Appendix — Kerr-McGee Corp. v. Silkwood

85-9 46 Supreme Court, US.

No. bEC 3 1985

FILED

IN THE

GLERK

Supreme Court of the Un

OCTOBER TERM, 1985

KERR-MCGEE CORPORATION,

a Delaware Corporation, and

KERR-MCGEE NUCLEAR CORPORATION,

a Delaware Corporation,

Petitioners,

V.

BILL M. SILKWoopD, Administrator of the Estate of

Karen G. Silkwood, deceased,

Respondent.

APPENDICES TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ELLIOTT C. FENTON PETER J. NICKLES *

FENTON, FENTON, SMITH, WILLIAM P. SKINNER

RENEAU & MOON ELLIOTT SCHULDER

405 Midland Center SAMUEL M. FORSTEIN

Oklahoma City, OK 73102 Davin P. KING

(405) 235-4671 COVINGTON & BURLING

Tom J. MCDANIEL 1201 Pennsylvania Ave., N.W.

Kerr-McGee Center P.O. Box 7566

Oklahoma City, OK 78102 Washington, D.C. 20044

(405) 270-2847 (202) 662-6000

L. E. STRINGER

JOHN J. GRIFFIN, JR.

CROWE & DUNLEVY

1800 Mid-America Tower

20 North Broadway

Oklahoma City, OK 73102

(405) 235-7000

Attorneys for Petitioners

* Counsel of Record

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Appendix

Appendix

Appendix

Appendix

Appendix

TABLE OF CONTENTS

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APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 79-1894

BILL M. SILKWoop, ADMINISTRATOR OF THE

ESTATE OF KAREN G. SILKWOOD, DECEASED,

Plaintiff-A ppellee,

V.

KERR-MCGEE CORPORATION, a Delaware corporation,

and KERR-MCGEE NUCLEAR CORPORATION,

a Delaware corporation,

Defendants-A ppellants.

July 31, 1985

Before McKAY, DOYLE and LOGAN, Circuit Judges.

McKAY, Circuit Judge.

This case is before our court on remand from the

Supreme Court of the United States. Defendants Kerr-

McGee Corporation and Kerr-McGee Nuclear Corpora-

tion (hereinafter collectively referred to as Kerr-McGee)

appeal from judgments awarded against them in a suit

brought by plaintiff Bill M. Silkwood as administrator

of the estate of Karen Silkwood, deceased. The action,

a diversity suit tried before a jury, was based upon

common-law tort principles ' under Oklahoma law. Plain-

1Civil Rights Act and federal constitutional ciaims were also

asserted in the original petition. The trial court’s dismissal of

2a

tiff sought recovery for personal injury (primarily fear

and anxiety) and property damage suffered by Ms. Silk-

wood as a result of plutonium contamination. The con-

tamination occurred November 5, 6, and 7, 1974. Ms.

Silkwood’s death in an unrelated automobile accident on

November 13, 1974 marked the end of any damages she

did suffer and precluded any damages she might have

suffered had she lived beyond that date. The jury

awarded $500,000 on plaintiff's personal injury claim

and $5,000 on his property claim. It also awarded

$10,000,000 in punitive damages.”

In our initial opinion* we reversed the personal in-

jury judgment, holding that recovery for those injuries

was controlled exclusively by the Oklahoma Workers’

Compensation Act, Okla.Stat.Ann. tit. 85 (West 1971 &

Supp.1980). We affirmed the property damage judgment,

holding that the Oklahoma Act applied only to personal

injuries. Finally, we reversed the punitive damages judg-

ment, holding that the award of such damages constituted

state action that competed substantially with the federal

statutory regulation of the Kerr-McGee plant.

Neither our affirmance of the property damages judg-

ment nor our reversal of the personal injury judgment

was appealed. Plaintiff did, however, appeal our reversal

of the punitive damages judgment. Our decision in that

regard was reversed by the Supreme Court, which con-

cluded that the award of punitive damages in this case

is not preempted by federal law.‘ The Court remanded,

those claims was affirmed in a separate appeal. Silkwood v. Kerr-

McGee Corp., 637 F.2d 743 (10th Cir. 1980), cert. denied, 454 U.S.

833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981).

2 The opinion of the trial court overruling Kerr-McGee’s post-trial

motions is reported at 485 F.Supp. 566 (W.D.Okla. 1979).

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

4 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78

L.Ed.2d 443 (1984).

8a

with instructions that Kerr-McGee be free to assert any

claims they made before cur court that had yet to be

addressed. Kerr-McGee now argues that they are en-

titled to judgment on the punitive damages claim be-

cause: (1) there is no evidence that malicious or wanton

conduct on their part resulted in the plutonium contami-

nation of Ms. Silkwood’s apartment; and (2) they sub-

stantially complied with the federal regulatory scheme

governing their conduct.

Kerr-McGee further contends that if they are not

entitled to judgment on the record, the case should be

remanded for a new trial on the punitive damages claim

for the following reasons: (1) the evidence and the in-

structions relating to the personal injury claim thoroughly

and prejudicially tainted the trial proceedings because any

award of punitive damages must be based solely on evi-

dence supporting the claim for property damage; (2)

the trial court’s jury instructions were fatally defective

because the jury was not properly instructed on the ef-

fect of compliance with federal regulations; (3) the

punitive damages award is outrageously excessive, bear-

ing no relationship to the nature and extent of the

injury or to the cause thereof; and (4) the prejudicial

publicity surrounding the trial, the misconduct of plain-

tiff’s counsel, and the prejudicial rulings of the trial

court combined to deny a fair trial to Kerr-McGee.

Karen Silkwood was a laboratory analyst at an Okla-

homa Kerr-McGee plant that fabricated fuel pins, con-

taining plutonium, that were used for reactor fuel.

Ms. Silkwood worked the afternoon of November 5, 1974.

Over the course of that afternoon, she monitored herself

for plutonium contamination five times. The first four

times she detected no contamination. The fifth time, af-

* What follows is a brief review of the facts set out in more

detail in our first opinion, 667 F.2d 908 (10th Cir. 1981).

4a

ter withdrawing her hands from one of the glove boxes °

in which she had been polishing and cleaning plutonium,

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

Ms. Silkwood had been working. Ms. Silkwood was de-

contaminated, placed on a five-day voiding collection pro-

gram, and furnished urine and fecal kits to take home for

the purpose of obtaining samples that would be sent to

the United States testing laboratory for analysis.

On the morning of the next day, November 6, 1974,

Ms. Silkwood arrived at work and did some paperwork

for one hour. Upon leaving, she tested herself and again

found herself to be contaminated. She was decontami-

nated and, at her request, her locker and auto were

tested and found to be free of contamination.

The next day, November 7, 1974, Ms. Si!kwood went

directly to the plant’s health physics office upon report-

ing to work. She was again found to be contaminated.

The parties stipulated that the urine samples brought to

the plant had been spiked with plutonium; that is, they

contained insoluble—not naturally excreted—plutonium.

Ms. Silkwood’s apartment was also found to have been

contaminated. Ms. Silkwood’s roommate, who had re-

turned to the apartment from the plant sometime after

8:00 a.m. on November 7th, was contaminated as well.

When she had left work, she had been found not to be

contaminated. Ms. Silkwood’s boyfriend, who spent the

night of November 6th in her apartment and left at 7:00

a.m. on the 7th, was not contaminated.

Ms. Silkwood’s possessions were destroyed and she was

sent to the Los Alamos Scientific Laboratory in New

® A glove box is a supposedly impervious box surrounding the

plutonium processing equipment that has glove holes permitting the

operator to work with the equipment or with plutonium from out-

side the box.

5a

Mexico to undergo further tests concerning her con-

tamination. On November 13th, after having reported

back to work and being reassigned, she was killed in an

automobile accident. A subsequent autopsy revealed that

the amount of plutonium within her body at the time of

her death was betvreen 25 percent and 50 percent of the

permissible lifetime body burden allowed by the Atomic

Energy Commission * for plutonium workers.

We first address Kerr-McGee’s contention that they

are entitled to a judgment notwithstanding the verdict on

plaintiff's punitive damages claim because there is no

evidence that the contamination of Ms. Silkwood’s apart-

ment was caused by any malicious or wanton conduct on

their part.

This circuit has previously held that the question of

the sufficiency of the evidence needed to go to the jury

in a diversity case is a matter of federal law. Oldenburg

v. Clark, 489 F.2d 839, 841 (10th Cir.1974).

We have previously explicated the federal standard as

follows:

It is proper for a court to withdraw a case from the

jury and direct a verdict only in limited circum-

stances. A directed verdict is proper only where the

evidence and all the inferences to be drawn there-

from are so patent that minds of reasonable men

could not differ as to the conclusions to be drawn

therefrom.

Taylor v. National Trailer Convoy, Inc., 483 F.2d 569.

571-72 (10th Cir.1970).*

* Now the Nuclear Regulatory Commission.

* There is conflict among the circuits on the question of whether

it is proper to apply a state or federal test of sufficiency of the

evidence to support a jury verdict in a case where federal jurisdic-

tion is rested on diversity of citizenship. Compare Kuziw v. Lake

Engineering Co., 586 F.2d 33 (7th Cir. 1978) (state law applies in

6a

The Oklahoma punitive damages statute, 23 0.S.1981,

section 9, provides that:

[ijn any action for the breach of an obligation not

arising from contract, where the defendant has been

guilty of oppression, fraud or malice, actual or pre-

sumed, the jury, in addition to the actual damages,

may give damages for the sake of example, and by

way of punishing the defendant.

The requisite malice may be inferred from gross negli-

gence that indicates a conscious indifference to the conse-

quences of one’s acts, Wootan v. Shaw, 205 Okl. 283, 237

P.2d 442 (1951), or a reckless disregard for the safety

of others. Thiry v. Armstrong World Industries, 661

P.2d 515, 517 (Okla. 1983).

determining motions fer directed verdicts and for judgments not-

withstanding the verdict) with John Hancock Mutual Life Ins. Co.

v. Dutton, 585 F.2d 1289 (5th Cir. 1978) (federal law standard is to

be applied in assessing whether judgment notwithstanding the

verdict should be granted).

The Oklahoma standard for assessing the sufficiency of the evi-

dence in support of a jury verdict differs somewhat from the

federal standard. The Oklahoma Supreme Court has held that:

A motion for directed verdict . . . should not be sustained

unless there is an entire absence of proof tending to show a

right to recover, and in passing on the same the tria! court

must consider as true, all of the evidence favorable to the

party against whom motion .. . is directed together with all

inferences that reasonably may be drawn therefrom and dis-

regard all conflicting evidence favorable to the movant.

Austin v. Wilkerson, Inc., 519 P.2d 899, 903 (Okla. 1974) (quoting

Central Mutual Ins. Co. v. Dickason, 451 P.2d 1 (Okla. 1969) )

(emphasis added). Even if Oklahoma state law on this question

were to be applied in this case, however, our decision on this issue

would be the same, because whatever the differences in nuance

between the Oklahoma standard and the federal standard, it is clear

that Kerr-McGee’s motion for judgment notwithstanding the ver-

dict on the ground of insufficient supportive evidence must fail

under either.

7a

In support of his punitive damages claim, plaintiff

presented evidence relating to plant security, worker

training, management, radiation detection, medical eval-

uation, and contamination incidents. Dr. Karl Morgan,

who for 29 years directed the government’s healt’: paysics

program at Oak Ridge, Tennessee, described defendant's

operations as one of the worst, from the standpoint of

safety, that he had ever reviewed. He testified that he

“could not imagine such a lackadaisical attitude could

be developed in an organization in reference to the health

and safety of the people,” and concluded that defendants’

practices reflected a “callous” and “wanton” disregard

for the health and safety of employees.

In addition to this and other expert testimony, plain-

tif introduced substantial testimony of individuals who

worked at defendants’ plant that related to defendacts’

disregard for eviployee safety and to their endanger:

ment of the public.

Plaintiff offered considerable documentary and statisti-

cal evidence on this issue as well, the most notable of

which was evidence indicating that during the period

from 1972-1976 Kerr-McGee was unable to account for

as much as 10.4 kilograms of plutonium.

Defendants, of course, presented substantial evidence

in rebuttal of plaintiff's claim of gross negligence. We

need not recite that evidence here, howeve~. In deter-

mining whether a judgment notwithstanding the verdict

should be entered, whether it be under the Oklahoma

standard or the federal standard, our function as an

appellate court is not to determine where the preponder-

ance of the evidence lies. Rather, we are confined to the

assessment of whether plaintiff has presented evidence

sufficient that a reasonable person might conclude that

gross negligence on the part of Kerr-McGee caused dam-

age to Ms. Silkwood’s property.

8a

It is true, as defendants contend, that plaintiff offered

no direct evidence that the general pattern of gross neg-

ligence it sought to establish by the above evidence was

the specific cause of the escape of plutonium in this

particular instance. However, a jury may permissibly

infer from a pattern of negligence likely to cause a par-

ticular kind of injury that such negligence did indeed

cause the injury. See Averitt v. Southland Motor Inn

of Oklahoma, 720 F.2d 1178, 1181-82 (10th Cir.1983).

Plaintiff presented sufficient evidence of gross negligence

and of causation to preclude a judgment notwithstand-

ing the verdict for Kerr-McGee on the ground of in-

sufficiency of the evidence.

Kerr-McGee further argues for a judgment notwith-

standing the verdict on the theory that is substantial

compliance with the federal regulatory scheme governing

its conduct precluded the award of punitive damages.

Kerr-McGee’s argument in this regard appears to be

two-pronged, although it is not clearly explicated as such.

First, Kerr-McGee contends that substantial compliance

with the federal regulatory scheme precludes the award

of punitive damages as a matter of federal preemption.

Second, Kerr-McGee apparently argues that even if this

is not the case, such compliance is a bar to punitives as

a matter of Oklahoma state law.

In reversing our decision striking down the district

court’s punitive damages judgment, the Supreme Court

held that the existence of a federal scheme regulating

Kerr-McGee did not preempt the award of punitive dam-

ages under state tort law principles.

No doubt there is tension between the conclusion

that safety regulation is the exclusive concern of the

federal law, and the conclusion that a state may

nevertheless award damages based on its own law

of liability. But as we understand what was done

over the years in the legislation concerning nuclear

9a

energy, Congress intended to stand by both concepts

and to tolerate whatever tension there was between

them. We can do no less. It may be that the award

of damages based on the state law of negligence or

strict liability is regulatory in the sense that a

nuclear plant will be threatened with damages li-

ability if it does not conform to state standards, but

that regulatory consequence was something Congress

was quite willing to accept.

104 S.Ct. at 625-26.

Kerr-McGee argues, in effect, that while the existence

of the federal regulatory scheme does not preclude the

award of punitive damages, full compliance with that

scheme does. While it is true that the Supreme Court did

not explicitly find that, as a matter of federal preemp-

tion, punitive damages may be awarded even if Kerr-

McGee substantially complied with the federal regulatory

scheme, for us to find that they may not would be incon-

sistent with the principles implicit in the Court’s opinion.

The Court stated that:

insofar as damages for radiation injuries are con-

cerned, preemption should not be judged on the basis

that the federal government has so completely oc-

cupied the field of safety that state remedies are

foreclosed but on whether there is an irreconcilable

conflict between the federal and state standards or

whether the imposition of a state standard in a dam-

age action would frustrate the objectives of the fed-

eral law. We perceive no such conflict in the cir-

cumstances of this case.

104 S.Ct. at 626.

The Supreme Court was well aware of the “circum-

stances of this case” regarding the substantial compli-

ance issue. The Court noted that Kerr-McGee offered evi-

dence that it had complied with most federal regulations.

10a

104 8.Ct. at 619. The Court made specific note of a Nu-

clear Regulatory Commission official’s testimony that

there were no serious personnel exposures at the plant

and that Kerr-McGee did not exceed the regulatory re-

quirements with respect to exposure levels that would

result in significant health hazards. Jd. The Court also

noted the Nuclear Regulatory Commission’s report on

the investigation of the incident involving Ms. Silkwood,

in which the Commission determined that Kerr-McGee’s

only violation of federal regulations throughout the inci-

dent was its failure to maintain a record of the dates of

two urine samples submitted by Ms. Silkwood. Jd. More-

over, both of the dissents treated the majority opinion as

holding that compliance with federal regulations does not

preclude the award of punitive damages under state law

principles of tort.’ Kerr-McGee asks us, in effect, to read

the Supreme Court’s opinion as holding that the existence

® Justice Blackmun stated that the

punitive damages award ... enables a State to enforce a

standard that is more exacting than the federal standard.

Were Kerr-McGee to continue adherence only to the federal

standard, it would presumably be in continuous violation of

state law—an indication that the jury award in this case was

too small to serve its purpose. A licensee that continues to

meet only the federal standard therefore presumably will re-

ceive increasingly large punitive sanctions in subsequent per-

sonal injury suits, until compliance with the state-imposed

safety standard is obtained.

104 S.Ct. at 630. Justice Powell in his dissent noted that:

The Court’s decision, in effect, authorizes lay juries and judges

in each of the states to make regulatory judgments as to

whether a federally licensed nuclear facility is being operated

safely. Such judgments then become the predicate to imposing

heavy punitive damages. This authority is approved in this

case even though the Nuciear Regulatory Commission (NRC)—

the agency authorized by Congress to assure the safety of

nuclear facilities—found no relevant violation of its stringent

safety requirements worthy of punishment.

104 S.Ct. at 634.

lla

of the federal regulatory scheme does not preclude the

award of punitive damages—-unless that scheme is sub-

stantially complied with. In other words, the state may

impose, in addition to the federal standard, its own

stricter safety standard on a nuclear plant—unless the

plant complies with the less stringent federal standard.

We do not believe that this non sequitur can be reason-

ably inferred from the Supreme Court’s opinion.

While the Supreme Court has determined that Okla-

homa is not precluded from ‘allowing the award of puni-

tive damages despite substantial compliance with a fed-

eral regulatory scheme, the question remains whether

Oklahoma does indeed allow punitive damages in such

circumstances. The district court opinion never clearly

addresses this question. The court concluded, after re-

viewing relevant federal and state cases from jurisdic-

tions other than Oklahoma, that under traditional princi-

ples of tort law, compliance with government safety

regulations does not bar the award of punitive damages.

The court did not, however explicitly inquire as to

whether and how past decisions of the Oklahoma Supreme

Court inform the issue. Inquiry into what the general

law of tort is in this regard becemes relevant only after

a determination that the question has not been decided,

either directly or indirectly, by the Oklahoma Supreme

Court.

Our own analysis of Oklahoma law convinces us, how-

ever, that the district court’s conclusion was correct. Al-

though the Oklahoma Supreme Court has yet to address

the question of whether substantia compliance with a

regulatory scheme bars the award of punitive damages,

that court has embraced the general proposition that

“mere compliance with statutory requirements does not

relieve a party from responsibility for negligence as a

matter of law.” Transport Indemnity Company v. Page,

406 P.2d 980, 985 (Okla.1965); see also Roadway Ex-

press, Inc. v. Baty, 189 Okl. 180, 114 P.2d 935, 937

12a

(1941) (“merely complying with statutory requirement

relating to the position of his car on the paving did not,

as a matter of law, save plaintiff from negligence”). We

conclude that, if faced with the specific question, the

Oklahoma Supreme Court would find, for the reasons

enunciated by the district court, that under Oklahoma

law substantial compliance with a regulatory scheme does

not bar the award of punitive damages. We therefore

reject Kerr-McGee’s argument that substantial compli-

ance with federal nuclear regulations rendered it im-

mune to tort liability, including the possibility of punitive

damages. We must nevertheless remand for a new trial

for the reasons we will now set forth.

Kerr-McGee contends that a new trial should be or-

dered because evidence of Ms. Silkwood’s personal injury

was introduced in the trial below, and the Oklahoma

Worker’s Compensation Act, Okla.Stat.Ann. tit. 85 (West

1971 & Supp.i1980), functions as a bar to any evidence

relating to a covered personal injury. The Oklahoma Act

provides that an employer shall pay compensation “for

the disability or death of his employee resulting from an

accidental personal injury sustained by the employee aris-

ing out of and in the course of his employment. . . .”

Id. at 8, 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 . . ., at common

law or otherwise, for such injury... .”

Defendants argue that the Act functions as a complete

bar to evidence relating to a covered personal injury

claim. Plaintiff contends that while a covered personal

injury may not be compensated by an award for actual

damages, it may nevertheless be the basis of an award

of punitive damages. Oklahoma has yet to decide the

question of whether the Act functions as a complete evi-

dentiary bar, or whether it merely precludes the award

of actual damages. Our review of the Act and of Okla-

homa case law convinces us, however, that the Oklahoma

13a

Supreme Court would reject both of the extreme positions

advanced by the parties in favor of a more moderate

view.

If, as defendants contend, the Oklahoma Act func-

tions as a complete evidentiary bar, it would work a sub-

stantial hardship on potential plaintiffs whose rights were

not intended to be affected by the Act. For example, an

evidentiary bar would preclude a non-employee who was

injured by a defendant employer’s negligent act from in-

troducing evidence of past similar injuries to employees,

which would be otherwise admissible under. Oklahoma law

in order to demonstrate the knowledge and malice of the

defendant for purposes of a punitive damages determina-

tion. See Kurn v. Radencic, 193 Okl. 126, 141 P.2d 580

(1943); Averitt v. Southland Motor Inn of Oklahoma,

720 F.2d 1178 (10th Cir.1983); Edgar v. Fred Jones

Ford, 524 F.2d 162 (10th Cir.1975). Similarly, an evi-

dentiary bar would work a substantial hardship on em-

ployees, like Ms. Silkwood, who press a property claim .

against an employer, even though such a claim is clearly

not within the scope of the Act. There is no indication,

either in the language of the Act or in the legislative

history, that it was intended to limit the ability of plain-

tiffs to introduce evidence of covered injuries in order

to prove elements of claims not covered by the Act

through functioning as a complete evidentiary bar.

Evidence of an injury covered by the Act, however,

may not be the basis for damages of any kind—

actual or punitive. The Act is exclusive of “all other

liability of the employer.” (emphasis added). See 2A

Larson, The Law of Workmen’s Compensation, § 65.37

(1983) (reciting and documenting the well-recognized

principle that punitive damages claims are barred by the

exclusivity provisions, such as Oklahoma’s, in workers’

compensation acts). Cf., Arrington v. Michigan-Wisconsin

Pipe-Line Co., 632 F.2d 867 (10th Cir.1980) (Oklahoma’s

workers’ compensation remedy is exclusive even where

plaintiff alleges the “highest possible degree of negli-

l4a

gence”). Therefore, evidence of an injury covered by ‘the

Act that is admissible to prove an element of a claim for

a non-covered injury must be properly restricted to that

purpose by a limiting instruction. We are aware that in

allowing evidence of a covered injury to prove an element

of a non-covered claim we leave open the possibility that

a covered injury may indirectly give rise to employer

liability for that non-covered claim where none would

have existed otherwise. However, our position is man-

dated by the fact that a complete evidentiary bar would

expand the reach of the Oklahoma Act well beyond its

framers’ intent.

Plaintiff offers two cases in support of his position that

even though an injury is non-compensable by actual dam-

ages because of workers’ compensation exclusivity, that

injury may nevertheless be the basis of a punitive dam-

ages award. In the first, Martin v. Texaco, Inc., 726

F.2d 207 (5th Cir.1984), the widow of a Texas worker

who was killed on the job brought a diversity suit seeking

punitive damages in Texas federal court. The district

court allowed the jury to consider evidence of injury and

to determine how much actual damages it would award,

even though such damages were, in fact, unrecoverable

because they were subject to the exclusive remedy of the

workers’ compensation system. The jury returned a ver-

dict for $450,000 in actual damages and $1 million in

punitive damages, upon which the trial court entered

judgment for plaintiff of $0 actuals and $1 million puni-

tives. The Fifth Circuit affirmed. Martin is distinguish-

able from the case at hand in an obvious and significant

way. The claim involved in that case—punitive damages

for gross negligence causing death—was specifically pre-

served both by the Texas constitution '° and by the Texas

Workers’ Compensation Act.’ The Oklahoma Workers’

10 Const. art. XVI, S. 26.

11 Tex.Rev.Civ.Stat.Ann. art. 8306, S. 5 (Vernon 1967).

15a

Compensation Act not only contains no such specific pres-

ervation, but affirmatively precludes imposition of any

other liability for a covered injury.

Another case plaintiff cites in support of the proposi-

tion that Ms. Silkwood’s personal injury may be the basis

of a punitive damages award is Nales v. State Farm

Mut. Ins. Co., 398 So.2d 455 (Fla.App.1981). That case

involved the Florida no-fault automobile law, which places

a statutory limitation on an injured party’s common-

law right to claim damages for pair. suffering, mental

anguish and inconvenience.'* To avoid this limitation a

party must prove that he or she has suffered permanent

injury. The plaintiff, who had been injured by a drunk

driver, sought both actual and punitive damages. The

trial court instructed the jury that the plaintiff had to

prove permanent injuries to recover both those types of

actual damages expressly limited by the statute and puni-

tive damages. The jury returned a verdict for the

defendant. The court of appeals reversed the trial court,

holding that even though certain types of actual damages

arising from a non-permanent injury were not compensa-

ble under the Florida no-fault insurance law, that law

did not preclude a common-law claim for punitive dam-

ages for such an injury. This case, too, misses the mark.

Unlike the Oklahoma Workers’ Compensation Act, the

Florida no-fault insurance law does not purport to be

exclusive of all other liability.

Both Martin and Nales stand for the proposition that

where a statute precludes actual damages for a particular

kind of injury but does not explicity preclude other forms

of liability, that injury may be the basis for a punitive

damages award. The Oklahoma Workers’ Compensation

Act explicitly provides, however, that the liability it pre-

scribes “shall be exclusive and in place of all other lia-

12 Fla.Stat. § 627.730 (1979).

l6a

bility of the employer. . . .” (emphasis added). Thus,

Martin and Nales have no application to this case.

Having found that a personal injury covered by the

Act may not be the basis of a punitive damages award,

we must next address the question of whether Ms. Silk-

wood’s personal injury was, in fact, the basis of any

portion of the punitive damages awarded below. Plaintiff

argues that the nature of punitive damages is such that

the award would have been the same even if the trial

below had been properly restricted to the property dam-

age claim. This is so, plaintiff contends, because punitive

damages analysis focuses not so much on the nature and

extent of a plaintiff's injury as upon the endangerment to

society created by the negligent conduct of the defendant

and the punishment necessary to deter such conduct in the

future. Plaintiff notes that our ruling on workers’ com-

pensation did not diminish Kerr-McGee’s size and wealth,

nor did it diminish the risk created by the escape of plu-

tonium. In further support of his position, plaintiff offers

Oklahoma cases holding that a punitive damages award

need bear no relation to the actual damages awarded.

It is indeed true that under Oklahoma law the wealth

of che defendant and the risk created by the defendant’s

negligent conduct are substantial factors to be considered

in the calculation of punitive damages. See Whiteley v.

OKC Corp., 719 F.2d 1051 (10th Cir.1983); Smith v.

U.S. Gypsum Ce., 612 P.2d 251 (Okla.1980); Thiry v.

Armstrong World Industries, 661 P.2d 515 (Okla.1983).

It is also true that under Oklahoma law punitive damages

need bear no relation to the actual damages awarded.

Garland Coal and Mining Co. v. Few, 267 F.2d 785, 791

(10th Cir.1959) ; Cates v. Darland, 537 P.2d 336, 340

- (Okla.1975). Indeed, under Oklahoma law, punitive dam-

ages may be recovered even in conjunction with nominal

actual damages. Moyer v. Cordell, 204 Okl. 255, 228 P.2d

645 (1951); Beavers v. Lamplighters Realty, Inc., 556

P.2d 1828, 1333 (Okla.App.1976). In several instances

17a

the Oklahoma Supreme Court has reduced an actual dam-

ages award but refused to reduce the attendant punitive

damages award. See, e.g., Hobbs v. Watkins, 481 P.2d

746 (Okla.1971); Moyer v. Cordell, 204 Okl. 255, 228

P.2d 645 (1951). Thus, if Ms. Silkwood’s personal injury

were a permissible basis for a puntive damages claim,

our striking down plaintiff’s actual damages award would

not necessarily require a reduction in the amount of the

punitive damages award. The Oklahoma Workers’ Com-

pensation Act precludes all liability for a covered injury,

however. Accordingly, our inquiry must be whether Ms.

Silkwood’s personal injury was indeed the basis for a

portion of the punitive damages award. We must con-

clude that it was.

While under Oklahoma law punitive damages need bear

no relation to the amount of actual damages awarded,

they must bear some relation to the “cause and extent of

one’s injuries.” Hobbs v. Watkins, 481 P.2d 746, 747-48

(Okla.1971). See also Cates v. Darland, 537 P.2d 336,

340 (Okla.1975); Sopkin v. Premier Pontiac, Inc., 539

P.2d 1393, 1398 (Okla.App.1975); Garland Coal and

Mining Co. v. Few, 267 F.2d 785, 791 (10th Cir.1959).

The Oklahoma Supreme Court recently noted in Timmons

v. Royal Globe Insurance Co., 653 P.2d 907, 918 (Okla.

1982), that the harm caused to society by the particular

conduct establishing liability for punitive damages, as

well as the societal harm caused by that genre of con-

duct, were considerations material to a punitive damages

award. The court also looked to the wealth of the defend-

ant and to the deterrent effect of the award, but did not

purport to overrule prior cases by enunciating an ex-

clusive list of materia] factors. Thus, under Oklahoma

law, although such factors as risk created and deterrent

effect may be considered in determining a punitive dam-

ages award and the amount of punitive damages need

bear no relation to the amount of actual damages awarded,

the analysis is not open-ended. Rather, it must be disci-

18a

plined by reference to injuries actually caused by the

defendant, both to the plaintiff and to society generally.

On the issue of punitive damages the trial court in-

structed the jury as follows:

Any exemplary damages that you award must bear

some relationship to the injuries inflicted, but need

not bear any relation to the amount of actual dam-

ages.

485 F.Supp. at 603. Thus, by instructing the jury to con-

sider “the injuries inflicted” without restricting their

consideration to the property damage claim, the district

court explicitly invited the jury to increase the size of the

punitive damages award on the basis of Ms. Silkwood’s

personal injury. As we have held, although evidence of

an injury covered by the Oklahoma Workers’ Compensa-

tion Act is admissible to prove an element of a claim not

covered by the Act, it must be limited to that purpose.

It may not be used by the jury as the basis for increased

punitive damages in the jury’s assessment of the ap-

propriate relation between the injuries inflicted and the

punitive damages award. Consequently, the trial court

erred in using an instruction that invited the jury to

consider a factor in setting the size of the punitive dam-

ages award that Oklahoma law forbids.

Any jury award of punitive damages involves a “dis-

cretionary moral judgment,” see Smith v. Wade, 461 U.S.

30, 52, 103 S.Ct. 1625, 1638, 75 L.Ed.2d 632 (1983).

Oklahoma law places very little limitation on the jury’s

discretion in making this moral judgment. Thus, no clear

guidelines exist for us to determine what is an appropri-

' ate amount for a punitive damages award. In such a

situation we are reluctant to hold errors that permitted

the jury to consider improper elements in fashioning its

award to be harmless. Because we cannot determine to

what extent the jury’s punitive damages analysis was

19a

distorted by the consideration of an impermissibly large

actual injury, a new trial is required.

In addition to limiting the use of Ms. Silkwood’s per-

sonal injury so as not to increase the size of the punitive

damages award, the district court on retrial must ensure

that the entire focus is on the type of conduct by Kerr-

McGee that could have caused Ms. Silkwood’s property

damage: conduct allowing plutonium to escape the Kerr-

McGee plant. Only evidence that relates to the plant op-

erations and practices relevant to that escape will be

admissible. Evidence of Ms. Silkwood’s personal exposure

will be admissible only insofar as it bears on that issue.

Thus, no doubt some of the evidence that the jury may

have considered in making the punitive damages award

in the earlier trial will not be admissible in the new trial.

Further, the evidence of Ms. Silkwood’s personal injury

that is admissible for proving the property damage claim

must be restricted so as not to be a factor in the determi-

nation of the required relation between injuries inflicted

and the amount of punitive damages. Because a new trial

is required to determine whether Kerr-McGee’s conduct

that caused plaintiff’s property damage warrants im-

position of punitive damages and, if so, the amount of

those damages, we need not consider Kerr-McGee’s other

grounds for a new trial.

Finally, we address plaintiff’s claim that he is entitled

to a new trial on his personal injury claim. We, of course,

previously reversed the district court’s judgment for the

plaintiff on this claim, holding that workers’ compensa-

tion was the exclusive remedy for Ms. Silkwood’s personal

injuries. Plaintiff contends, however, that the trial court’s

rulings regarding the workers’ compensation law framed

the case in such a way that plaintiff’s counsel “contented

themselves” with offering intentional tort evidence solely

to rebut Kerr-McGee’s theory of self-contamination, and

did not “marshal the evidence” or “frame arguments” in

such a way as to persuade the jury that an intentional

20a

tort had been committed. We find the argument tha<

plaintiff's counsel were induced to complacency on this

issue somewhat less than persuasive. Plaintiff had oppor-

tunity as well as incentive to marshal and persuasively

present all the evidence available to prove that Kerr-

McGee intentionally contaminated Ms. Silkwood. Demon-

strating intent on the part of Kerr-McGee to contaminate

Ms. Silkwood was of obvious significance to plaintiff's

punitive damages claim.

Moreover, even if plaintiff's effort to prove intent was

‘ess fervent than it might have been if the trial court had

properly ruled on the workers’ compensation law, under

the doctrine of “law of the case” plaintiff is not entitled

to a new trial on this claim.’ Under this doctrine plain-

tiff would be required to show that our previous decision

was “clearly erroneous” or that it would result in a

“manifest injustice.” Handi Inv. Co. v. Mobil Oil Co.,

653 F.2d 391, 392 (9th Cir.1981) ; White v. Murtha, 377

F.2d 428, 431-32 (5th Cir.1967). In view of plaintiff's

obvious incentive at the trial below *v prove intentional

contamination, we would be hard-pressed to hold that

plaintiff has met this standard. Put simply, plaintiff has

had his day in court on his compensatory damages claim.

He is not entitled to another.

The punitive damages judgment is reversed, and the

cause is remanded for a new trial on the punitive dam-

ages issue,

DOYLE, Circuit Judge, dissenting.

I respectfully dissent.

Notwithstanding that the plaintiff has prevailed in his

several appearances against Kerr-McGee and Kerr-McGee

13 Defendants argue that our prior decision is res judicata on

remand. See 1B Moore's Federal Practice © 0.404 [4.3] (2d ed.

1982). In light of our disposition we need not reach this issue.

2la

Nuclear Corporation, Judges McKay and Logan, who are

part of a three-judge panel, continue the same arguments.

This writer is and continues to be on the short side or end.

I submit that the points on which the majority have

sought to gain a dominant position are surprisingly lack-

ing in either logic or contribution to either social values

or moral quality.

The first trial continued for eleven weeks. It received

a most careful treatment. To try this case once again is

atrocious.

PRELIMINARY STATEMENT

This case is before us on remand from the Supreme

Court of the United States. Defendant Kerr-McGee Cor-

poration, and its subsidiary, Kerr-McGee Nuclear Corpo-

ration, appeal from judgments against them that were

entered in a suit filed by Bill M. Silkwood, as Adminis-

trator of the Estate of Karen Silkwood. The suit was a

diversity action based on Oklahoma common-law tort

principles. It was tried to a jury in the United States

District Court for the Western District of Oklahoma in

1979. Plaintiff Silkwood, the father of Karen Silkwood,

sought recovery for personal injuries and property dam-

age suffered by Karen Silkwood resulting from plutonium

contamination incidents which occurred on November 5,

6 and 7, 1974. The trial was successful. The jury

awarded the plaintiff $500,000 actual damages for plain-

tiff’s personal injury claim and $5,000 in actual damages

for the property damage claim. It also awarded

$10,000,000 in punitive damages. Silkwood v. Kerr-McGee

Corp., 485 F.Supp. 566 (W.D.Okla.1979).

In this court’s first opinion in this case, 667 F.2d 908

(10th Cir.1981), the majority of the panel reversed the

personal injury judgment and ruled that the Oklahoma

Workmens’ Compensation Act barred a common-law re-

covery for Ms. Silkwood’s personai injuries. The property

a

22a

damage award was affirmed. Finally, a majority of the

panel reversed the punitive damage award, holding that

the award of punitive damages under state law was pre-

empted by federal regulation of the nuclear industry.

Plaintiff Silkwood appealed this court’s reversal of the

punitive damage award. The Supreme Court’s conclusion

was that a punitive damage award in this case was not

preempted by federal regulation. Silkwood v. Kerr-McGee

Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443

(1984). It remanded the cause to this court with the

ruling that punitive damages were not preempted and

were subject to state laws, and with instructions that

Kerr-McGee was free to assert any claims it had made

before us that we did not address in our first opinion.

104 §.Ct. at 626-27.

Kerr-McGee now asserts that it is entitled to a judg-

ment notwithstanding the verdict on the punitive dam-

ages claim. They persist in their contention that there

was a dearth of evidence that the contamination of Ms.

Silkwood’s apartment resulted from malicious conduct on

its part that would justify a punitive award. If they

were not responsible, who was? It also requests judgment

notwithstanding the verdict on the grounds that its “sub-

stantial compliance” with federal regulations bars a puni-

tive damages award. In the alternative, Kerr-McGee

advances four further arguments in its effort to obtain

a new trial on the punitive damages issue. First, it

argues that the jury’s punitive award was “tainted” by

the introduction of evidence concerning Silkwood’s physi-

cal injuries at trial. Second, it asserts that the punitive

award entered is disproportionate to the actual damages

as a matter of law. Third, it suggests that the trial

court’s jury instructions on the effect of compliance with

federal regulations were prejudicially defective. Finally,

Kerr-McGee asserts that it was denied a fair trial be-

cause of extraneous anti-nuclear publicity at the time of

the trial and because of the trial tactics of plaintiff’s

23a

counsel. It is important to remember that the Kerr-

McGee employees were constantly looking over Silkwood’s

activity not only in the plant but also in her home. Both

her apartment and her person were soaked with nuclear

material at the time of the auto accident.

THE PERTINENT FACTS

The pertinent evidence surrounding Ms. Silkwood’s con-

tamination established that condition. Karen Silkwood

was a laboratory analyst at Kerr-McGee’s Cimmaron

plant located near Crescent, Oklahoma. The plant fabri-

cated fuel pins containing plutonium for use as reactor

fuel. Silkwood was contaminated by plutonium on No-

vember 5, 6, and 7, 1974. The parties have stipulated

that this very plutonium origin came from the Kerr-

McGee plant.

Plutonium is an artificially produced radioactive chemi-

cal element which is the essence for the development of

nuclear weapons and nuclear power. It emits alpha parti-

cles, beta particles, neutrons, gamma rays and x-rays.

Thus there is acknowledgment that plutonium from Kerr-

McGee is one of the most carcinogenic and dangerous sub-

stances known.

As a member of the Oil, Chemical and Atomic Workers

Union (OCAW), Silkwood represented some of the work-

ers in this Kerr-McGee plant. As an elected member of

the union negotiating team, Silkwood was responsible for

health and safety matters. In September 1974 she, to-

gether with her fellow committee members, met with

OCAW leaders in Washington, D.C. There she presented

charges to the Atomic Energy Commission (AEC) as to

numerous health and safety violations by Kerr-McGee.

The AEC requested documentation of the charges. Ms.

Silkwood was assigned the job of collecting this docu-

mentation. She was engaged in collecting information

and recording it in notebooks and on tapes from Septem-

ber 1974 and continuing until the time of her death.

24a

Ms. Silkwood’s first contamination occurred on Novem-

ber 5, 1974. She reported to work at the Cimmaron plant

on November 5 at 1:20 p.m. At 2:45 p.m. and 3:15 p.m.,

before and after taking a break, Silkwood monitored her-

self with plutonium detecting devices provided by Kerr-

McGee in accordance with AEC license requirements. No

plutonium was detected on her person. At about 3:45

p.m. Silkwood began to work in two glove boxes contain-

ing plutonium. A glove box is a supposedly impervious

box surrounding the plutonium processing equipment

which has glove holes. This allows the operator to work

on the equipment or with the plutonium from outside the

box. Silkwood monitored 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, but upon withdrawing her hands from one of

the boxes at about 6:30 p.m., she became aware of high

contamination. Further checks made in the laboratory

revealed other contaminations. These took place inside

the gloves in the glove box in which Silkwood had been

polishing and cleaning plutonium.

A substantial amount of contamination was found on

Silkwood’s left hand, right wrist, upper arm, neck, face,

hair, and her nostrils. Pursuant to regulations, Silkwood

was immediately decontaminated and placed on a five-

day voiding collection program. She was provided with

urine and fecal kits to take home. These were for the

purpose of obtaining samples to send to the United States

testing laboratory for analysis. Later that day Silkwood

returned to work, but not to the glove boxes. She mon-

itored 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. Fur-

ther, the investigators found no significant airbor: ne con-

tamination 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

25a

lab until 8:50 a.m. She then left to attend a previously

scheduled union meeting. At that time she tested herself

and found contamination on her right forearm, face, and

neck. Her hands were decontaminated. The other spots

appeared to be fixed contamination, so she was allowed

to attend the union meeting. She returned to the health

office at 4:30 p.m. Slight contamination was found on

her right forearm, neck and face, and in her nostrils.

She was again decontaminated 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, al-

though the exterior of the kits showed no contamina-

tion. The parties stipulated that urine samples brought

to the plant contained insoluble, not naturally excreted,

plutonium. Silkwood’s apartment was also found to have

been contaminated, with the highest concentrations of

plutonium found in the bathroom and on a package of

bologna and cheese in the refrigerator.

Silkwood’s roommate, Sherri Ellis, also a laboratory

analyst at Kerr-McGee, was found not to be contami-

nated 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 ba:hroom and retired to her

bedroom. Subsequent checks revealed contamination of

Ellis’ buttocks and hands. But Ellis’ auto and the re-

frigerator where her lunch had been placed in the plant

lunchroom were free of contamination.

Silkwood seemed to be continuously surrounded by

plutonium during the period prior to the accident and

death.

26a

Silkwood’s possessions were destroyed and Silkwood

was sent to the Los Alamos Scientific Laboratory in New

Mexico to have further tests concerning contamination.

On November 13 she reported back to work. At that

time she was reassigned. She participated in a union

negotiating session that day, met with AEC inspectors

concerning her contamination, and attended a union

strategy session.

That night Silkwood was on her way to meet a New

York Times reporter and an OCAW leader when she

was killed in an automobile accident. The 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.

In this court’s first opinion, it was concluded that Silk-

wood’s apartment had become contaminated during the

preparation of her urine sample on November 7, 1974.

The exact way that the plutonium found its way into

Ms. Silkwood’s apartment has not been determined. Two

things are clear: the plutonium did come from Kerr-

McGee’s plant, which has been stipulated by the parties;

and, as the jury found, Karen Silkwood did not inten-

tionally remove the plutonium from the plant.

KERR-McGEE’S DEMAND THAT THE PUNITIVE

DAMAGES BE DENIED

Kerr-McGee makes two arguments for judgment not-

withstanding the verdict. Kerr-McGee’s contentions are

that there was insufficient evidence presented at trial to

permit a reasonable jury to conclude that its conduct war-

ranted an award of punitive damages. We maintain that

this evidence is ample. That was the source of all of this

material and the origin goes back there regardless of the

starting line.

Oklahoma’s punitive damages statute, 23 O.S. 1981 § 9,

permits punitive awards in any non-contractual action

27a

whenever the defendant has been “guilty of oppression,

fraud or malice, actual or presumed.” Oklahoma case law

permits malice to be presumed whenever the defendant’s

course of conduct can be said to show a reckless disre-

gard for public safety. Thiry v. Armstrong World In-

dustries, 661 P.2d 515, 518 (Okla.1983). In order to

justify submission of the puni.ive damages issue to the

jury, all that the plaintiff had to do was submit suf-

ficient evidence to allow a reasonable person to conclude

that Kerr-McGee’s conduct displayed a reckless disregard

for public safety. There is adequate evidence to establish

this. See Taylor v. National Trailer Convoy, Inc., 433

F.2d 569, 571-72 (10th Cir.1970)}. Upon reviewing the

record it is apparent that the plaintiff’s evidence was

ample to satisfy this burden.

Plaintiff Silkwood presented substantial evidence at

trial of Kerr-McGee’s indifference to employee safety

and to the safety of the public at large. One expert wit-

ness, Dr. Karl Morgan, served as Director of the gov-

ernment’s Oak Ridge, Tennessee, Health Physics Pro-

gram for 29 years. He testified that Kerr-McGee’s Cim-

maron operation was one of the worst, in terms of safety,

that he had ever evaluated. He characterized the defend-

ant’s attitude toward safety as “lackadaisical,” and con-

cluded that defendant’s conduct reflected a “callous” and

“wanton” disregard for employees’ safety. Plaintiff also

presented substantial statistical evidence concerning Kerr-

McGee’s handling of plutonium. That evidence indicated

that, among other problems, Kerr-McGee was unable to

account for as much as 10.4 kilograms of plutonium be-

tween 1972 and 1976.

Plaintiff’s evidence was more than sufficient to permit

a reasonable person to find reckless disregard for public

safety on Kerr-McGee’s part. Moreover, the evidence of

a pattern of reckless disregard for public safety was also

sufficient to permit a reasonable person to infer that

Kerr-McGee’s course of conduct caused the damage to

28a

Ms. Silkwood’s property. See Averitt v. Southland Motor

Inn of Oklahoma, 720 F.2d 1178, 1181-82 (10th Cir.

1983). Kerr-McGee’s argument that there was insuffi-

cient evidence to allow the punitive damages issue to be

submitted to the jury is properly denied.

Kerr-McGee’s next argument is that its “substantial

compliance” with federal regulations governing the nu-

clear industry precludes an award of punitive damages,

and that therefore this court should enter judgment not-

withstanding the verdict in its favor. This argument

fails as is shown by the presence of the material itself.

THE RECENT OPINION OF THE

) SUPREME COURT

The Supreme Court’s opinion in this case made it

clear that, despite the existence of federal nuclear regu-

lations, Oklahoma and other states were free to award

damages under state tort law to parties injured by nu-

clear activities, 104 S.Ct. at 625. The necessary impli-

cations of this holding are that states are free to formu-

late their own standards of care that will govern conduct

of nuclear activities within their borders, and that such

standards of care may differ from federal regulatory

standards. In asking us to hold that substantial com-

pliance with federal regulatory standards precludes a

punitive damage award based upon a differing state

standard of care, Kerr-McGee is asking us to circumvent

the Supreme Court’s decision. This we cannot do. After

all there is no magic associated with this compliance.

KERR-McGEE’S PLEA FOR A NEW.TRIAL

We turn now to Kerr-McGee’s arguments that it is

entitled to a new trial on the punitive damages award.

The Supreme Court’s decision in this case has expressly

allowed the upholding of the jury’s punitive damages

award as long as it is consi..ent with Oklahoma law and

29a

is supported by the evidence adduced at trial. 104 S.Ct.

at 626-27. To evaluate that award, we must consider the

Oklahoma law and policies which govern such verdicts.

VALIDITY OF THE DAMAGES

Oklahoma law mandates that the threat from the de-

fendant’s course of conduct to society must be the focus

of our inquiry. The Oklahoma Supreme Court has stated

that:

Unlike . . . compensatory damages, which are to

benefit the individual plaintiff, punitive damages are

imposed to benefit society. The plaintiff acts as a

private attorney general to punish the culpable

wrongdoer, thereby encouraging adherence to safety

standards that benefit [society] generally. ... {I]t

is not the plaintiff’s individual right, but society’s as

a whole, that is being defended.

Thiry v. Armstrong World Industries, 661 P.2d 515, 518

(Okla.1983) (emphasis in original). Although a plaintiff

must allege and prove an actual injury that is judicially

cognizable in order to recover punitive damages, id., the

Oklahoma court has indicated that:

Such damages are not compensatory in nature. A

party asking for exemplary damages has only an in-

cidental personal interest. His recovery is whole and

complete with actual damages. Exemplary damages,

as a tool to deter the wrongdoer, is [sic] for society’s

benefit and not the litigating party’s.

Slocum v. Phillips Petroleum Co., 678 P.2d 716, 719

(Okla.1983).

Because punitive damages are intended to punish a

defendant for his past conduct, Oklahoma law requires

that they are in proportion to the cuplability of that con-

duct, and to the detendant’s wealth, rather than to any

30a

actual damages awarded. As the Oklahoma court has

said:

The punishment function can only be achieved if

the defendant is “stung” by the [punitive] award.

The penalty should therefore not only match the mis-

conduct but of necessity should relate to the wealth

of the wrongdoer.

Thiry, 661 P.2d at 518. Although the extent of the plain-

tiff’s injury must necessarily be considered in assessing

punitive damages, Oklahoma has often permitted large

punitive awards notwithstanding that relatively nominal

actual damages were awarded. See, e.g., Timmons v.

Royal Globe Insurance Co., 653 P.2d 907 (Okla.1982)

($34,126 actuals; $1,500,000 punitives) ; Sopkin v. Pre-

mier Pontiac, Inc., 5389 P.2d 1393 (Okla.App.1975) ($400

actuals, $7,100 punitives) ; Cates v. Darland, 537 P.2d

336 (Okla.1975) ($200 actuals, $7,000 punitives). See

also Jones v. Lennington, 629 P.2d 805, 807 (Okla.App.

1981) (dictum) ($1,000,000 punitive award with $1

nominal damage~ could be permissible under Oklahoma

law). Such large awards have been permitted because

the jury, having heard the evidence on the culpability of

a defendant’s conduct, is peculiarly suited to act as the

conscience of the community; the jury determines the

appropriate size of the award whereby it will adequately

punish and deter the defendant. E.g., Jones v. Lenning-

ton, 629 P.2d at 807.

The authorities in Oklahoma permit punitive damage

awards in strict liability cases. Thiry v. Armstrong

World Industries, 661 P.2d 515 (Okla.1983). In a prod-

ucts liability setting, the Oklahoma court held that puni-

tive damages are appropriate to be awarded in strict

liability cases when:

... the injury is attributable to conduct that reflects

reckless disregard for the public safety. “Reckless

disregard” . . . [means that the defendant] must

3la

either be aware of, or culpably indifferent to, an

unnecessary risk of injury ... [and] must also fail

to determine the gravity of the danger or fail to

reduce the risk to an acceptable minimal level. “Dis-

regard for the public safety” reflects a basic dis-

respect for the interests of others.

Id. at 518 (emphasis in original) (footnetes omitted).

We have no doubt that Oklahoma would extend this rule

to strict liability cases based on deficient conduct of ultra-

hazardous activities. Thus, in the case at bar, a punitive

award based on the strict liability property damage

award is permissible and appropriate, provided that the

evidence demonstrates the requisite degree of culpability

on Kerr-McGee’s part.

WHAT IMPACT, IF ANY, DOES THE OKLAHOMA

WORKERS’ COMPENSATION ACT HAVE ON

THE PUNITIVE AWARD?

We next turn to consideration of what impact the Okla-

homa Workers’ Compensation Act, Tit. 85 O.S.1981, has

on the punitive award. In a previous opinion in this

same case, we held that 85 O.S.1981 §$ 12 made Workers’

Compensation the exclusive remedy for job-related physi-

cal injuries, that Karen Silkwood’s physical injuries were

job-related, and that accordingly the Oklahoma Workers’

Compensation Act precluded the trial court from award-

ing Silkwood’s estate actual damages based on her physi-

cal injuries. 667 F.2d 908, 916-20 (10th Cir. 1981). We

need consider only the discrete question of whether 85

O.S.1981 § 12 bars the consideration of evidence con-

cerning a Workers’ Compensation-covered injury in con-

nection with a judicially cognizable claim for punitive

damages.

Were Silkwood’s estate seeking only actual damages

for her physical injuries, we believe that the Supreme

Court of Oklahoma would hold that 85 O.S.1981 § 12

32a

effectively precluded any award of punitive damages.

This is so because § 12 precludes a court from awarding

actual damages to compensate Silkwood for her job-

related physical injuries. A proper award of at least

nominal actual damages is, as noted above, a necessary

predicate for a punitive award under Oklahoma law, and

because no actual damages could be awarded, no punitive

award could be made. Under the circumstances of the

case as it is, however, the Workers’ Compensation Act has

no bearing on the availability of punitive damages. There

is an independent claim for property damages that oc-

eurred away from Kerr-McGee’s plant. This award

satisfies the actual damages requirement for a punitive

award. Our position is that a punitive award could be

made in this case.

Kerr-McGee’s argument is that given the fact that a

punitive award is proper, the jury’s punitive award of

$10 million in this case was “tainted” by the introduction

of evidence concerning Silkwood’s physical injuries. Its

claim is that a new trial must therefore be ordered. On

the contrary this outrageous and shocking occurrence

should not be repeated. The punitive damages award

made is, as shown above, not considered to be a compensa-

tory award. Thus, the award, even if based in part on

the fact that Silkwood suffered personal injuries as a

result of Kerr-McGee’s conduct, does not violate 85 O.S.

1981 §$ 12’s mandate that Workers’ Compensation be the

sole remedy available to compensate workers for job-

related physical injuries. Nor does the introduction of

evidence concerning Silkwood’s physical injuries, their

likely effects, and the circumstances under which they

occurred “taint” the punitive award. We have shown

through the cases that punitive awards under Oklahoma

law are based on the culpability of a defendant’s course

of conduct. The evidence concerning Silkwood’s personal

injuries that was admitted at trial is thus relevant to

the jury’s determination of Kerr-McGee’s culpability.

33a

The evidence had a strong bearing on Kerr-McGee’s

safety record, its attitude toward the dangers of plu-

tonium, and the circumstances surrounding the contami-

nation of Ms. Silkwood’s apartment. Since the trial

court’s jury instructions directed the jury to focus pri-

marily on the nature of Kerr-McGee’s conduct, and not

on the severity of Silkwood’s physical injuries, in assess-

ing punitive damages, see Instructions No. 19, 27, re-

printed in 485 F.Supp. at 603, 606, we hold that evidence

concerning Silkwood’s physical injuries was properly ad-

mitted into evidence. It was properly considered by the

jury in awarding punitive damages. Moreover, the jury

is entitled to consider the same evidence in assessing

punitive damages against Kerr-McGee, albeit under

slightly different instructions, if we were to order a

new trial on the issue. The trial was legally sufficient

and a repetition would be wasteful.

WAS THE PUNITIVE AWARD JUSTIFIED?

We now consider whether the punitive award is justified

by the evidence introduced at trial. In reviewing the

award, we must view the evidence in the light most

favorable to the prevailing party. Timmons v. Royal

Globe Insurance Co., 653 P.2d 907, 918 (Okla.1982). We

may reverse the trial court’s decision to uphold the award

only if that decision is an abuse of discretion, Barnes v.

Smith, 305 F.2d 226 (10th Cir.1962), or if the jury ver-

dict itself is motivated by passion, prejudice or undue

sympathy, Timmons, 653 P.2d at 919. We also note that

under Oklahoma law, a remittitur as to actual damages

such as we ordered in our first opinion does not require

that a punitive damages award also be reduced. Hobbs v.

Watkins, 481 P.2d 746, 754 (Okla.1971).

In our first opinion, we held that Oklahoma would find

plutonium processing to be an ultrahazardous activity,

and that Kerr-McGee should be held strictly liable for

any damages caused by the escape of its plutonium. 667

F.2d 908, 921 (10th Cir.1981). Since strict liability ap-

34a

plies, Oklahoma would hold Kerr-McGee to a standard of

utmost due care and would require Kerr-McGee to take

all possible precautions to safeguard against even the

most minimal risk of harm from its operations.' See

Foster & Keeton, Liability Without Fault in Oklahoma,

3 Okla.L.Rev. 172 (1951). Moreover, Oklahoma would

find punitive damages to be appropriate if Kerr-McGee’s

handling of ultrahazardous plutonium reflected a reckless

disregard for public safety. See Thiry v. Armstrong

World Industries, 661 P.2d 515, 518 (Okla.1983).

The evidence concerning the contamination of Karen

Silkwood’s apartment was highly relevant and is entitled

to careful review. If it was not given full attention an

° important aspect of the case would be excluded. There is

ample evidence not only to permit the punitive damages

issue to be submitted to the jury, but also to support the

punitive damages award that the jury returned. Kerr-

McGee conceded that the plutonium found in Ms. Silk-

wood’s apartment came from its plant, and the jury

found that Ms. Silkwood had not intentionally removed

the plutonium from the plant. Thus, Kerr-McGee was

strictly liable for the harm caused by its plutonium, and

the question becomes whether Kerr-McGee’s course of

conduct reflected a reckless disregard for public safety.

THE EVIDENCE SUPPORTS THE CONCLUSION

THAT KERR-McGEE FAILED TO PROVIDE

SUPPORT CAPABLE OF PROTECTING

AGAINST SILKWOOD’S CONTAMINATION

There is substantial evidence in the record to demon-

strate that both before *® and in connection with the Silk-

'The Supreme Court’s holding that state tort law is not pre-

empted by federal nuclear regulation permits Oklahoma to impose

strict liability and a standard of utmost due care upon Kerr-McGee.

104 S.Ct. at 624-25.

2 Evidence of Kerr-McGee’s handling of plutonium prior to the

contamination incident was properly admitted at trial to show

35a

wood contamination incident, Kerr-McGee failed to use

the utmost care in its processing facility at Cimmaron,

and that it fell short of even the standard that Oklahoma

would impose under ordinary negligence principles. The

record shows that Kerr-McGee did not take precautions

to protect the general public from the escape of plutonium

from its plant and that its conduct reflected reckless

indifference for public safety.

The Cimmaron plant was not designed to satisfy the

most simple principles of human factors engineering. The

facility was cramped. The plant did not incorporate suffi-

cient safety systems, such as “state of the art” alarm

systems, leak detectors, air monitoring systems, and

welded gaskets, into its design. The evidence showed that

the plant’s management was recklessly indifferent to the

health and safety of its workers. Kerr-McGee hired un-

qualified health-physics personnel. It knew of the life-

threatening character of plutonium escape, but failed to

warn employees of the importance of contamination con-

trol. Moreover, workers were never informed of the

health hazards of plutonium contamination.

There is record evidence that Kerr-McGee continuously

exposed also the general public to a risk of contamination

through lax physical security at the plant. Kerr-McGee

did not provide adequate health and safety training.

This in all likelihood led to that many significant con-

tamination events. Several of these critical events were

emblematic of a conscious indifference to the welfare of

the general public. For example, in April of 1972, three

workers contaminated a local restaurant after leaving

the plant tainted with plutonium. When Kerr-McGee

Kerr-McGee's knowledge of the hazards of plutonium and its atti-

tude toward those hazards. Edgar v. Fred Jones Lincoln-Mercury

of Oklahoma City, Inc., 524 F.2d 162 (10th Cir. 1975).

36a

management learned of the incident, they did not contact

either the restaurant or thé Atomic Energy Commission.

But, even after that incident, Kerr-McGee continued to

employ lax contamination controls. Kerr-McGee was un-

able to account for 25 pounds of plutonium in less than a

month from October 15 to November 7, 1974.

The contamination of Karen Silkwoood’s apartment

upon which liability in this case is based was within the

radius of the abnormal risk to the general public. Kerr-

McGee’s lax security procedures and controls were signifi-

cant factors in the escape of plutonium from its custody.

All of Karen Silkwood’s belongings, including items ir-

replaceable and of substantial sentimental character, were

contaminated. These had negligible monetary value.

Nevertheless they were contaminated and had to be

destroyed. This destruction flowed from Kerr-McGee’s

failure to prevent the escape of plutonium from its plant.

The record also discloses that there were numerous other

incidents which reflected Kerr-McGee’s lack of concern

about the release of plutonium and the risks that release

posed to the general public. Kerr-McGee simply pointed

to the loose standards of the government.

The district court correctly concluded that “the amount

of the punitive damages was particularly within the

province of the jury to decide in light of the purpose of

punitive damages, the character of defendant’s conduct,

the hazardous nature of plutonium, and defendant’s

knowledge and state of mind.” 485 F.Supp. 566, 591

(D.Okla.1979). The record evidence permits one to con-

clude that the jury performed its function dispassionately

and well. This result expressed the jury reaction and the

reaction of the nation as a whole to the fatal conse-

quences of the negligent treatment of this material. The

punitive award was proportionate to the culpability of

Kerr-McGee’s dangerous conduct. It was not motivated

by passion, prejudice, or undue sympathy. Accordingly,

therefore, there is no basis for disturbing the award.

37a

THE REMAINING ISSUES

There remain only three brief issues to be resolved. I

am unable to consistently embrace the position of Kerr-

McGee as to these.

First, Kerr-McGee’s argument that the punitive award

must be reversed because the punitive damages/actual

damages ratio of 2000:1 is disproportionate as a matter

of law. Kerr-McGee’s argument must be rejected, for

Oklahoma law explicitly rejects the use of a ratio approach

in evaluating punitive awards. Timmons v. Royal Globe

Insurance Co., 653 P.2d 907, 918 (Okla.1982). So long

as the award is reasonably related to the harm to society

caused by the defendant’s conduct, id., and will not bank-

rupt the defendant, Thiry v. Armstrong World Industries,

661 P.2d 515, 518 (Okla.1923), an appellate court should

defer to the jury’s judgment on punitive damages, Tim-

mons, 653 P.2d at 918. Accordingly, we should reject

Kerr-McGee’s ratio argument.

Kerr-McGee’s second argument is that the trial court’s

instructions to the jury on the effect of compliance with

federal regulations were fatally flawed. Once again, we

should reject this argument. Oklahoma law does not

make mere compliance (or “substantial compliance”)

with statutory or regulatory requirements conclusive proof

of due care. See Transport Indemnity Co. v. Page, 406

P.2d 980 (Okla.1965) ; Roadway Express, Inc. v. Baty,

189 Okl. 180, 114 P.2d 985 (1941). The trial court

correctly instructed the jury that the federal regulations,

and the degree of Kerr-McGee’s compliance with those

regulations, were entitled to substantial weight in de-

termining whether Kerr-McGee had exercised due care in

its handling of plutonium. See Instructions No. 10, 11,

12 and 27, reprinted in 485 F.Supp. at 598-99, 606-07.

The trial court also instructed the jury that those regula-

tions, and Kerr-McGee’s compliance, did not conclusively

prove due care under all the circumstances. See id. These

38a

instructions fully described Oklahoma law; they are fully

consistent with the principle, embodied in the Supreme

Court’s opinion, that Oklahoma may impose a common-

law standard of care higher than that imposed by federal

regulations on nuclear activities. I submit that no prob-

lem arises in connection with the trial court’s jury in-

structions on compliance with federal regulations. Kerr-

McGee’s position fails to justify such an attack.

Kerr-McGee’s third argument is that it was denied a

fair trial due to anti-nuclear publicity arising out of the

Three Mile Island incident and the movie, “The China

Syndrome,” and due to the courtroom histrionics of plain-

tiff’s trial counsel, G.L. Spence. This position is also ill

fit for the occasion. The trial judge repeatedly admon-

ished the jury to disregard both extraneous publicity and

the trial histrionics of plaintiff’s counsel. When Kerr-

McGee raised these issues before the district court in its

post-trial motions, that court rejected Kerr-McGee’s argu-

ments of unfairness. Since the trial judge was in the

best position to judge the overall fairness of the trial,

we may reverse his decision on this issue only if it was a

gross abuse of his broad discretion. Rodgers v. Hyatt,

697 F.2d 899, 901 (10th Cir.1983). In light of the strong

cautionary admonitions to the jury that the trial court

gave throughout the trial, and in light of the presump-

tion that must be accorded that the jury performed its

function fairly, I certainly cannot say that the district

court abused its discretion in holding that Kerr-McGee

received a fair trial. The case was tried with utmost care

-and any new trial could not provide improvement.

Our brethers, Judges McKay and Logan, refuse to face

the general nature of this case. They fail to recognize its

total magnitude of the condition created by Kerr-McGee.

There has not been a previous situation which brought

into focus the tremendous power of the material. It is

understandable that Kerr-McGee’s reaction is one which

clings to its effort to treat the condition as an ordinary

89a

result and which also turns away from the reality of this

tragedy. The truth though is that the treatment of Silk-

wood shook the entire nation. Her suffering and death

will not be soon forgotten.

Kerr-McGee’s arguments for reversal or a new trial do

not justify either a reversal or a six-week retrial. The

award of punitive damages is not at all excessive in the

light of the needless and excessive injury.

The punitive damages are the sole reminders of her

life and death. The evidence and the verdict serve to call

attention to the danger from the misuse of the material

and its tragic result. How can a new trial and a different

verdict improve the present result? How can a different

result serve to remind those who remain of the true

symbol of the material and what it stands for?

With the foregoing in mind I respectfully submit that

the prior judgment should be affirmed.

40a

APPENDIX B

SUPREME COURT OF THE UNITED STATES

No. 81-2159

BILL M. SILKWoOoD, ADMINISTRATOR OF THE ESTATE

OF KAREN G. SILKWOOD, DECEASED,

Appellant

Vv.

KERR-MCGEE CORPORATION, ETC., et al.

On Appeal from the United States Court of Appeals

for the Tenth Circuit

[January 11, 1984]

JUSTICE WHITE delivered the opinion of the Court.

Last term, this Court examined the relationship between

federal and state authority in the nuclear energy field and

concluded that states are precluded from regulating the

safety aspects of nuclear energy. Pacific Gas & Electric

Co. v. State Energy Resources Conservation & Develop-

ment Comm’n, US. , (1983). This case

requires us to determine whether a state-authorized award

of punitive damages arising out of the escape of plutonium

from a federally-licensed nuclear facility is preempted

4la

either because it falls within that forbidden field or be-

cause it conflicts with some other aspect of the Atomic

Energy Act.

I

Karen Silkwood was a laboratory analyst for Kerr-

McGee’ at its Cimmaron plant near Crescent, Oklahoma.

The plant fabricated plutonium fuel pins for use as

reactor fuel in nuclear power plants. Accordingly, the

plant was subject to licensing and regulation by the Nu-

clear Regulatory Commission (NRC) pursuant to the

Atomic Energy Act, 42 U.S.C. §§ 2011-2284 (1976 ed.

and Supp. V).?

During a three-day period of November 1974, Silkwood

was contaminated by plutonium from the Cimmaron

plant. On November 5, Silkwood was grinding and polish-

ing plutonium samples, utilizing glove boxes designed for

that purpose.* In accordance with established procedures,

she checked her hands for contamination when she with-

drew them from the glove box. When some contamination

was detected, a more extensive check was performed. A

monitoring device revealed contamination on Silkwood’s

1 Silkwood was employed by Kerr-McGee Nuclear Corp., a sub-

sidiary of Kerr-McGee Corp. The jury found that the former was

the “mere instrumentality” of the latter. We therefore refer to both

as Kerr-McGee.

2 Under 42 U.S.C. § 2073, the Commission is authorized to issue

licenses to those who handle special nuclear materials like the

plutonium processed in Kerr-McGee’s plant. Section 2201(b) em-

powers the Commission to set standards and issue instructions

to govern the possession and use of such materials. On April 2,

1970, Kerr-McGee obtained a license to receive and possess special

nuclear materials at its Cimmaron plant. It closed the plant in

1975.

3A 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 the plutonium from

outside the box.

42a

left hand, right wrist, upper arm, neck, hair, and nostrils.

She was immediately decontaminated, and at the end of

her shift, the monitors detected no contamination. How-

ever, she was given urine and fecal kits and was in-

structed to collect samples in order to check for plutonium

discharge.

The next day, Silkwood arrived at the plant and began

doing paperwork in the laboratory. Upon leaving the

laboratory, Silkwood monitored herself and again discov-

ered surface contamination. Once again, she was decon-

taminated.

On the third day, November 7, Silkwood was monitored

upon her arrival at the plant. High levels of contamina-

tion were detected. Four urine samples and one fecal

sample submitted that morning were also highly contami-

nated.* Suspecting that the contamination had spread to

areas outside the plant, the company directed a decon-

tamination squad to accompany Silkwood to her apart-

ment. Silkwood’s roommate, who was also an employee

at the plant, was awakened and monitored. She was also

contaminated, although to a lesser degree than Silkwood.

The squad then monitored the apartment, finding con-

tamination in several rooms, with especially high levels

in the bathroom, the kitchen, and Silkwood’s bedroom.

The contamination level in Silkwood’s apartment was

such that many of her personal belongings had to be

destroyed. Silkwood herself was sent to the Los Alamos

Scientific Laboratory to determine the extent of contamina-

tion in her vital body organs. She returned to work on

November 18. That night, she was killed in an unrelated

automobile accident. 667 F.2d 908, 912 (CA10 1981).

* At trial, the parties stipulated that the urine samples had been

spiked with insoluble plutonium, i.e., plutonium which cannot be

excreted from the body. However, there was no evidence as to who

placed the plutonium in the vials.

43a

Bill Silkwood, Karen’s father, brought the present diver-

sity action in his capacity as administrator of her estate.

The action was based on common law tort principles un-

der Oklahoma law and was designed to recover for the

contamination injuries to Karen’s person and property.

Kerr-McGee stipulated that the plutonium which caused

the contamination came from its plant, and the jury ex-

pressly rejected Kerr-McGee’s allegation that Silkwood

had intentionally removed the plutonium from the plant

in an effort to embarrass the company. However, there

were no other specific findings of fact with respect to the

cause of the contamination.

During the course of the trial, evidence was presented

which tended to show that Kerr-McGee did not always

comply with NRC regulations. One Kerr-McGee witness

conceded that the amount of plutonium which was un-

accounted for during the period in question exceeded per-

missible limits.® 485 F. Supp. 566, 586 (W. D. Okla.

1979). An NRC official testified that he did not feel that

Kerr-McGee was conforming its conduct to the “as low

as reasonably achievable” standard.® Ibid. There was also

some evidence that the ievel of plutonium in Silkwood’s

apartment may have exceeded that permitted in an un-

restricted area such as a residence. [bid.

5 After allowing for hold-up (plutonium which remains in the

equipment after a very thorough cleanout), the inventory difference

(opening less closing) for the 1972-1976 period was 4.4 kilograms.

This represented .522% of the 842 kilograms received by Kerr-

McGee during that period. The NRC permits an inventory differ-

ence of .500%.

® Federal regulations require that “persons engaged in activities

under licenses issued by the Nuclear Regulatory Commission .. .

make every reasonable effort to maintain radiation exposures, and

releases of radioactive materials in effluents to unrestricted areas,

as low as is reasonably achievable.” 10 CFR 20.1(c) (1983). In

1974, the regulation required reasonable efforts to maintain ex-

posures and releases “as far below the limits specified [in other

portions of the regulations] as practicable.” The differcnce in the

terminology is not significant. 40 Fed. Reg. 33029 (1975).

44a

However, there was also evidence that Kerr-McGee com-

plied with most federal regulations. The NRC official tes-

tified that there were no serious personnel exposures at the

plant and that Kerr-McGee did not exceed the regulatory

requirements with respect to exposure levels that would

result in significant health hazards. In addition, Kerr-

McGee introduced the Commission’s report on the investi-

gation of the Silkwood incident in which the Commission

determined that Kerr-McGee’s only violation of regula-

tions throughout the incident was its failure to maintain

a record of the dates of two urine samples submitted by

Silkwood.

The trial court determined that Kerr-McGee had not

shown that the contamination occurred during the course

of Silkwood’s employment. Accordingly, the court pre-

cluded the jury from deciding whether the personal in-

jury claim was covered by Oklahoma’s Workers’ Compen-

sation Act, which provides the sole remedy for accidental

personal injuries arising in the course of employment.

Okla. Stat. tit. 85 §§ 11, 12 (1981). Instead, the court

submitted the claims to the jury on alternative theories

of strict liability and negligence.’

The court also instructed the jury with respect to puni-

tive damages, explaining the standard by which Kerr-

McGee’s conduct was to be evaluated in determining

whether such damages should be awarded:

“(T]he jury may give damages for the sake of

example and by way of punishment, if the jury finds

the defendant or defendants have been guilty of op-

pression, fraud, or malice, actual or presumed... .

7In an effort to avoid a new trial in the event that the Court of

Appeals disagreed with its ruling on the applicability of strict

liability principles, the court instructed the jury to answer a special

interrogatory as to whether Kerr-McGee negligently allowed the

plutonium to escape from its plant. The jury answered in the

affirmative.

45a

“Exemplary damages are not limited to cases

where there is direct evidence of fraud, malice or

gross negligence. They may be allowed when there

is evidence of such recklessness and wanton disregard

of another’s rights that malice and evil intent will

be inferred. If a defendant is grossly and wantonly

reckless in exposing others to dangers, the law holds

him to have intended the natural consequences of his

acts, and treats him as guilty of a willful wrong.”

485 F. Supp. 566, 603 (W. D. Okla. 1979) (Appen-

dix).

The jury returned a verdict in favor of Silkwood, find-

ing actual damages of $505,000 ($500,000 for personal

injuries and $5,000 for property damage) and punitive

damages of $10,000,000. The trial court entered judg-

ment against Kerr-McGee in that amount.

Kerr-McGee then moved for judgment n.o.v. or a new

trial. In denying that motion, 485 F. Supp. 566 (W. D.

Okla. 1979), the court rejected Kerr-McGee’s contention

that compliance with federal regulations precluded an

award of punitive damages. The court noted that Kerr-

McGee “had a duty under part 20 of Title 10 of the Code

of Federal Regulations to maintain the release of radia-

tion ‘as low as reasonably achievable.’ Compliance with

this standard cannot be demonstrated merely through con-

trol of escaped plutonium within any absolute amount.”

Id., at 585. Therefore, the court concluded, it is not “in-

consistent [with any congressional design] to impose puni-

tive damages for the escape of plutonium caused by

grossly negligent, reckless and willful conduct.” Jbid.

Kerr-McGee renewed its contentions with greater suc-

cess before the Court of Appeals for the Tenth Circuit.

That court, by decision of a split panel, affirmed in part

and reversed in part. 667 F.2d 908 (CA10 1981). The

court first held that recovery for Silkwood’s personal in-

juries was controlled exclusively by Oklahoma’s workers’

46a

compensation law. It thus reversed the $500,000 judg-

ment for those injuries. The court then affirmed the prop-

erty damage portion of the award, holding that the work-

ers’ compensation law applied only to personal injuries

and that Oklahoma law permitted an award under a

theory of strict liability in the circumstances of this case.

Finally, the court held that because of the federal statutes

regulating the Kerr-McGee plant, “punitive damages may

not be awarded in this case,” id., at 923.

Ih reaching its conclusion with respect to the punitive

damages award, the Court of Appeals adopted a broad

preémption analysis. It concluded that “any state action

that competes substantially with the AEC (NRC) in its

regulation of radiation hazards associated with plants

handling nuclear material” was impermissible. /bid. Be-

cause “[a] judicial award of exemplary damages under

state law as punishment for bad practices or to deter

future practices involving exposure to radiation is not

less intrusive than direct legislative acts of the state,”

the court determined that such awards were preempted

by federal law. /bid.

Silkwood appealed, seeking review of the Court of Ap-

pea)s’ ruling with respect to the punitive damages award.

We noted probable jurisdiction and postponed considera-

tio, of the jurisdictional issue until argument on the

Mehits, U.S. —— (1983).

Il

We first address the jurisdictional issue. This Court is

€Mnowered to review the decision of a federal court of

4Pheals “by appeal {if] a State statute [is] held by [the]

COUrt of appeals to be invalid as repugnant to the Con-

Stitution .. . .” 28 U.S.C. § 1254/2). Silkwood argues

that because the Court of Appeals invalidated the puni-

tiVe damages award on preemption grounds and because

thé basis for that award was a state statute, Okla. Stat.

47a

tit. 23 § 9 (1981),* the Court of Appeals necessarily held

that the state statute was unconstitutional, at least as

applied in this case. Accordingly, Silkwood contends,

this case falls within the confines of § 1254(2). We dis-

agree.

In keeping with the policy that statutes authorizing

appeals are iv be strictly construed, Perry Education

Ass’n V. Perry Local Educators’ Ass’n, US. —,

—— (1983); Fornaris v. Ridge Tool Co., 400 U.S. 41,

42 n. 1 (1970), we have consistently distinguished be-

tween those cases in which a state statute is expressly

struck down on constitutional grounds and those in which

an exercise of authority under state law is invalidated

without reference to the state statute. The former come

within the scope of § 1254(2)’s jurisdictional grant.

Malone v. White Motor Corp., 435 U. S. 497, 499 (1978);

Dutton v. Evans, 400 U.S. 74, 76 n. 6 (1970). The latter

do not. Perry Education Ass'n, supra, at ; Hanson

Vv. Denckla, 357 U. S. 235, 244 (1958): Wilson v. Cook,

327 U. S. 474, 482 (1946)." See also County of Arling-

ton V. United States, 669 F. 2d 925 (CA4 1981) cert.

denied, —— U.S. (1983); Minnesota v. Hoffman,

543 F. 2d 1198 (CA8 1976), cert. denied sub nom Min-

nesota V. Alexander, 430 U. S. 977 (1977). The present

case falls into the second category.

The Court of Appeals held that because of the preemp-

tive effect of federal law, “punitive damages may not

* The Oklahoma statute authorizes an award of punitive damages

“{i)n any action for the breach of an obligation not arising from

contract, where the defendant has been guilty of oppression, fraud,

or malice, actual or presumed.”

* Wilson and Denckla involve appeals from state court judgments

under 20 U.S.C. $1257 and its predecessor, However, such cases

are relevant to the present issue because of “the history of .. .

close relationship between” § 1254(2) and § 1257. Calero-Toledo v.

Pearson Yacht Leasing Co., 416 US. 663, 675-677 nm. 11 (1974).

48a

be awarded in this case.” 667 F. 2d, at 923. It did not

purport to rule on the constitutionality of the Oklahoma

punitive damages statute. The court did not mention the

statute, and the parties did not contest or defend the

constitutionality of the statute in their appellate briefs.

While the award itself was struck down, the statute

authorizing such awards was left untouched. Cf. Perry

Education Ass’n, supra, at ——. Therefore, the present

appeal is not within our § 1254{2) appellate jurisdic-

tion.”

Nevertheless, the decision below is reviewable by writ

of certiorari. Jbid. The issue addressed by the court

below is important; it affects both the states’ traditional

authority to provide tort remedies to its citizens and

the federal government’s express desire to maintain ex-

clusive regulatory authority over the safety aspects of

nuclear power. Accordingly, treating the jurisdictional

statement as a petition for certiorari, as we are author-

ized to do, 28 U. S. C. § 2103, we grant the petition and

reach the merits of the Court of Appeals’ ruling.

Ill

As we recently observed in Pacific Gas & Electric Co.

v. State Energy Resources Conservation & Development

Comm'n, ——— U.S. —— (1983), state law can be pre-

empted in either of two general ways. If Congress

evidences an intent to occupy a given field, any state law

falling within that field is preempted. /d., at : Fidel-

ity Federal Savings & Loan Ass’n v. de la Cuesta, 458

U. S. 141, 153 (1982); Rice v. Santa Fe Elevator Corp.,

© Silkwood’s reliance on California v. Grace Brethren Church,

457 U.S. 398 (1982) is misplaced. Grace Brethren involved a direct

appeal under 28 U.S.C. § 1252, a statute which we have co. strued

more broadly because of Congress’ clear intent to create an “exrep-

tion to the policy of minimizing the mandatory docket of this

Court.” Jd., at 405. See also MeLucas v. DeChamplain, 421 U.S. 21,

31 (1975).

49a

331 U. S. 218, 230 (1947). If Congress has not entirely

displaced state regulation over the matter in question,

state law is still preempted to the extent it actually con-

flicts with federal law, that is, when it is impossible to

comply with both state and federal law, Florida Lime &

Avocado Growers, Inc. v. Paul, 373 U. S. 182, 142-1438

(1963), or where the state law stands as an obstacle to

the accomplishment of the full purposes and objectives

of Congress, Hines v. Davidowitz, 312 U. S. 52, 67

(1941). Pacific Gas & Electric, supra, at ——. Kerr-

McGee contends that the award in this case is invalid

under either analysis. We consider each of these con-

tentions in turn.

A

In Pacific Gas & Electric, an examination of the statu-

tory scheme and legislative history of the Atomic En-

ergy Act convinced us that “Congress . . . intended that

the federal government reguiate the radiological safety

agpects involved . . . in the construction and operation

of a nuclear plant.” -—— U. S., at ——. Thus, we

concluded that “the federal government has occupied the

entire tield of nuclear safety concerns, except the limited

powers expressly ceded to the states.” /Jd., at -——.

Kerr-McGee argues that our ruling in Pacific Gas &

Electric is dispositive of the issue in this case. Noting

that “regulation can be as effectively asserted through

an award of damages as through some form of preven-

tive relief,” San Diego Building Trade Council v. Gar-

mon, 359 U. S. 236, 247 (1859), Kerr-McGee submits

that because the state-authorized award of punitive dam-

ages in this case punishes and deters conduct related

to radiation hazards, it falls within the prohibited field.

However, a review of the same legislative history which

prompted our holding in Pacific Gas & Electric, coupled

with an examination of Congress’ actions with respect to

other portions of thy omie Energy Act, convinces us

50a

that the preempted field does not extend as far as Kerr-

McGee would have it.

As we recounted in Pacific Gas & Electric, “{u]ntil

1954... the use, control and ownership of nuclear tech-

nology remained a federal monopoly.” ue &

In that year, Congress enacted legislation which

provided for private involvement in the development of

atomie energy. The Atomic Energy Act of 1954, Act of

Aug. 30, 1954, ch. 1073, 68 Stat. 919, as amended, 42

U. S. C. $$ 2011-2284 (1976 ed. and Supp. V). How-

ever, the federal goverament retained extensive control

over the manner in which this development occurred.

In particular, the Atomic Energy Commission (the pred-

ecessor of the NRC) was given “exclusive jurisdiction

to license the transfer, delivery, receipt, acquisition, pos-

session and use of nuclear materials.” Pacific Gas &

Electric, supra, at . See 42.U. S. C. $$ 2014, (e},

(z), (aa), 2061-2064, 2071-2078, 2091-2099, 2111-2114

(1976 and Supp. V).

In 1959 Congress amended the Atomic Energy Act in

order to “clarify the respective responsibilities of the

States and the Commission with respect to the regulation

of byproduct, source, and special nuclear materiais.”’ 42

U.S. C. § 2021(a) (1). See S. Rep. No. 870, 86th Cong.

Ist Sess. 8-12 (1959). The Commission was authorized

to turn some of its regulatory authority over to any

state which would adopt a suitable regulatory program.

However, the Commission was to retain exclusive regula-

tory authority over “the disposal of such . . . byproduct,

source, or special nuclear material as the Commission

determines . . . should, because of the hazards or potential

hazards thereof, not be disposed of without a license from

the Commission.” 42 U. 8S. C. § 2021(c) (4). The states

were therefore still precluded from regulating the safety

aspects of these hazardous materials."

11 At the time this suit was filed, Oklahoma had not entered into

an agreement with the Commission under § 2021. Even if it had,

5la

Congress’ decision to prohibit the states from regulat-

ing the safety aspects of nuclear development was pre-

mised cn its belief that the Commission was more qua:i-

fied to determine what type of safety standards should be

enacted in this complex area. As Congress was informed

by the AEC, the 1959 legislation provided for continued

federal control over the more hazardous materials be-

cause “the technical safety considerations are of such

complexity that it is not likely that any State would be

prepared to deal with them during the foreseeable future.”

H. R. Rep. No. 1125, 86th Cong., Ist Sess. 3 (1959). If

there were nothing more, this concern over the states’

inability to formulate effective standards and the fore-

closure of the states from conditioning the operation

of nuclear plants on compliance with state-imposed safety

standards arguably would disallow resort to state-law

remedies by those suffering injuries from radiation in a

nuclear plant. There is, however, ample evidence that

Congress had no intention of forbidding the states from

providing such remedies.

Indeed, there is no indication that Congress even seri-

ously considered precluding the use of such remedies

either when it enacted the Atomic Energy Act in 1954

and or when it amended it in 1959. This silence takes

on added significance in light of Congress’ failure to

provide any federal remedy for persons injured by such

conduct. It is difficult to believe that Congress weuld,

without comment, remove all means of judicial recourse

for those injured by illegal conduct. See United Con-

struction Workers v. Laburnum Corp., 347 U. S. 656,

663-664 (1954).

More importantly, the only congressional discussion

concerning the relationship between the Atomic Energy

Kerr-McGee would have still been subject to exclusive NRC safety

regulation because it was licensed to possess special nuclear ma-

terial in a quantity sufficient te form a critical mass. See 42 U.S.C.

§ 2021(b) (4) (1976 ed., Supp. V).

52a

Act and state tort remedies indicates that Congress

assumed that such remedies would be available. After

the 1954 law was enacted, private companies contem-

plating entry into the nuclear industry expressed con-

cern over potentially bankrupting state-law suits arising

out of a nuclear incident. As a result, in 1957 Congress

passed the Price-Anderson Act, an amendment to the

Atomic Energy Act. Pub. L. 85-256, 71 Stat. 576 (1957).

That Act established an indemnification scheme under

which operators of licensed nuclear facilities could be

required to obtain up to $60 million in private financial

protection against such suits. The government would

then provide indemnification for the next $500 million

of liability, and the resulting $560 million would be the

limit of liability for any one nuclear incident.

Although the Price-Anderson Act does not apply to the

present situation,’® the discussion preceeding its enact-

ment and subsequent amendment" indicates that Con-

gress assumed that persons injured by nuclear accidents

were free to utilize existing state tort law remedies. The

Joint Committee Report on the original version of the

Price-Anderson Act explained the relationship between

the Act and existing state tort law as follows:

“Since the rights of third parties who are injured

are established by State law, there is no interfer-

12 Under the Act, the NRC is given discretion whether to require

plants licensed under § 2073 to maintain financial protection. 42

U.S.C. §2210(a). Government indemnification is available only to

those required to maintain financial protection, id., § 2210(c), and

the liability limitation applies only to those who are indemnified.

Id., §2210(e). The NRC did not require plutonium processing

plants to maintain financial protection until 1977, 42 Fed. Reg. 46

(1977).

13 The 1957 version of the Price-Anderson Act was designed to

expire in 1967. It was extended in 1965, Pub. L. No. 89-210, 79

Stat. 855, and again in 1975, Pub. L. No. 94-197, 89 Stat. 1111. In

addition, several substantive changes were made through the years,

most notably in 1966. Pub. L. No. 89-645, 80 Stat. 691.

58a

ence with the State law until there is a likelihood

that the damages exceed the amount of financial

responsibility required together with the amount of

the indemnity. At that point the Federal inter-

ference is limited to the prohibition of making pay-

ments through the state courts and to prorating the

proceeds available.”’ S. Rep. No. 296, 85th Cong.,

Ist Sess. 9 (1957).

See also H. Rep. 435, 85th Cong., Ist Sess. 9 (1957);

S. Rep. No. 1605, 89th Cong., 2d Sess. 5 (1966).

Congress clearly began working on the Price-Anderson

legislation with the assumption that in the absence of

some subsequent legislative action, state tort law would

apply.* This was true even though Congress was fully

aware of the Commission’s exclusive regulatory authority

over safety matters. As the Joint Committee explained

in 1965:

“The Price-Anderson Act also contained provi-

sions to improve the AEC’s procedures for regulat-

ing reactor licensees . . . . This manifested the

continuing concern of the Joint Committee and Con-

gress with the necessity for assuring the effective-

ness of the national regulatory program for protect-

ing the health and safety of employees and the

public against atomic energy hazards. The inclu-

sion of these provisions . . . also reflected the inti-

mate relationship which existed between Congress’

concern for prevention of reactor accidents and the

indemnity provisions of the Price-Anderson legisla-

14TIn sustaining the Price-Anderson Act against a constitutional

challenge, we echoed that assumption, noting that before the Act

was enacted, the only right possessed by those injured in a nuclear

incident “was to utilize their existing common-law and _ state-law

remedies to vindicate any particular harm visited on them from

whatever source.” Duke Power Co. v. Carolina Environmental

Study Group, 438 U.S. 59, 88, 89 n. 32 (1978).

5la

tion.” S. Rep. No. 649, 89th Cong., Ist Sess. 4-5

(1965).

When it enacted the Price-Anderson Act, Congress was

well aware of the need for effective national safety regu-

lation. In fact, it intended to encourage such regulation.

But, at the same time, “the right of the State courts to

establish the liability of the persons involved in the nor-

mal way [was] maintained.” S. Rep. No. 296, supra, at

22.

The belief that the NRC’s exclusive authority to set

safety standards did not foreclose the use of state tort

remedies was reaffirmed when the Price-Anderson Act

was amended in 1966. The 1966 amendment was de-

signed to respond to concerns about the adequacy of state

law remedies. See, e.g., S. Rep. No. 649, supra, at 13. It

provided that in the event of an “extraordinary nuclear

occurrence”,’’ licensees could be required to waive any

issue of fault, any charitable or governmental immunity

defense, and any statute of limitations defense of less

than 10 years, 42 U.S.C. § 2210(n) (1). Again, how-

ever, the importance of the legislation for present pur-

poses is not so much in its substance, as in the assump-

tions on which it was based.

Describing the effect of the 1966 amendment, the Joint

Committee stated:

“By requiring potential defendants to agree to

waive defenses the defendants’ rights are restricted;

1 An “extraordinary nuclear occurence” is “any event causing

a discharge or dispersal of source, special nuclear, or byproduct

material from its intended place of confinement in amounts offsite,

or causing radiation levels offsite, which the Commission deter-

mines to be substantial, and which the Commission determines has

resulted or will probably result in substantial damages to persons

offsite or property offsite.” 42 U.S.C. § 2014(j). The Commission's

criteria for defining an extraordinary nuclear occurrence are

located at 10 CFR §§ 140.81-140.85 (1983).

55a

concomitantly, to this extent, the rights of plaintiffs

are enlarged. Just as the rights of persons who are

injured are established by State law. the rights of

defendants against whom liability is asserted are

fixed by State law. What this subsection dos is to

authorize the [NRC] to require that defendants cov-

ered by financial protection and indemnity give up

some of the rights they might otherwise assert.”

S. Rep. 1605, 89th Cong., 2d Sess. 25 (1966).

Similarly, when the Committee outlined the rights of

those injured in nuclear incidents which were not extraor-

dinary nuclear occurrences, its reference point was again

state law. “Absent ... a determination ; that the inci-

dent is an “extraordinary nuclear occurrence’’], a ¢claim-

ant would have exactly the same rights that he has to-

day under existing law-—including, perhaps, benefit of a

rule of strict liability if applicable State law so provides.”

id., at 11. Indeed, the entire discussion surrounding the

1966 amendment was premised on the assumption that

state remedies were available notwithstanding the NRC’s

exclusive regulatory authority. For example, the Com-

mittee rejected a suggestion that it adopt a federal tort

to replace existing state remedies, noting that such dis-

placement of state remedies would engender great oppo-

sition. Hearings before the Joint Committee On Atomic

Energy on Proposed Amendments to Price-Anderson Act

Relating to Waivers of Defense, 89th Cong. 2d Sess. 31,

75 (1966); S. Rep. No. 1605, supra, at 6-9. If other

provisions of the Atomic Energy Act already precluded

the states from providing remedies to its citizens, there

would have been no need for such concerns. Other com-

ments made throughout the discussion were similarly

based on the assumption that state remedies were avail-

able.'*

#® Atomic Energy Commission General Counsel Hennessey testi-

fied that

“(i]t would appear eminently reasonable to avoid disturbing ordi-

nary tort law remedies with respect to damage claims where the

56a

Kerr-McGee focuses on the differences between com-

pensatory and punitive damages awards and asserts that,

at most, Congress intended to allow the former. This

argument, however, is misdirected because our inquiry is

not whether Congress expressly allowed punitive dam-

ages awards. Punitive damages have long been a part of

traditional state tort law. As we noted above, Congress

assumed that traditional principles of state tort law

would apply with full force unless they were expressly

supplanted. Thus, it is Kerr-McGee’s burden to show

that Congress intended to preclude such awards. See

IBEW vy. Foust, 442 U.S. 42, 53 (1979) (BLACKMUN, J.,

concurring). Yet, the company is unable to point to any-

thing in the legislative history or in the regulations that

indicates that punitive damages were not to be allowed.

To the contrary, the regulations issued implementing the

insurance provisions of the Price-Anderson Act them-

selves contemplate that punitive damages might be

awarded under state law."'

circumstances are not substantially different from those encoun-

tered in many activities of life which cause damage to persons

and property.” Hearings before the Joint Committee On Atomic

Energy on Proposed Amendments te Price-Anderson Act Re-

lating to Waivers of Defense, 89th Cong. 2d Sess. 35 (1966).

See also id., at 41 (“the amendments would not actually change the

structure of the tort laws of the various states. The legal principles

of state law would remain unchanged, but certain of the issues and

defenses . .. would be affected”) .

17 Following the 1966 amendment, the Commission published a

form for nuclear energy liability policies and indemnity agreements.

After reciting the waivers being made by the licensee in the event

of an extraordinary nuclear occurrence, “he form contains the

following provision: “The waivers set forth above . .. do not

apply to.... Any claim for punitive or exemplary damages... .”

10 CFR § 140.91, Appendix A, para. 2(c) at 801 (1983).

Had the Commission thought that punitive damages awards

were precluded by earlier legislation, as Kerr-McGee suggests, there

would have been no need to state that the waivers didn’t apply to

57a

In sum, it is clear that in enacting and amending the

Price-Anderson Act, Congress assumed that state-law

remedies, in whatever form ‘hey might take, were avail-

able to those injured by nuclear incidents. This was so

even though it was well aware of the NRC’s exclusive

authority to regulate safety matters. No doubt there is

tension between the conclusion that safety regulation is

the exclusive concern of the federal law and the conclu-

sion that a state may nevertheless award damages based

on its own law of liability. But as we understand what

was done ever the years in the legislation concerning nu-

clear energy, Congress intended to stand by both con-

cepts and to tolerate whatever tension there was between

them. We can do no less. It may be that the award of

damages based on the state law of negligence or strict

liability is regulatory in the sense that a nuclear plant

will be threatened with damages liability if it does not

conform to state standards, but that regulatory conse-

quence was something that Congress was quite willing to

accept.

We do not suggest that there could never be an in-

stance in which the federal law would preempt the re-

covery of damages based on state law. But insofar as

damages for radiation injuries are concerned, preemp-

tion should not be judged on the basis that the federal

government has so completely occupied the field of safety

that state remedies are foreclosed but on whether there

is an irreconcilable conflict between the federal and state

standards or whether the imposition of a state standard

in a damages action would frustrate the objectives of the

federal law. We perceive no such conflict or frustration

in the circumstances of this case.

such awards. Since the waivers don't apply at all to the present

situation, the clear implication is that punitive damages are avail-

able, if state law so provides.

58a

B

The United States, as amicus curiae, contends that the

award of punitive damages in this case is preempted

because it conflicts with the federal remedial scheme,

noting that the NRC is authorized to impose civil penal-

ties on licensees when federal standards have been vio-

lated. 42 U.S.C. § 2282 (1976 ed. and Supp. V). How-

ever, the award of punitive damages in the present case

does not conflict with that scheme. Paying both federal

fines and state-imposed punitive damages for the same

incident would not appear to be physically impossible.

Nor does exposure to punitive damages frustrate any

purpose of the federal remedial scheme.

Kerr-McGee contends that the award is preempted be-

cause it frustrates Congress’ express desire “‘to encourage

widespread participation in the development and _ utiliza-

tion of atomic energy for peaceful purposes.” 42 U.S.C.

$ 2013(d). In Pacific Gas & Electric, we observed that

“tt}here is litthke doubt that a primary purpose of the

Atomic Energy Act was, and continues to be, the promo-

tion of nuclear power.” US., at However,

we also observed that “the promotion of nuclear power is

not to be accomplished ‘at all costs’”. Jd., at In-

deed, the provision cited by Kerr-McGee goes on to state

that atomic energy should be developed and utilized only

to the extent it is consistent “with the health and safety

of the public.” 42 U.S.C. § 2013(d). Congress therefore

disclaimed any interest in promoting the development

and utilization of atomic energy by means that fail to

provide adequate remedies for those who are injured by

exposure to hazardous nuclear materials. Thus, the

award of punitive damages in this case does not hinder

the accomplishment of the purpose stated in § 2013(d).

We also reject Kerr-McGee’s submission that the puni-

tive damages award in this case conflicts with Congress’

express intent to preclude dual regulation of radiation

59a

hazards. See S. Rep. No. 870, 86th Cong. Ist Sess. 8

(1959). As we explained in part A, Congress did not

believe that it was inconsistent to vest the NRC with

exclusive regulatory authority over the safety aspects of'

nuclear development while at the same time allowing

plaintiffs like Silkwood to recover for injuries caused by

nuclear hazards. We are not authorized to second-guess

that conclusion."*

IV

We conclude that the award of punitive damages in

this case is not preempted by federal law. On remand

Kerr-McGee is free to reassert any claims it made before

the Court of Appeals which were not addressed by that

court or by this opinion, including its contention that the

jury’s findings with respect to punitive damages were

not supported by sufficient evidence and its argument

that the amount of the punitive damages award was

excessive. The judgment of the Court of Appeals with

respect to punitive damages is therefore reversed, and

the case is remanded to the Court of Appeals for pro-

ceedings consistent with this opinion.

It is so ordered.

'S The government cites no evidence to support its claim that the

present award conflicts with the NRC’s desire to avoid penalties

which put “a licensee out of business .. . or adversely affect[]} a

licensee’s ability to safely conduct licensed activities.” 47 Fed. Reg.

9991 (1982). Thus, we need not decide whether an award could be

so large as to conflict with that policy. Of course, Kerr-McGee is

free to challenge the propriety of the amount of the award on

remand. See text infra, at 19.

60a

SUPREME COURT OF THE UNITED STATES

No. 81-2159

BILL M. SILKWooD, ADMINISTRATOR OF THE ESTATE OF

KAREN G. SILKWooD, DECEASED,

Appellant

v.

KERR-MCGEE CORPORATION, ETC., et al.

On Appeal from the United States Court of Appeals

for the Tenth Circuit

[January 11, 1984]

JUSTICE BLACKMUN, with whom JUSTICE MARSHALL

joins, dissenting.

I join JUSTICE POWELL’s opinion in dissent and add

comments of my own that, | believe, demonstrate (a)

the incompatibility between the Court’s opinion last Term

in Pacific Gas & Electric Co. v. State Energy Resources

Cons. and Dev, Comm'n, —— U.S. (1983), and its

opinion in the present case, and (b) the fact that the

Court is by no means compelled to reach the result it

espouses today.

JUSTICE POWELL’s dissent well explains the fundamen-

tal incongruity of the Court’s result. The Court acknowl-

6Ta

{

edges that Congress pre-empted state regulation of safety

aspects of nuclear operations largely out of concern that

States were without the technological expertise necessary

to regulate them. Ante, at 11. Yet the Court concludes

that Congress intended to allow a jury to impose sub-

stantial penalties upon a nuclear licensee for failure to

follow what the jury regards as adequate safety proce-

dures. The Court recognizes the paradox of its disposi-

tion, but blames the irrationality on Congress. Then,

with humility, the Court explains that it is duty-bound to

follow the dictates of Congress. But such institutienal

modesty cannot transfer the blame for the tension that

today’s decision injects into the regulation of nuclear

power. The Court, in my view, tortures its earlier deci-

sions and, more importantly, wreaks havoc with the regu-

latory structure that Congress carefully created.

I

The Court recognizes that the analytic framework for

this case was established just a year ago in Pacific Gas.

The precise issue in that case was whether the 1954

Atomic Energy Act, 68 Stat. 921, as amended, 42 U.S.C.

$ 2011 et seg. (1976 ed. and Supp. V), pre-empted Cali-

fornia’s authority to condition the construction of a nu-

clear facility in California on the State’s finding that

adequate means of disposal were available for the plant’s

nuclear wastes. Two aspects of that decision control the

proper disposition of the case today,

First, the Court concluded that federal pre-emption of

nuclear safety regulation was full and complete:

“State safety regulation is not pre-empted only when

it conflicts with federal law. Rather, the Federal

Government has occupied the entire field of nuclear

safety concerns, except the limited powers expressly

ceded to the States. When the Federal Government

completely occupies a given field or an identifiabie

62a

portion of it, as » he done here, the test of pre-

emption is whether “e matter on which the State

asserts the right to act is in any way regulated by

the Federal Act,” —— U.S., at —— (footnote

omitted! (slip op. 19-20).

The second important aspect of Pacific Gas was its

analysis of the California statute. Despite the broad fed-

eral preemption of nuclear safety concerns, the Court

upheld the state statute. The Court recognized that the

statute clearly had an effect on the safety of nuclear

plant operations, id., at —— (slip op. 3-4), but it up-

held the statute because its purpose was economic. The

Court concluded that the State had adopted the regula-

tion to prevent investments in peer plants that were

likely to become white elephants due to inadequate nu-

clear waste storage facilities. Ibid. Because Congress

had not meant the Atomic Energy Act to deprive States

of the right to make economic decisions concerning nu-

clear power, the Court concluded that the regulation was

not pre-empted. Thus, the fundamental teaching of

Pacific Gas is that state regulation of nuclear power is

pre-empted to the extent that its purpose is to regulate

safety.

The principles set forth in Pacific Gas compel the con-

clusion that the punitive damages awarded in this case,

and now upheld, are pre-empted. The prospect of paying

a large fine—in this case a potential $10 million—for

failure to operate a nuclear facility in a particular man-

ner has an obvious effect on the safety precautions that

nuclear licensees will follow. The Court does not dispute,

moreover, that punitive damages are expressly designed

for this purpose. Punitive damages are “private fines

levied by civil juries.” Gertz V. Robert Welch, Inc., 418

U.S. 323, 350 (1974). See Smith v. Wade, US.

‘ (1983) (“[DJeterrence of future egregious

conduct is a primery purpose. . - of punitive damages”)

63a

(slip op. 19). The trial court's instructions to the jury

in this case explained the purpose of punitive damages:

“The basis for allowance of punitive damages

rests upon the principle that they are allowed as a

punishment to the offender for the general benefit of

society, both as a restraint upon the transgressor

and as a warning and example to deter the commis-

sion of like offenses in the future.” App. to Juris.

Statement 112a.

The conduct that the jury's punitive damages award

sought to regulate was the day-to-day safety procedures

of nuclear licensees. There was no factual finding as to

how the contamination of Karen Silkwood occurred; the

trial judge expressly refused to give an instruction on

intentional infliction, and the jury rejected Kerr-McGee's

suggestion that Silkwood intentionally contaminated her-

self. See ante, at 3; 667 F.2d, at 915. It is abundantly

clear, therefore, that the punitive damages award in this

ease deters a nuclear facility from operating in the same

manner as Kerr-McGee. Authority for a State to do so,

however, is precisely what the Court held to be pre-

empted in Pacific Gas.’ Nuclear Regulatory Commission

regulations covered virtually every aspect of the inci-

dent in which Silkwood was contaminated. The Atomic

t The Court’s opinion in Pacifie Ges seened to contemplate even

the precise issue in the case today. The Court explained :

“Tt would clearly be impermissible for California to attempt to

regulate [the construction or operation of a nuclear powerplant |,

for such regulation, even if regulated out of non-safety concerns,

would nevertheless directly conflict with the [C ommission's| exclu-

sive authority over plant construction and operation.” —— US.

at —— (slip op. 19).

2 See, e.g. 10 CFR § 19.12 (1974) (requiring education of work-

ers concerning hazards of radiation); $§ 20.101-20.108 & app. B

(radiation dose standards for individuals both in and outside re-

stricted areas); § 20.202 (use of personnel monitoring equipment) ;

§ 20.203 (posting of warnings around radiation areas); § 20 402

64a

Energy Act provides a full enforcement arsenal—includ-

ing criminal sanctions—to police compliance with federal

standards. Indeed, the Commission conducted a com-

plete investigation into the Silkwoeod contamination, and

found no material violation of federal regulations that

could justify imposing a fine.t The District Court never-

theless instructed the jury to fashion a fine to encourage

Kerr-McGee and other nuclear licensees to meet in the

future whatever safety standard the jury considered ap-

propriate for plutonium.°

(notification of the Commission in the event of loss or theft of

nuclear materials) ; § 403 (notification in the event of exposure to

radiation). Part 70 of the Regulations set forth certain terms and

conditions imposed on nuclear licenses. See, e.g., §§ 70.23, 70.24,

73.1 (license applicants must be determined to have qualified per-

sonnel, equipment, and procedures adequate to protect health ana

safety and to protect the plant against theft or sabotage of nuclear

materials) ; §§$ 70.51, 70.53 (nuclear balance inventory and record

keeping for special nuclear materials).

342 U.S.C. §§ 2271-2284 (1976 ed. and Supp. V). Criminal con-

viction for willful violations of various provisions of the Act may

result in substantial fines and imprisonment. §§ 2272-2278b, 2284.

The Attorney General may seek injunctive relief to prevent or stop

violations of the Act or the Commission regulations or orders.

§ 2280. The Commission itself can impose civil penalties for viola-

tions of specific licensing provisions of the Act. § 2282. In 1980,

Congress increased the maximum civil penalty to $100,000 per

violation; if the violation is a continuing one, each day constitutes

a separate violation. § 2282(a). Finally, the Commission can initi-

ate proceedings to modify, suspend, or revoke any license issued

under the Act, and, in an emergency, can make such action effective

immediately. 10 CFR §§ 70.61-70.62 (1974).

4 The only violations of regulations revealed by the investigation

were Kerr-McGee’s failure to record the voiding dates for two

bioassay samples provided by Silkwood. App. to Motion to Dismiss

or Affirm A17.

5 The regulatory nature of the punitive damage award is evi-

denced by the jury instruction explaining how punitive damages

were to be calculated :

“You may consider the financial worth of the defendant against

whom such damages are awarded in determining the size of such

65a

The $10 million fine that the jury imposed is 100 times

greater than the maximum fine that may be imposed by

the Nuclear Regulatory Commission for a single viola-

tion of federal standards. The fine apparently is more

than 10 times greater than the largest single fine that the

Commission has ever imposed.* The complete federal oc-

cupation of safety regulation compels the conclusion that

such an award is preempted.

It is to be noted, of course, that the same pre-emption

analysis produces the opposite conclusion when applied to

- an award of compensatory damages. It is true that the

prospect of compensating victims of nuclear accidents

will affect a licensee’s safety calculus. Compensatory

damages therefore have an indirect impact on daily op-

erations of a nuclear facility. But so did the state stat-

ute upheld in Pacific Gas. The crucial distinction be-

tween compensatory and punitive damages is that the

purpose of punitive damages is to regulate safety,

whereas the purpose of compensatory damages is to com-

pensate victims. Because the Federal Government does

not regulate the compensation of victims, and because it

an award that is proper under the facts of this case. That is, you

may consider the wealth of defendant Kerr-McGee Nuclear Corpo-

ration in determining what amount of exemplary damages, if you

find them appropriate, is consistent with the general purpose of

such an award in deterring the defendant, and others like it, from

committing similar acts in the future, and for punishment of the

defendant for such acts.” App. to Juris. Statement 113a.

The jury was instructed further that compliance with federal

standards was not a complete defense to the award of punitive

damages:

“You are instructed, however, that you are not bound by these

standards. Your duty is to determine what constitutes the exercise

of reasonable care in handling plutonium, or the exercise of reckless

and wanton conduct, in light of the physical characteristics of that

material and the risks associated with it.” Jd., at 102a.

® See N.Y. Times, Oct. 22, 1983, p. 26, col. 5 (largest fine imposed

to date is $850,000).

66a

is inconceivable that Congress intended to leave victims

with no remedy at all,” the pre-emption analysis estab-

lished by Pacific Gas comfortably accommodates—indeed

it compels—the conclusion that compensatory damages

are not pre-empted whereas punitive damages are.

Differences in the means of calculating compensatory

and punitive damages further distinguish the two, and

highlight the fundamental incompatibility of punitive

damages and federal standards. When a victim is deter-

mined to be eligible for a compensatory award, that

award is calculated by reference to the victim’s injury.

Whatever compensation standard a State imposes,

whether it be negligence or strict liability, a licensee re-

mains free to continue operating under federal standards

and to pay for the injury that results. This presumably

is what Congress had in mind when it pre-empted state

authority to set administrative regulatory standards but

left state compensatory schemes intact. Congress in-

tended to rely solely on federal expertise in setting safety

standards, and to rely on States and juries to remedy

whatever injury takes place under the exclusive federal

regulatory scheme. Compensatory damages therefore

complement the federal regulatory standards, and are an

implicit part of the federal regulatory scheme.

7In Pacific Gas, the Court relied on the fact that there was no

federal regulation of the economic considerations of nuclear power

as clear evidence that Congress intended to leave such concerns

to consideration of the States:

“The Nuclear Regulatory Commission . . . does not purport to

exercise its authority based on economic considerations .... It is

almost inconceivable that Congress would have left a regulatory

vacuum; the only reasonable inference is that Congress intended

the States to make these judgments.” U.S., at (slip op.

14-15).

The absence of federal regulation governing the compensation of

victims of nuclear accidents is strong evidence that Congress in-

tended the matter to be left to the States.

67a

Punitive damages, in contrast, are calculated to com-

pel adherence to a particular standard of safety—and it

need not be a federal standard. In setting the punitive

damages award in this case, the court instructed the

jury to consider “the financial worth of the defendant”

and award an “amount of exemplary damages . . . con-

sistent with the general purpose of such an award in

deterring the defendant, and others like it, from com-

mitting similar acts in the future.” The punitive dam-

ages award therefore enables a State to enforce a stand-

ard that is more exacting than the federal standard.

Were Kerr-McGee to continue adherence only to the fed-

eral standard, it would presumably be in continuous vio-

lation of state law—an indication that the jury award

in this case was too small to serve its purpose. A li-

censee that continues to meet only the federal standard

therefore presumably will receive increasingly large

punitive sanctions in subsequent personal injury suits,

until compliance with the state-imposed safety standard

is obtained. At that point, of course, the federal safety

standard will have been entirely supplanted. It is in-

credible to suggest that Congress intended the Federal

Government to have the sole authority to set safety regu-

lations, but left intact the authority of States to require

adherence to a different state standard through the im-

position of jury fines. The obvious conflict shows that

punitive damages are pre-empted. \

This pre-emption analysis eliminates the “tension” that

the Court concedes its disposition creates. It remains

faithful to the Federal Government’s expressed desire to

balance the conflict between promoting nuclear power

and ensuring safe operation of nuclear plants. See

Power Reactor Co. v. Electricians, 367 U.S. 396, 404

(1961) (“the responsibility for safeguarding [public]

health and safety belongs under the statute to the Com-

mission”). It preserves the ability of States to provide

compensation to their citizens for injuries caused by ra-

68a

diation hazards. Finally, it avoids the anomaly of a

jury’s imposing a fine to regulate activity considered too

complicated for state regulatory experts. See H.R. Rep.

No. 1125, 86th Cong., Ist Sess., 3 (1959) (“the technical

safety considerations are of such complexity that it is not

likely that any State would be prepared to deal with

them during the foreseeable future’’).

II

For reasons never expressed in its opinion, the Court

rejects the analysis outlined above and opts instead for

one that it admits creates “tension between the conclusion

that safety regulation is the exclusive concern of the fed-

eral law and the conclusion that a State may nevertheless

award damages based on its own law of liability.” Ante,

at 17. But, with all respect, in struggling to reach its

result, the Court never focuses on the issue in this case.

Without explanation, the analysis proceeds as though the

issue is whether a victim in a nuclear accident can seek

judicial recourse for her injuries. That issue is not in

dispute. The issue in this case is not whether a victim

of radiation hazards can be compensated under state

law. The issue is whether the jury can impose a fine on

a nuclear operator in addition, to whatever compensatory

award is given.

The Court’s obfuscation of the issue appears at the

outset of its pre-emption analysis, where it states rhetor-

ically:

“(T]here is no indication that Congress even seri-

ously considered precluding the use of [state law]

remedies either when it enacted the Atomic Energy

Act in 1954 and or when it amended it in 1959.

This silence takes on added significance in light of

Congress’ failure to provide any federal remedy for

persons injured by such conduct. It is difficult to

believe that Congress would, without comment, re-

69a

move all means of judicial recourse for those injured

by illegal conduct.” Ante, at 11 (emphasis sup-

plied).

In this passage, the Court responds to an argument that

has not been made. Respondent has not attributed to

Congress a callous intent to deprive injured victims of

compensation. Pacific Gas does not imply anything so

heartless. Yet the Court’s analysis never focuses on the

real issue; its entire analysis proceeds as if pre-emption

of punitive damages would require pre-emption of com-

pensatory damages as well.

The source of the confusion appears to be an argu-

ment by petitioner that a pre-emption analysis of puni-

tive damages and compensatory damages must lead to

the same result on the ground that both have a regula-

tory effect. Petitioner thus placed before the Court the

bleak—though contrived—choice either to allow punitive

damages or to deprive injured victims of “all judicial

recourse” for their injuries. As pointed out above, there

is no reason that similar treatment of punitive and com-

pensatory damages is required; indeed, Pacific Gas re-

quires that a distinction between the two be drawn.

The irony of the Court’s approach is that Pacific Gas,

decided less than a year ago, drew precisely the line that

the Court today is unable to find. Pacific Gas made clear

that the purpose of a statute is critical in a pre-emption

analysis under the Atomic Energy Act. In that case,

moreover, the parties were in serious dispute over

whether the statute in question was motivated out of

safety or non-safety concerns. In this case, in contrast,

there is no disagreement on the dispositive issue; the

Court does not dispute that punitive damages are in-

tended to make a nuclear operator adopt better safety

procedures.

§ See Brief for Appellant 42-43; Reply Brief for Appellant 6-9.

70a

Petitioner seems also to have obscured the distinction

between compensatory and punitive damages by focusing

on the role of a jury in awarding compensatory damages

in a State, such as Oklahoma, where compensation is

allowed only on a showing of negligence.’ Because a

determination of negligence requires a jury to deter-

mine a licensee’s duty of care, petitioner argued that

Congess has demonstrated a willingness to allow a jury

to set a standard for licensee conduct. That being the

case, petitioner suggested that there is no evidence that

Congress intended not to allow a jury to impose a puni-

tive award based on that standard.

It is not at all surprising, however, that Congress

would tolerate a jury-imposed negligence standard for

awarding compensation. In its desire to promote nuclear

power, Congress has never expressed an intention to

allow a nuclear licensee to avoid paying for any injury

it causes. Indeed, where Congress has determined the

liability standard for licensees, it has imposed strict

liability."° Congress thus has demonstrated its willing-

ness to hold a nuclear licensee liable for all injury that

it causes, regardless of whether it is at fault. When a

State chooses to impose a more relaxed liability standard

® See Reply Brief for Appellant 11-12.

1© The Price-Anderson Act, Pub. L. 85-256, 71 Stat. 576, was

amended in 1966 to remedy what Congress perceived to be state

tort law inadequacies in administering compensation for a victim

of a major nuclear incident. Pub. L. 89-645, 80 Stat. 891. Those

amendments require licensees, as a condition of their receiving

approval of financial protection and the indemnity afforded by

Price-Anderson, to waive certain state law defenses in the event

of a major nuclear incident. See 42 U.S.C. §2210(n) (1). The

waivers assure, inter alia, that a victim’s entitlement to compensa-

tion will be determined under a strict liability standard rather than

negligence. Congress required such waivers out of concern that

state laws, such as the negligence standard of liability, were ill-

suited to the problems of nuclear hazards. See S. Rep. No. 1605,

89th Cong., 2nd Sess., 13 (1966).

7la

on a licensee—such as negligence—the State simply

eliminates part of the burden that the Federal Govern-

ment is willing to have the nuclear industry bear. In

effect, a State that uses a negligence standard simply

subsidizes the industry at the expense of those numbers

of its citizenry that are victims of radiation hazards.

The fact that Congress was willing to let State. reduce

the compensatory liability of licensees is hardly support

for the notion that Congress would also allow States to

set—either through administrative regulation or tort law

—standards of care higher than the federal standard,

and impose fines to secure compliance with them.

Having focused on the wrong issue, the Court seeks

to support its wrong result by focusing on the legislative

history of the wrong statute. The Court relies heavily

on comments made during consideration of the Price-

Anderson Act, Pub. L. 85-256, 71 Stat. 576. Congress

enacted that statute in 1957 out of concern that the

potential liability arising from a nuclear occurrence ex-

ceeded the amount of insurance a licensee could obtain.

Congress perceived that the unavailability of unlimited

insurance was deterring private investment in nuclear

energy projects. Price-Anderson therefore established a

liability system to compensate victims in the event of

an “extraordinary nuclear occurrence.” The system has

three major components: 1) it empowers the Commis-

sion to require a licensee to have financial protection

up to $60 million of liability; 2) it provides for federal

indemnification for the next $500 million; and 3) it sets

the $560 million thus aggregated as the limit of liabil-

ity for any one nuclear incident (with a procedure for

apportioning that amount should claims arising from

the incident exceed $560 million). After that limit, anv

additional compensation to victims would require further

action by Congress. Price-Anderson also requires a

licensee to waive certain defenses that, most importantly,

make clear that in the event of an “extraordinary nu-

72a

clear occurrence,” the licensee will be strictly liable for

the injuries it causes.

Price-Anderson’s legislative history plainly demon-

strates that except in the event of an extraordinary

nuclear occurrence, Price-Anderson does not interfere

with state tort law. For example, the Joint Committee

report on the bill that later became Price-Anderson

explained:

“The basic principles underiying the hil! are two:

1. Since the rights of third parties who are in-

jured are established by State law, there is no inter-

ference with the State law until there is a likeli-

hood that the damages exceed the amount of finan-

cial responsibility required together with the amount

of the indemnity |i. e., $560 million]. At that point

the Federal interference is limited to the prohibition

of making payments through the State courts and

to prorating the proceeds available.

2. ....” S. Rep. No. 296, 85th Cong., Ist Sess.,

9 (1957). (emphasis added).

The Court relies on this passage to demonstrate, in its

view, that the entire corpus of “state tort law” is avail-

able for application in any suit arising out of a nuclear

incident. Ante, at 13-14. Such an interpretation simply

ignores the context of the statement, and produces a

variety of incongruities that the Court fails to address.

The Court’s opinion omits from its quotation the first

line of the passage. That line makes clear that the

passage describes only the underlying principles of the

Price-Anderson Act; it does not purport to be a descrip-

tion of the relationship between all federal nuclear regu-

lation and state tort law. The passage demonstrates that

Price-Anderson interferes with state tort law only in

certain limited situations. But the question in this case

is not whether Price-Anderson preempted punitive dam-

73a

ages; the issue is whether the Atomic Energy Act pre-

empted punitive damages in 1954. Thus, the legislative

history on which the Court bases its argument simply

begs the question of how much state tort law remained

in place before Price-Anderson was enacted.

It is hardly surprising, moreover, that proponents of

Price-Anderson emphasized how little their proposed leg-

islation would interfere with state tort law. As with

any federal legislation that pre-empts the powers of the

States, Price-Anderson undoubtedly prompted concern

about federal intrusiveness. To assuage such concerns,

proponents of Price-Anderson and later federal statutes

regulating nuclear power emphasized the minimal fed-

eral intrusion of the proposed legislation." Rut such

statements provide a most uncertain basis on which to

interpret the pre-emption that resulted from earlier fed-

eral statutes. On the relevant issue—the pre-emption of

state law accomplished by the Atomic Energy Act in

1954—this Court already has concluded that the pre-

emption of nuclear safety concerns was complete.

By using Price-Anderson’s legislative history in 1957

to conclude that the 1954 Act leaves all of state tort

law intact, the Court implicitly proves too much. Surely

the Court would concede that Congress did not intend,

for example, to allow a state court to entertain a nui-

sance action and enjoin the operation of a nuclear power

plant on the ground that the plant was unsafe. Sim-

ilarly, the Court must agree that a state court could

not enjoin in a trespass action the release of effluents

from a plant that was in compliance with Commission

standards. Yet the Court’s position rests on the notion

that state tort law must be treated as an undifferen-

tiated body of law, and that all tort remedies have been

left intact.

11 See, e.g., H.R. Rep. No. 435, 85th Cong., Ist Sess., 9 (1957):

S. Rep. No. 1605, 89th Cong., 2d Sess., 5 (1966).

74a

The Court’s interpretation of Price-Anderson’s legisla-

tive history produces even greater incongruities in the

operation of Price-Anderson itself. As explained above,

the Price-Anderson liability scheme provides federal in-

demnification for liability above $60 million and below

$560 million. The purpose of the indemnification is to

provide compensation for victims and to minimize the

exposure of nuclear licensees. But the Court’s inconso-

nant holding leads to the anomalous result that in the

event of a nuclear accident in which liability exceeds

$60 million, the Federal Government might will have to

pay punitive damages to the victims of the accident. By

definition, such payments would not serve a compensa-

tory purpose; nor would they have the deterrent effect

on licensees that justifies imposing them. Congress could

not have intended so paradoxical a result.

Once again, the logical way out of this paradox is a

conclusion that Congress assumed that punitive damages

would not be awarded under Price-Anderson.'®? But such

an assumption is now unavailable to the Court: the same

passages the Court uses to demonstrate that “there is

no interference with . . . State law” except in the event

of a nuclear occurrence also make clear that even then

the “Federal interference is limited to the prohibition of

making payments through the state courts and to pro-

rating the proceeds available.” Accordingly, it is clear

that Price-Anderson itself would not pre-empt punitive

damages, and the Court’s position puts the Federal Gov-

ernment in the absurd position of paying them.

122Such an assumption is fully consistent with the legislative

history of the Act which, when read in context, makes clear that its

objective is to provide compensation to persons that suffer injuries.

See, e.g., S. Rep. No. 206, 85th Cong., Ist Sess., 8 (1957) (Price-

Anderson offers “a practical approach to the necessity of providing

adequate protection against liability arising from atomic hazards

as well as a sound basis for compensating the public for any possible

injury or damage arising from such hazards’) (emphasis supplied).

75a

The Court’s holding produces similar incongruities in

the application of Price-Anderson to an accident in

which liability exceeds the $560 million dollar limit. In

that situation, Price-Anderson provides for the prora-

tioning of claims. If punitive damages are allowed, vic-

tims with large punitive awards would receive awards

greatly in excess of compensation, while other victims

would receive less than full compensation. Such a result

would be grossly inequitable, and in clear conflict with

Price-Anderson’s goal of compensating victims of a

nuclear accident. Once again, the obvious implication of

this result is that Congress assumed that punitive dam-

ages would not be available. Yet the Court rejects this

assumption by insisting that references to “state tort

law” in the legislative history demonstrate that punitive

damages have never been pre-empted.

III

The Court’s analysis ends where it began, still focused

on the wrong issue. In the last paragraph of its analy-

sis," the opinion once again acknowledges the anomaly

of its disposition, but explains that

The next to last paragraph of the analysis seems to reflect

similar confusion. The paragraph is an attempt to respond to re-

spondent’s argument that punitive damages conflict with the desire

of Congress to promote nuclear power. The Court explains:

“Congress .. . disclaimed any interest in promoting the development

and utilization of atomic energy by means that fail to provide

adequate remedies for those who are injured by exposure to }azard-

ous nuclear materials. Thus, the award of punitive damages in this

case does not hinder the accomplishment of the [congressional]

purpose ....” Ante, at 12 (emphasis supplied).

There is no claim in this case that Congress pre-empted remedies

to compensate those who are injured by exposure to hazardous

nuclear materials. Unless the statement is meant to suggest that

remedies are not “adequate” unless they include punitive damages—

an argument which the Court does not put forward and which

would be difficult to make given that some States do not allow

punitive damages—then the statement has little relevance to the

issue in this case.

76a

“Congress did not believe that it was inconsistent to

vest the NRC with exclusive regulatory authority

over the safety aspects of nuclear development while

at the same time allowing plaintiffs like Silkwood

to recover for injuries caused by nuclear hazards.

We are not ¢ xd to second-guess that conclu-

sion” (empha -_.yplied!. Ante, at 18.

Not only are we not authorized to second-guess Congress’

conclusion, but we have not been askec to do so. At the

risk of repetition, this case is not about whether Karen

Silkwood can recover for her injury; it is about whether

a person injured by radiation can be awarded an amount

in excess of the injury sustained in order to encourage

all nuclear operators to spend more on safety. On that

issue, the Court’s position is plainly inconsistent with

its earlier holding in Pacific Gas that “the Federal Gov-

ernment has occupied the entire field of nuclear safety

concerns.” U. S., at (slip op. 19). The Court’s

insistence on obfuscating the issue in this case cannot

change the will of Congress on the issue that is truly

before us.

77a

SUPREME COURT OF THE UNITED STATES

No, 81-2159

BILL M,. SILKWoOoD, ADMINISTRATOR OF THE ESTATE

OF KAREN G. SILK Woop, DECEASED,

Appellant

v.

KERR-MCGEE CORPORATION, ETC., et al.

On Appeal from the United States Court of Appeals

for the Tenth Circuit

[January 11, 1984]

Justice PowEL., with whom THE Crrer Justice and

JUSTICE BLACKMUN join, dissenting.

The Court's decision, in effect, authorizes lay juries and

judges in each of the states to make regulatory judgments

as to whether a federally licensed nuclear facility is being

operated safely. Such judgments then become the predi-

cate to imposing heavy punitive damages. This authority

is approved in this case even though the Nuclear Regula-

tory Commission (NRC)}—the agency authorized by Con-

gress to assure the safety of nuclear facilities—found no

relevant violation of its stringent safety requirements |

worthy of punishment. The decision today also comes less

ance stiatilt iia neal

78a

than a year after we explicitly held that federal law has

“preempted” all “state safety regulation” except certain

limited powers “expressly ceded to the states.” Pacific,

Gas and Electric Co., 103 S.Ct., at 1726.' There is no

express authorization in federal law of the authority the

Court today finds in a state’s common law of torts.

Punitive damages, unrelated to compensation for any

injury or damage sustained by a plaintiff, are “regula-

tory” in nature rather than compensatory. The Court of

Appeals for the Tenth Circuit so found in this case—

prior even to our decision in Pacific, Gas and Electric Co.

Silkwood v. Kerr-McGee Corp., 667 F.2d 908, 922 ‘(idt

Cir. 1981). It also concluded that punitive damages are

“no less intrusive than direct legislative acts of the state.”

Id., at 923; see San Diego Building Trade Council Vv.

Garmon, 359 U.S. 236, 247 (1959). I agree with the

Court of Appeals.

I

The facts are instructive. During a three-day period in

November 1974, petitioner Silkwood was contaminated by

plutonium from one of respondent Kerr-McGee’s plants

that had been built and was operated pursuant to federal

law and subject to extensive regulation by the AEC. Silk-

wood was absent from her job for only a week—from

November 7 until she returned to work on November 13.

That night she was killed—as the Court states—“in an

unrelated automobile accident.” Ante, at 3. There is no

evidence that Silkwood suffered any specific injury,? tem-

1 In Pacific, Gas and Electric Co., we held:

“State safety regulation is not preempted only when it cnflicts

with federal law. Rather, the federal government has occupied the

entire field of nuclear safety concerns, except the limited powers

expressly ceded to the states. When the federal government com-

pletely occupies a given field or an identifiable portion of it, as it

has done here, the test of preemption is whether ‘the matter on

which the state asserts the right to act is in any way regulated

by the federal government’.” /d., at 1726.

2The autopsy after Ms. Silkwood’s death indicated that her

body contained 8.8 nanocuries of plutonium. AEC regulations

79a

porary or permanent, other than mental distress for a

short peried. In a state law tort action against Kerr-

McGee brought by Silkwood’s father, the jury awarded

“actual damages” of $505,000 and “punitive damages” of

$10 million. The District Court entered judgment on the

verdict.

Where injury is sustained as a result of the operation

of a nuclear facility, it is not contested that compensatory

damages under state law properly may be awarded.

Rather, in view of the purpose and effect of punitive

damages, the question is whether such damages may be

imposed not to compensate the injured citizen or her fam-

ily but solely to punish and deter conduct at the nuclear

facility.*

A

The purpose of a punitive damages award was made

clear by the District Court’s instructions. The jury was

authorized to impose such damages to “punish”:

specified that the permissible body burden of plutonium for em-

ployees of nuclear facilities was 40 nanocuries. Disagreeing with

the AEC, an expert witness for petitioner speculated at trial that

the amount of plutonium contamination Ms. Silkwood experienced

might have manifested itself in the form of lung cancer and

chromosome damage at some future date.

3 The distinction in this case between the two types of damages

is of major importance. There is no element of regulation when

compensatory damages are awarded, especially when liability is

imposed without fault as authorized by state law. Moreover, per-

sonal injuries are finite. To be sure, as the compensatory award in

this case illustrates, these can result in large compensatory judgments.

But juries do have guidance from physicians, medical records, lost

wages, and—where permanent disability or death occurs—actuarial

testimony as to lost earnings and life expectancy. None of these is

present when punitive damages are awarded. The contrast also is

illustrated by this case. A jury with neither pre-trial knowledge

of nuclear plant operations nor evidence to guide or limit its discre-

tion, chose $10 million. It could, as well, have been almost any

other amount.

80a

“the offender for the general benefit of society, both

as a restraint upon the transgressor and as a warn-

ing and example to deter the commission of like

offenses in the future.” * |

The jury also was advised that punitive damages need

not be proved by “direct evidence of fraud, malice or

gross negligence.” Rather, these could be “inferred.”

Ante, at 5. Although there was no evidence showing a

direct causal connection between any Kerr-McGee neglect

and Silkwood’s minor contamination, two witnesses—tes-

tifying as experts—found fault in general with operations

at the plant such as inadequate employee training and

lack of supervision.* The NRC, in the discharge of its

regulatory responsibility, had cited the plant some 75

times over a period of years for various minor violations.°

None of the violations, however, was shown to have caused

the contamination, or deemed substantial enough to jus-

tify imposition of fines by the NRC.” Moreover, the Com-

4 The trial court also instructed the jury that the size of any

punitive damage award should be “consistent with the general

purpose of such an award in deterring the defendant, and others

like it, from committing similar acts in the future, and for punish-

ment of the defendant for such acts.”

5 Silkwood also proffered reports of AEC investigations of inci-

dents occurring in 1971, 1972,' and 1973. The incidents of most

concern were a fire on March 5, 1973 and radioactive seepage from

a waste container discovered on September 25, 1973. Neither inci-

dent resulted in any contamination outside the Kerr-McGee plant

or in any injury from contamination of Kerr-McGee employees.

The AEC did not fine the company in either instance. Other testi-

mony on behalf of Silkwood criticized generally the training of new

personnel, the use of respirators in contaminated areas, the design

of glove boxes in the plant, and a perceived lack of awareness of

Kerr-McGee employees that exposure to plutonium may cause cancer.

6 It is evident from these facts that the NRC has been diligent

and thorough in overseeing the safety of the Kerr-McGee plant.

7In fact, except for the contamination of Silkwood that caused

her to lose seven days of work, there was no evidence that anyone

else had ever been injured by contamination from the Kerr-McGee

8la

mission had investigated the physical security system at

the plant only two months before Silkwood’s contamina-

tion and found no significant deficiencies. After her con-

tamination occurred, the NRC conducted an investigation

of that incident. Again, no significant violation of AEC

regulations was found. See ante, at 4: AEC Regulatory

Operations Investigatory Report No. 74-09 ( December 16,

1974), at 5.

Nevertheless, the jury imposed $10 million of punitive

damages, and on a motion for judgment N. O. V. the

district court agreed with the jury’s award, based on its

finding that the “escape of plutonium [was] caused by

grossly negligent, reckless and willful conduct.” 485 F.

Supp. 566, 585 (W. D. Okla. 1979). These serious con-

clusions simply were “inferred”—in the absence of specific

evidence—from the fact that some plutonium contamina-

tion had occurred and from the testimony of petitioner’s

experts as to overall operating conditions at the plant.

The Court defends the awarding—even on the basis of

inferences—of punitive damage judgments by lay juries

' with no competency to understand the highly sophisti-

cated technology of nuclear facilities. In doing so, it

states: “Congress assumed that traditional principles of

state tort law would apply with full force unless they

were expressly supplanted. ... [T]he company is unable

to point to anything in the legislative history or in the

regulations that indicates that punitive damages were not

plant. There was evidence of one incident involving minor con-

tamination outside the plant that occurred on April 17, 1972. In

that instance, three maintenance personnel at the plant violated

company regulations by leaving for breakfast without checking

themselves for signs of contamination. Upon their return, it was

discovered that they had received low level contamination prior to

leaving for breakfast. None of these employees was shown to have

suffered any injury. The amount of contamination involved in this

incident was so minimal that an AEC official testified that there

was no need for Kerr-McGee to report it to the AEC.

82a

to be allowed.” Ante, at 16. In my view, this conclusion

is irreconcilable with Pacific, Gas and Electric Co.’s pre-

emption holding.

B

We stated in Pacific, Gas and Electric Co. that “Con-

gress has occupied entirely the field of nuclear safety

concerns.” Jd., at 1726. On its face this is a holding that

state action of any kind in this area is preempted, whether

or not Congress has been silent on specific issues that

may arise. See Fidelity Federal Savings & Loan Ass’n

v. de la Cuesta, 102 S. Ct. 3014, 3022 (1982); United

States v. Shimer, 367 U.S. 374, 381-383 (1961). We

reiterated this principle of preemption in Pacific, Gas

and Electric Co. when we held that only those “powers

expressly ceded to the states” are not preempted. 103

S. Ct., at 1726 (emphasis added).

Silkwood concedes that Congress did not refer to puni-

tive damages in the text or legislative history of the 1954

Act or its subsequent amendments. The absence of an

express reference appears plainly to bring state law of

punitive damages within the sweeping preemption we

found that Congress intended in Pacific, Gas and Electric

Co. Nevertheless, the Court today makes an exception to

the rule announced only last term by refusing to find

preemption uniess the party arguing for preemption can

find direct support in the statute, legislative history, or

regulations. Where broad federal preemption has been

found, the burden of proving an exception always should

be on the party who wishes to rely on state law. The

Court’s decision today inexplicably shifts this burden to

allow state law to prevail in the absence of a showing

that Congress expressly had intended to preempt it.

The Court does purport to find some indirect evidence

of congressional intent not to preempt state punitive dam-

ages law in the legislative history of the Price-Anderson

Act, enacted in 1954. In considering the relevance of this

Act, it is important to bear in mind that it did not apply

88a

at all to the Kerr-McGee plant at the time of this in-

cident, and that its purpose was not regulatory in any

relevant sense whatever. Price-Anderson was the result

of concern, particularly prevalent when experience with

nuclear energy had been limited, that extraordinary nu-

clear disasters could occur. In anticipating such an oc-

currence, the primary concern—of course—was to assure

compensation for persons who suffered loss or injury.

Duize Power Co. Vv. Carolina Environmental Study Group,

Inc., 488 U.S. 59, 93 (1978). A secondary, but nonethe-

less important concern, was that private enterprise be en-

couraged to build and operate nuclear power plants to

meet the anticipated energy needs of our nation. With

the then uncertain prospect of a nuclear plant disaster

that would bankrupt the utility, some sort of federally

backed insurance plan was desirable in the overall public

interest as well as that of the primary victims who suf-

fered injury. /d., at 63-65. Accordingly, in summary,

Price-Anderson provided that the aggregate liability for

a single nuclear accident may not exceed $560 million.

Licensees were required to purchase the maximum amoun

of insurance available in the commercial insurance in-

dustry (approximately $60 million), and the government

agreed to indemnify licensees for the remainder. In ad-

dition, Price-Anderson required that licensees must waive

all iegal defenses and must agree to be subject to strict

liability in the event of an extraordinary nuclear oc-

curence. /d., at 65.

Thus, neither the Price-Anderson Act itself or its pur-

poses are relevant to this case. Petitioner and the Court,

finding nothing whatever in the legislative history of the

Atomic Energy Act, cited several statements in the legis-

lative history of Price-

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