Amicus Brief — Silkwood v. Kerr-McGee Corp.

No. 81-2159

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

BILL M. SILKWOOD, Administrator of the

Estate of KAREN G. SILKWOOD, Deceased,

Appellant,

Vv.

KERR-MCGEE CORPORATION and KERR-McGEE

NUCLEAR CORPORATION,

Appellee.

ON APPEAL FRO: THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

MOTION FOR LEAVE TO FILE

AND

_ BRIEF OF THE NATIONAL WOMEN'S

HEALTH NETWORK AS AMICUS CURIAE

ANTHONY Z. ROISMAN

Trial Lawyers for

Public Justice

2000 P Street, N. u.

Suite 611

Washington, D.C. 20036

(202) 463-8600

Attorney for

Amicus Curiae

April 27, 1983

QUESTION PRESENTED

Whether the federal Atomic Energy

Act preempts the application of a state

punitive damages law, which punishes

people who recklessly inflict injury on

others, where the injury was caused by

the release of plutonium from a federally

regulated nuclear facility.

(i)

TABLE OF CONTENTS

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TABLE OF AUTHORITIEᷣVti . Iv

MOTION FOR LEAVE TO FILE A BRIEF

AMICUS CURIAE rere TTT TT TTTTiTTTT Te

INTEREST OF AMICUS CURA E. ꝝ.. viii

BRIEF OF AMICUS CURIAE TOoTeTTTTTTTrTrre, |

INTEREST OF AMICUS CURIAE E.. 1

STATEMENT OF THE ass. 82

SUMMARY OF THE ARGUMENT ......-ee+ee02009

ARGUMENT ee eee een eee once

THE OKLAHOMA PUNITIVE DAMAGES

STATUTE NEITHER CONFLICTS WITH

THE ATOMIC ENERGY ACT NOR HAS

CONGRESS EXPRESSED AN INTENT

THAT IT BE PREEMPTED BY THE ACT .....8

A. Zhe Oklahoma Punitive

— i, ere T TT TT

(ii)

B. The Oklahoma Punitive

Damages Statute Does

Not Satisfy The Pre-

requisites For preempt ton

Based On This Court

Preemption Analysis ere

CONCLUSION eee eee ee eee e eee see eee

(iii)

TABLE OF AUTHORITIES

Page

Cases:

Cox v. Theus, 569 P.2d 447 (Okla.

N 266040006 eee

Dayton Hudson Corp. v. Amer. Mutual

Liab. Ins. Co., 621 P.

TOkla. 1980) OTT eee eee eee eee e een

Duke Power v. Carolina Environmental

Study Group, 438 U.S. 59 (1978) ....21

Fidelity Federal Sav. & Loan Ass'n.

v. De La Cuesta, 102 S.Ct.

eee eee eee eee

Florida Lime and Avocado Growers v.

Paul, 373 U.S. 132 (1963) 9 0 0 0 000, 0

Hines v. Davidowitz, 312 U.S. 52

(1941) LOTT PF rr TTT Tr TTT TT

Jones v. Rath Packing Co., 430 U.S.

519 (1977) NOO66 66606 60606600000000808R

Merrill Lynch, Pierce, Fenner and

755 nc. V.

eee eee eee eee eee ee eee eee een

r Co. v.

’ . 3 (8th Cir.

*d mem., 405 U.S. 1035

(1972) bO666666 66+ 000000000000000000088

24887 Hicks, 441 b. 24 356 (Okla.

)

666666666666 b00000 00000 eee eee

(iv)

Pacific Gas and Elec. v. Ener Res.

Comm NR., No. 81-1945, slip op. (April

20, 1983) . 14,18,19, 22,24, 25

Rice v. Santa Fe Elevator Corp., 331

U.S. 218 (1947) ee ee eee eee eee ee eee

San 6 719 Unions v. Garmon, 359 U.S.

( „ h „ „ „„ „ „ *eree „ „ „ „ 56060

Silkwood v. Kerr-McGee, 485 F.Supp.

W. D. Okla. 1979) „ „ „ „„ „„ eee 2,3

Silkwood v. Kerr-McGee, 667 F.2d 908

(10th Cir. 1981) 5 6 00 0% %% 0000000090

Walton v. Bennett, 376 P. 2d 240

(Okla. 1962) Sees eee eee

Statutes:

Atomic Energy Act:

U.S.C. § 2013(b) 9 6 % % % %jãũẽ• eee eee

42 U.S.C. 8 2021 (0) eee Fs

U.S.C. 8 2021 (K) e eee eee ee eee

42 98. 8 2210 6 6 6 0 0% % %% %%% %%% %%%

42 U.S.C. § 2282 very rrTrTTrTrTTTTr..

Clean Water Act Amendments of 1977:

42 U.S.C. § 7422 (Supp. III 1979)...24

Oklahoma Statute:

23 Okla. Stat. § 9 (19717 4

(v)

Other:

10 c. r. R. § 20 (1962²ꝗ7ĩ 2 ũꝗ/: 4

H.R. Rep. No. 2043, 89th Cong., 2d Sess.

ll (1966) eeeeveeaeres ee eee . „ „„ „„ „„ „ „„ „„ 21

S. Rep. No. 870, 86th Cong., Ist

Sess. 12 (1959) eee e eee

(vi)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

No. 81-2159

BILL M. SILKWOOD, Administrator of the

Estate of KAREN G. SILKWOOD, Deceased,

Appellant,

Vv.

KERR-MCGEE CORPORATION and KERR-McGEE

NUCLEAR CORPORATION,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

. MOTION FOR LEAVE TO FILE

BRIEF OF THE NATIONAL WOMEN'S

HEALTH NETWORK AS AMICUS CURIAE

The National Women's Health Network

hereby moves this Court for leave to file

the accompanying brief amicus curiae

urging the Court to reverse the decision

below. It is the position of amicus that

(vii)

the Oklahoma punitive damages law seeks

to deter tortious conduct committed with

malice, oppression or fraud and is thus

not preempted by the Atomic Energy Act,

which regulates the use of nuclear

materials unrelated to tortious conduct

or the state of mind of the regulated

user.

INTEREST OF AMICUS CURIAE

The National Women's Health Network

(NWHN ) is a non-profit organization,

formed in 1975, and serves as the only

national public interest organization

devoted exclusively to women and health.

Its objectives include changing the

structure and character of our health

care system to better meet the needs of

consumers and health care workers, and

addressing the abuses and inadequacies of

(viii)

the present system. NWHN's 12,000

individual and 300 group members repre-

sent a constituency of almost half a

million people.

NWHN is a broad-based women's health

care organization whose interests will be

affected by the disposition of the

present proceeding. NWHN has a signifi-

cant interest in ensuring that its

members and the society at large are not

harmed intentionally, maliciously or with

reckless disregard for their well being

by anyone, whether that person is

fedérally regulated or not.

Nunn, in its attempt to effectuate

its goala, finds it desirable, and often

necessary, to take positions on either

legislation or judicial decisions that

have a significant effect on women's

health. WWHN believes thet the Court of

(ix)

Appeals decision below, Silkwood v.

Kerr-McGee, 667 F.2d 908 (10th Cir. 1981)

has such an effect on women's health by

preventing a state from punishing those

whose harmful acts are committed with

malice or reckless disregard for the

safety of others and thus eliminating an

important deterrent to malicious or

reckless conduct. The mere existence of

federal regulation of an industry should

not by implication preempt state laws

which punish all persons, including a

regulated industry, where its reckless

actions cause significant harm.

NAWN supports Appellant's position

that the Atomic Energy Act does not

preempt the Oklahoma punitive damages

statute. The two laws were not intended

to control the seme activity, and do not

conflict in their aprlication. NHW urges

this Court to reverse the Court of

Appeals decision and reinstate the

punitive damages awarded by the jury and

approved by the District Court.

NWHN has sought the consent of the

parties to the filing of this brief, but

was only able to secure permission of

Appellant.

Respectfully submitted,

ANTHONY Z. ROISMAN

Trial Lawyers for

Public Justice

2000 P Street, N.W.

Suite 611

Washington, D.C. 20036

(202) 463-8600

Attorney for

Amicus Curiae

April 27, 1983

(xi )

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

No. 81-2159

BILL M. SILKWOOD, Administrator of the

Estate of KAREN G. SILKWOOD, Deceased,

Appellant,

Vv.

KERR-MCGEE CORPORATION and KERR-McCGEE

NUCLEAR CORPORATION,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

BRIEF OF THE NATIONAL WOMEN'S

HEALTH NETWORK AS AMICUS CURIAE

INTEREST OF AMICUS CURIAE

The interest of amicus is set out in

the accompanying motion for leave to file

this brief amicus curiee.

2

STATEMENT OF THE CASE

The representative of the estate of

Karen Silkwood brought this tort action

for injury suffered by Karen Silkwood, a

worker at defendant's federally-regulated

nuclear facility. as a result of her

exposure to radiation from plutonium

found in her apartment. The jury in this

diversity suit found defendant's conduct

reckless, and awarded in addition to

$505 thousand actual damages for personal

and property injuries, $10 million in

punitive damages. The District Court

upheld the actual and punitive damages

1 fhe word *reckless" as used throughout

this brief encompasses the concepts of

wanton disregard of another's rights or

such gross negligence that malice or evil

intent will be inferred, as provided by

jury instruction No. 19 at trial.

80 7 Ob Toe, at F.Supp. 566,

3

awards. Silkwood v. Kerr-McGee Corp., 485

F. Supp. at 590-91. Chief Judge Theis

rejected the claim that the federal

preemption doctrine precluded award of

common law tort remedies for injuries

caused by exposure to radiation.

Defendant appealed, claiming inter

alia, that the Federal Atomic Energy Act,

which established a federal mechanism for

developing, utilizing and controlling

atomic energy, preempts the Oklahoma

punitive damages statute. The District

Court decision was reversed in part by

the Tenth Circuit, with Judge Doyle dis-

senting.2 Silkwood v. Kerr-McGee, 667

2 The Court of Appeals also struck down the

$500 thousand personal injury award

holding that Karen Silkwood's injuries

were job related, thus invoking the sole

of worker's compensation.

. Kerr-McGee, 667 F.2d at 1

4

F.2d 908, 922-23 (10th Cir. 1981).

Rehearing, and rehearing en banc were

denied on February 19, 1982. Appellant's

Jurisdictional Statement was filed on May

20, 1982.

The Oklahoma statute allows punitive

damages “for the breach of an obligation

not arising from contract, where the

defendant has been guilty of oppression,

fraud or malice, actual or presu ned.

23 Okla. Stat. § 9 (1971).

The Atomic Energy Act regulates the

use of nuclear power by issuance of

licenses and permits, subject to parti-

cular regulations. The regulation of

relevance here controls the quantity of

plutonium which can be released from a

nuclear facility. 10 C. r. R. § 20 (1982).

The Atomic Energy Act also establishes a

5

system of federal insurance to provide

funds to persons who are injured as the

result of the operation of nuclear

facilities and who recover judgments

under state tort law. (Price-Anderson

Act (42 U.S.C. § 2210)).

SUMMARY OF THE ARGUMENT

Since 1954 when Congress enacted the

Atomic Energy Act, it has had occasion to

amend the statute and related statutes

several times. In the original Act, and

through many of these amendments,

Congress has re-emphasized that states

retain important rights even though the

exercise of these rights may “impact upon

the development of nuclear power. Only

recently, this court held that the

Congressional decision to preempt state

6

law expressed in the Atomic Energy Act

should be narrowly limited to those state

laws which have nuclear safety as their

purpose. In 1957, when Congress adopted

a federal system to provide insurance to

cover claims arising from public exposure

to radiation, it went out of its way to

preserve state common law and statutory

tort liability. Even when the courts

held that states could not directly and

more stringently regulate air emission of

radiation from nuclear plants, Congress

quickly amended the law to restore the

state's right.

It is against this strong history of

protecting traditional state interests

that this Court should now examine the

decision of the court below. That court

held that the Oklahoma statute allowing

7

punitive damages is preempted by the

Atomic Eneray Act. In effect, the court

concluded that a company which is

regulated by the Nuclear Regulatory

Commission, and which commits a tort in

such a manner that it constitutes

reckless disregard of the welfare of

others, is immune from imposition of

punitive damages for its conduct if it

happens to commit the tort by exposing

the plaintiff to radiation.

It is apparent that because the

Oklahoma law seeks to punish and deter a

tortfeasor's particular state of mind,

and the Atomic Energy Act seeks to

regulate the use of nuclear material to

protect the public health and safety,

that the two laws regulate entirely

different conduct, and do not conflict or

even compete with each other. For these

reasons, preemption is totally inappro-

priate.

ARGUMENT

THE OKLAHOMA PIJNITIVE DAMAGES

STATUTE NEITHER CONFLICTS WITH

THE ATOMIC ENERGY ACT NOR HAS

CONGRESS EXPRESSED AN INTENT

THAT IT BE PREEMPTED BY THE ACT.

A. The Oklahoma Punitive

Damages Statute And The

itoate Ener Act Do Not

Regulate The Same Conduct

A us reempt ion

Issue Is Not Presented.”

Preemption analysis is not appli-

cable in this case. As a matter of

common sense, there is not a basis for

_ embarking upon a preemption analysis

unless there are two laws, one federal

and one state, which regulate the same

conduct. Here, that is not the case.

9

In this case, the only federal law

at issue involves the regulation of the

emissior of plutonium from defendant's

nuclear power plant. The Nuclear

Regulatory Commission has adopted

regulations establishing the limits for

releases of plutonium by defendant and

others, and imposes punishment on those

who violate the regulation. The Oklahoma

statute punishes a defendant for commit-

ting a tort (irrespective of whether the

action does or does not comply with

federal regulations) with the state of

mind characterized as “oppressive,

fraudulent or malicious." In short, the

matter on which [Oklahoma] asserts the

‘

10

right to act" is not in any way regu-

lated by the federal government." Rice v.

Santa Fe Elevator Corp., 313 U.S. 218,

236 (1947).

An examination of the purposes of

the two statutes will further illustrate

the distinction between the activities

which the statutes regulate.

The regulatory purpose of the Atomic

Energy Act is to assure that nuclear

power is developed “to the maximum extent

consistent with the common defense and

security and with the health and safety

of the public.” 42 U.S.C. § 2013(b).

The purpose of the Oklahoma statute

is to punish, and -hereby deter, tort-

feasors for the reckless manner in which

they inflict harm on innocent people.

Dayton Hudson Corp. v. Amer. Mutual Liab.

Ins. Co., 621 P.2d 1155, 1158 (Okla.

1980); see also Oller v. Hicks, 441 P.2d

356, 360 (Okla. 1967); Cox v. Theus, 569

P. 2d 447 (Okla. 1977); Walton v. Bennett,

376 P. 2d 240, 243 (Okla. 1962). It is

the improper state of mind in the

commission of a tort which controls the

award of punitive damages. Dayton Hudson

Corp. v. Amer. Mutual Liab. Ins. Co., 621

P.2d at 1158-59.

In addition, the elements recuired

to establish a violation of the federal

and state statutes are quite different.

Under the federal statute, if a

licensee fails to comply with the NRC

regulations it is liable, regardless of

negligence or the licensee's state of

mind. 42 U.S.C. § 2282. In contrast,

under the Oklahoma statute, there is a

12

two step process. First, the court

determines whether defendant has wronged

plaintiff, and second, the court evalu-

ates whether punitive damages are

appropriate by examining the state of

mind of the defendant when committing the

tort. Cox v. Theus, 569 P.2d at 449-50.

In this case, not only did the jury have

to decide whether plutonium was an

ultrahazardous substance, whether it

originated in the Kerr-McGee facility,

and whether Karen Silkwood's property or

person were injured by it away from the

worksite (all of which were required to

establish that an actionable tort had

been committed), but in addition, the

jury had to decide whether Kerr-McGee's

conduct was oppressive, fraudulent or

malicious.

13

Because the federal and state

statutes regulate different conduct, as

evidenced by their entirely different

purposes and the different elements

required to establish a violation,

preemption is inappropriate in this case.

B. The Oklahoma Punitive

Dam 22 Does

Not Satis re-

r otettes Por * tion

Based On This a

Preemption Analysis.

Fundamental to preemption analysis

is an effort by courts to discern the

intent of Congress in enacting the

federal statute at issue. Because that

is often a difficult task, this Court has

taken great strides to avoid preemption

14

of state law whenever possible 3 In its

most recent decisions on preemption, this

Court emphasized the intent and purpose

of Congress in enacting federal legisla-

tion, and established minimum points of

contact between federal and state

Statutes which must exist before a

question of possible preemption arises.

Pacific Gas and Elec. v. Energy Res.

Comm'n., No. 81-1945, slip op. at 11

(April 20, 1983); Pidelity Federal Sav. “

Loan Ass'n. v. De La Cuesta, 102 S.Ct.

3014 (1982). In the present case, these

threshold points of contact do not exist.

; *

3 See Merrill Lynch, Pierce, Fenner **

Smith, Inc. v. Ware, 414 J. F. 117, 127

(1973); Florida Lime and Avocado Grovers

v. Paul, "

Diego ‘go Unions v. Garmon, 359 U.S. 238.

—

15

The most obvious contact point, and

the one where this Court has had no

problem finding preemption, is where the

intent of Congress, as expressed in the

language of the federal statute, forbids

state regulation of a certain type, or

expressly requires that federal regula-

tion be exclusive and the state statute

in fact attempts the prohibited regula-

tion. Jones v. Rath Packing Co., 430

U.S. 519, 525 (1977). It is clear that

| such express preemptive language is not

present in this case.

A second contact point exists when

the relationship between a federal and

state statute is such that compliance

with both is a physical impossibility.

Florida Lime & Avocado Growers, Inc. v.

Paul, 373 U.S. at 142-43. This contact

16

point does not exist between the federal

and state statutes at issue, because

Kerr-McGee can comply with federal

regulatory standards, and also avoid

reckless conduct.

A third contact point is present

when the state law “stands as an obstacle

to the accomplishment and execution of

the full purposes and objectives of

Congress." Hines v. Davidowitz, 312 U.S.

52, 67 (1941). This contact point is

missing in this case, because there is no

federal objective that the Oklahoma law

frustrates. As already noted, the

federal law establishes a program to

develop nuclear power consistent with the

defense of this country and the health

and safety of its citizens. The Oklahoma

law punishes those whose tortious conduct

17

may impact on the health and safety of

others, but only if those tortfeasors

have an improper state of mind.

The Court of Appeals, in a strained

attempt to apply this third contact point

to this case, asserted that the Oklahoma

law stands as an obstacle to the "full

purposes and objectives” of Congress in

the Atomic Energy Act. That alleged

obstacle does not exist.

First, the lower court created a new

test for preemption -- i.e. that federal

and state law “compete substantially”

and found such improper competition

between the laws at issue here. Even

assuming that “competing substantially”

was a proper preemption test, the

statutes at issue here do not meet it.

As previously stated, the two statutes

18

regulate totally different conduct, and

thus do not compete. The lower court's

analysis was in error.

Second, the lower court found that a

primary purpose of the Atomic Energy Act

was the promotion of nuclear power, and

thus any state statute which would tend

to hinder that purpose should be pre-

empted. In a recent decision, however,

this Court held that the Congressional

interest in promoting nuclear power is

neither single-minded nor sufficient in

itself to preempt state law. Pacific Gas

and Elec. v. Energy Res. Comm'n., No.

81-1945, slip op. (April 20, 1983). In

fact, unlike the present case, in Pacific

Gas and Elec., the California statute

directly halted all further nuclear power

development in California, and yet this

19

Court concluded “Congress has left

sufficient authority in the states to

allow the development of nuclear power to

be slowed or even stopped for economic

reasons." Pacific Gas and Elec. v.

Energy Res. Comm'n., No. 81-1945, slip

op. at 30 (April 20, 1983). Surely

Congress has left sufficient authority in

the states to punish those whose tortious

conduct is committed with reckless

disregard, and who happen to commit their

tort by the use of radiation.

The fourth contact point which, if

present, warrants a preemption analysis

is where "(t]he scheme of federal

regulation may be so pervasive as to make

reasonable the inference that Congress

left no room for the States to supplement

it,” or where Congress touched a field in

20

which the “federal interest is so

dominant that the federal system will be

assumed to preclude enforcement of state

laws on the same subject...." Rice v.

Sante Fe Elevator Corp., 331 U.S. at 230.

This contact point is lacking as

well in this case, because the statute is

far from a comprehensive federal regula-

tion of, and does not reflect a dominant

federal interest in, all aspects of

nuclear power. Quite the contrary.

Congress specifically preserved tradi-

tional state functions in a number of

areas.

(1) Congress left state common law

tort liability intact when it adopted the

21

Price-Anderson Act.4 42 U.S.C. § 2210,

which requires nuclear facilities to

carry insurance to pay damages for tort

liabilities arising under state law.

(2) The Act preserves all state laws

which regulate activity of nuclear

facilities “for purposes other than

protection against radiation hazards.”

42 U.S.C. § 2021(k). This Court made

this point clear in a recent decision

4 For torts such as the one involved here,

Congress intended that the tort should

"remain subject to the traditional rules

of tort law", H.R. Rep. No. 2043, 89th

Cong., 2d Sess. 11 (1966) -- i.e. to the

rules of tort that prevailed before

adoption of the Price-Anderson Act. In

Duke Power v. Carolina Environmental

Study Group, 438 0.8. 59 (1978) this

Court recognized that prior to enactment

of that Act, persons claiming radiation

injuries retained the right to

utilize their existing common law and

state law remedies to vindicate any

particular harm visited upon them from

whatever sources." Id. at 88-89 n.33.

22

which held that a state law which

regulates nuclear power plants for

economic reasons, a purpose “other than

protection against radiation hazards” is

not preempted. Pacific Gas and Elec. Co.

v. Energy Res. Comm'n.. No. 81-1945, slip

op. at 6-7.

(3) The legislative history of the

Act indicates that the Atomic Energy Act

was interim legislation, the first step

in the process of turning over extensive

regulatory responsibility to the states.°

5 The Senate Report accompanying the bill

contains a section-by-section analysis

that even gives an estimate as to how

long section 2021 should remain in effect

before new legislation would be needed.

The report explained:

The purpose ... also provides

for coordination of the

development of radiation

standards for the guidance of

Federal agencies and cooper-

ation with states, and recog-

23

8. Rep. No. 870, 86th Cong., lst Sess. 12

(1959).

(4) Congress created a scheme

whereby states could be delegated certain

regulatory functions of the Nuclear

Regulatory Commission when the governor

"certifies that the state has a program

for the control of radiation hazards" and

when the Commission finds “that the State

Program ie compatible with the Commis-

sion’s program for the regulation of such

materials.” 42 U.S.C. § 202100).

nizes that this is interim

legislation in that, as the

d Improve their capabil-

ities, additional legislation

may be needed, rhaps in

approximatel years.

asis .

8. Rep. No. 870, 86th Cong., lst Sess. 12

(1959).

24

(5) Congress empowered states to

impose regulations more stringent than

NRC regulations with respect to air

emissions of radioactivity in the Clean

Air Act Amendments of 1977. 42 U.S.C.

§ 7422 (Supp. III 1979). It is important

to note that in the only instance in

which a court in a final order ruled that

the Atomic Energy Act preempts a state

regulation controlling the level of

releases from a nuclear facility,®

6 wNorthern States Power Co. v. Winnesota,

" r. 1 , a .

mem., 405 U.S. 1035 (1972). Because this

Court merely affirmed without opinion the

Eighth Circuit's decision, it has not

endorsed the reasoning of the Court and

the decision has less precedential weight

than when this Court accords a full

review. Pacific Gas and Elec. v. frends

Res. Comm Nee No. 81-1945, slip op. a

N. *

2s

Congress explicitly overruled that

decision.

As this Court recently held in

Pacific Gas and Elec. Co. v. Energy Res.

Comm'n., No. 81-1945, slip op. (April 20,

1983), the scope of preemption under the

Atomic Energy Act is narrowly circunm-

scribed and does not sweep away great

areas of traditional state authority,

e.g., economic regulation of nuclear

utilities. The Atomic Energy Act does

not preempt any traditional state

functions absent explicit preemptive

language, even where the state functions

directly impact on nuclear facilities and

spring from a consideration of factors

uniquely nuclear.

26

Thus, when the facts of this case

are analyzed in light of the traditional

starting points for preemption analysis

established by this Court, no point of

contact is found between the Atomic

Energy Act and the Oklahoma punitive

damages statute. It was inappropriate

for the Court of Appeals to find pre-

emption.

CONCLUSION

Oklahoma, like many states, protects

its citizens from reckless infliction of

harm by the imposition of punitive

damages when such conduct causes injury.

Preventing harm through the application

of common law principles, including

punitive damages, is an important part of

what a state does. To deprive the state

27

of the availability of such vital

protection for the health and safety of

its citizens by operation of the pre-

emption doctrine, requires clear and

explicit legislative language or intent.

Neither are present here.

Nothing in the Oklahoma law does or

can interfere with the lawful and proper

regulation of the production and use of

nuclear material. The Court of Appeals

decision that this Oklahoma law is

impliedly preempted by federal statute

should be overruled.

April 27, 1983

28

Respectfully submitted,

ANTHONY Z. ROISMAN

Trial Lawyers for

P..blic Justice

2000 P Street, N.W.

Suite 611

Washington, D.C. 20036

(202) 463-8600

Attorney for Amicus Curiae

National Women's Health

Network

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