, 420 U.S. 469 (1975) 3
DeCanas v. Bica, 424 U.S. 351 (1976) __ 3,18
Detroit v. Murray Corp. of America, 355 U.S. 489
(1958) 3
Duke Power Co. v. Carolina Environmental Study
Group, 438 U.S. 59 (1978) 14, 25-26
Dutton v. Evans, 400 U.S. 74 (1970) 3
Edgar v. Mite Corp., No. 80-1188, 101 S.Ct. 2043 (1981) 3
Energy Resources Group v. Kansas Power & Light Co.,
(No. 81-1370), 50 U.S.L.W. 3783 (March 30,1982)... 3
Farmer v. United Broth. of C & J of America, Local 25,
430 U.S. 290 (1977) 20
Florida Lime & Avocado Growers, Inc. v. Paul, 373
U.S. 132 (1963) 18
Flournoy v. Wiener, 321 U.S. 253 (1944) 3
Gough v. Rossmoor Corporation, 533 F.2d 453 (9th Cir.
1976) 6
Goldstein v. California, 492 U.S. 546 (1973) ‘18
Hines v. Davidowitz, 312 U.S. 52 (1941) 18
Huron Portland Cement Co. v. Detroit, 360 U.S. 440
(1960) 18
--V
AUTHORITIES CONTINUED PAGE(S)
Iacurci v. Lummus Company, 387 U.S. 86 (1967) —__. 6
International Bro. of Electrical Wrkrs. v. Foust, 442
een 12, 23, 24
Jones v. Rath Packing Co., 430 U.S. 519 (1977) 17
Kelly v. Washington, 302 U.S. 1 (1937) — seen 20
Kewanee Oil Co. v. Bicron Corporation, 416 U. S. 470
TED qxncusnsqseninpstiiineisiienaeeinetitcaatsitis 22
Kramarsky v. Delta Air Lines, No. 81-1578, 50 U.S.
L.W. 3838 (April 20, 1982) ae
Malone v. White Motor Corp., 435 U.S. 497 (1978) _. 2,3
Maurer v. Hamilton, 309 U.S. 598 (1940) _..._. ae
Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Ware,
414 U.S. 117 (1973) _.. ——
N.Y. State Dept. of Social Services v. Dublino, 413
U.S. 405 (1973) _.. 18
N.Y. Tel Co. v. N. Y. St. Dept. of Labor, 440 U.S. 519
(1979) 19
Nader v. Allegheny Airlines, 426 U.S. 290 (1976) 14, 19
Neely v. Martin K. Eby Construction, 386 U.S. 317
(1967) _ 6
Northern States Power Co. v. Minnesota, 447 F.2d 1143
(8th Cir. 1970), aff’d mem. 405 U.S. 1035 (1972) —. passim
Oller v. Hicks, 441 P.2d 356 (Ok. 1967) 0. 27, 28
Phillips Machinery Co. v. LeBland, Inc., 494 F.Supp.
318 (N.D. Ok. 1980) 2
Prudential Insur. Co. v. Cheek, 259 U.S. 530 (1922) _. 3
Pac. Legal Found. v. State Energy Resources, Etc., 659
F.2d 903 (9th Cir. 1981) 16
Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) _.. 17
Reed v. Fichencord, 219 P. 937 (Ok. 1923) _..-=»==--—=———(ié«<G7
Reid v. Colorado, 187 U.S. 137 (1902) 19, 20
Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)... 17
San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959) 19
oxtiun
AUTHORITIES CONTINUED PAGE(S)
Sopkin v. Premier Pontiac, Inc., 539 P.2d 1393 (Ok.
EE 28
State ex rel. Pollution, etc. v. Kerr-McGee Corporation,
CI
Terminal R. Assn. v. Brotherhood of R. Trainmen, 306
aaa 20
Texas & Pac. R. Co. v. Abilene Cotton Co., 204 U.S.
426 (1907) . EAE Ae AE a oP ne 20
Tully v. Mobil Oil Corp., on _U. S. _.., 102 S.Ct. 1042
(1982) _ A, Seat Ae Nae Oe 2
United Construction Workers v. Laburnum Construc-
tion Corp., 347 U.S. 656 (1950) — ——
United States v. Generes, 405 US. 93 (1972) . 6
Victory Carriers, Inc. v. Low, 404 U.S. 202 ( 1971) . — 20
United States Constitution
EE ES ee ee 2
EE 24-25
$e
w
28 U.S.C. §1254(2) —
28 U.S.C. §1257 __... :
28 U.S.C. §1491 __
28 U.S.C. §2103
42 U.S.C. §2011
42 U.S.C. §2014(d) . _
42 U.S.C. §2021(k)
23 Oxia.Stat. §9
10 C.F.R. §140.81-85 (1980)
Legislative Materials
Hearings on Governmental Indemnity and Reactor
Safety, 85th Cong., Ist Sess. (1956) 23
S.Rep. No. 296, 85th Cong., 2nd Sess. (1957) _...__. 23
S.Rep. No. 1605, 89th Cong., 2nd Sess. (1966), re-
printed in U.S.Code, Cong. & Ad. News 3201 (1966) 16
Sw Sw whe
-_
AUTHORITIES CONTINUED PAGHS)
Other Authorities
22 Am.Jur.2d, Damages, §341 27
Comment, A Framework for Preemption Analysis, 88
Yale L.J. 363 (1978) ~ 20
45 Fed. Reg. 2590-5 (April 23, 1980) 21
Green, Rowpven & Kramer, The Three Mile Island
Episode: Liability and Financial Implications, 1979,
2 Energy L.Serv. (Callaghan) §C.46 n.15 at p. 55 _. 23-24
Hart & Wescuier, The Federal Courts and The Fed-
eral System, 1373 (2nd Ed. 1973) 3
Meek, Nuclear Power and State Radiation Protection
Measures: The Impotence of Preemption, 10 Env.L.
1 (1979) 17
12 Moores, Federal Practice, Ch. 435.01[2]) 0.00... 3
Srensvaac, State Regulation of Nuclear Generating
Plants Under the Clean Air Act Amendments of
1977, 55 So.Cal. L.Rev. 511 (1982) 16
Woycnick, State Opportunities to Regulate Nuclear
Power and Provide Alternative Energy Suplies: Part
', 15 U.S.F. L.Rev. 129 (1980) 16
Wricut, Mitver & Cooper, Federal Practice and Pro-
cedure, Jurisdiction, §4037 (1978) 3
I iiiesitilitlatetaitaas
In the
Supreme Court of the United States
OcToser TERM, 1981
BILL M. SILKWOOD, Administrator of the Estate of
KAREN G. SILKWOOD, Deceased,
Appellant,
VERSUS
THE KERR-McGEE CORPORATION,
a Delaware Corporation, and
THE KERR-McGEE NUCLEAR CORPORATION,
a Delaware Corporation,
Appellees.
On Appeal from the United States Court of
Appeals for the Tenth Circuit
JURISDICTIONAL STATEMENT
Bill M. Silkwood, Administrator of the Estate of Karen
G. Silkwood, Deceased, files this Statement to establish that
the Court has jurisdiction to review the opinion and orders
entered by the United States Court of Appeals for the
Tenth Circuit and should exercise its jurisdiction in this
case.
The opinion of the Honorable Frank G. Theis over-
ruling Appellee’s Alternative Motion for Judgment n.o.v.
or New Trial appears at 485 F.Supp. 566 et seq. and is in-
cluded in the Appendix, pp. 42a-126a. The opinion of the
offs
United States Court of Appeals for the Tenth Circuit re-
versing in part, the District Court appears at 667 F.2d 908,
et seq. It includes a detailed dissent by Judge Doyle, 667
F.2d, at 923-930, and is included in the Appendix, pp. la-
40a. The court’s order denying Appellant’s Petition for
Rehearing is included in the Appendix, p. 4la.
This appeal arises from an opinion and order of the
United States Court of Appeals for the Tenth Circuit,
which determined Oklahoma's punitive damage statute,'
as applied to a federally licensed nuclear facility to be in-
valid as repugnant to Article VI of the United States Con-
stitution and to the Atomic Energy Act, 42 U.S.C. § 2011,
et seq.
The order denying Appellant’s Petition for Rehearing
and Suggestion for Rehearing In Banc was entered by the
Court of Appeals on February 19, 1982. A timely Notice
of Appeal was filed on May 10, 1982.
This appeal is within this Court's appellate jurisdiction
pursuant to 28 U.S.C. § 1254(2). A Court of Appeals de-
cision holding a state statute invalid by preemption under
the Supremacy Clause, Article VI of the U.S. Constitution,
falls within the Court’s mandatory appellate jurisdiction
under § 1254(2). Tully v. Mobil Oil Corp., _.. U.S. _., 102
S.Ct. 1047, 1049n.1 (1982); Malone v. White Motor Corp.,
435 U.S. 497, 499 (1978); Alessi v. Raybestos-Manhattan,
1Under Oklahoma law, punitive damages are statutory, 23 OS. §9. Pbil-
lips Machinery Co. v. LeBland, Inc., 494 F Supp. 318 (N.D. Oki. 1980).
callin
Inc., 451 U.S. 504, 506 (1982); Edgar v. Mite Corp., No.
80-1188, probable jurisdiction noted, 101 S.Ct. 2043 (1981);
Kramarsky v. Delta Air Lines, No. 81-1578, probable juris-
diction noted, 50 U.S.L.W. 3838 (April 20, 1982).
Invalidation of a state staute as applied also comes
under § 1254(2) mandatory appellate jurisdiction. See Ma-
lone v. White Motors Corp., supra, Dutton v. Evams, 400
U.S. 74, 76 n.6 (1970); Detroit v. Murray Corp. of America,
355 U.S. 489, 491-92 (1958).
The decision also raises serious federal constitutional
due process and equal protection questions. These issues
are unavoidably presented by the appellate court’s negation
of the state statute and are subject to this Court’s appel-
late review under § 1254(2).?
2Even if the federal constitutional questions presented were viewed as
separate from the Court's state law invalidation determination, they still
should fall within the Court's §1254(2) appellate jurisdiction. See
HART & WECHSLER, The Federal Courts and the Federal System, 1373
(2d Ed. 1973); WricHT, MILLER & Cooper, Federal Practice and
Procedure, Jurisdiction, §4037 (1978). But see, 12 MOORE, FEDERAL
PRACTICE, 435.012[2).
Under the analogous 28 US.C. §1257, the cases make clear that con-
sideration of additional questions is appropriate. See Energy Resources
Group V. Kansas Power & Light Co., probable jurisdiction noted, SO
US.L.W. 3783 (March 30, 1982), see jurisdictional statement at 2, n.2;
Cox Broadcasting Corp. V. Cobn, 420 US. 469, 487 n.14 (1975); Flour-
noy V. Wiener, 321 US. 253, 263 (1944); Prudential Insurance Co. V.
Ubeek, 259 US. 530, 567 (1922).
If the Court were to conclude that one of the questions presented
would not qualify for appellate review under §1254(2), it should be
treated as a petition for certiorari on that question in accordance with
28 USC. §2103.
_
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The following constitutional provisions and statutes
involved are set forth in the Appendix accompanying this
statement: the Supremacy Clause, Article VI, Clause 2,
of the United States Constitution; the Fifth Amendment to
the United States Constitution; 28 U.S.C. § 1254(2), 28
U.S.C. § 1257, 28 U.S.C. § 2103; relevant parts of the Atomic
Energy Act, 42 U.S.C. § 2011, et seq.; the Oklahoma puni-
tive damage statute, 23 O.S. § 9.
STATEMENT OF ‘HE CASE
A. Trial Court Proceedings
Appellant filed his diversity action in the United States
District Court for the Western District of Oklahoma alleg-
ing that his deceased daughter, Karen G. Silkwood, suffered
serious physical injury and emotional distress when she
was contaminated with plutonium from the nuclear fuel
fabrication plant operated by the Appellees at which she
we employed. Predicating liability upon negligence and
strict liability, Appellant also sought punitive dumages.
Appellant’s claim was for $1,505,000 actual damages and
$10,000,000 punitive damages.
After extensive pre-trial pleading and discovery, trial
commenced on March 6, 1979. During an eleven-week trial
over 40 witnesses testified and 200 exhibits were admitted.
Appellees’ motion to dismiss was overruled, as was a mo-
tion for directed verdict. The jury was instructed and given
five special interrogatories to answer. After deliberating
twenty-six hours over a three-day period, the jury returned
alien
a verdict in the amount of $505,0 actual and $10,000,000
punitive damages. Appellees’ Motion for Judgment n.o.v.
and New Trial was overruled. (Appendix, pp. 42a-126a.
B. Appliate Proceedings
At the Tenth Circuit, Appellees challenged the ruling
of the trial court rejecting its post-trial motions on numer-
ous grounds. The focus of Appellees’ attack was first, that
the injuries upon which $500,000 of the actual damages
was awarded were subject to the exclusive jurisdiction of
the Oklahoma Workers’ Compensation Act® and, second,
that the award of damages, either actual or punitives, was
preempted where “substantial compliance” with the Nu-
clear Regulatory Commission regulations and license con-
ditions was demonstrated. Amicus Atomic Energy Forum,
a nuclear trade association, additionally argued that strict
liability was inappropriate for this case.
In a 2-1 decision, the Court of Appeals affirmed the
imposition of strict liability for appellees’ ultrahazardous
activities and upheld the jury’s award of $5,000 for prop-
erty damage, but reversed the trial judge’s decision on the
personal injury‘ and punitive damages. As to punitive
damages, the majority held that Northern States required
80Of the total award, $5,000.00 was the stipulated value of the personal
belongings of Karen Silkwood which were confiscated as a result of the
contamination of her apartment.
*The trial judge declined to allow the presumption of coverage which
benefits a claimant in an Industrial Court proceeding to be invoked by
an employer-defendant in a civil case. The Court of Appeals reversed,
invoked the presumption to shift the burden to Appellant, and found
that he failed to rebut the prima facie case so established.
atten
the Court to “hold invalid any state action that competes
substantially with tne AEC (NRC) in its regulation of ra-
diation hazards associated with plants handling nuclear
material.” Punitive damages were barred per se “whether
Kerr-McGee violated AEC regulations in the conduct of its
plant operations” or not (Appendix, p. 24a).
The Court remanded the case to the district court “for
further considerations consistent herewith’®, and denied
Appellant’s Petition for Rehearing.
C. Basic Facts
Appellees operated a plant some 30 miles north of Okla-
homa City, Oklahoma, which produced plutonium-based
fuel rods for an experimental breeder reactor. Karen
Silkwood was employed as a laboratory analyst at this
facility from August, 1972, until her death on November
13, 1974.
Appropriately named after the Roman god of the in-
fernal regions, plutonium is a man-made, highly radioactive
5In light of this remand (see Gough v. Rossmoor Corporation, 533 F.2d
453 (9th Cir. 1976) ) and the nature of the issues raised by Appellant
in his Petition for Rehearing, the trial judge may later determine Ap-
pellant’s entitlement to a new trial so that Appellant would have the
opportunity to remedy the defect in his case which was first discovered
by the Court of Appeals. See Neely v. Martin K. Eby Construction, 386
US. 317 (1967); lacurci v. Lummus Company, 387 US. 86 (1967);
United States v. Generes, 405 US. 93, 112-113 (White, Concurring)
(1972), cf. Brunswick Corporation V. Pueblo Bowl-O-Mat, Inc., 429
US. 477, 489-490 (1977).
®Citations to the record have been omitted. All facts recited in this
Statement were fully referenced in Appellant's voluminous brief filed
with the Court of Appeals.
eniiies
element used in thermo-nuclear weapons and experimental
fuels. Extremely persistent’, it is explosive, flammable,
and possibly the most toxic substance known to man. Even
in submicroscopic quantities®, it is extremely dangerous
especially if inhaled® where it emits thousands of radio-
active particles'® per minute inflicting serious and irrever-
sible damage to the cells and tissues.'!
Appellees acknowledged that because of these hazards,
the plutonium they possessed had to be absolutely con-
tained.
D. Federal Licensing and Regulations
Appellees’ facility was licensed and periodically in-
spected'? by the Atomic Energy Commission (later, the
Nuclear Regulatory Commission, NRC). The NRC’s re-
TThe “half-life” of the isotope Pu239 is 24,000 years.
8A speck of plutonium the size of a pollen gran is a sufficient quantity
to guarantee lung cancer.
®Once inhaled, its “biological half-life” is 200 years. There is no known
method to safely remove plutonium from the lungs.
10Giants in this subatomic world, alpha particles deliver enormous energy
to the cell (2.5 million times the equivalent amount of carbon), and
disrupt the genetic information in the cells (“tearing pages out of the
books in a library”,) making them cancerous. That alpha particles pro-
duce cancer has long been recognized.
11The amount of plutonium conceeded to be present in Karen Silkwood's
lungs at the time of her death emitted 10,000 alpha particles each
minute. :
12 Although some inspections were to be unannounced, employees testified
that they were always alerted to inspections and cleaned up the plant
in anticipation.
afie
gional director testified that since Appellees’ facility util-
ized a unique production process, it presented the AEC
licensing division with major uncertainties. As a result, the
license was not designed to cover all contingencies.’* These
regulatory standards reflected oniy the minimum care that
should be given; compliance was no guarantee of safety;
the licensee was expected to do more than was minimally
required if demanded by reasonable prudence.
AEC inspectors cited Appellees for over 75 violations
of specific regulatory requirements and expressed harsh
criticism of the operation of the facility.'* However, AEC
never imposed a fine or other punishment. .
E. Contamination of Karer Silkwood
In separate incidents on November 5th, 6th, and 7th,
1974, Karen Silkwood was contaminated with plutonium
from Appellees’ facility. On Nuvember 7th, she was found
to be highly contaminated and traces of plutonium were
13In one instance, two workers who had eaten at a local restaurant were
found to be contaminated when they returned to the plant. Neither the
AEC nor the restaurant was notified. The license and regulations did
not specifically require such a notification. The AEC became aware of
this incident 18 months after it happened through a tip ftom a con-
cerned citizen who had learned of it from workers at the plant.
14Regional Director James Keppler testified that there was no evidence
that Kerr-McGee management was on top of the situation, that Kerr-
McGee was not committed to the “as low as practical” standard, had
failed to replace professional health physicists lost years before, that
contamination incidents seemed to get short shrift, equipment at the
plant was archiac and prone to break down and the large number of
procedural errors was attributable to inadequate training, personnel
turnover, or lack of supervision.
~~
discovered throughout her apartment'® with the highest
levels found on a package of focd in her refrigerator. Dis-
traught upon learning she was seriousiy contaminated, she
expressed her belief that the dose she had suffered was
lethal and that nothing could be done to help her; she
feared that she would be unable to bear normal children.
On November 10, 1974, Silkwocod underwent whole
body and chest counting procedures at Los Alamos Sci-
entific Laboratory. On the evening of November 13th, she
was killed in an automobile accident while on the way to
deliver to a New York Times reporter documents estab-
lishing falsification of quality control records at Appellees’
facility.
Subsequent to her November 7th contamination, it was
discovered that insoluble plutonium had been added to
urine and fecal samples Silkwood had been submitting
in the prior four weeks as part of a routine bioassay pro-
gram. No at-work source of any of the contaminations
was ever established by Appellees’ management or health
physics personnel or by the AEC investigation team.'®
15The contaminated apartment had to be systematically dismantled in a
month-long operation and all of her personal possessions placed in large
drums for disposal.
16Appellees contended that Silkwood intentionally removed plutonium
from the plant and contaminated herself while trying to spike a urine
sample in an effort to embarass the company. However, the jury an-
swered “No” to a special interrogatory on this issue (Appendix, p.
125a), and the Court of Appeals upheld the jury's finnding (Appen-
dix, p. 8a).
afin
F. Evidence of Reckless and Wanton Conduct
Appellant's evidence established that from the day the
plutonium plant opened, Appellees demonstrated a total
insensitivity to the extremely hazardous nature of plu-
tonium and the activities conducted at that facility. From
the poor design of the plant and selection of faulty equip-
ment and processes to the inadequate training and con-
stant emphasis of production over worked safety, this reck-
less disregard for the welfare of Appellees’ employees and
the general public was manifest. (Between 1971 and 1975
employees were exposed to harmful radiation in some 574
separate contamination incidents.)
Appellees designed a physical security system so that
.) gram — enough plutonium to give 38 million Americans
their lifetime lung burden—could be removed without
detection; Appellees’ inventory system was so lax that
three years after the plant was closed, over forty pounds
of plutonium could still not be located; when a fire seriously
contaminated an area of the plant, workers were required
to work on production in double protective suits and full-
face respirators for shifts of 10 to 12 hours—a practice
described as “irresponsible” and “unexcusable” by expert
witnesses.
The Appellees’ training program for its new employees
deliberately omitted the use of the word “cancer” in ma-
terials purportedly disclosing the risks of the job and used
arcane jargon incomprehensible to the young workers,
many from rural backgrounds who comprised the plant’s
work force.
anfiius
This litany of abuse was condemned by Appellant’s
expert witnesses. Each of these world-renowned experts
decried the conduct of the Appellees — Dr. Morgan stat-
ing it was the worst facility he had ever reviewed in his
35 years as a consultant to the nuclear industry through-
out the world. He noted that there was “a callous and
hardened disregard for safety by Kerr-McGee’s manage-
ment.”
G. Evidence of Actual Malice
Appellant established actual malice and personal ani-
mus directed toward Karen Silkwood as a result of her
union and information gathering activities. (See Appendix,
pp. 132a-136a).
H. Evidence of Violation of Regulations
At trial, Appellant established that, as to Karen Silk-
wood, Appellees violated AEC regulations governing radi-
ation exposures for the general public and nuclear workers
as well as the As Low As Practical standard. Additionally,
Appellees repeatedly violated AEC requirements with re-
gard to inventory and accountability controls, physical se-
curity, training, management and reporting. In short there
was ample evidence to warrant punitive damages, as the
trial court held in rejecting Appellee’s challenges to the
verdict. The Court of Appeals did not dispute the ade-
quacy of the evidence to support the jury’s punitive dam-
age verdict.
>
SS
WHY THIS COURT SHOULD EXERCISE
ITS PLENARY POWER
A. Introduction.
This Court should exercise its plenary power in this
case because the Court of Appeals below rendered an opin-
ion which is legally incorrect, unsound, and fundamentally
unjust — not only to Appellant herein, but to individuals
and states across the country.
The decision below decrees a per se rule of absolute
immunity from state law-authorized punitive damages for
all’? companies which handle nuclear materials. This ab-
solute protection against punitive damage liability would
apply without regard to how reckless or even intentional
the wrongful conduct may be and regardless of the degree
of resultant harm to members of the public.'®
If approved by this Court, the decision below would
preclude punitive damages in the 46 states which authorize
them. Citizens in each of these states would be deprived of
the prophylactic protection against future reckless conduct
which their state law provides. The deprivation would be
17The concurring justices in Intl. Bro. of Electrical Whrs. V. Foust, 442
US. 42 (1979), were critical of the declaration of a per se bar to puni-
tive damages in the context of the Railway Labor Act. Much of their
analysis applies to the per se bar to punitive damages by the court
below.
18The evidence Appellant presented at trial of Appellee’s misconduct was
found ample to justify a large punitive damage verdict by the trial
court in upholding the $10 million punitive damage verdict which the
jury found to be appropriate. The Appeals Court below did not chal-
lenge the finding that the jury's punitive damage verdict was fully justi-
fied by the evidence presented at trial.
—13—
not only to individual citizens but to the states as well.
States would be deprived of their right and the power to
perform their duty, to protect the health and welfare of
their citizens. Also diminished is their right to have re-
spected state laws of general application which are un-
questionably a valid exercise of state prerogatives.’® The
decision thus disturbs, in a significant way, the delicate
balance between federal and state governmental authority
in our federal union of states. Thus, if state punitive dam-
ages for nuclear facilities are subject to preemption because
the state’s sanctions could interfere with the federal en-
forcement mechanism, punitive damages could be pre-
empted any time a company is subject to a federal regu-
tory agency which has the authority to impose fines.
This is the first case involving nuclear power in which
punitive damages have been awarded by a jury. It was the
first case to reach the courts involving claims for personal
injuries and property damages from an escape of dangerous
radiation into the public sector and the first to establish
strict liability as well.*°
This case also demands review because the Court be-
low has premised its far-reaching nullification of state laws
1Appellant is informed that concerns of state governments will be ex-
pressed directly to this Court in the form of amicus briefs in support
of this Jurisdictional Statement.
20The court below easily upheld the trial court's ruling that damages may
be recovered under a strict liability theory under Oklahoma law. The
court flatly rejected the contention of appellees that permitting recovery
under strict liability without requiring violations of NRC regulations
would conflict with and be preempted by NRC regulations of licensed
adie:
and individual recovery rights in private lawsuits on this
Court’s memorandum affirmance of the Eighth Circuit’s
decision in Northern States Power Co. v. Minnesota. The
Court’s extension of Northern States to nullify a state
tort recovery statute of general application calls for review
by this Court. Indeed, the continued vitality of Northern
States in light of developments since the decision is also
an appropriate subject for review.
In concluding that Northern States required it to pre-
empt, the court below did not follow Nader v. Allegheny
Airlines, 426 U.S. 290 (1976). The decision below is heavily
predicated on the Court’s conclusion — which again has far-
reaching national implications — that Congress precluded
punitive damages in the Price-Anderson Act. As noted
below, this determination as to Congress’ implicit assump-
tion about punitive damages is contradicted by the legis-
lative history of the Act.
The appellate court’s opinion also raises profound fed-
eral due process and equal protection questions, particu-
larly in light of the analysis employed by this Court in
Duke Power Co. v. Carolina Environmental Study Group,
438 U.S. 59 (1978).
The decision presented here for review raises legal and
public policy issues whose national significance cannot be
denied. Some have never been addressed by this Court.
Others involve apparent conflicts with principles and stand-
ards established by this Court in other cases. These con-
siderations make this case one which fully justifies exercise
of this Court’s plenary power. ‘
affie
B. The Tenth Circuit's Ruling Erroneously Interpreted
Northern States Power Co. v. Minnesota as Requiring
the Court to Hold State Law Punitive Damages to be
Absolutely Preempted.
Appellant submits that the Circuit erred in applying
Northern States at all and erred in finding preemption
required cr even possible on the basis of Northern States.
Northern States was a case of quasi-expressed preemp-
tion and one involving a direct clash of technical regu-
lations established by both federal and state regulatory
bodies.
This case, by contrast, involves no state agency and no
state regulations. The state action involved is the applica-
tion of the state’s general punitive damage law, along with
other state liability principles in a private lawsuit. Neither
the federal nor state government is even a party in the
case. It also involves no clash between the state activity
and the federal regulatory scheme.
Moreover, Northern States involved the adoption by
a state of a competing regulatory scheme long after the
federal system was in place. Here, the Court has encroached
upon an area of law traditionally left to the states. Disre-
garding these fundamental distinctions the Court applied
Northern States mechanically, instead of the analysis em-
ployed in cases involving the preemption of pre-existing
common law rights.
The Court also erred in applying Northern States with-
out regard to specific manifestations of Congressional intent
that state tort law was to control. The section of the Atomic
afin
Energy Act relied upon in Northern States was adopted
in 1959.?' After the enactment of that provision, Congress
restated its unmistakeable desire that the states were to
remain free to enforce their respective tort laws without
restriction. *?
Indeed, Congress has had numerous opportunities to
indicate that punitive damages under state law were barred,
but has never done so. Specific congressional statements
of the unlimited application of state tort law and congres-
sional silence on a desire to preempt punitives belie the
inference made by the court below — that punitives would
somehow be “intrusive” on the federal regulation of nuclear
power.
Additionally the court below took no cognizance of
the sweeping changes that have occurred in the “full ob-
jectives and purposes” of Congress since Northern States
was decided. See Stensvaac, State Regulations of Nuclear
Generating Plants Under the Clean Air Act Amendments
of 1977, 55 So.Cal. L.Rev. 511 (1982); Pac. Legal Found. v.
State Energy Resources, Etc., 659 F.2d 903, 926-8 (9th Cir.
1981).
These developments since Northern States argue against
any extension of the decision. Indeed, they call into ques-
tion its continued vitality,?* indicate that Congress does not
2142 US.C §2021(k) (Appendix, p. 1442).
22¢g. See S.Rep. No. 1605, 89th Cong, 2nd Sess. (1966) (Appendix
pp. 128a-130a).
23Commentators have noted that in light of the subsequent developments,
the Northern States decision may no longer be viable. See WOYCHICK,
State Opportunstses to Regulate Nuclear Power and Provide Alternative
afin
intend to favor nuclear power over all other energy sources
and recognizes safety in nuclear facilities as a paramount
concern. **
C. The Decision Below Violated the Standards Respecting
Preemption of Common-Law Rights Recognzied by
This Court.
The court below erred in extending Northern States to re-
quire nullification of a general state tort statute under the
preemption doctrine.
The state’s police powers are not to be superseded “un-
less that was the clear and manifest purpose of Congress.”
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947);
Accord, Jones v. Rath Packing Co., 430 U.S. 519 (1977);
Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). All ex-
pressions of Congressional intent are to the contrary —
state tort law is to be applied to nuclear incidents which
do not rise to the level of an Extraordinary Nuclear Oc-
currence (ENO) under the Price-Anderson Act.
Even if unexpressed, a Congressional preemptive in-
tent may be implied. See, e.g., Ray v. Atlantic Richfield,
supra, Rice v. Santa Fe Elevator Corp., supra; City of Bur-
23 (Continued )
Energy Supplies: Part I, 15 US.F.LRev. 129, 148 (1980); MEEK,
Nuclear Power and State Radiation Protective Measures: The lmpo-
tence of Preemption, 10 Eav.L. 1, 66 (1979).
24The opinion below implicitly assumes that any state action, including
an award of punitive damages, which might possibly impede the de-
velopment of nuclear power poses a conflict and is subject to pre-
emption. However, as Judge Doyle observes in his dissenting opinion,
a large award of actual damages impedes just as much as an equivalent
punitive award. ( Appendix, p. 38a)
—18—
bank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 633
(1973). Still, the Congressional intent to preempt must be
unambiguous. Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 146-47 (1963).?5
While preemption may be appropriate if the state law
conflicts with the federal law, the cases make it clear that
conflicts are not to be lightly inferred; the initial presump-
tion is in favor of the validity of the state law.?*
This Court has stated that the proper judicial approach
is to reconcile the operation of both statutory schemes with
one another rather than holding one completely ousted.
Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414
U.S. 117, 127 (1973). The court below made no effort to
reconcile Oklahoma’s punitive damage statute with the fed-
eral regulatory framework applicable to nuclear facilities —
an easy task, for they are completely harmonious. Nor did
the court demonstrate how the jury’s punitive damage ver-
dict in this case would obstruct or interfere with the federal
regulatory plan established by Congress.
25No preemptive intent can be inferred simply from the fact that the
federal regulatory pattern is comprehensive, DeCanas Vv. Bica, 424 US.
351, 359-60 (1976); N.Y. State Dept. of Social Services v. Dublino,
413 US. 405, 415 (1973), or from the fact that the federal law touches
on an area of predominantly national concern. DeCanas v. Bica, supra,
at 354-55.
26Courts are not to seek omt conflicts between the state and federal laws
where none clearly exists. Huron Portland Cement Cv. Vv. Detroit, 360
US. 440, 446 (1960); Goldstein v. California, 492 US. 546, 554
(1973). A conflict will be found “where compliance with both fed-
eral and state regulations is a physical impossibility,” Florida Lime,
supra, at 142-43; or where the state law “stands as an obstacle to the
accomplishment of the full purposes and objectives of Congress.” Hines
v. Davidowitz, 312 US. 52, 67 (1941).
—19—
A variety of decisions of this Court have clearly enun-
ciated the principle that in cases involving state police
powers and laws protecting interests deeply rooted in local
feelings and responsibility, great deference must be given
to the state law. The presumption should be against federal
preemption of the state law.??
The punitive damages statute preempted by the court
below is unquestionably a law designed to protect the pub-
lic and one which involves the most fundamental local
responsibilities and self-protection interests.
In New York Telephone, supra, the Court recognized
that laws protecting against personal torts or violence to
property ... have defined the “local feeling and responsi-
bility” exception to preemption. 440 U.S. at 570. (Emphasis
added. )
Plainly the punitive damages statute at issue here fits
this definition.
In Nader v. Allegheny Airlines, 426 U.S. 290 (1976),
this Court defined the standavds for finding pre-existing
common law rights preempted in these terms:
“Even absent a savings clause, unless it is found that the
preexisting right is so repugnant to the statute that the
survival of such right would, in effect, deprive the
subsequent statute of efficacy, in other words, render
27See, ¢.g., San Diego Building Trades Council V. Garmon, 359 US, 236,
244 (1959); N.Y. Tel. Co. v. N.Y. St. Dept. of Labor, 440 US. 519,
540 (1979); Reid v. Colorado, 187 US. 137, 148 (1902). (“It should
never be held that Congress intends to supersede . . . the police powers
of the state . . . unless its purpose to effect that result is clearly mani-
fest.” )
= =
it nugatory,” the right must stand. 426 U.S. 290, 299,
citing Texas & Pac. R. Co. v. Abilene Cotton Co., 204
U.S. 426 (1907).
Congress’ pronouncements that state tort law is to con-
trol constitutes just such a savings clause.
Cases arising in the labor law context — where there
is a clear Congressional intent to occupy the field, unlike
the situation in this case — likewise indicate this Court’s
extreme reluctance to find state common law remedies pre-
empted.?®
The general rule of deference to state legislation ap-
plying the historically recognized police powers of the state
is especially strong where health and safety issues are in-
volved.?° The exercise of state police power is to be super-
seded only where the repugnance or conflict is so direct
and positive that the two acts cannot be reconciled or cno-
sistently stand together. Kelly v. Washington, 302 U.S. 1,
10 (1937); Askew v. American Waterway Operators, Inc.,
411 U.S. 325, 341 (1973). |
Appellant has been unable to find a single instance in
which a state common law tort remedy of general applica-
28See, ¢.g., Farmer V. United Broth. of C&J of America, Local 25, 430
US. 290 (1977); Automobile Workers v. Russell, 356 US. 634, 646
(1958); United Construction Workers v. Laburnum Construction Corp.,
347 US. 656 (1950).
29See Victory Carriers, Inc. v. Low, 404 US. 202, 211-213 (1971);
Terminal R. Assn. V. Brotberbood of R. Trainmen, 318 US. 1, 6-7
(1943); Reid v. Colorado, supra. See, also, Comment, A Framework
for Preemption Analysis, 88 YaleLJ. 363 (1978). (“Laws that pro-
tect persons inside the state borders from physical injury have received
the greatest deference from the Court.”)
—,
tion has been held preempted by federal legislation under
the Supremacy Clause. Where punitive damages have been
disallowed the basis has been that the federal statute did
not provide authorization for them.
The question of whether a civil action or some aspect
of it is subject to preemption under Article VI of the Con-
stitution has been presented in very few cases. Those courts
which have addressed the issue have usually rejected pre-
emption as the dispositive formula. See cases cited by
Judge Doyle at Appendix, pp. 34a-35a, n.2.
The decision below did not determine, nor could it,
that application of Oklahoma’s punitive damage statute to
a licensed nuclear facility would “render federal regula-
tion of nuclear facilities nugatory,” “produce an irrecon-
cilable conflict,” or “stand as an obstacle to the accomplish-
ment of the full purposes and objectives of Congress.” In
reality, Oklahoma’s law and the federal scheme do not
conflict at all.
It cannot be disputed that Congress contemplated that
state tort law is to be applied®® to a case below the ENO
threshold, and that the state may impose a standard of
care on nuclear operations without limitation.*!
30The court below upheld the imposition of state-based strict liability and
rejected appellee's position that preemption decreed that liability could
not be imposed unless a violation of the federally-mandatted standard
of care be shown.
31In the Three Mile Island incident proceedings the iJRC itself acknowl-
edged that state law controls and, although this verdict had been ren-
dered and a number of TMl-related suits seeking punitive damages
had been filed, the NRC has never indicated in its numerous orders,
publications and pronouncements that punitive damages are preempted.
45 Fed. Reg. 2590-5 (April 23, 1980).
= =
Certainly the imposition of punitive damages for reck-
less, willful and wanton conduct in violation of a state
standard of care does not constitute an obstacle to the full
purpose®? and objectives of Congress: to protect the com-
mon defense and security and the health and safety of the
public. 42 U.S.C. §2014(d). Rather, as an integral part
of state law, it properly supplements the federal standard
of care by deterring recklessness.
General punitive damage statutes unquestionably rep-
resent a valid exercise of the historically respected author-
ity of states’ police powers and their right and duty to
safeguard the health and welfare of their citizens. To nul-
lify such an exercise of state authority, especially without
any Congressional expression requiring such a result, rep-
resents a serious interference with the state’s prerogatives
and the rights of state citizens to the protection of their
state’s protective laws.
D. The Circuit Court Erroneously Assumed That the
Price-Anderson Act Precludes Punitive Damages.
The lynchpin of the opinion below is the assertion that
no punitive damages may be awarded under the Price-
Anderson Act in the event of an Extraordinary Nuclear
Occurrence (ENO). While acknowledging that neither
Price-Anderson nor its legislative history dictates this re-
sult, the Court seizes upon an isolated quote from Duke
32For an example of a proper consideration of the fai Congressional
purpose in an area of federal occupation — patent law — see Kewanee
Oil Co. v. Bicron Corporation, 416 US. 470 (1974).
—23—
Power to construct a negative pregnant.** From this er-
roneous assumption, the Court apparently reasons that to
allow a plaintiff to recover punitive damages under a state
statute (when a plaintiff in federal court under Price-
Anderson cannot) would “substantially compete” with the
federal scheme.
Contrary to the Court’s assertion, the availability of
punitives under Price-Anderson was considered by Con-
gress: an early proposal by the AEC would have excluded
“willful damages” from the indemnity agreement for li-
censees and contractors. Thus, the term “public liability”
as used throughout the Act would have excluded punitive
damages as well as workers’ compensation and war dam-
ages. This suggestion was specifically rejected by the Joint
Committee on Atomic Energy for licensees, S.Rep. No. 296,
85th Cong., 2nd Sess., 17-18 (1957) and contractors, Hear-
ings on Governmental Indemnity and Reactor Safety, 85th
Cong., Ist Sess. 176 n.318 (1956). Moreover, none of the
insurance policies submitted by the industry or the indem-
nification contracts executed by the government with its
contractors excluded punitive damages from coverage.
Hearings on Governmental Indemnity and Reactor Safety,
pp. 101-103 (1957), Green, Rowpen & Kramer, The Three
33Price-Anderson “implicitly assumed that only compensation damages
will be awarded” (Appendix, p.22a). The court reasons that since
Price-Anderson does not specifically authorize punitives, and does pro-
vide for compensation, then the remedy is limited to compensation
only. The obvious rejoinder to this is provided by the concurring opin-
ion in International Bro. of Electrical Wkrs. v. Foust, 442 US. 42, 54-
55 (1979): the court has converted the flocr beneath the plaintiff's
remedies into a ceiling on top of them.
aft.
Mile Island Episode: Liability and Financial Implications,
1979, 2 Energy Law Serv. (CALLAGHAN) § C.46 n.15 at p. 55.
As adopted in Price-Anderson, the term public liability
entails “any legal liability arising out of or resulting from
a nuclear incident,” with the exception of workers’ com-
pensation and was damages.** Certainly, the adoption of
this definition coupled with the legislative history and po-
sition taken by the insurance industry belies a negative
pregnant construction.*5
While a policy argument might be made for limiting the
recovery of punitives in a full-blown nuclear catastrophe,**®
the availability of punitives for an ENO demonstrates, a
fortiori, that punitive damages have not been precluded for
a sub-ENO incident.
E. The Nallification of the Jury’s Punitive Damage Ver-
dict on Preemption Grounds Represents a Denial of
Due Process and of Equal Protection of the Laws.
The decision below also demands appellate review by
this Court because it involves due process and equal pro-
34So limited, public liability is used throughout Price-Anderson, e.g., 42
US.C §§ 2210(a), 2210(c), 2210(m), 2210(n) (2), 2210(0).
35 Again paraphrasing the Foust concurring opinion — if there is any neg-
ative pregnant to be drawn, it is that a nuclear operator chargeable with
compensatory damages, may be taxed with punitives, too. 442 US.
at 55.
36¢.2. If the $560 million ceiling was exceeded by the addition of puni-
tive damages, individual claimants might be denied full recovery. How-
ever, the NRC's definition of an ENO would allow an incident which
fell far short of the ceiling to qualify and no such threat of inadequate
compensation would ever be presented. See 10 CFR. §140.81-.85
(1980).
—25—
tection problems far more serious, direct and pervasive
than these considered in Duke Power Co. v. Carolina En-
vironmental Study Group, 438 U.S. 59 (1978).
In Duke Power, the Court upheld the Price-Anderson
Act and its $560 million limitation of liability against due
process and equal protection challenges. In upholding the
limit on collective recovery, the Court emphasized that the
risk of a nuclear incident which would involve sufficient
damages to exceed the liability limit was exceedingly small.
438 U.S. at 85-86. The Court also took cognizance of Con-
gress’ pledge to “review the problem and take appropriate
action should the fund created be inadequate.” 438 U.S. at
86-87. The Court held that “the Congressional decision to
fix a $560 million ceiling at this stage in the development
and production of nuclear power to be within permissible
limits and not a violation of due process.” 438 U.S. at 87.
The Court found the equal protection challenge unper-
suasive in part because of the general rationality of the
liability limitation in the context of a recovery mechanism
designed for dealing with tne conjectural possibility of a
nuclear catastrophe involving large numbers of people and
severe damages.*?
87The court declined to reach the Just Compensation Clause claim raised
by the appellees because of the availability of the Tucker Act, 28 U.S.C.
§1491. See 438 US. at 94, 0.39.
The Tucker Act issue does not arise in this case. Whether the eradi-
cation of the jury's lawful award to appellant of $10 million punitive
damages constitutes a taking of property without just compensation is
squarely put before this Court by the holding that the state punitive
damages statute and the jury's verdict under it are absolutely preempted.
—26—
The due process challenge was rejected in large part
because of the Court’s conclusion that the recovery mech-
anism provisions of the Price-Anderson Act provided a
reasonably just substitute — a satisfactory quid pro quo —
for the common law rights which would be lost if aggregate
claims would exceed the $560 million ceiling. 438 U.S. at 88.
This case does not involve conjectural limitations of
recovery rights or any reasonably just substitute for the
rights supplanted. Here, a pre-existing common law right
has been totally abrogated without any substitute for the
rights lost. Appellant has had none of the benefits pro-
vided by Price-Anderson but has been left to the common
law remedies “not known in modern times for either their
speed or economy.” 438 U.S. at 92. Moreover, the depri-
vation of rights and of property involved here is not spec-
ulative, but direct and immediate. A citizen has been de-
prived of a $10 million punitive damage verdict rendered
by a jury to whose judgment appellant was Constitutionally
entitled. The verdict was amply supported by the evi-
dence and met the legal standards for the award of puni-
tive damages under Oklahoma law.
This verdict has been nullified by an appellate court
for this citizen, and punitive damages are henceforth to be
denied to all citizens who may become victims of serious
misconduct by nuclear facilities,** because of a general ap-
prehension by the courts below that this state law remedy
38Only four states — Washington, Louisiana, Nebraska and Massachusetts
—do not allow punitive damages in tort. The effect of the decision
below would be to invalidate the long-standing punitive damages rem-
edy with regard to the most serious and unjustified torts by nuclear
facilities.
—27—
would interfere with the federal regulatory program in
some unspecified way. There is no rational basis for this
serious deprivation of rights. Victims of nuclear torts
would be denied both relief and protection which is avail-
able to ail other citizens. Companies which handle radio-
active materials would have a liability shield for their
reckless or malicious conduct which no other companies
enjoy.
Punitive damages are part of the full tort recovery
rights provided by state law. They compensate the victim
of reckless conduct for shouldering the burden of securing
judicial redress which will protect the public at large. It
is true that their primary purposes are deterrence and pun-
ishment rather than specifically to make an injured party
whole. Punitive or exemplary damages are intended to
punish a transgressor for the benefit and protection of the
public. Cox v. Theus, 569 P.2d 447, 450 (Ok. 1977). This
does not mean, however, that they can be denied without
regard to due process or equal protection through the appli-
cation of some kind of implicit right-privilege distinction.
Under Oklahoma law, whether punitive damages are
to be awarded and, if so, in what amount are questions for
the jury. See Reed v. Fichencord, 219 P. 937 (Ok. 1923);
Oller v. Hicks, 441 P.2d 356 (Ok. 1967); State ex rel Pollu-
tion, etc. v. Kerr-McGee Corporation, 619 P.2d 858 (Ok.
1980). See also 22 Am.Jur.2d, Damages, § 341.
While the jury has discretion as to the award of puni-
tive damages, the injured party has a right to the jury’s
consideration. If the legal requisites are met, it is reversible
error for a trial judge to refuse to submit punitive damages
afin
for a jury's consideration. State ex rel Pollution, etc. v.
Kerr McGee Corporation, supra, Oller v. Hicks, supra, Sop-
kin v. Premier Pontiac, Inc., 539 P.2d 1393 (Ok. App. 1975).
Punitive damages are for the jury’s determination be-
cause within our system of justice the jury acts as the con-
science and the watchdog of the community. Through the
mechanism of punitive damages, juries can protect their
fellow citizens from injurious conduct with the condemna-
tory and deterrent effects of a punitive damages verdict.
An absolute preemption of punitive dar. ges precludes
this history jury function and represents an interference
with a basic feature of the justice system, not a mere denial
of a windfall benefit. Moreover, this blanket denial of puni-
tive damages directly injures the public interest which
punitive damage awards are designed to protect.
Citizens who are victims of reckless or willful miscon-
duct in other industries which are heavily regulated by the
federal government®® retain their rights to punitive dam-
ages if they can meet the evidentiary prerequisites. There
is no valid basis in the Constitution, the Atomic Energy Act
or overall national policy*® for uniquely denying the right
3°For example, punitive damages, may be recovered against aircraft, auto-
tion of these industries by the federal government. Nor does the Con-
sumer Product Safety Act preclude punitive damages for dangerously
defective manufacturing practices in other industries.
*0There is no barrage of outstanding punitive damages verdicts threat-
ening the industry's solvency. Because of the enormous care and re-
sponsibilities required by the dangerous potential of radioactive ma-
terials, instances where there has been misconduct egregious enough to
warrant punitive damages should, hopefully, be quite rare.
—29—
to recover punitive damages to those who are injured by
reckless or willful misconduct by nuclear facilities.
CONCLUSION
A split panel of the Tenth Circuit Court of Appeals
has held a state punitive damages statute preempted as
repugnant to the Supremacy Clause of the U. S. Constitu-
tion and to the Atomic Energy Act. That holding qualifies
this case for mandatory appellate review pursuant to 28
U.S.C. § 1254(2).
This case is plainly not one for summary affirmance.
The unprecedented analysis and conclusion of the Court
below and the inconsistency of the decision with prior
rulings of this Court call for full appellate review.
The decision profoundly affects the rights of individual
citizens as well as the authority of sovereign states, guar-
anteed by the Tenth Amendment of the U. S. Constitution,
to protect their citizens by application of the state’s laws.
The absolute shield against punitive damages granted
below was never enacted by Congress— nor could it be
passed by Congress. The public outcry would be too great.
It was never claimed below by appellee or even by the
nuclear industry’s trade association, and this unprecedented
immunity is not afforded to any other industries, including
those heavily regulated by the Federal Government.
Because of the vast significance of this case and the
legal and public policy questi~.- raised by the decision
afi
below, this Court should note probable jurisdiction and set
this case for plenary review.
Respectfully submitted,
May, 1982
*Counsel of Record
ARTHUR R. ANGEL*
Isaacs & Angel
301 First Life Assurance Building
Oklahoma City, Oklahoma 73102
(405) 232-2060
JAMES A. IKARD
4420 North Lincoln Blvd.
Oklahoma City, Oklahoma 73105
(405) 424-4358
GERALD L. SPENCE
Spence, Moriarity & Schuster
265 Pearl Street
Jackson, Wyoming 83001
DANIEL P. SHEEHAN
1324 North Capitol Street
Washington, D.C. 20002
Counsel for Appellant
APPENDIX
[Filed Dec. 11, 1981]
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
BILL M. SILKWOOD, Administrator of )
the Estate of Karen G. Silkwood, Deceased, )
} Plaintiff-Appellee, )
Vv. )
) No. 79-1894
THE KERR-McGEE CORPORATION, a_ )
Delaware corporation, and KERR-McGEE )
NUCLEAR CORPORATION, a Delaware )
corporation, )
Defendants-Appellants. )
Appeal from the United States District Court
For the Western District of Oklahoma
(D.C. No. CIV. 76-0888-T)
William G. Paul and Glenn W. McGee, Oklahoma City,
Oklehoma, (L. E. Stringer, Richard C. Ford and John J.
Griffin, Jr., of Crowe, Dunlevy, Thweatt, Swinford, John-
son & Burdick, Oklahoma City, Oklahoma; C. Lee Cook, Jr.,
William Van Hagey, Stephen A. Gorman and Pamela J.
Kemplin, of Chadwell, Kayser, Ruggles, McGee & Hastings,
Chicago, Illinois; and Elliott C. Fenton and Larry D. Otta-
way of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma
City, Oklahoma, with them on the briefs) for Defendants-
Appellants.
Arthur R. Angel, Oklahoma City, Oklahoma, (Jim Ikard,
Oklahoma City, Oklahoma; G. L. Spence, Jackson Hole,
Wyoming; and Daniel P. Sheehan, Washington, D. C., with
him on the briefs) for Plaintiff-Appellee.
Harry H. Voight, Leonard M. Trosten and Michael F. Mc-
Bride of LeBoeuf, Lamb, Leiby & MacRae, Washington,
D.C., and Harvey S. Price, General Counsel for Atomic
2a
{APPENDIX}
Industrial Forum, Inc., Washington, D.C., filed a brief for
amicus curiae Atomic Industrial Forum, Inc.
Karin P. Sheldon, Sierra Club Legal Defense Fund, Wash-
ington, D.C., filed a brief for amici curiae Environmental
Policy Institute and Sierra Club.
Before DOYLE, McKAY and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
This is an appeal by Kerr-McGee Corporation and
Kerr-McGee Nuclear Corporation (hereinafter collectively
referred to as Kerr-McGee) from judgments after jury
trial in a diversity suit brought against them by Bill M.
Silkwood as administrator of the estate of Karen Silkwood,
deceased. The action was based upon common law tort
principles! under Oklahoma law, and sought damages for
injuries (primarily fear and anxiety) suffered by Karen
Silkwood during a nine-day period as a result of plutonium
contamination occurring November 5, 6, and 7, 1974. Her
death on November 13, 1974, in an unrelated automobile
accident marked the end of any damages that might have
been suffered had she lived beyond that date. The jury
awarded $500,000 damages for these injuries and an addi-
tional stipulated $5,000 for property in her apartment that
had to be destroyed because it was contaminated. In addi-
tion it awarded $10,000,000 punitive damages. The opinion
of the trial court overruling Kerr-McGee’s post-trial mo-
tions is reported at 488 F.Supp. 566 (W.D. Okl. 1979).
A number of issues are raised and argued on appeal,
including applicability of the Oklahoma Workers’ compen-
1 Civil Rights Act and federal constitutional claims were also asserted
in the original petition. The trial court's dismissal of those claims was
affirmed in a separate appeal. Silkwood v. Kerr-McGee Corp., 637 F.2d
743 (10thCir. 1980), cert. denied, ... US. ..., 102 S.Ct. 132, 70
LEd2d 111 (1981).
3a
[APPENDIX)
sation Act as the exclusive remedy, federal preemption,
standard of care, applicability of strict liability, Avail-
ability of certain defenses, excessiveness of actual damages,
invalidity and excessiveness of punitive damages, insuf-
ficiency of the evidence, and denial of a fair trial because
of adverse publicity, prejudicial conduct of counsel, and
errors in evidentiary rulings and instructions to the jury.
We recite below such essential facts and treat such of these
issues as are necessary to resolve all aspects of the appeal.
I. Personal Injury
Karen Silkwood was a laboratory analyst at the Cim-
maron plant of Kerr-McGee located near Crescent, Okla-
homa. The plant fabricated fuel pins containing plutonium
for use as reactor fuel. Silkwood was contaminted by plu-
tonium on November 5, 6, and 7, 1974, and the parties
have stipulated that this plutonium came from the Kerr-
McGee plant. Precisely how and when the contamination
occurred is not stipulated and there is little evidence to
fill this void.
Plutonium is an artificially produced radioactive chem-
ical element which has been instrumental in the develop-
ment of nuclear weapons and nuclear power. It emits
alpha particles, beta particles, neutrons, gamma rays, and
x-rays. The extent of radiation damage to human cells
exposed to plutonium is dependent upon the amount of
energy in the radiation. Alpha particles have the largest
mass, carry the greatest amount of energy, and are the
most hazardous. Damage can occur when alpha particles
strike a cell. Damage to an individual cell is not, however,
invariably harmful to the human body; a cell is capable
of repairing itself and the body normally sheds and re-
places millions of cells on a contin basis. It is ac-
knowledged, however, that plutonium is one of the most
carcinogenic and dangerous substances known.
Silkwood was a member of the Oil, Chemical and
Atomic Workers Union (OCAW), which represented some
4a
(APPENDIX)
of the workers at Kerr-McGee’s plant. As an elected mem-
ber of the union negotiating team, Silkwood was responsi-
ble for health and safety matters. In September 1974 she,
together, with her fellow committee members, met with
OCAW leaders in Washington, D. C., and presented charges
to the Atomic Energy Commission (AEC) of numerous
health and safety violations by Kerr-McGee. The AEC
required documentation of the charges, and Silkwood was
assigned the job of collecting this documentation. Silk-
wood was engaged in collecting information and recording
it in notebooks and on tapes from September 1974 until
the time of her death.
There is no real dispute in the evidence concerning
Silkwood’s contamination. She reported to work at the
Cimmaron plant on November 5, 1974, at 1:20 pm. At
2:45 p.m. and at 3:15 p.m., before and after taking a break,
Silkwood monitored herself with plutonium detecting de-
vices provided by Kerr-McGee in accordance with the com-
pany policies and AEC license requirements. No plutonium
was detected on her person. At about 3:45 p.m. Silkwood
began to work in two glove boxes containing plutonium.
A glove box is a supposedly impervious box surrounding
the plutonium processing equipment which has glove holes
permitting the operator to work on the equipment or with
the plutonium from outside the box. Silkwood again moni-
tored herself before and after her break at 5:30 p.m. and
at 5:45 p.m., and at those times detected no contamination.
She continued to work in the glove boxes and, upon with-
drawing her hands from one of the boxes at about 6:30
p.m., she found contamination. Further checks were made
in the laboratory and other contaminations were found,
particularly inside the gloves in the glove box in which
Silkwood had been polishing and cleaning plutonium.
Contamination was found on Silkwood’s left hand,
right wrist, upper arm, neck, face, hair, and in her nos-
trils. Pursuant to regulations, Silkwood was immediately
decontaminated and placed on a five-day voiding collec-
5a
[APPENDIX)
tion program, and furnished urine and fecal kits to take
home fer the purpose of obtaining samples which would
be sent to the United States testing laboratory for analy-
sis. Later that day Silkwood returned to work, but not to
the glove boxes, she monitored herself when she left work
at about 1:10 a.m. and found no contamination. The glove
box was later tested by the AEC investigators, and no
leaks were found. Further, the investigators found no sig-
nificant airborne contamination in the laboratory.
The next day, November 6, 1974, Silkwood arrived at
work at 7:50 a.m., and did some paper work in the lab
until 8:50 a.m., at which time she left to attend a union
meeting. At that time she tested herself and found con-
tamination on her hands; tests showed fixed contamination
on her right forearm, face, and neck. Her hands were de-
contaminated; since the other spots appeared to be fixed
contamination she was allowed to attend the union meet-
ing. She returned to the health office at 4:30 p.m., where
slight contamination was found on her right forearm, neck
and face, and in her nostrils. She was again decontami-
nated and, at her request, her locker and auto were tested
and found to be free of contamination.
On November 7, 1974, when she reported to work Silk-
wood went directly to the plant’s health physics office. She
was found to be contaminated in her nostrils and on her
hands, arms, chest, back, neck and right ear. Four urine
and one fecal sample collected on November 5th, 6th and
7th were found to be contaminated, although the exterior
of the kits showed no contamination. The parties stipu-
lated that urine samples brought to the plant had been
spiked with plutonium; that is, they contained insoluble,
not naturally excreted, plutonium. Also, Silkwood’s apart-
ment was found to have been contaminated, with highest
concentrations of plutonium found in the bathroom and on
a package of bologna and cheese in the refrigerator.
Silkwood’s roommate, Sherri Ellis, was also a labora-
tory analyst at Kerr-McGee, and was found not to be con-
6a
(APPENDIX)
taminated when she left work at 8:00 a.m. on November
7th after working a midnight shift. After returning to the
apartment, Ellis used the bathroom and retired to her bed-
room. Subsequent checks revealed contamination of Ellis’
buttocks and hands. Ellis’ auto and the refrigerator where
her lunch had been placed in the plant lunchroom were
free of contamination. Silkwood’s boyfriend, who spent the
night of November 6th in Silkwood’s apartment, had left
the apartment at about 7:00 a.m., on November 7th after
using the bathroom. Neither he, his car, nor his residence
were contaminated.
Silkwood’s possessions were destroyed and Silkwood
was sent to the Los Alamos Scientific Laboratory in New
Mexico to undergo further tests concerning her contami-
nation. She reported back to work on November 13th at
which time she was reassigned. She participated in a union
negotiating session that day, met with AEC inspectors con-
cerning her contamination, and attended a union strategy
session. On her way to meet a New York Times reporter
and an OCAW leader, Silkwood was killed in an auto-
mobile accident. A subsequent autopsy revealed that the
amount of plutonium within Silkwood’s body at the time
of her death was between 25% and 50% of the permissible
lifetime body burden allowed by the AEC for plutonium
workers.
Silkwood made statements that she had spilled her
urine sample in her bathroom between 7:00 and 7:50 a.m.
on November 7th, after her boyfriend left and before her
roommate returned to the apartment from work. Silkwood
stated that at the time she spilled the urine sample, a
package of bologna was on top of the commode, where
she had placed it in anticipation of preparing a sandwich
to take to work. Following the spilling of the sample, Silk-
wood stated that she wiped off the bathroom floor with a
tissue and placed the bologna back in the refrigerator. That
evidence was admitted only to show Silkwood’s state of
mind, motivation, or intention relevant to the issue whether
Ta
{APPENDIX}
she intentionally removed the plutonium from the plant;
it was not admitted to show the truth of the statements.
The only other evidence supporting inferences rele-
vant to where and how Silkwood was contaminated is as
follows. Except for the fact that Silkwood was in a radi-
ation zone for an hour on November 6 before discovering
contamination on her person, and Silkwood’s statement that
she thought she was inadequately decontaminated on No-
vember 5, there is no evidence of where, when or how she
became contaminated on November 6th. She did not work
the glove boxes that day and no other contamination was
observed. Apparently employees were not monitored for
radiation upon arriving at work, although they were sub-
ject to self and other monitoring each time they removed
their hands from glove boxes and when exiting rooms and
air locks. Evidence showed Silkwood was sloppy in her
safety habits, failing to monitor herself or tuck her hair
into the cap she was required to wear in the laboratory.
The insoluble plutonium used to spike the urine samp-
les was not of the same batch Silkwood was working with
in the glove boxes at the time of her exposures. The ma-
terial could have come, however, from a slot box in the
laboratory area to which Silkwood and other Kerr-McGee
employees had access. The Kerr-McGee inspection system
would not detect amounts of plutonium of less than about
1/2 gram taken from the plant in a nonmetallic container.
(The amount in Silkwood’s apartment was estimated at
less than .0003 gram.)
There was evidence that Kerr-McGee’s supervisory
employees knew Silkwood was attempting to gather evi-
dence of Kerr-McGee’s negligent and improper practices
in the operation of the plant and that some disapproved
of her and these activities. There was also evidence that
Silkwood was unhappy with a reprimand she had received
shortly before her November 5 contamination and that she
wanted to embarrass Kerr-McGee.
8a
(APPENDIX)
In an obvious attempt to avoid application of the
workers’ compensation law, the complaint asserted that all
exposures originated in Silkwood’s apartment. A pretrial
motion for summary judgment based upon the exclusive
application of the workers’ compensation law was properly
denied because factual issues had not been resolved as to
how the exposure occurred. The Kerr-McGee assertion
that workers’ compensation applied to the personal injur-
ies was reasserted at the conclusion of the case and in the
motion for judgment n.o.v. The trial judge’s refusal to
grant the motions or to instruct the jury on the workers’
compe sation issue was based upon his view that Kerr-
McGee had the burden of proving job relatedness of the
contamination and that there is no presumption upon which
Kerr-McGee was entitled to rely.
As the trial judge recognized, there was absolutely no
evidence that someone other than Silkwood or a Kerr-
McGee employee intentionally or accidentally exposed Silk-
wood to plutonium contamination. No intentional contami-
nation, either by Silkwood or Kerr-McGee, was established.
The judge properly refused to give a jury instruction on
intentional contamination by action of a Kerr-McGee em-
ployee, for lack of credible evidence. The evidence that
Kerr-McGee employees might have disliked Silkwood and
her evidence-gathering activities and that plutonium could
and did escape the plant is not enough to support a find-
ing that Kerr-McGee operatives intentionally exposed Silk-
wood to contamination. The only plausible method by
which Kerr-McGee could intentionally contaminate Silk-
wood would be by placing plutonium in the urinalysis kits
it sent home with her; there is no evidence to support
such a theory. The court gave an instruction permitting
the jury to find whether Silkwood intentionally removed
plutonium from the plant. The jury found she did not.
We agree that sufficient evidence was presented to sup-
port the court's instruction, and that the evidence was not
so strong as to require the jury to find Silkwood inten-
tionally took the plutonium.
9a
(APPENDIX)
The trial court refused for lack of evidence to summit
to the jury the issue of an accidental contamination of
Silkwocd. Here we disagree. Indeed, we hold that, in light
of the lack of evidence of intentional contamination by
Kerr-McGee operatives, Silkwood, or others, the presump-
tions and burdens of proof applicable to workers’ compen-
sation issues required the court to grant judgment n.o.v.
holding that workers’ compensation was the exclusive rem-
edy for personal injuries suffered by Silkwood.
The Oklahoma Workers’ Compensation Act, Okla. Stat.
Ann. tit. 85 (West 1971 & Supp. 1980), provides that the
employer shall pay compensation “for the disability or
death of his employee resulting from an accidental per-
sonal injury sustained by the employee arising out of and
in the course of his employment...” Id. $11. Section 12
of the Act provides that the liability prescribed in section
11 “shall be exclusive and in place of all other liability
of the employer and any of his employees, at common law
or otherwise . . .” Section 27 clarifies the scope of coverage
indicated in section 11 by creating a presumption. “In any
proceeding for the enforcement of a claim for compensa-
tion under this act, it shall be presumed in the absence of
substantial evidence to the contrary: 1. that the claim
comes within the provisions of this act.” Id. § 27.
No Oklahoma case addresses directly the question
whether an employer as well as an employee may invoke
the presumption of coverage. But the courts that have con-
strued similar liberal construction rules have unanimously
held that the same rules of coverage apply regardless of
who seeks their application. See Arnold v. Shell Oil Co.,
419 F.2d 43 (5th Cir. 1969); Jackson v. Southern Pac. Co.,
285 F.Supp. 388 (D.Nev.1968); Freire v. Matson Nav. Co.,
19 Cal.2d 8, 118 P.2d 809 (1941); Wilburn v. Boeing Air-
plane Co., 188 Kan. 722, 366 P.2d 246 (1961); Thibodaux v.
Sun Oil Co., 40 So.2d 761 (La.App.1949), aff'd, 218 La. 453,
49 So.2d 852 (1950); Smith v. Alfred Brown Co., 27 Utah
2d 155, 493 P.2d 994 (1972).
10a
(APPENDIX)
There are persuasive reasons underlying these con-
sistent holdings. As pointed out by the Freire decision,
the liberal construction in favor of jurisdiction is not in-
tended merely to ensure the benefits of the act for injured
employees, thus sparing them the necessity of expensive
and speculative trials; it is also intended to protect the em-
ployer from excessive judgments. 118 P.2d at 810. See
Jackson v. Southern Pac. Co., 285 F.Supp. at 389. We be-
lieve the Oklahoma Supreme Court holdings are in accord
with this principle. In one case which held that an in-
surer’s right to subrogation was abrogated by the Workers’
Compensation Act, that court stated:
“(WJe think the Workmen’s Compensation Act, in ef-
fect, was reciprocal in eliminating common-law rights,
it was compensatory to both employer and employee.
To the employee the act provided a summary action,
it insured the workmen a living wage, when injured.
As to both, it took away a jury trial. As to the em-
ployer, it created a maximum loss as well as making
the amount of recovery certain.”
Fox v. Dunning, 124 Okl. 228, 255 P. 582, 585-86 (1927).
Most recently, in the case of Harter Concrete Products,
Inc. v. Harris, 592 P.2d 526 (Ok1.1979), the Oklahoma Su-
preme Court held that an employer could not be joined
in a product liability action as a third party defendant
because workers’ compensation was the exclusive remedy.
“Worker’s compensation legislation was enacted to pro-
vide a substitute remedy to an employee for acci-
dental injuries received during covered employment
without the burden of his proving negligence. In ex-
change for this exposure the employer is protected
from any other liability to the employee. To be equi-
table as well as effective, this protection must extend
to all liability either directly or indirectly derived
from the employee's injuries.”
Id. at 528 (footnotes omitted) (emphasis in original).
lla
(APPENDIX)
Another reason given for an evenhanded application
cf the presumption is that the objective of doing equal
justice cannot be attained absent a consistent application
of the rules. See Buhler v. Gossner, 530 P.2d 803, 805
(Utah 1975); Smith v. Alfred Brown Co., 27 Utah2d 155,
493 P.2d 994, 995 (1972).
Against this persuasive authority, plaintiff argues that
the prefatory language to section 27 compels a decision
that an employer may not avail itself of the presumption
in proceedings brought outside those described in the Act.
This key language provides the presumption will apply
“(ijn any proceeding for the enforcement of a claim for
compensation under this act .. .” Okla. Stat. Ann. tit. 85,
§ 27. We believe that plaintiff's construction would not
only violate the aforementioned principles enumerated by
other jurisdictions, but would also destroy the exclusive
jurisdiction compelled by the Act. Were the presumption
to be applied only when an employee brought a claim in
the Workers’ Compensation Court, then a certain number
of borderline cases would be sustained only by operation
of the presumption. If these same cases were brought at
common law and were deemed not subject to the presump-
tion, they would be found to be outside the Act. Thus,
an overlapping jurisdiction would exist for a number of
cases open to the election of the employee. Such a result
seems to contradict the Act’s clear intent, expressed in
section 12, of limiting recovery to that provided in the
Act for all cognizable claims. See, Arrington v. Michigan-
Wisconsin Pipeline Co., 632 F.2d 867, 871 (10th Cir. 1980).
For these reasons, we believe the Oklahcma Supreme Court
would hold that the presumptions contained in section 27
are applicable regardless of who seeks to make use of them.
We agree with plaintiff that inasmuch as exclusive
jurisdiction is an affirmative defense, Kerr-McGee had the
burden of producing evidence sufficient to demonstrate that
the injuries were covered by the Act. See Oklahoma Steel
Casting Co. v. Banks, 181 Okl. 503, 74 P.2d 1168 (1937).
12a
[APPENDIX)
The method of proving that an injury arose out of and in
the course of employment would be the same regardless of
whether it is offered by the employee to prove a claim or
by the employer seeking to bar an action at common law.
See Eckis v. Sea World Corp., 64 Cal.App.3d 1, 134 Cal.
Rptr. 183 (1976). The method by which injuries occurring
under somewhat mysterious circumstances are proven is
outlined in In re May, 586 P.2d 738 (Okl. 1978). In that
case, representatives of a driver of a service vehicle sought
recovery for the death of the driver who was found shot
to death in a rural field. His log indicated that he had
completed his route. The Supreme Court of Oklahoma re-
jected the employer’s contention that because there was no
competent evidence to indicate that the death arose out of
and in the course of employment, the compensation award
was in error. Relying on In re Martin, 452 P.2d 785 (Okl.
1969) and Nebo Oil Co. v. Wright, 406 P.2d 266 (Okl.
1965), the court first noted that compensation law indulges
a presumption that a claim for injury is within the Act
absent substantial evidence to the contrary. Any reason-
able doubt is to be resolved in favor of the claimant. 586
P.2d at 740. Second, the court noted that the claimant
could meet his burden of producing competent evidence
that the injury occurred during the course of employment
by use of circumstantial evidence. The circumstantial evi-
dence need not exclude every other possible inference, but
is only required to provide a legal and logical basis for a
reasonable inference as to the existence of the fact sought
to be proven. Id. at 740-41. Once this reasonable inference
of coverage is established, a prima facie case has been made
out that workers’ compensation is the exclusive remedy,
and it is then incumbent upon the plaintiff to show the
nonexclusivity of the statutory compensation remedy as to
each element of the injuries for which plaintiff seeks com-
mon law relief. Murphy v. Owens-Corning Fiberglas Corp.,
447 F.Supp. 557, 571 (D.Kan. 1977).
13a
{APPENDIX}
With these rules in mind, we again review the evi-
dence. Silkwood was a laboratory analyst at the Kerr-
McGee plant and handled plutonium in the regular course
of her employment. It is undisputed that on the first day
of her contamination, November 5, 1974, Silkwood was
found to be contaminated after spending some three hours
grinding and cleaning plutonium. Silkwood had monitored
herself three times during the course of the same work
period and found no contamination each time. After Silk-
wood was found to be contaminated, the gloves in the
glove box she had been using were found to be contami-
nated. Silkwood was decontaminated at work and given
urine and fecal kits to check for plutonium discharges.
This is the only evidence relating to the November 5th
exposure and it supports only one inference: that the ex-
posure was job-related.
Of the three exposures occurring on November 5th,
6th and 7th, that of November 6th is the least understood
in terms of when and where it happened. On November
6th, Silkwood arrived at work at 7:50 a.m. and performed
paperwork in the laboratory, which was in a radiation zone.
Apparently she was not checked for contamination at the
time she arrived at work, but upon leaving the laboratory
at 8:50 a.m., she checked herself and discovered contami-
nation on her hands, her right forearm, and her face and
neck. Her hands were decontaminated immediately, but to
permit Silkwood to attend a union meeting the fixed con-
tamination on the rest of her body was not decontami-
nated until the end of the day. At most this evidence
could support an inference that the November 6th ex-
posure occurred at the job site which was known to be
a place where plutonium was present. Alternatively, the
evidence might support a finding that, as Silkwood stated,
the contamination discovered on November 6th was re-
sidual contamination from her on-the-job exposure of the
day before. Any other inference would be far too specu-
lative based on this record.
l4a
{APPENDIX}
Upon her arrival at work the next day, November
7th, Silkwood was found to be highly contaminated. The
urine sample she took that morning at her apartment was
spiked and her apartment was found to be contaminated,
particularly the bathroom, kitchen, and her bedroom. Her
roommate was found to be contaminated on her buttocks
and hands. The only reasonable explanation for the room-
mate’s contamination is that it came from the toilet in the
apartment after Silkwood had taken her urine sample and
departed for work. In view of the lack cf contamination
of other individuals who occupied the apartment during
the course of the evening of the 6th and until 6:50 a.m.
cn the morning of the 7th, the only reasonable inference
that can be drawn from the circumstantial evidence is
that the contamination of the apartment, Silkwood, and
her roommate resulted from Silkwood’s preparation that
morning of the urine sample. It is undisputed that the
urine sample was spiked, although it is not known who
spiked it or from what source. Since the urine sample was
prepared at the direction of her employer as a part of her
job-related duties, the only inference not based on the
sheerest speculation that can be drawn from the evidence
is that the contamination measured on the 7th was also
job-related. The only other evidence that properly can be
considered leads to the same conclusion.?
The circumstantial evidence supports one conclusion:
that Silkwood’s exposure on all three occasions occurred
either at the job site or in preparation of urine samples
2 Silkwood told AEC investigators that she believed the contamination
measured on the 7th resulted from inadequate decontamination at work
the day before. If this were true, it proves only that the contamination
of the 7th was job-related. Furthermore, her statement about being
_ contaminated while preparing her urine sample on the morning of the
7th, although not admitted to prove the truth of the statement, is con-
sistent with the only reasonable inferences that can be drawn from the
balance of the evidence.
15a
{APPENDIX}
for her employer. In the absence of any other evidence
of offsite exposure,* the only reasonable inference is that
all the plutonium found in her body came from her work-
ing with and around plutonium or from the preparation of
job-related urine samples that were spiked. Plaintiff’s own
expert witness testified that no one could be sure when
the exposure occurred that resulted in the deposition of
plutonium in Silkwood’s lungs.
While the circumstantial evidence as to the time, place,
and manner of exposure is thin at best, it cannot support
any conclusion other than that the exposures were job-
related. Even were we to conclude that the evidence is
too thin standing alone to support any conclusion, we are
satisfied that, aided by the liberal construction rule favor-
ing coverage, Kerr-McGee has established a prima facie
case that the injury comes within the provisions of the
workers’ compensation statute. We now hold that plain-
tiff has not produced substantial evidence that Silkwood’s
injury occurred outside the course of her employment to
rebut this prima facie case.
The trial court’s comparison of this case to that of a
factory worker engaged in the manufacture of television
sets who is injured when his home television blows up is
inapposite. In that case the reasonable inference is that
the television is for private use, and no circumstance sug-
gests that the explosion is related to his work rather than
his ownership of the set. In the instant case, by contrast,
there is a logical nexus between Silkwood’s injury and
her work.
Silkwood’s counsel complained that Kerr-McGee’s evi-
dence was al] directed to prove intentional taking by Silk-
wood and self-contamination. It is true that in pretrial
3 There was evidence that a substantial amount of Kerr-McGee pluton-
ium was missing from the job site but no evidence, circumstantial or
otherwise, connects Silkwood with that material.
16a
LAPPENDIX}
investigations and at trial Kerr-McGee employees testified
to beliefs and theories that no incident at the plant had
been the source of the contamination, that the contamina-
tion was self-administered, that it was unlikely to have
been accidental, or that she was contaminated offsite. While
Kerr-McGee attempted to establish an intentional taking of
plutonium by Silkwood and intentional or accidental self-
contamination thereafter, it never abandoned the alterna-
tive theory of a job-related accident. Kerr-McGee could
avoid liability altogether if it could establish an intentional
taking by Silkwood; it could avoid a common law tort
claim for personal injuries if it could establish a job-
related accidental exposure. We do not consider its wit-
nesses’ statements concerning self-contamination by Silk-
wood as admissions that no job-related accidental exposure
was possible.
Plaintiff contends that the Workers’ Compensation
Court has exclusive jurisdiction only if it is shown that
the worker would actually have received compensation
and, since it was not shown that Silkwood’s injury was
presently disabling, no compensation would have been
awarded. Plaintiff argues that because section 12 provides
that “[t]he liability prescribed in the last preceding section
shall be exclusive” and section 11 prescribed only liability
for disability or death, all non-disabling injuries may be
pursued at common law. Kerr-McGee counters with an
argument there was no injury to Silkwood here at all,
since she did not contract cancer during her life. This
Court has recognized that a complaint based upon the possi-
bility of contracting cancer in the future as a result of
past exposure to a carcenogenic substance does not state
a common law cause of action. Bussey v. Safeway Stores,
Inc., (10th Cir. Sept. 19, 1978). Of course, a claim for ill-
ness already suffered is cognizable. Id.
Here Kerr-McGee was entitled to a finding that Silk-
wood’s contamination was on the job, as we have discussed
above. If cancer is developed from a radiation exposure
17a
(APPENDIX)
on the job, the workers’ compensation law covers it. See
Okla.Stat.Ann. tit. 85 §11(4) (West Supp. 1980) (with
reference to Okla.Stat.Ann. tit. 85 §3(7),(10) (West Supp.
1980). In the instant case the radiation produced hysteria
and fear in Silkwood and the need for medical treatment
and examination. The Workers’ Compensation Act requires
reimbursement for medical attention from job-related ac-
cidents. Id. § 14. Silkwood missed time from work at least
during testing, and she incurred medical expense, paid by
Kerr-McGee. But even if she had not, work time loss and
medical expense are not necessary requisites to finding an
injury is exclusively covered by workers’ compensation. If
a worker on the job received a hammer biow to the thumb
causing pain and suffering but no time loss, surely he or
she could not sue the employer in a common law tort
action. We believe the Oklahoma Supreme Court would
hold that any accidental injury incurred on the job would
be covered by the Workers’ Compensation Act, and that
the radiation exposure here is such a case. The fact the
Act does not compensate for every aspect and degree of
the injury makes no difference. In Smith v. Baker, 157
Okla. 155, 11 P.2d 132 (1932), a case in which a man lost
his sexual organs in the course of employment, the Su-
preme Court of Oklahoma said, “The fact that Workmen's
Compensation Act does not provide adequate relief in all
cases does not authorize a civil action for recovery of dam-
ages.” The Oklahoma court is in agreement with other
jurisdictions that have considered this issue. See 2A Lar-
son, Workmen’s Compensation § 65.20 (1976).
We have considered plaintiffs’ other contentions in re-
gard to this issue, and find them to be without merit. We
conclude the court erred in not ruling that the issue of
personal injury must be determined under the Workers’
Compensation Act. Our disposition on this issue eliminates
the need to discuss the sufficiency of the evidence and other
arguments relating to the amount of damages for personal
injury and the fairness of the trial on that aspect of the
case. We do not understand Kerr-McGee to contend that
18a
(APPENDIX)
the federal regulation of nuclear energy preempts appli-
cation of the workers’ compensation law for injuries on
the job. See Appellants’ Brief p.56 n.*. See also S.Rep.
No. 296, 85th Cong., Ist Sess., reprinted in [1957] U.S.Code
Cong. & Ad. News 1803, 1819.
II. Property Damage
The existence here of significant damage to Silkwood’s
personal property in her apartment requires us to consider
additional issues raised in the appeal. The Workers’ Com-
pensation Act applies only to “accidental personal injury.”
Okla.Stat.Ann. tit. 85, § 11 (West Supp. 1980). See also id.
§§ 2, 3(7).
Kerr-McGee argues that the pervasive federal regu-
lation of atomic energy precludes states from applying
stricter safety standards for the handling of nuclear ma-
terials than required by AEC regulations. As applicable
to the issue of its liability for actual damage to Silkwood’s
personal property, Kerr-McGee asserts that its substantial
compliance with preemptive federal regulations is conclu-
sive evidence of due care and precludes holding it liable
under a strict liability standard.
Northern States Power Co. v. Minnesota, 447 F.2d 1143
(8th Cir. 1971), aff'd mem., 405 U.S. 1035, 92 S.Ct. 1307,
31 L.Ed.2d 576 (1972), upon which Kerr-McGee places its
principal reliance, declared that federal preemption pre-
cludes a state from exercising regulatory authority over
the discharge of radioactive effluents from nuclear power
plants in the state. See also Train v. Colorado Public In-
terest Research Group, 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.
19a
{APPENDIX}
mental Protection v. Jersey Central Power & Light Co.,
69 N.J. 102, 351 A.2d 337 (1976); Van Dissel v. Jersey
Central Power & Light Co., 152 N.J. Super. 391, 377 A.2d
1244 (1977). We do not think imposition of tort liability
in the instant case, in which a quantity of plutonium has
escaped the plant site and caused damage, will significantly
interfere with federal regulation of Kerr-McGee’s plant.
Further, the AEC (now Nuclear Regulatory Commission
(NRC)) does not have power, except as it is involved in
the administration of the Price-Anderson Act, to order a
compensatory award to a victim of a nuclear incident.
See Marshall v. Consumers Power Co., 65 Mich.App. 237,
237 N.W.2d 266 (1975). Clearly there is need for such a
remedy. The Supreme Court and Congress have recog-
nized that state tort law principles are applicable to some
extent in off-site damage cases. In upholding the constitu-
tionality of the Price-Anderson Act, the Supreme Court
stated that “[a]ppellees’ only relevant right prior to the en-
actment of the Price-Anderson Act was to utilize their ex-
isting common-law and state-law remedies to vindicate any
particular harm visited on them from whatever sources.”
Duke Power Co. v. Carolina Environmental Study Group,
438 U.S. 59, 88 n.33, 98 S.Ct. 2620, 2638 n.33, 57 L.Ed.2d
595 (1978). The Price-Anderson Act, 71 Stat. 576 (1957)
(codified in scattered sections of 42 U.S.C.), was passed to
address the problem of liability for nuclear disasters which
might deter the industrial development of nuclear energy.
It requires AEC (NRC) licensees to purchase private in-
surance, creates a government indemnity fund, and estab-
lishes maximum limits to liability for an “extraordinary
nuclear occurrence.” 42 U.S.C. §2210(n). For nuclear in-
cidents below the level of an extraordinary nuclear occur-
rence, and the instant case is one, the rules of tort law of
the state in which the injury occurred still apply.
20a
(APPENDIX)
S.Rep. No. 1605, 89th Cong., 2d Sess., reprinted in [1966]
U.S.Code Ceri. & Ad. News 3201, 3211. See also id. 3203-
04, 3206, 3207, 5209, 3226; S.Rep. No. 296, 85th Cong., Ist
Sess., reprinted in [1957] U.S.Code Cong. & Ad News 1803,
1810, 1823. Kerr-McGee argues that although state tort
law applies the federal regulations determine the control-
ling standards, foreclosing application of strict liability.
But that same Senate report recognizes that a state can
apply strict liability principles if it chooses.
“[A] claimant would have exactly the same rights
that he has today under existing law — including per-
haps, benefit of a rule of strict liability if applicable
State law so provides.”
S.Rep. No. 1605, 89th Cong., 2d Sess., reprinted in [1966]
U.S.Code Cong. & Ad. News at 3212. See also id. 3203, 3206,
3207.
We have no doubt Oklahoma courts would apply strict
liability to this case of escape of plutonium, a highly toxic
and dangerous substance. Young v. Darter, 363 P.2d 829
(Okl. 1961) (herbicide spray). See also Kirkland v. Gen-
eral Motors Corp., 521 P.2d 1353 (Okl. 1974). Nuclear en-
ergy is surely an area “in which no court will, at last,
refuse to recognize and apply the principle of strict lia-
bility.” W. Prosser, The Law of Torts, § 78, at 516 (4th
ed. 1971); see Restatement (Second) of Torts § 520, com-
ment (g) (1977) (“Some activities, such as the use of
atomic energy, necessarily and inevitably involve major
risks of harm to others, no matter how or where they are
carried on”).
We have no trouble with proximate cause in the con-
text of damage to personal property in Silkwood’s apart-
ment. It was stipulated that the plutonium came from
the Kerr-McGee plant; clearly the property damage was
the result of plutorium contamination. Regarding one who
carries on an abnormally dangerous activity. Restatement
2la
[APPENDIX)
(Second) of Torts §519, comment (e) (1977) states that
strict liability applies to “harm that is within the scope
of the abnormal risk that is the basis of the liability.” The
key is foreseeability. It is surely foreseeable and within
the scope of the abnormal risk that radiation contamination
will occur from contact with plutonium that escapes a
nuclear fuel plant. Just as the risk incident to dynamite
is accidental explosion, a risk incident to plutonium is ac-
cidental contamination. The jury’s finding that Silkwood
did not intentionally carry the plutonium from the plant
to her apartment eliminated the only possible intervening
cause for which any evidence was presented.
Since strict liability applies and the stipulated amount
of the pronerty damage was $5,000, claims of prejudicial
publicity and other alleged trial errors would have no ap-
plication to this property damage claim. While evidence
excluded by the trial court concerning the state of Silk-
wood’s health might be relevant to her personal injuries,
it does not seem relevant to the jury’s finding that she
did not deliberately remove the plutonium from the plant.
Therefore, we find no error in the judge’s direction to the
jury to return in its verdict $5,000 in damages for the
personal property if it found no intentional taking of the
plutonium by Silkwood.
III. Punitive Damages
Kerr-McGee makes several argument that the award
of punitive damages is improper. We need consider only
one, the claim of federal preemption.
As discussed above, the Price-Anderson Act contem-
plates that state tort law applies in at least some cases
involving nuclear incidents; we have found that a claim
for compensatory damages for off-site contamination caused
by the escape of plutonium is one such situation. Nowhere
in the Price-Anderson Act or its legislative history have
22a
(APPENDIX)
we found express mention of punitive damages. Refer-
ences in the Price-Anderson Act that state law may deter-
mine tort liability may be read to permit punitive as well
as compensatory damages in states like Oklahoma which
permit them. However, with respect to “extraordinary
nuclear occurrence” which are covered by statutory insur-
ance, indemnity fund, and liability limitations, the Price-
Anderson Act implicitly assumes that only compensatory
damages will be awarded. See also Duke Power Co. v.
Carolina Environmental Study Group, 438 U.S. 59, 93, 98
S.Ct. 2620, 2640, 57 L.Ed.2d 595 (1978), (“The Price-Ander-
son Act not only provides a reasonable, prompt, and equi-
table mechanism for compensating victims of a catastrophic
nuclear incident, it also guarantees a level of net campen-
sation generally exceeding that recoverable in private liti-
gation.”) (Emphasis added.)
More importantly, punitive damages are “awarded
against a person to punish him for his outrageous con-
duct and to deter him and others like him from similar
conduct in the future.” Restaten.ent (Second) of Torts,
§ 908(1) (1979). See also City of Newport v. Fact Concerts,
Inc., _.. U.S. .—., 101 S.Ct. 2748, 2759, 69 L.Ed.2d 616
(June 26, 1981). Thus there is a deterrent or regulatory
effect in punitive damages, which the trial judge explicitly
recognized in the instant case. In jury instruction number
19 the court directed the jury that it “may give damages
for the sake of example and by way of punishment,” noting
that punitive damages are allowed “both as a restraint upon
the transgressor and as a warning and example to deter
the commission of like offenses in the future.” 485 F.Supp.
at 603. in denying Kerr-McGee’s motion for judgment
n.o.v., the court mentioned the substantial evidence of poor
training, poor security, and indifference to hazards. Id. at
591. The court’s general treatment of the punitive damages
issue clearly demonstrates its approval on the basis that
Kerr-McGee so negligently and indifferently operated the
plant that punitive damages were appropriate to punish
23a
(APPENDIX)
Kerr-McGee and to deter it and others from similar bad
practices in the future.
The problem with awarding punitive damages in this
case, however, is that Northern States read the Atomic
Energy Act of 1954, 42 U.S.C. §§ 2011-2284, particularly
section 2021, as preempting state regulation of radiation
hazards resulting from atomic energy development. The
Supreme Court accepted the Eighth Circuit’s conclusion
that “Congress intended to pre-empt the field of the li-
censing and regulation of nuclear reactors to the exclusion
of the states and . . . did not intend to provide for dual
regulation of radiation hazards, even as to those activities
which could be turned over to the states.” 447 F.2d at 1151.
Northern States traced the history of atomic energy de-
velopment in the United States from a government mon-
opoly through the congressional decision, effectuated in the
Atomic Energy Act of 1954 with its subsequent modifica-
tions and additions, to encourage private industry to par-
ticipate. Specifically, the decision held that Minnesota could
not impose state licensing requirements to regulate radi-
ation emissions from nuclear power plants in that state.
Other cases have recognized the strong federal inter-
est in atomic energy development. In Train v. Colorado
Public Interest Research Group, 426 U.S. 1, 17, 96 S.Ct.
1938, 1945, 48 L.Ed.2d 434 (1976), the Supreme Court
appears to have reaffirmed its memorandum holding in
Northern States by ruling that the Atomic Energy Com-
mission (now NRC) has exclusive control over the dis-
charge of nuclear materials. In United States v. City of
New York, 463 F.Supp. 604 (S.D.N.Y. 1978), the court
found that federal preemption precluded New York City
from licensing nuclear reactors in the city. Although re-
cently the Ninth Circuit upheld California’s statutes re-
quiring state approval of proposed nuclear plants and their
locations within California, it recognized Congress’s intent
to assert exclusive federal control over radiation hazards
associated with nuclear energy. Pacific Legal Foundation v.
. 24a
[APPEND!IX)
State Energy Resources Conservation and Dev. Comm'n,
Nos. 79-3365, 79-3382, 80-4265 & 80-4273 (9th Cir. Oct. 7,
1971).
Arguably there should be a strong presumption against
preemption of state laws affecting such vital interests of
its citizens as those involved in the instant case. How-
ever, the nuclear industry was initially developed by the
federal government, is closely linked with national secur-
ity, and is extensively regulated by a federal agency. This
apparently is the basis upon which Northern States was
decided. See Note, A Framework of Preemption Analysis,
88 Yale L.J. 363, 379-81 (1978). We cannot read that case
and Train other than as requiring us to hold invalid any
state action that competes substantially with the AEC
(NRC) in its regulation of radiation hazards associated
with plants handling nuclear material. A judicial award
of exemplary damages under state law as punishment for
bad practices or to deter future practices involving ex-
posure to radiation is no less intrusive than direct legis-
lative acts of the state. Thus we hold punitive damages
may not be awarded in this case.
It does not matter whether Kerr-McGee violated AEC
regulations in the conduct of its plant operations. The AEC
(NRC) has comprehensive powers to punish and prohibit
practices it regards as improper, through its power and
responsibility to license, 42 U.S.C. § 2131, investigate, id.
§ 2271, enjoin, id. § 2280, and seek civil and criminal penal-
ties. Id. §§ 2272, 2273, 2282.
We need not consider other alleged errors asserted by
Kerr-McGee in its appeal. The decision is affirmed in part
and reversed in part and remanded to the district court
for further considerations consistent herewith.
25a
(APPENDIX)
WILLIAM E. DOYLE, Circuit Judge, dissenting.
I disagree with most, but not all, of the points which
are developed in the majority opinion. I disagree also with
the result reached. I have no disagreement with the affirm-
ance of the award of $5,000 to the estate of Karen Silk-
wood based upon destruction of her furniture and be-
longings.
I
Alleged Exclusiveness of the Remedy of
Workmen’s Compensation
From the fact that the statute presumes in favor of
the existence of a workmen's compensation remedy where
an employee is injured and makes a claim, the majority
opinion reaches the conclusion that this presumption is
also available to the Company where the employee has not
made a claim. No such suggestion is made in the statute.
Authority in support of this position is either meagre or
non-existent.
The first issue to be considered is whether the workers’
compensation remedy is exclusive as a matter of law under
the facts in the record. Kerr-McGee’s position is that the
evidence and the law call for liberal construction in favor
of coverage and that, therefore, the exclusive remedy was
that under workers’ compensation. The cases say that the
Act is not to be given a narrow, restricted meaning and
must receive broad and liberal interpretation in order to
realize its intent; reasonable doubt as to whether the in-
jury arose out of and in the course of employment is to be
resolved in favor of an injured workman. City of Nichols
Hille v. Hill, 534 P.2d 931, 934 (Ok11975); Murphy v.
26a
(APPENDIX)
Workers’ Compensation as an Issue of Fact
Alternatively, however, Kerr-McGee maintains that it
was entitled to have the workers’ compensation issue sub-
mitted to the jury. The argument is that the trial court
erred in refusing to instruct the jury on the subject of
workers’ compensation inasmuch as Oklahoma law pro-
vides for jury determination of the coverage question where
the evidence is conflicting. The Oklahoma courts have held
that, in a common law tort action where the worker’s com-
pensation defense is raised, the jury must be instructed on
the defense unless as a matter of law only one inference
can be drawn from the evidence: “where there is room
for a reasonable difference of opinion as to the proper in-
ference to be drawn from the known facts, the issue [of
worker’s compensation] is for the jury under proper in-
structions by the court.” Flick v. Crouch, 434 P.2d 256
(Okl. 1967).
Oklahoma considers the question as one of fact for
the jury where a question exists as to whether the injury
occurred on the job or, on the other hand, away from the
job.
Analysis of the Evidence
Three incidents in which Silkwood was shown to have
had plutonium contamination are established by the evi-
27a
[APPENDIX)
work in two glove boxes which contained plutonium. A
glove box is a supposedly impervious box surrounding the
plutonium processing equipment which has glove holes al-
lowing the operator to work on the equipment with the,
plutonium from outside the box. When Silkwood moni-
tored herself at 5:30 p.m. and 5:45 p.m., no contamination
was detected. She continued to work in the glove boxes
and upon withdrawing her hands from one of the boxes
about 6:30 p.m. she did find contamination. Further checks
were made in the laboratory and other contaminations
were found, particularly inside the gloves and the glove
box in which she had been working, polishing and con-
taining plutonium. The contamination was found on Silk-
wood’s left hand, right wrist, upper arm, neck, face, hair
and in her nostrils. She was immediately decontaminated
and placed on a five day voiding collection program, and
was furnished with urine and fecal kits to take home for
the purpose of obtaining samples which were to be sent
to the United States Testing Laboratory for analysis. She
monitored herself at 1:10 a.m. and found no contamination.
The glove box was later tested by AEC investigators and
no leaks were found. The investigators found no signifi-
cant airborne contamination in the laboratory.
The second of the three incidents occurred on Novem-
ber 6, 1974. Silkwood arrived at work that day at 7:50
28a
{APPENDIX)
incident raises a question because she had not been work-
ing with plutonium on the 6th of November at all. She
had been restricted to paperwork in the lab prior to going
to the union meeting. When she was monitored, the tests
showed that she was contaminated, but she apparently had
no exposure within the plant which would have produced
contamination. The logical inference is that this contami-
nation occurred away from the plant.
The third incident of contamination occurred the next
day, November 7th, 1974. This apparently occurred away
from work, Silkwood went directly to the plant’s health
and physical office when she reported to work. There she
was found to be contaminated in her nostrils and on her
hands, her arms, chest, back, neck and right ear. Four
urine samples and one fecal sample collected on or after
November 4th were found to be contaminated, although the
exterior of the kits showed no contamination. It was stipu-
lated by the parties that urine samples brought to the
plant had been spiked with plutonium, that is, they con-
tained insoluble, non-naturally excreted plutonium. Here
again the positive evidence was that the exposure occurred
in her apartment.
It was after this that Silkwood’s apartment was found
to have been contaminated. The highest concentration of
plutonium were found in the bathroom and on a package
of bologna and cheese in the refrigerator. It could be in-
ferred that the contamination from the first incident oc-
29a
[APPENDIX)
The third contamination incident obviously occurred
away frcm the plant and presumably at her home because
she went directly to the physical health office when she
reported for werk and was found to be contaminated in
her nostrils, on her hands, arms, chest, back, neck and
right ear. This was the day, too, that she presented urine
samples spiked with plutonium.
The majority opinion concludes that the inference to
be drawn is that all of the plutonium contamination oc-
curred at the plant. This, however, ignores the fact that
there is substantial evidence showing that contamination
occurred off the premises, in her apartment, and indeed
this evidence jibes with the evidence that the apartment
itself was substantially contaminated.
A good deal of evidence was offered which was de-
signed to show that Kerr-McGee had a motive for inten-
tionally exposing her to contamination. She was not pop-
ular in the plant among the loyal employees. This was
due to the work that she was shown to have been engaged
in, her evidence gathering activities, and her efforts to show
that plutonium was escaping from the plant.
Following Silkwood’s death, the autopsy revealed that
the amount of plutonium within her body at the time of
her death was between 25% and 50% of the permissible
lifetime body burden allowed by the AEC for plutonium
workers. From her body condition and from the contami-
nation that was found in her apartment, together with the
evidence of her personal contamination, the logical infer-
ence is that the contamination took place outside the plant.
Defendants’ theory of the case was, of course, that all
of the contamination originated on the premises of the
company. On the other hand, the plaintiff's theory of the
case was that all exposure originated in Silkwood'’s apart-
ment. The evidence is susceptible to either conclusion. In
the face of such conflicting evidence, the question should
go to the jury (as Kerr-McGee has requested alterna-
30a
(APPENDIX)
tively). It was error for the majority to ignore the dis-
puted facts and to hold that all the inferences favored the
conclusion that contamination had been suffered on the
premises of Kerr-McGee. Submission to a jury of twelve
would have been the fair and conclusive way to solve this
conflict.
II
Allowance of Property Damages
In allowing the award of property damages to the
plaintiffs, the majority distinguishes between personal in-
jury, which it holds to be subject to workers’ compensa-
tion, and property damage, which is not so recoverable.
Kerr-McGee argues, however, that its substantial compli-
ance with preemptive federa! regulations is conclusive evi-
dence of due care and precludes recovery under a strict
liability standard applicable to a private civil action. The
fact that the federal government did not find fault on Kerr-
McGee's part does not provide full and pervasive immunity.
The $5,000 property damage award, is not regarded by
the majority as a remedy which would significantly inter-
fere with federal reguiations of Kerr-McGee’s plant. I
agree.
Furthermore, the majority says ti.at the AEC has not
been authorized to provide compensatory award for prop-
erty or other losses to a victim of a nuclear injury unless
the injury falls within the Price-Anderson Act, which is
intended to compensate victims of a widespread nuclear
catastrophe. In further discussion, the majority notes that
the Supreme Court, and Congress also, have recognized
that state tort law principles continue to be applicable to
some extent in off-site damage cases. In Duke Power Co. v.
Carolina Environmental Study Group, Inc., 438 U.S. 59, 98
S.Ct. 2620, 57 L.Ed.2d 595 (1978), the Supreme Court noted
that the right to utilize common-law remedies “at least
with regard to nuclear accidents was replaced by the com-
3la
(APPENDIX)
pensation mechanism of the statute.” 438 U.S. at 88, n.33,
98 S.Ct. at 2638 n.33. This statement clearly implies that
such remedies remain intact in cases which do not involve
a nuclear accident.
In enacting the Price-Anderson Act, 71 Stat. 576 (1957),
42 U.S.C., Congress sought to address the problem likely
to result from nuclear disasters which might deter the in-
dustrial development of nuclear energy. The Act requires
nuclear energy companies to take out insurance in order
to protect against these extraordinary nuclear occurrences.
In respect to nucle’ incidents below the level of the extra-
ordinary cases, i.e., cases like the present controversy which
is conceded to be a lesser incident, private tort actions
arising under state common law are to be used. Indeed,
the congressional commentary expresses this interest.
The majority also concedes that strict liability is a
theory which is to be pursued in this area, and that Okla-
homa would apply strict liability to the escape of pluton-
ium, a highly toxic and dangerous substance. Young vy.
Darter, 363 P.2d 829 (Okl. 1961) (herbicide spray); Kirk-
land v. General Motors Corp., 521 P.2d 1353 (Okl. 1974).
Thus, the majority recognizes that nuclear energy is an
area in which no court is likely to refuse to recognize the
applicability of strict liability. Restatement of Torts, Sec-
ond, § 520, Comment g (1977). The very essence of lia-
bility without fault is, of course, the carrying on of ultra-
hazardous activity, that which exposes to an abnormal risk.
In conducting this kind of activity, it is foreseeable. that
serious injury will occur irrespective of fault. The risk is
of such great magnitude that the activity is ultrahazardous,
such that the person carrying on the activity is liable re-
gardless of fault.
This then was the rationale of the majority for affirm-
ing the award of $5,000 property damages. As noted at the
outset, we do nct dispute this conclusion.
32a
(APPENDIX)
The jury also found that Silkwood did not intention-
ally or wilfully remove plutonium from the plant. All of
the plutonium was conceded to have originated on the
Kerr-McGee premises.
Ill
Does the Atomic Energy Act of 1954 Impliedly
Preempt That Part of the State Remedy
Which Authorizes Punitive Damages?
It is recognized in the majority opinion that nowhere
in the Price-Anderson Act is there any mention of puni-
tive damages. It is admitted, however, that mention in
the Price-Anderson Act that state law may determine tort
liability is susceptible to being read to permit punitive
as well as compensatory damages in states like Oklahoma
which permit them. The opinion considers important the
fact that with regard to extraordinary nuclear occurrences
(governed by Price-Anderson), provision is made for com-
pensatory damages only. But we are not here dealing with
that kind of a catastrophe nor with the Price-Anderson
Act. Hence, the silence of the Price-Anderson Act is not
probative. The question here is whether the Atomic En-
ergy Act, 42 U.S.C. § 2011, et seq., as construed in Northern
States Power Co. v. Minnesota, 447 F.2d 1143 (8th Cir.
1971), aff'd, Mem., 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d
576 (1972), impliedly preempts part of the Oklahoma com-
mon law remedy.
The state was precluded as a result of the decision in
Northern States Power Co. from undertaking the scheme
of regulation of atomic energy which was then being car-
ried out by the N.R.C. pursuant to the Atomic Energy Act.
It is one thing to preempt the area which the federal
government has undertaken to license and regulate; it is
another for a court to read into the Act an intent to pre-
empt a form of damages which would otherwise be a part
of an isolated private lawsuit. This conclusion is particu-
33a
(APPENDIX)
larly apt where no evidence exists either on the face of the
Act or ctherwise of an implied purpose to so preempt by
the Congress.' Indeed, the fact that private lawsuits are
tolerated without any limitations argues against the ma-
jority position.
The general approach to preemption of state authority
is shown in Constitutional Law Cases and Materials by
Professor Gerald Gunther, athed. (1975). Professor Gun-
ther states:
When Congress exercises a granted power the federal
legislation may displace state law under the suprem-
acy clause of Article VI. But Congress does not typic-
ally act on a wholesale basis, and congressional entry
into a field does not necessarily end all state author-
ity. (emphasis added). Id. at 357.
What the author is saying is that preemption is not readily
implied. Hart and Wechsler, The Federal Courts and the
Federal System, 2nd. ed. (1973) is cited as being in accord
with this position. The authors state at pp. 470-471:
Federal law is generally interstitial in nature. It
rarely occupies a legal field completely * * *. Fed-
eral legislation, on the whole, has been conceived
and drafted on an ad hoc basis to accomplish limited
objectives. It builds upon legal relationships estab-
lished by the states, altering or supplanting them
only so far as necessary for the special purpose. Con-
gress acts, in short, against the background of the
total corpus juris of the states in much the way that
a state legislature acts against the background of the
common law, assumed to govern unless changed by
legislation.
1 The fact that Congress has expressly excepted the private tort action
without restriction argues against any implied intent to preempt a part
of such action.
34a
[APPENDIX)
Professor Gunther points out that the problem is one
of statutory interpretation. He further states that:
[S]tate regulation falls not because of the commerce
clause but because, under the supremacy clause of
Art. VI, the “supreme” congressional law supersedes
state law. Constitutional Law at 357.
He goes on to say that:
[P]reemption occurs not only when there is an out-
right conflict between the federal scheme and the
state requirement. State authority is barred as well
when congressional action is an implicit barrier:
when state regulation would interfere unduly with
the accomplishment of congressional objectives. De-
termination of congressional requirements and pur-
poses must start of course with the congressional stat-
ute itself, and the cases accordingly require particu-
larized examination of the specific regulatory scheme.
Id.
In this case, unlike the other preemption cases, there are
no competing regulatory schemes.
There is a shortage of case authority which even con-
siders the issue as to whether a civil action or some phase
of it (as in this case) is subject to preemption under Ar-
ticle VI of the Constitution. Our search has uncovered
a few decisions which have involved state suits. None of
these have accepted preemption as being the dispositive
formula.
2 Bramer V. United States, 595 F.2d 1141 (9thCir. 1979), a tort claims
action by a serviceman for a radiation related injury. The Ninth Cir-
cuit found that preemption was not an issue except where Congress
Ont exguanly <2 ingiy get’ See de aqua of Gaal Gen
Id. at 1144, 0.7.
Rogers v. Ray Gardner Flying Service, Inc., 435 F.2d 1389 (Sth Cir.
1970), cert. denied, 401 US. 1010, 91 S.Ct. 1255, 28 LEd2d 546
35a
(APPENDIX)
The Eighth Circuit’s opinion in Northern States Power
Co. (affirmed by the Supreme Court) is a very sound
opinion. By showing how the doctrine of preemption op-
erates, it provides a contrast to this case and shows the
inadequacy of the preemption showing here.
The Supreme Court’s decision in Florida Lime end
Avocado Gorwers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210,
10 L.Ed.2d 248 (1963) has some relevance in that it shows
2 (Continued )
_ (1971), was a wrongful death action arising out of a private airplane
crash in Oklahoma. The Fifth Circuit ruled that a Federal Aviation
Act agency provision did not preempt an Oklahoma bailment law.
Congress held not to have expressly preempted the field; tort law said
to have been historically left to the states. Id. at 1393-94. Oklahoma
law found to preclude liability (on other grounds).
In Smith v. Cessna Aircraft Corp., 428 FSupp. 1285 (N.D.11L1977)
no preemption by federal law of state law in a plane crash case. Illi-
nois had held that federal contribution laws preempted state law in a
major aircrash case because of “the predominant, indeed almost ex-
clusive, interest of the federal government in regulating affairs of the
nation’s airways.” The court recognized that there was considerable
congressional “opposition to interference with traditional state tort law.”
428 F.Supp. at 1287. It was concluded that the case presented no neces-
sity for preemption by federal law.
Southern Pacific Transportation Co. Vv. United States, 462 F Supp.
1193 (E.D.Cal.1978), a railroad suit against the United States for
damages caused by a shipment of bombs. The railroad urged that state
law was preempted because of federal regulations pertaining to the
shipment of bulked goods on railroads. Held: no preemption, since
many ICC regulations cited by the railroad had little or nothing to do
with the accident. 462 FSupp. 1223-27.
Harper and Row Publishers, Inc. v. Nation Enterprises, 501 F Supp.
848 (S.D.N.Y.1980) was a copyright action. The court found there
that the plaintiff's state law claims were preempted by the federal
_ Copyright Act. The case is noteworthy because it emphasized the im-
portance of a specific express declaration of preemption by Congress.
36a
(APPENOIX)
reluctance to exercise preemption. There a California sta-
tute
barred avocados which did not meet the state’s mini-
mum oil content standard of maturity. Federal mar-
keting orders issued pursuant to the Agricultural
Adjustment Act gauged the maturity of Florida avo-
cados by standards other than oil content.
Thus, the state was seeking to regulate the same subject
matter which federal regulations addressed in seeking to
solve the same problem. Notwithstanding the conflict the
Supreme Court held:
that the supremacy clause did not prohibit California
from excluding Florida avocados certified as mature
under the federal regulations but which contained
less than the minimum California oil content.
The majority opinion concluded that there was not an
actual conflict between the two schemes of regulation and
that both could live, one with the other. It was said in
that case that there was no evidence of a congressional
design to preempt the field; that there was no physical
impossibility in complying with both standards. The ma-
turity of avocados seemed to be an inherently unlikely
candidate for exclusive federal regulation; the federal regu-
lation there in issue which set minimum standards for
agricultural commodities, even though comprehensive, did
not in and of itself show implied displacement of state
37a
(APPENDIX)
regulatory program and the California scheme as identical
in structure to the federal one. They said that the question
was purely an economic one.
Why is the Florida Lime and Avocado Growers case
helpful here? It shows the Supreme Court’s tendency to
refrain from declaring implied preemption whereby a state
law is displaced by a federal one.
All of the decided cases tend to reveal the inherent
weakness on the preemption question of the majority po-
sition. A holding that preemption is present here is a gross
infringement of state prerogatives as well as the rights of
individual citizens.
* o > o
In the case before us, neither express preemption nor
implied preemption is appropriate. Nor does the fact situ-
ation as a whole suggest applicability of the preemption
doctrine. The simple reason is that it is not needed and
would be superfluous.
IV
The Lack of Authoritative Cases in Support of
Preemption as Here Presented
The majority seeks to support its preemption of puni-
tive damages position with the decision in Northern States
Power Co. v. Minnesota, 447 F.2d 1143 (8thCir.), aff'd
mem. 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972).
It also cites Train v. Colorado Public Interest Research
Group, Inc., 426 U.S. 1, 96 S.Ct. 1938, 48 L.Ed.2d 434 (1976),
but does not emphasize that case. The majority opinion
states that: “Imposing a state tort law rule of strict lia-
bility for nuclear-related property damage * * * might in
some instances encroach upon federal regulations setting
effluent or other standards.” Thus, it “might” encroach
in some instances.
The above does not say that it does encroach. It merely
speaks of possible encroachment; the majority does not say
38a
(APPENDIX)
that encroachment is present. The majority concludes that
imposition of tort liability in this case will significantly
interfere with federal regulation. This latter conclusion
suggests that preemption is to be decided on a case to case
basis. Clearly it is not. The federal government has either
preempted or it has not.
So far the majority is speaking of tort liability. It
now turns to exemplary damages.
From the Northern States holding that the field of li-
censing and regulation has been preempted, it is contended
that exemplary damages, due to their punishment aspect,
cannot be awarded. But a tort action is a far cry from
a regulatory system. The fact that Minnesota is precluded
from this governmental activity falls short of dictating that
exemplary damages have to be barred.
If a tort action does not interfere, the award of ex-
emplary damages cannot impede federal government regu-
lation. After all, the award of a large amount of actual
damages can be equally punishing. It is the money which
causes the suffering, not the designation.
The Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2284,
preempts the field of nuclear licensing and regulation. But
until now, no effort has been made to abolish damages in
a private civil action. No collision exists nor is one pos-
sible between the simple state law inspired tort action and
the federa) government. To say that preemption prevents
the imposition cf exemplary damages in connection with
a civil judgment carries the preemption concept far beyond
anything that could have been intended or could ever be
implied. The decision in the Northern States case was, as
conceded by the majority, that Minnesota could not impose
state licensing and regulation on Minnesota power plants
in the face of a similar federal regulation scheme. This is
unquestioned preemption.
Also in Northern States, it was made clear from a
study of the congressional history that the intent of the
39a
[APPENDIX)
Act was to pree:npt regulatory licensing authority. It was
the licensing and regulation of more dangerous activities
which was preempted by the federal government. The
Joint Report of the Congress declared that it was intended
to leave no room for the exercise of dual or current juris-
diction by states to control radiation hazards by regulating
by-product source or special nuclear materials. 447 F.2d
at 1151.
The intent is to have the material regulated and li-
censed either by the Commission, or by the state and
local governments, but not by both. The bill is in-
tended to encourage states to increase their know]l-
edge and capacities and to enter into agreements to
assume regulatory responsibilities over such materials.
Thus, it was special hazards which the federal govern-
ment retained for its responsibility. These included the
construction and operation of production utilization facili-
ties, including reactors. It was pointed out that:
Subsection k provides that nothing in the new section
274 shall be construed to affect the authority of any
state or local agency to regulate activities for pur-
poses other than protection against radiation hazards.
This subsection is intended to make it clear that the
bill does not impair the state authority to regulate
activities of AEC licensees for the manifold health,
safety and economic purposes other than radiation
protection. As indicated elsewhere, the Commission
has exclusive authority to regulate for protection
against radiation hazards until such time as the state
enters into an agreement with the Commission to
assume such responsibility.
The analysis by the Northern court brings out the
concern of the Congress as to possible dual federal-state
control, a concern which could not exist here.
o > o eo
In closing, I have some views regarding the large
amount of the exemplary damages awarded by the jury.
| 40a
[APPEND1X)
However, there is no need to consider this problem here
at this time since the amount of reductiou is not an issue.
At the present writing, at least, the cause appears to be
a lost one.
Finally, it is helpful to review some of the governing
criteria. These are summarized by the Supreme Court in
Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581
(1941). The state law there at issue required that certain
aliens register as such and carry a card. The Supreme
Court held that the subject of registration of aliens, be-
cause of its national and international nature, was pre-
empted by the national government and that the power of
the state was not concurrent.
The Court said in speaking of a formula:
There is not — and from the very nature cf the prob-
lem there cannot be—any rigid formula or rule
which can be used as a universal pattern to deter-
mine the meaning and purpose of every act of Con-
gress. This court * * * has made use of the follow-
ing expressions: conflicting; contrary to; occupying
the field; repugnance; difference; irreconcilability; in-
consistency; violation; curtailment; and interference.
* * * * In the final analysis, there can be no one
crystal clear distinctly marked formula. Our primary
function is to determine whether, under the circum-
stances * * * * Pennsylvania’s law stands as an ob-
stacle to the accomplishment and execution of the
full purposes and objectives of Congress. Id. at 67,
61 S.Ct. 404.
Applying the Supreme Court's test in Hines, the con-
clusion would certainly be the preemption does not apply
in this case, nor do any of the other suggested expressions
of Justice Black apply to our problem.
We conclude that there is no justification whatsoever
based on precedent, history, policy or reason which justifies
a holding that preemption applies to the present problem.
4la
(APPENDIX)
NOVEMBER TERM — February 19, 1982
Before Honorable Oliver Seth, Honorable Robert H. Mc-
Williams, Honorable James E. Barrett, Honorable William
E. Doyle, Honorable Monroe G. McKay, Honorable James
K. Logan, and Honorable Stephanie K. Seymour, Circuit
Judges.
BILL M. SILKWOOD, Administrator of
the Estate of Karen G. Silkwood,
deceased,
Plaintiff-Appellee,
Vv.
THE KERR-McGEE CORPORATION,
a Delaware corporation, and KERR-
McGEE NUCLEAR CORPORATION,
a Delaware corporation,
Defendants-Appellants.
This matter comes on for consideration of appellee’s
petition for rehearing and suggestion for rehearing in banc
in the captioned cause.
Upon consideration whereof, the petition for rehearing
is denied by the panel to whom the case was argued and
submitted. Judge Doyle voted to grant rehearing.
The petition for rehearing having been denied by the
panel to whom the case was argued and submitted, and
the Court having been polled on the suggestion for rehear-
ing in banc, Rule 35, Federal Rules of Appellate Proced-
ure, rehearing en banc is denied. Circuit Judges Barrett
and Doyle voted to grant rehearing en banc. Circuit Judge
Holloway is recused, and took no part in this matter.
(s) Howard K. Phillips
HOWARD K. PHILLIPS, Clerk
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