# Appendix — Kerr-McGee Corp. v. Silkwood

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1104

## Text

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

WILSON - EPES PRINTING Co., INC. - 789-0096 WaSsHINGTON. D.C. 20001

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Appendix
Appendix
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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 * * *

“There has been a history of disagreement with the
established radiation protection standards on the part
of some members of the scientific community. The
basis for this disagreement has often been the fact
that science has been unable to fully discover the bio-
logical effects and costs of ionizing radiation. .. .
This ignorance makes is impossible to assess fully the
risks attendant to exposure in ionizing radiation.”

Crowther v. Seaborg, 312 F.Supp. 1205, 1231-32 ( D.Colo.
1970) ; see also Citizens for Safe Power, Inc. v. Nuclear
Regulatory Comm’n., 173 U.S.App.D.C. 317, 322, 524 F.2d
1291, 1296 (D.C.Cir. 1975) (undetermined whether ex-
posure at guideline levels will or will not have injurious
effects).

Indeed, this acknowledgement of the limitations of the
regulations led to the adoption in 1970 of the concept of
“as low as practicable,” later changed to “as low as rea-
sonably achievable.” This additional standard imposes on
licensed operators the duty to maintain the release of ra-
dioactive material to unrestricted areas as far below the
regulation limits as is practicable (now reasonably achiev-
able). Baram, Radiation from Nuclear Power Plants,
supra, at 927-28; AEC Staff Study of the Price-Anderson
Act, Part I, supra, at 267.

Even though the maximum permissible exposure ceiling
has been frequently rendered more stringent over the
years, see Rogers, The Development and Use of Requla-
tory Standards, 14 Atomic En.L.J. 1738, 178 (1972);
Goodman, Radiation Injuries, 5 Atomic En.L.J. 20, 28

156a

(1963), the regulations still embrace the idea that expo-
sures within the standards pose a potential for personal
injury. Green, Nuclear Power: Risk, Liability, and In-
demnity, 71 Mich.L.Rev. 479, 481 (1972-73); Taylor,
Standards for Protection Against Radiation, 12 Atomic
En.L.J. 139, 141 (1970); Comment, Nuclear Torts, The
Price-Anderson Act and the Potential for Uncompensated
Injury, 11 N.Eng.L.Rev. 111, 113 (1975) ; Note, The “Ex-
traordinary Nuclear Occurrence” Threshold and Uncom-
pensated Injury Under the Price-Anderson Act, supra, at
3883 (1974).

“In view of our present lack of knowledge as to ex-
actly how damaging small doses [of radiation] are
likely to be over a long period of time, the Commis-
sion’s exposure regulations cannot be said to fix de-
finitively the point at which radiation becomes un-
acceptably dangerous.”

Stason, Estep, and Pierce, Atoms and the Law, supra, at
128; see also Hansen, Development and Application of Ra-
diation Protection Standards, 12 Idaho L.Rev. 1, 26
(1975) (exposure limits standards not decisive in deter-
mining liability in tort cases).

Some writers, however, have expressed their view that
more deference should be paid these exposure limit regula-
tions. In their treatise on the subject, Professors Stason,
Estep and Pierce suggest that whenever someone is ex-
posed to radiation where the amount of radiation received,
or the circumstances in which it was received, do not vio-
late the applicable health and safety regulations, compli-
ance should be argued to prove reasonable conduct. These
authors urge that where the AEC makes a deliberate
judgment on the specific issue of maximum exposure
levels, a judge should hold compliance with that require-
ment as conclusive proof of compliance with a reasonable
standard of conduct. Stason, Estep and Pierce, Atoms
and the Law, supra, at 127-28.

157a

These authors, however, acknowledge that both major
treatises on torts reject this view. See 2 Harper & James,
The Law of Torts, § 17.6 at 1014 (1st ed. 1956) ; Prosser,
Law of Torts, § 36 at 203 (4th ed. 1971), cited in Atoms
and the Law, supra, at 129. The authors conclude that:

“le]ompliance or non-compliance with industry safety
codes certainly should be given weight, and in most
cases perhaps should constitute prima facie, if not
conclusive proof, when ne evidence to the contrary is
introduced. Courts, however, should avoid a rigid
rule and decide individual cases on the basis of the
specific evidence produced.” (Emphasis added.)

Id. at 155. At a later point in their treatise, the authors
acknowledge that nuclear operators may be held liable for
damages for the escape of nuclear materials, even where
the amount that escapes is within the permissible gov-
ernmental limits. Id. at 722.

More recent writers have also suggested that a greater
deference be given governmental exposure limits, but
they acknowledge that as presently written, the regula-
tions may not be so construed. These authors suggest
possible use of the government regulations as a per se de-
fense to a latent injury radiation claim, whereby a court
would find that a plaintiff has failed to establish causa-
tion of his cancer by any exposure within the permissible
governmental limits. Keyes and Howarth, Appreaches to
Liability for Remote Causes: The Low Level Radiation
Example, 56 Iowa L.Rev. 531, 567-69 (1975). The
writers acknowledge that:

“Ta]t the present time, however, the AEC has not de-
clared the permissible dose level standards to be ab-
solute safety limits. Nowhere in the regulations does
any such language appear. The standards are con-
sidered only to be guidelines. Their use us a negli-
gence-limiting factor, therefore, is severely limited.
Employees are in no way precluded from bringing

158a

suit upon radiation exposures even well below the
maximum permissible standards.

“!The standards] are not . . . being granted any
conclusive weight. Thus despite the fact that medical
science feels the probabilities of direct causality are
so remote between radiation at levels below the max-
imum prescribed standards, and a cancer or other
disease, plaintiffs are not estopped from winning
their cases.”” (Emphasis added.)

Keyes and Howarth, Approaches to Liability for Remote
Causes, supra, at 545-46.

These writers acknowledged that the standards repre-
sent a policy of balancing the benefits to society from the
use of atomic energy and the possible harm to individuals
from radiation. They continue:

“Implicit in this decision is the assumption that, al-
though very slight, some harm may be possible to
those exposed below the permissible standards. It is,
therefore, difficult to argue that these should be a
judicially noticeable standard which would serve as
a per se defense through the refusal of courts to con-
sider any possible causal link between radiation and
injury.”
Id. at 567.

The authors conclude that it is “unfortunate” that in
radiation litigation the published radiation exposure stand-
ards are merely “some evidence” going to the weight of
the evidence to be evaluated on both negligence and
causation.

“However, it would not appear that this per se de-
fense approach can be supported without amendment
of the law and the present AEC regulations and
manual requirements. Mere compliance with the
standards will not be interpreted as determinative

159a

of the issue of negligence and causation in the ab-
sence of a specific indication on the part of the prom-
ulgators of the standards that this was their intent.”
(Emphasis added. )

Id. at 570; see also Hamilton and Krebs, Radiation Pro-
tection Regulation: An Opportunity for Cooperative Fed-
eralism, 12 Vand.L.Rev. 395, 407-08 (1959) (basic prob-
lem of radiation protection is to ascertain how much ex-
posure may be permitted; separate problem is to deter-
mine what special measures are required to provide com-
pensation to those injured by such exposure).

In one of the few latent injury radiation cases to reach
a court, the Court applied this approach. In Mahoney v.
United States, 220 F.Supp. 823 (E.D.Tenn.), aff'd, 339
F.2d 605 (6th Cir. 1964), a radiation worker who re-
ceived exposures within the governmental regulatory limits
was denied recovery of dumages for his cancer on grounds
that he failed te prove causation between the exposure
and the disease. Compliance with the guideline limits,
however, was treated only as some evidence of the lack
of a causal nexus. It is clear that the court did not treat
the regulations gs conclusive on the point.

Even the adoption of the Stason, Estep and Pierce sug-
gestion would not aid the Kerr-McGee defendants here.
As noted in the record, Silkwood’s exposure took place
at home in her apartment. Although her body burden con-
stituted approximately one-fourth of that permitted by
regulation for a radiation worker during her lifetime, it
exceeded by two and a half times the exposure permitted
to any other member of the public. There mere fortuity
of her employment rendered the exposure within govern-
mental guidelines. Any visitor in the apartment who re-
ceived the same exposure would represent a clear violation
of the exposure limit regulations.

It is also clear that the circumstances under which Silk-
wood received the exposure were not embraced by the

ila aii

160a

government regulations. The ten-fold difference in stand-
ards for workers and non-w:rke : obviously does not re- |
flect a medical judgment that « »:-workers are more prone
to the biological effects of radiation. Rather, the stand-
ards reflect the philosophy that a radiation worker tacitly
assumes the very small risk attributed to receiving radi-
ation doses not exceeding the currently acceptable per-
missible limits. Assuming that the worker is properly in-
formed of the nature and magnitude of the risk, as far
as known, the market price for labor needed to induce
workers to accept the occupational hazard should be com-
mensurate with the risk. The market price of !abor es-
sentially compensates the worker for taking the risk. See
Keyes and Howarth, Approaches to Liability for Remote
Causes, supra, at 542.

Silkwood, of course, did not assume it her occupation
the risk of the contamination of her apartment. Nor
were her employment wages designed to compensate her
for any possible radiation exposure to which she might be
subjected by a Kerr-McGee accident unrelated to her work
at the plant. The jury in this case failed to find proof
that the plutonium was carried by Silkwood from the fa-
cility. In essence, no showing was here made that Silk-
wood’s contamination was an “occupational hazard” the
risk of which an employe customarily assumes. Thus, the
argument for application of the higher permissible ex-
posure regulations for workers fails under these condi-
tion. Even were these standards entitied to conclusive ef-
fect, in all likelihood the Court could not have so in-
structed the jury in the instant case.

Little further need be said on this Court’s failure to in-
struct the jury that substantial compliance with govern-
ment regulations would bar an award of punitive dam-
ages. The existence of wanton conduct depends upon the
actor’s or tortfeasor’s mental attitude at the time of the
conduct. Tappen v. Ager, 599 F.2d 376, 382 (10th Cir.
1979). The culpable mental attitude necessary for puni-

l6la

tive damages was set forth in the punitive damage in-
struction, For the same reason that mere compliance
with government regulations cannot necessarily be found
consistent with the reasonable person standard, so too it
cannot necessarily be found consistent with an attitude
and conduct devoid of that state of mind for which an
award of punitive damages is appropriate.

As in the drug and aviation cases noted above, a man-
ufacturer may be found to have duties in addition to or
different from those prescribed by regulation. A mere
failure to act as a reasonable person in conformity with
that duty would constitute negligence. A knowing and in-
tentional disreg.:d of that duty might under some cir-
cumstances constitute the gross recklessness and indif-
ference to the safety of others that render punitive dam-
ages appropriate.

No one could argue, for example, that a manufacturer
who knew that its drug would cause blindness would not
be responsible for punitive damages for knowingly mar-
keting that product for profit, even though the drug had
been approved for distribution and marketing after com-
pliance with all FDA regulations. Similarly, no one would
question the propriety of punitive damages assessed
against an airplane manufacturer who, for example,
knew that its plane was defectively designed and could
crash during flight, notwithstanding that the manu-
facturer had complied with all government regulations
and obtained an FAA certificate for the craft as air-
worthy. Cf. Tinnerholm v. Parke, Davis & Co., supra
(FDA testing requirements for drug failed to reveal
drug’s ability to cause injury; liability imposed) ; Gillham
v. Admiral Corp., 523 F.2d 102 (6th Cir. 1975) ‘tele-
vision manufacturer liable for punitive damages where
evidence showed knowledge of grave danger to safety and
failure to redesign or warn).

Similarly, Kerr-McGee’s argument that compliance with
regulations would still permit the escape of small quanti-

162a

ties of plutonium overlooks the circumstances where puni-
tive damages might be appropriate for damages caused
through that escape. Surely defendants would not argue
that punitive damages would be inappropriate if a nu-
clear licensee knew of the time and manner of the plu-
tonium’s escape, but did nothing to prevent it because the
regulations did not requive it. Similarly, if a licensee were
aware of defects within its facility that would render
likely repeated exposures of employees to plutonium, but
did nothing to correct it, as some evidence in this case
indicated, punitive damages might be considered, regard-
less whether government regulations required those
changes to be made. The character of the conduct and the
state of the actor’s mind control the propriety of punitive
damages, and not merely whether that conduct complies
or fails to comply with a government regulation. See
Restatement, Torts § 908(2) com. e at 556-57 (1939).

Defendants argue that the Court’s instructions would
result in imposition of punitive damages on a defendant
who relied on the government standards in good faith.
This is not the case. Good faith belief in, and efforts to
comply with, all government regulations would be evi-
dence of conduct inconsistent with the mental state req-
uisite for punitive damages. Defendants placed this mat-
ter in issue and introduced evidence in this regard. De-
fendants were free to argue their good faith conduct in
operating their facility safely. The jury was instructed to
judge that conduct in light of the standards for the im-
position of punitive damages. Had the jury believed this
evidence, an award of punitive damages would not have
been appropriate. Defendants’ argument that their con-
duct could not have been so found, based on the record,
will be dealt with below.

Defendants’ argument that no liability for actual dam-
ages may be imposed when a plaintiff’s exposure is within
governmental regulatory limits has been shown to be er-
roneous. Defendants’ further argument that no punitive

163a

damages may be awarded on these facts similarly misses
the point. Punitive damages in this case were awarded
for conduct that caused or permitted the escape of plu-
tonium and led to the contamination of Silkwood in her
apartment. The jury was so instructed.

Had this Court held that punitive damages could not
be awarded unless exposure limit regulations were ex-
ceeded, the Court would have committed serious error.
Such an instruction would bar punitive damages in situ-
ations where a defendant might intentionally violate every
federal regulation controlling the operation of the facility,
a condition where authorities agree a defendant would
be found negligent per se. Comment, The Irradiated
Plaintiff: Tort Recovery Oustide Price-Anderson, supra,
at 872; Prosser, Law of Torts, § 36 at 200 (4th ed.
1971); Stason, Estep and Pierce, Atoms and the Law,
supra, at 119 (violation of a statutory or administrative
standard makes a prima facie case of lack of due care).
If a defendant knowingly and grossly violated these op-
erational regulations and thereby permitted a large quan-
tity of plutonium to escape, punitive damages would be
properly submissible to the jury, even if only a limited
exposure to one person within the guidelines were shown.

The Court should add a few general comments on de-
fendants’ preemption arguments to focus on and clarify
different aspects of those arguments that are not always
clearly raised. Defendants’ argument against the appli-
cation of strict liability or negligence absent a violation
of government regulations embraces the proposition that
because the government has legislated in the area, it has
occupied the field and precluded application of state lia-
bility principles. As demonstrated above, Congress clearly
had no such intention.

More troublesome, however, is defendants’ related con-
tention made explicit at oral argument on these motions
that they had no duty to contain plutonium within their

164a

facility, other than that imposed by federal law, to pro-
tect members of the public from this dangerous substance.
Unless federal law imposed the obligation, and presum-
ably unless federal law imposed liability for its breach,
defendants are allegedly immune for any damages caused
by the escape uf plutonium.

This proposition is, of course, legally unsupportable.
As noted above, these defendants had a duty under part
20 of Title 10 of the Code of Federal Regulations to
maintain the release of radiation “as low as reasonably
achievable.” Compliance with this standard cannot be
demonstrated merely through control of escaped pluto-
nium to within any absolute amount. See York Com-
mittee for a Safe Environment v. United States Nuclear
Regulatory Comm’n., 174 U.S.App.D.C. 29, 527 F.2d 812
(D.C.Cir.1975). It is, therefore, not inconsistent with
any Congressional design to impose liability upon defend-
ants for actual damages for escape of plutonium caused
by negligence or lack of reasonable conduct. Nor is it in-
consistent to impose punitive damages for the escape of
plutonium caused by grossly negligent, reckless and will-
ful conduct. Common law duties also exist for the breach
of which liability may be imposed, as discussed above.

The additional contention apparently underlying de-
fendants’ primary arguments that no liability may be
imposed outside Price-Anderson is likewise indefensible.
This argument would suggest the anomaly that by in-
suring application of strict liability and adequate insur-
ance coverage for major disasters, Congress peculiarly
conferred immunity on operators for lesser nuclear acci-
dents where, for example, actual damages and _ total
deaths did not exceed $5,000,000. See 42 U.S.C. § 2210
(n) (Supp. 1979); 10 C.F.R. § 140.85(a) (1974).

This argument would also imply that Congress left the
entire nuclear industry immune for whatever cata-
strophic occurrence it caused subsequent to the Atomic

165a

Energy Act of 1954, and prior to the adoption of Price-
Anderson three years later. Immunity would still exist
today for those nuclear facilities, perhaps including fuel
reprocessing plants like defendants’ here, to which provi-
sions of Price-Anderson do not apply. 42 U.S.C. § 2210
(n) (1) (Supp. 1979); see also AEC Staff Study of the
Price-Anderson Act, Part II, 16 Atomic En.L.J. 297, 304
(1975); England, Nuclear Insurance and the Price-
Anderson Act, 13 Atomic En.L.J. 27, 48-49 (1971). The
enormity of the implications of even the suggestion of the
proposition dispels any serious consideration. Congres-
sional history conclusively refutes this contention. See
S.Rep. No. 296, 85th Cong., Ist Sess. 9, reprinted in
[1957] U.S.Code Cong. & Admin.News at 1810.

Imposition of common law liability is thus consistent
with the virtually unanimous legal analysis and expecta-
tion extant in both legal and industrial communities.
This Court instructed that compliance with regulations
would be very strong, if not conclusive, evidence that
punitive damages were not appropriate. Substantial com-
pliance was entitled to strong consideration to the same
end. These instructions adequately reflect the law on the
facts of this case and, if anything, were overly generous
to the defendants.

Defendants never came forward with those regulations
with which they claimed substantial compliance. There
was evidence of regulatory noncompliance. A _ Kerr-
McGee witness during the trial conceded that the de-
fendants’ inventory difference, or the amount of pluto-
nium unaccounted for by the defendants at their facility,
slightly exceeded that permitted by regulation. An NRC
official called by defendants testified that he did not feel
that Kerr-McGee was conforming its conduct to the “as
low as reasonably achieveble” standard. Dr. Karl
Morgon, a plaintiff’s witness, testified that Silkwood’s
exposure did not conform tc ICRP guidelines and part

166a

20 of the federal regulations for an exposure received
within a single year, even though Silkwood’s burden was
within the regulation limits for a lifetime exposure.

Other regulations control defendants’ conduct in the
instant situation. They forbid a licensee from possessing,
using or transferring plutonium in such a manner that
radiation levels in unrestricted areas could exceed
prescribed levels. 10 C.F.R. §§ 20.105(b), 20.106(a)
(1974). Although the parties disagree, the record con-
tains some evidence that the level of plutonium in Silk-
wood’s apartment may potentially have exceeded that
permitted in an unrestricted area, such as a residence.*

The general question of how much compliance should
be considered “substantial” is, of course, an undefinable
factor ultimately left to the wisdom of the jury in its
judgment of defendants’ operation of their facility. One
plaintiff’s witness, Dr. Morgon, offered his opinion that
if rated or graded for their operation of the Cimarron
facility, defendants should receive an “F” or failing
grade. One defense witness, a regional! director of the
NRC, himself stated that the facility would in his judg-
ment receive a “C.” The question for the jury was to
judge the relevant operations of the plant as defined in
the instructions solely on the basis of the evidence before
them and in light of the standards given by the Court
for negligent, or for reckless and wanton conduct.

1 The applicability of this specific regulation was first addressed
by the parties by way of letter to the Court after argument on these
motions. Compliance with this specific regulation was not argued
during the trial. In their letters to the Court, the parties could not
agree on the factual question of whether compliance was demon-
strated by the record. Since the issue of compliance with this regu-
lation came up as an anonymous number in the trial but was not
specifically addressed in the evidence or law before the jury, it is an
extraneous issue for the purpose of the Court’s decision on the
extant motions, even though latent in the total evidence and law
governing this case.

167a

It was a factual question solely for the jury to com-
pare defendants’ conduct with the regulatory standard
and decide whether the record demons rated “substan-
tial,” “minimal” or “bare” compliance, or noncompliance
of whatever degree. In the last analysis, however, the
jury must still compare this factual finding of the de-
fendants’ conduct with the legal standards appropriate
for liability for negligence or for punitive damages. All
the relevant evidence was before the jury and the jury
was required by law to measure that against the applica-
ble legal standards. Defendants do not disagree with the
legal standards, but rather disagree with the factual find-
ing reached by the jury in judging defendants’ conduct
against the standards.

Defendants propose in their “substantial compliance”
criterion an inflexible standard unknown elsewhere in
tort law and unpermitting of just application to any
variety of different factual situations. It imposes upon
the Court the additional, onerous burden of instructing
the jury on an indefinitely large number of unspecified
and complicated regulations. The Court must then in-
form the jury that “substantial” compliance with these
regulations bars absolutely any award of punitive dam-
ages. Whether any regulation is entitled to greater
weight than others is left unclarified. Artificial erection
of this undefinable, absolute barrier against punitive--
or even actual—damages would be an invasion of the
proper function of the jury inconsistent with the role of
administrative regulations in assessment of a defend-
ant’s exercise of due care.

Indeed, defendants’ strenuous reliance on the cloak of
‘substantial compliance” as an absolute defense against
actual or punitive damages is rather anomalous. It is
predicated, presumably, on the idea that the escape of
300 micrograms of plutonium from their facility does not
represent “substantial” noncompliance with federal regu-
lations. Yet defendants apparently do not maintain that

168a

federal regulations authorize the distribution of 300
micrograms of plutonium into each of various random
households in the public domain. Defendants’ absolute
theory of “substantial compliance” would also apparently
bar punitive damages even where a licensee intentionally
and maliciously planted this plutonium in a household.
The instant amount would simply not represent a “sub-
stantial” violation of any regulation. Such a standard
improperly diverts the jury’s focus from considerations
properly germane to the determination of whether puni-
tive damages are appropriate. The Court correctly chose
not to instruct the jury in such a manner.

APPLICABILITY OF WORKMEN’S
COMPENSATION LAWS

Defendants in substance raise two arguments why
workmen’s compensation laws allegedly apply to this
plaintiff's claim to bar its assertion on common law
grounds in federal court. First, defendants contend that
the mere coincidence of the nature of defendants’ busi-
ness enterprise and the type of injury suffered is suffi-
cient to render applicable the Oklahoma compensation
statute. This Court has already disposed of this conten-
tion in an earlier order in this case dated December 12,
1978. The Court will not again address it at length here.

The authority cited in the prior order, as well as the
cases relied upon by defendants in their brief in support
of this motion, indicate that a causal connection between
work and injury must exist before compensation laws
apply. The mere coincidence that the injury for which
suit is brought is the same type as that to which the
plaintiff exposes herself at work is insufficient to demon-
strate this causal nexus. Even when the individual sued
is fortuitously the plaintiff’s employer, the causal connec-
tion is still absent. Neither coincidence establishes that
the injury has been suffered as a causal result of the
plaint:ff’s employment.

169a

Demonstrative examples are appropriate. Under de-
fendants’ reasoning, a public utility worker who coinci-
dentally installs gas furnaces could not sue the utility at
common law if his own furnace exploded at home. A
worker at a televison manufacturer similarly could not
sue that company if his defective television explod.. at
home. So, too, a nuclear worker would be unable to sue
her employer for radiation injury suffered on vacation
by driving through a spill of uranium by that company
on a public highway. In each example, the causal nexus
is absent. The Court need look no further than defend-
ants’ own authority to reject the proposition asserted.

Defendants’ second argument is built upon the first.
Defendants contend that when the coincidence of defend-
ant and injury exists, a plaintiff has the burden of
pleading and proving affirmatively that the causal con-
nection does not exist. Because the plaintiff would be
entitled to a presumption under the compensation laws
that the injury arose out of and during the course of
employment in an action brought under that act, it is
argued that defendants are entitled to the protection of
that presumption in an action not brought on compensa-
tion laws. Because in Oklahoma a compensation plaintiff
may arguably prevail without showing specifically how
the injury was work-related, plaintiff may not bring a
common law action unless he proves that the injury was
not work-related. In situations like the instant case,
where no jury finding establishes the fact either way, a
plaintiff may not recover at common law, even though
defendant might otherwise be strictly liable without any
such showing.

Quite simply, there is no authority that supports such
a proposition. Defendants have not cited any authority,
nor has the Court found any. Defendants’ citation to
Kansas law and Wilburn v. Boeing Airplane Co., 188
Kan. 722, 366 P.2d 246 (1961), is unavailing. There is

170a

nothing in Kansas law that would compel a plaintiff to
prove as an element of his common law claim the non-
existence of an affirmative defense available to the de-
fendants. Adoption of the argument would constitute a
new horizon in the traditional field of tort litigation.

Application of this proposition also frustrates appli-
cation of strict liability in typical product liability suits
for an entire class of plaintiffs who have an employ-
ment relationship with the defendant. In the exampie
above, an administrator for the deceased utility worker
would be required to prove that the furnace did not ex-
plode as a part of his employment. Again, lest the Court
overindulge in hypothetical example, twenty nuclear
workers exposed to plutonium away from work while
shopping individually in a store could not recover unless
they demonstrated how the plutonium got into the store,
even though no evidence is introduced which of the
twenty, if any, brought plutonium into the store. Non-
workers could recover on strict liability grounds without
any similar showing.

Reason does not support segregation of these particular
plaintiffs from the rest of the world merely because of
the fortuity of their employment relationship to a de-
fendant and the similarity of the hazard involved! The
Oklahoma compensation statute expressly and unequivo-
cally restricts the operation of any presumption to actions
brought under that act. Quite clearly, the workmen’s
compensation bar is an affirmative defense that the em-
ployer must raise in each of the hypothetical examples
noted above. Defendants cannot here place on plaintiff
the burden of proof of the non-existence of facts support-
ing their defense.

Contrary to the defendants’ argument, and as they well
know, the compensation issue was indeed submitted to
the jury, and the factual finding was against the defend-
ants. It was the Court’s determination that a formal

17la

workmen’s compensation issue could not ite presented to
the jury without an involved dissertation on the nature
and purpose of compensation laws, their difference from
traditional common law tort claims, and the real possi-
bility such an instruction would confuse the jury and
thwart the process of justice. Actual submission was
made to the jury by submission of the specific factual
issue of whether Silkwood intentionally took plutonium
to her apartment. Here the jury found the defendants’
evidence insufficient to establish by a preponderance of
the evidence that Silkwood intentionally took plutonium
to her apartment. The evidence that Silkwood might
have accidentally taken the plutonium home on her per-
son or clothing was weak, speculative, and contradicted
by virtually all defendants’ own evidence. The Court
could not properly submit a question with no evidentiary
foundation to the jury. Nothing more was required to
avoid the defense that compensation laws barred the
instant claim.

Defendants argue that if Silkwood’s contamination
took place during the collection of a urine sample, then
it took place during the course of her employment. This
again merely begs the question on which defendants had
the burden of proof. The only evidence that the contami-
nation so occurred was Silkwood’s own speculation. That
alone was insufficient.

Indeed, in the Rule 51 conference this Court specifically
asked defense counsel whether they contended the plu-
tonium moved into Silkwood’s apartment inside a con-
taminated urine kit. This Court was considering whether
to send that issue to the jury, but upon counsel’s un-
qualified negative response the Court refrained. Defend-
ants did not then object and the Court will not now hear
them raise this claim by indirection after an adverse
verdict. See United Steelworkers v. CCI Corp., 395 F.2d
529 (10th Cir. 1968).

172a

CHALLENGES TO THE VERDICT

Defendants here contend that the verdict in this case
is both excessive and contrary to the weight of the evi-
dence 2nd accordingly should be set aside. On the latter
ground, defendants argue that a verdict must be granted
for defendants.

The question whether a new trial is proper because the
verdict is contrary to the weight of the evidence is nor-
mally a question of fact and is addressed to the sound
discretion of the trial court. Champion Home Builders v.
Shumate, 388 F.2d 806 (10th Cir. 1967). On a motion
for new trial, the Court should view the verdict in the
overall setting of the trial, consider the character of the
evidence and the relative complexity of the legal princi-
ples which the jury was bound to apply. The Court
should abstain from interfering with the verdict unless
it is quite clear that the jury has reached a seriously
erroneous result. Bevevino v. Snydjari, 574 F.2d 676
(2d Cir. 1978). Where the trial court is of the opinion
that a new trial is proper, however, the remedy should
be granted. Holmes v. Wack, 464 F.2d 86 (10th Cir.
1972).

From examination of the record and familiarity with
the evidence at tria!, the Court finds that the evidence
was more than adequate to sustain the verdict reached.
Defendants’ argument that the only evidence in the
record supports the view that Silkwood intentionally re-
moved the plutonium is unavailing. Jurors are the ex-
clusive judges of credibility and of the weight to be
given the testimony of any witness. Boehm v, Fox, 473
F.2d 445 (10th Cir. 1973); Jaeco Pump Co. v. Inject-O-
Meter Mfg. Co., 467 F.2d 317 (10th Cir. 1972). The
jurors were free to reject that evidence altogether, or
find it speculative and unconvincing. With the burden
of proof on that issue, defendants then fail in their
affirmative defense. Similarly, defendants unconvincingly

173a

argue that the evidence conclusively shows that Silk-
wood’s intentional removal of plutonium was the most
probable of all possibilities. This misconstrues the nature
of defendants’ burden.

Defendants had the burden of proving their defense as
a true fact by a preponderance of the evidence—that is,
that it was likelier true than not true. Defendants’ argu-
ment subtly misdirects the analysis and finds that burden
satisfied if one possibility is likelier true than is an-
other possibility, regardless whether it is likelier true
than not true. Needless to say, one improbable impossi-
bility may be more probably true than another, while
both are so improbable that neither is established as
likelier true than not. Defendants’ proposition would em-
brace within jury findings the potential for total specu-
lation and conjecture.

A trial judge has the chief responsibility for passing
on the question as to whether a new trial ought to be
granted on the ground of excessive or inadequate dam-
ages. Ryen v. Owens, 144 U.S.App.D.C. 332, 446 F.2d
1333 (D.C.Cir. 1971). A verdict should not be set aside
unless the Court is convinced that it is the result of bias,
prejudice or passion. Metcalfe v. A. T. & S. F. Ry., 491
F.2d 892 (10th Cir. 1974); Wells v. Colorado College,
478 F.2d 158 (10th Cir. 1973).

It is this Court’s considered opinion that the verdict
in this case does not fall within that category. Nor is
the verdict beyond all reason or so great as to shock the
Court’s conscience. See Williams v. Steuart Motor Co.,
161 U.S.App.D.C. 155, 494 F.2d 1074 (D.C.Cir. 1974).
While the award of actual damages in this case was
high for the short period involved, and perhaps greater
than this Court would have himself imposed, it is not so
clearly excessive that the Court finds it an injustice or
unacceptable based upon the evidence,

174a

With the evidence and all reasonable inferences to be
drawn therefrom viewed in the light most favorable to
plaintiff, see Ahern v. Veterans Administration, 537
F.2d 1089 (10th Cir. 1976); Joyce v. Davis, 5389 F.2d
1262 (10th Cir _ the record contains substantial
evidence to supp. . jury verdict for actual damages.
So viewed, the record presents a Kafka-like picture of a
young woman who was contaminated by an originally
unknown amount of plutonium that was inexplicably
found in her apartment. She was fearful of a slow death
from cancer, became hysterical at times, and approached
a nervous breakdown as she became the focus of federal
agency and industry investigation into the incident. Be-
cause of the uniqueness of her injury, she was compelled
to place herself for medical care in the custody of those
whom she distrusted. The mental anx:ety associated with
this experience was for the jury to measure, together
with whatever physical injury the jury found she suf-
fered.

Where experts are in sharp disagreement over the
injuries sustained, the Court must not try the case de
novo. Volis v. Puritan Life Ins. Co., 548 F.2d 895 (10th
Cir. 1977). This Court is uninclined to stray into the
province of the jury and examine their finding based
upon conflicting evidence. See United States v. 79.95
Acres of Land, Rogers County, Oklahoma, 459 F.2d 185
(10th Cir. 1972).

The Court is even less inclined to view the punitive
damages awarded in this case as excessive. Defendants
argue that the Tenth Circuit has held a ratio of punitive
to actual damages of 11 to 1 as excessive, and that a
fortiori, the ratio of 20 to 1 in the instant case is ex-
cessive. This argument is entirely misplaced. Reliance
on Dearmore v. Gold, 400 F.2d 887 (10th Cir. 1968),
fails to note that it was a per curiam opinion setting
aside a damage award and remanding for a new trial as
both parties desired. A jury had awarded only $841.54

1%a

actual damages, where uncontroverted evidence estab-
lished damage at more than $700, without pain and
suffering, and established unquestioned pain and suffer-
ing and probable future medical expense. Punitive dam-
ages of $10,000 were awarded. Without delving into the
jurors’ thinking, but noting the appellee’s argument that
the jury awarded out-of-pocket expenses as actual dam-
ages, and pain and suffering and future expenses as
punitives, the Court concluded the fairest disposition to
be a new trial.

Indeed, application of a ratio approach to excessive-
ness expressly contradicts Oklahoma law. Defendants
implicitly acknowledge this by quoting Misco Leasing,
Ine v. Keller, 490 F.2d 545 (10th Cir. 1974)—punitive
damayes may exceed actual damages as long as the
amount is reasonable and bears some relation to the in-
jury inflicted. Defendants’ Brief at £8. Defendants’
argument that the punitive verdict must bear some rela-
tion to the actual damages awarded misreads the quote
and contradicts Oklahoma law. A punitive award need
not bear any necessary relation to the actual damages
awarded. Garland Coal & Mining Co. v. Few, 267 F.2d
785, 791 (10th Cir. 1959).

By statute, a relationship need only exist between the
amount of punicive damages awarded and the injury
inflicted. Okla.Stat.Ann. tit. 23, § 9. Little imagination
is needed to discern the disparity between actual and
punitive damages where, for example, a defendant in-
flicts a very serious injury, but where the suffering from
that injury is terminated by an intervening and unfore-
seeab'e act of God. Punitive damages would be for in-
tentional infliction of an injury severe enough to cause
long term suffering. Punitive damages would only be
required to bear a relationship to that injury inflicted,
and not to the figure for actual damages that reflect the
lesser period for pain and suffering actually experienced.

176a

Defendants additionally argue that no punitive dam-
ages were justified on the instant record because no
evidence was introduced of any defendants’ act toward
Silkwood that was reckless, wanton or malicious. This
belies the point. Although defendants here disagree,
Kerr-McGee had a duty to keep plutonium within their
facility. Reckless, willful, and wanton conduct in the
operation of the facility so as to permit plutonium to
escape into the public domain is evidence of conduct that
permitted the infliction of the instant injury to Silk-
wood. The Court has addressed defendants’ contention
above that no such duty existed. Defendants’ contention
that permitting plutonium to escape, without more, can-
not be the proximate cause of Silkwood’s injury is
addressed below.

Plaintiff’s evidence established substantial, credible evi-
dence of poor training, poor security, workers who knew
of a variety of ways to remove large amounts of pluto-
nium from the facility without detection, workers in-
different to the hazards of plutonium, and much more,
all of which tended to establish the propriety of a puni-
tive award. There was conflicting evidence, however sub-
ject to credibility tests, of an uninformed or indifferent
management. The amount of the punitive award was
particularly within the province of the jury to decide in
light of the purpose of punitive damages, the character
of defendants’ conduct, the hazardous nature of pluto-
nium, and defendants’ knowledge and state of mind. See
Restatement, Torts, § 908(2) com. e at 556-57 (1939).
In short, crassness of conduct may govern the amount
of award commensurate with a defendant’s financial
ability.

The Court finds ample evidence in the record, if found
credible by the jury, to support a very large punitive
award. The Court will not set aside the verdict reached.

In a memorandum overruling defendants’ motion to
interrogate the jurors post-trial, the Court has already

i77a

noted the high caliber and representative characteristics
of the individual jurors, as well as their dedication to
their duties as jurors. The jury in this case deliberated
for four days and once sought guidance from the Court.
Neither the verdict’s size nor the conduct of the delibera-
tions reflect a passioned or biased view of the evidence
or reaction to trial tactics of the competent counsel on
either side. Consequently, the Court cannot characterize
the verdict as the product of passion, bias or prejudice.
Finally, while the amount of the punitive award may
have exceeded what the Court would have allowed, it ap-
pears to be within the confines of the evidence and the
tenets of applicable law. As such it neither represents
an injustice nor shocks the conscience of the Court on
the instant record.
PUBLICITY

The Court finds no merit whatever in defendants’ con-
tention that pre-trial, trial and post-trial publicity de-
prived these defendants of the opportunity for a fair
trial. The Court fails to see the relevance of post-trial
publicity to defendants’ argument that the trial was less
than fair. Defendants cannot maintain that after the
trial concluded, the fairness of that completed process,
or the deliberations of a jury already discharged, were
somehow altered by subsequent statements in the press.

Nor does the Court look favorably on defendants’ con-
tention that pre-trial publicity was so pervasive and prej-
udicial that a fair trial was impossible. The Kerr-
McGee defendants themselves urged upon this Court an
early trial date, even over the opposition of plaintiff.
Defendants expressed their readiness to proceed to trial
in early Spring in Oklahoma City, so that the lengthy
trial would not have to be delayed until the next avail-
able date on this Court’s calendar in the Fall. Defend-
ants never mentioned that pre-trial publicity potentially
still in the minds of jurors chosen from the panel might
prejudice either of the parties. Nor did these defendants

178a

do the obvious if they felt that pre-trial publicity, which
was largely four years old, posed a threat to the fairness of
the proceedings. Fully aware of the publicity generated
by the case, both locally and nationwide, defendants never
moved for a change of venue for trial and never com-
municated to the Court serious apprehension about the
pre-trial publicity concerning the case. Indeed, it was
the sense of the Court that defendants were well pleased
with the Oklahoma City trial situs.

Furthermore, the Court permitted an extensive voir
dire of the jury panel that lasted from early morning
until late that same evening. Counsel were permitted
to conduct their own voir dire and inquire into each
potential juror’s familiarity with the case, his or her
knowledge, state of mind, and personal predilections, if
any. Never once prior to or during the trial did counsel
suggest the possibility that pre-trial publicity posed a
threat to the fairness of the trial. Defendants’ desire
to raise this issue after an adverse verdict detracts from
the seriousness with which the Court considers it.

This Court also finds no merit in defendants’ argu-
ment that publicity of this trial and other nuclear acci-
dents, most notably the incident at Three Mile Island,
prevented a fair trial. Again, this Court repeatedly
admonished the jury on a daily basis to disregard any
debate or discussion of other events or issues bearing
generally on nuclear power. This Court specifically ad-
dressed the Three Mile Island incident and cautioned the
jury that it had nothing to do with the facts and issues
before them. The jury was admonished not to view the
movie “China Syndrome” and not to let any aspect of the
nuclear debate affect their deliberations on the narrow
issues of this trial.

The Court has no reason to believe that its admonitions
were not heeded. Upon the Court’s inquiry, the jury
forewoman indicated that no extraneous information or

179a

issues entered into the jury’s deliberations. The Court
early in the trial questioned two jurors regarding pos-
sible friendships with Kerr-McGee employees not re-
vealed during voir dire. The Court then learned that
one juror even refused to let a friend approach her whom
she erroneously believed had begun work for Kerr-McGee
after the trial commenced. The Court finds its admoni-
tions sufficient to preserve in these jurors that objective
and impartial state of mind necessary for a fair trial.

Quite simply, this Court presided over this trial and
was fully aware of the nature and extent of news cover-
age in the Oklahoma City area. The Court simply dis-
agrees with defendants’ rather flamboyant description of
the public interest in this trial. The press did report
certain items of evidence not admitted before the jury
which held prejudicial value for the defendants. The
press also reported on numerous occasions, however, the
parade of information regarding defendants’ contentions
on evidence relating to sex and drugs, which was in-
formation highly prejudicial to the plaintiff.

Defendants’ suggestion that this Court poll the jury
after each news report of a nuclear incident without
even the remotest connection or relevance to the issues
in this case or the evidence being placed before the jury
is unrealistic. Although the news accounts may have
had bearing on the general national debate upon the po-
tential benefits and costs of nuclear power, the jury was
cautioned repeatedly during voir dire, presentation of
evidence, and again in the Court’s instructions that any
specific aspect of the public debate on nuclear power
must not be considered by them. This Court’s inquiry
of the jury forewoman shortly after the trial’s conclu-
sion dispels any notion that prejudicial effects of pub-
licity entered into the jury’s deliberations. The few
statements of individual jurors and alternates that ap-
peared in local Oklahoma City newspapers immediately

180a

after the trjal corroborate this view. This Court is con-
vinced that media publicity had no effect on the proceed-
ings of the trial.

OTHER ARGUMENTS

Although the Court will not address each issue raised
by defendants, adcitional comment is necessary on a few
points. Defendants again raise their contention that
the scope of the evidence was improper, and that the
Court erred by excluding their evidence on numerous
matters regarding Silkwood’s sexual involvements, use
of drugs, and purported suicide attempts. The Court
entered in the record a memorandum order on this point,
which adequately deals with the issue. In their argu-
ments defendants never addressed the problem that Rule
404, Federal Rules of Evidence, rendered this evidence
largely inadmissible, without regard to its tremendously
prejudicial value upon which this Court chuse to exclude
it under Rule 403, Federal Rules of Evidence.

The parties should also consult Hackbart v. Cincinnati
Bengals, Inc., 601 F.2d 516 (10th Cir. 1979), wherein a
professional football player sought damages for a “late
hit” by an opposing player which broke his neck. De-
fendants introduced evidence tending to show that plain-
tiff himself was a “dirty player” who had indulged in
physical violence beyond that permitted by the rules.
The Circuit held the evidence irrelevant and improperly
admitted by virtue of Rule 404’s proscription on char-
acter evidence used to show conduct.

Defendants again argue that evidence of their negli-
gent or reckless handling of plutonium in the facility
was irrelevant to the issues in the case. Defendants re-
fuse to acknowledge that evidence of defendants’ lack of
due care regarding security, training of workers, or their
indifference to the hazards of plutonium and the safety
of their employees, renders it more likely that the instant

18la

plutonium escaped from the facility because of defend-
ants’ ordinary or gross negligence. The evidence was,
therefore, probative and competent circumstantial evi-
dence of culpable conduct that proximately caused Silk-
wood’s injury.

Hackbart, supra, is not to the contrary. The Court
there found irrelevant evidence of extraneous acts of
football violence in an intentional tort case. Once the
Court rejected the applicability of the assumption of the
risk defense, evidence that football was a commonly
recognized ‘“‘violent game” did not have any probative
value on defendants’ liability for a player’s admittedly
intentional striking of plaintiff.

Defendants also argue that they are entitled to a
judgment or a new trial because no evidence establishes
any act which proximately caused Silkwood’s injury. De-
fendants must concede that but for the escape of plu-
tonium from their facility, this injury would not have
occurred. Nor may they dispute that radiation injury to
individuals in their homes was a foreseeable result of
the escape of plutonium barely visible to the naked eye.
Defendants’ theory of proximate causation would pre-
sumably require evidence that their agent brought plu-
torium physically into the apartment. In strict liability
“dangerous animal” cases this would require a defendant
to be responsible for moving the animal physically to a
plaintiff’s location before liability would attach. This
is not the law. City of Magnum v. Brownlee, 181 Okl.
515, 75 P.2d 174 (1938) (bear escapes from cage); see
also Foster and Keeton, Liability Without Fault in Okla-
homa, 3 Cla.L.Rev. 1, 11-16 (1950).

Furthermore, defendants’ argument is another attempt
to shift the burden to plaintiff to prove the absence of
Silkwood’s assumption of the risk to bar a strict liability
claim, or the non-existence of an intervening cause suf-
ficient to cut off the chain of causation requisite for a

182a

negligence claim. This, too, is not the law. Indeed, in-
tervening acts do not bar liability under the Restatement
provision, except possibly for the intentional acts of a
third party. See Restatement (Second) Torts, § 522
(1976).

The difficulty of proving causation in radiation injury
cases has been the subject of much legal debate, but only
in the context of latent injuries where a plaintiff with
cancer sues another for exposures occurring long pre-
viously. See, e.g., Keyes and Howarth, Approaches to
Liability for Remote Causes: The Low Level Radiation
Example, supra at 545-46; Finks, Radiation Injuries
Compensable Under Workmen’s Compensation, 41
B.U.L.Rev. 183 (1961); Estep, Radiation Injuries and
Statistics: The Need for a New Approach to Injury
Litigation, 59 Mich.L.Rev. 259, 281-304 (1960); Note
Problems of Tort Liability Arising from Nuclear Reac-
tors, 27 U.Cin.L.Rev. 415, 418 (1958). That problem
is admittedly not present here. Plutonium from the de-
fendants’ facility was found in Silkwood’s apartment
where it exposed her to radiation and was proximately
tied by evidence to her emotional distress. The question
of proximate causation was properly submitted to the
jury.

Defendants lastly raise the question of misconduct by
the plaintiff’s lead trial counsel that allegedly deprived
them of a fair trial. This was a very long, hotly con-
tested lawsuit wherein the parties pursued the litigation
perhaps as much out of emotional belief in various prin-
ciples as they did out of interest in this specific factual
situation. At times the patience and tempers of lawyers
wore thin, as would be expected. There were infrequent
instances, perhaps, of excesses that ought not to have
occurred. Mr. Spence’s remark to a defense witness, a
long-time government investigator who interpreted the
statement as designed to intimidate him, was unfor-
tunate. The Court has no doubt, however, that this par-

183a

ticular witness would not have been intimidated by a
private lawyer’s casual remark during a trial recess.
Mr. Phillip’s demeanor during cross-examination ex-
hibited not the slightest feature of intimidation, as the
Court would anticipate from an experienced man in his
profession.

The Court need not address other alleged instances of
improper conduct. Defendants themselves began this
case with an opening statement that informed the jury
that plaintiff’s lead counsel was skilled in the art of “‘in-
vading the vaults” of large corporations and insurance
companies and “denuding them” of their money. De-
fendants closed with argument directiy contradicting the
Court’s instructions and informing the jury that puni-
tive damages should be considered as a reward to plain-
tiff’s counsel and the estate they represented. In direct
violation of court orders, defense counsel also brought to
the jury’s attention a matter whose exclusion this Court
had ordered both several times from the bench and once
by way of written memorandum inserted in the record
and distributed to counsel. Neither plaintiff nor defend-
ants are entitled to claim pristine innocence in their
courtroom conduct in this case.

Invariably when counsel become so involved in mat-
ters of principle so strongly held by clients, better pro-
fessional judgment in questions of fact and law may be
overcome by momentary impulse. The result is not al-
Ways a salutary one in strict terms of trial performance,
but lengthy, complicated trials with much at stake are
difficult to present without at least occassional obstruc-
tions of professional perspicacity. This is especially true
when the litigation is motivated by emotionally-fueled
devotion to a client’s principled position, which might
perhaps cloud a more objective perception of the case.

This Court presided over the trial and did its utmost
to keep prejudicial matters and conduct from the jury.

184a

The Court undertook appropriate action to erase what-
ever possible prejudicial impact might have been created
whenever a counsel’s conduct or tactics approached un-
fairness or impropriety in the Court’s opinion. The
Court is quite confident that these rare occurrences dur-
ing the course of eleven weeks of trial did not have any
ultimate impact on the jury in this case. This was not
a perfectly tried case by either side, but neither the
federal rules nor the requirements of due process dic-
tate as much. It was the Court’s apprehension during the
trial and reflected judgment now that this case, although
having more evidentiary questions than any the Court
has previously tried, more adversariness than custom-
arily occurs in a normal civil case, and inordinate length
of trial time, was well and competently briefed, tried
and argued by exceedingly competent counsel for both
sides. This Court maintained close scrutiny over the
progression of this litigation and feels satisfied that the
interests of all parties were adequately protected. The
argument that conduct of plaintiff’s counsel prevented
a fair trial in this action is without merit.

The Court also finds no merit to the remaining con-
tentions of defendants, many of which this Court has
already ruled and commented upon during the prepara-
tion of this case for trial or during the trial itself.

IT IS THEREFORE ORDERED that the motions of
defendants for a judgment notwithstanding the verdict
or for a new trial are hereby denied.

185a
APPENDIX
THE COURT'S INSTRUCTIONS
INSTRUCTION NO. 1

MEMBERS OF THE JURY:

Now that you have heard the evidence and the argu-
ments, the time has come to instruct you as to the law
governing the case.

Although you as jurors are the sole judges of the facts,
you are duty bound to follow the law as stated in the
instructions of the Court and to apply the law so given
to the facts as you find them from the evidence before
you.

If, in these instructions, any rule, direction or idea be
stated in varying ways, no emphasis thereon is intended
by me and none must be inferred by you. For that rea-
son, you are not to single out any certain sentence or any
individual point or instruction and ignore the others, but
you are to consider all the instructions as a whole, and
you are to regard each instruction in the light of all the
others.

You are not to be concerned with the wisdom of any
rule of law. Regardless of any opinion you may have as
to what the law ought to be, it would be a violation of
your sworn duty to base a verdict upon any other view of
the law than that given in the instructions of the Court.

INSTRUCTION NO. 2

This is an action to recover for alleged personal in-
juries arising out of the radioactive contamination to
which plaintiff’s decedent, Karen Silkwood, was exposed
in November, 1974. Karen Silkwood was an employee of
defendant Kerr-McGee Nuclear Corporation and worked
at that defendant’s fuel rod fabrication plant—the Cim-

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arron facility. She was exposed to plutonium, a radio-
active substance, on three consecutive days—-November
5th, 6th and 7th, 1974. Plutonium contamination was
found in her apartment on November 7th.

It is stipulated by the parties that the plutonium that
caused Silkwood’s contamination originally came from the
Cimarron facility, and plaintiff alleges that the opera-
tion of a nuclear fuel rod fabrication plant is an ultra-
hazardous or abnormally dangerous activity. Plaintiff
therefore alleges that Kerr-McGee Nuclear Corporation is
strictly liable to compensate plaintiff for his decedent’s
injuries and damages caused by the escape of this plu-
tonium from the facility. Plaintiff claims that Silkwood
suffered injuries, including radioactive contamination of
her internal organs, tissues and genes, and that she ex-
perienced mental and emotional trauma, suffering and
anguish.

Plaintiff also alleges Kerr-McGee Nuclear Corporation
was negligent with respect to Karen Silkwood in the fol-
lowing respects:

1. Failure to inform itself of the full extent of the
hazardous nature of plutonium.

2. Failure to inform and train its employees re-
garding the hazardous nature of plutonium.

3. Failure to protect employees and others against
hazards created by the escape of plutonium from
the plant.

4. Failure to employ an adequate number of trained
and qualified health and safety personnel.

5. Failure to employ adequate security procedures,
equipment and personnel to prevent escape of
plutonium,

6. Failure to take those steps reasonably necessary
to avoid contamination incidents, to minimize

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harm from incidents that did occur, and to ac-
count for 2ii plutonium in its possession so that
escape of the substance could be immediately de-
tected and prevented.

Plaintiff also alleges that Kerr-McGee \aclear Corpo-
ration is the mere instrumentality or alter ego of its
parent corporation, Kerr-McGee Corporation, and that
the parent corporation may therefore be held liable for
the damages that plaintiff seeks.

Plaintiff claims actual damages in the amount of
$1,505,000.00 for actual bodily injury and for injury to
property. Plaintiff further claims the conduct of defend-
ant companies was so grossly negligent, malicious, and
wantonly reckless toward Silkwood and others as to en-
title him to recover $ in exemplary damages
from defendants.

Defendant Kerr-McGee Nuclear Corporation denies that
it was negligent in any manner in its operation of the fa-
cility, and further denies that any conduct attributable to
it caused the escape of plutonium from the facility and
the contamination of Karen Silkwood. The Nuclear Corpo-
ration further raises an affirmative defense that Silkwood
herself intentionally carried the plutonium in question
to her apartment and there contaminated herself either in-
advertently or intentionally. The Nuclear Corporation
therefore denies its liability for any damages allegedly
caused to Silkwood.

Defendant Kerr-McGee Corporation denies that the Nu-
clear Corporation is its alter ego or a mere instru-
mentality. Kerr-McGee Corporation alleges that the Nu-
clear Corporation is a separately maintained corporate en-
tity. Kerr-McGee Corporation therefore denies liability
for any torts, or wrongs, committed by its subsidiary
corporation.

Both defendant corporations deny the nature and extent
of all personal damages alleged by plaintiff; except the

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parties have stipulated that the amount of property dam-
age suffered by plaintiff’s decedent from contamination to
personal property in her apartment is $5,000.00.

The above and foregoing are the claims of the parties
herein, and are not to be construed by you as evidence in
the case.

INSTRUCTION NO. 8

The burden is on the plaintiff in a civil action such as
this to prove every essential element of his case by a pre-
ponderance of the evidence.

Similarly, if you find that plaintiff has proved all ele-
ments of his case, then the defendants have the burden
to prove by a preponderance of the evidence their affirm-
ative defense of self-contamination.

If the proof fails to establish any essential issue in a
case upon which the burden of proof is on the asserting
party, then such party must lose on that issue.

To “establish by a preponderance of the evidence” means
to prove that something is more likely so than not so. By
a fair preponderance of the evidence is not necessarily
meant the greater number of witnesses, or the length of
the presentation of testimony, but rather, the greater
weight of the evidence taken together—that is, that evi-
dence upon any question or issue which convinces you
most strongly of its truthfulness. If the evidence on an
issue is equally balanced, then there is no preponderance
and the party having the burden to establish that issue
must fail.

INSTRUCTION NO. 5

Burden of proof means burden of persuasion. A party
who has the burden of proof on an issue must persuade
you that his claim regarding that issue is more prob-
ably true than not true. In determining whether he has

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met this burden you will consider ail the evidence,
whether produced by plaintiff or defendants.

For plaintiff to recover against Kerr-McGee Nuclear
Corporation, the burden of proof is on the plaintiff to es-
tablish the three elements of his case as listed in Instruc-
tion No. 7.

For plaintiff to recover against Kerr-McGee Corpora-
tion, plaintiff has the burden of proof to establish these
same three elements. Additionally, plaintiff has the bur-
den of proof to establish that Kerr-McGee Nuclear Corpo-
ration is the instrumentality of its parent corporation, as
defined in a separate instruction.

Finally, the plaintiff has the burden of proof to estab-
lish the nature and/or extent of the claimed personal
injuries and property damage to plaintiff's decedent, and
generally the amount of actual and punitive damages,
subject to your final power to determine the amount of
dollar damages in one or both categories of damages.

If you find these elements established, then the burden
of proof is on defendant Kerr-McGee Nuclear Corpora-
tion to establish that Karen Silkwood took the plutonium
from work to her apartment where she was allegedly
injured.

INSTRUCTION NO. 6

You are instructed that plaintiff is re’ying in this case
on a theory of liability against defendants that is known
as strict liability. Such theory of liability is one that
comes about by operation of law through public policy for
the protection of people who live in a society where they
may be affected by someone else’s operation of an ultra-
hazardous or abnormally dangerous activity.

The rule of strict liability applies only to harm that is
within the scope of the abnormal risk that is the basis
of the liability. The liability arises out of the abnormal

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danger of the activity itself and the risk it creates of
harm to those in the vicinity. In the case at bar the ac-
tivity would be the handling and processing of plutonium,
one of the most dangerous of substances. The rule is
founded upon a policy of law that imposes upon anyone,
who for his own purpose creates an abnormal risk of
harm to his neighbors, the responsibility of relief against
that harm when it does in fact occur. The defendants’
enterprise, in other words, is required to pay its way by
compensating for the harm it causes because of its special,
abnormal and dangerous character. The liability is not
in any way based upon any intent of the defendant to do
harm to the plaintiff or to affect his interest—nor is it
based upon any negligence either in attempting to carry
out the activity itself in the first instance, or in the man-
ner in which it is carried on. The defendant is held li-
able although he has exercised the utmost care to prevent
the harm to the plaintiff that has ensued from the dan-
gerous substance.

INSTRUCTION NO. 7

You are instructed that the Court finds as a matter of
law that the operation of the Cimarron facility by de-
fendant Kerr-McGee Nuclear Corporation constitutes an
abnormally dangerous activity. Therefore, if you find
that the damage to the person or property of Karen
Silkwood resulted from the operation of this plant—if
that damage was caused by the escape of plutonium from
that plant—then defendant Kerr-McGee Nuclear Corpo-
ration is liable for this damage, unless defendant prevails
on its affirmative defense set forth below.

As the elements of his case then, plaintiff must estab-
lish by the evidence:

1. That plutonium escaped from the custody of the
Kerr-McGee Nuclear Corporation’s Cimarron fa-
cility;

19la

2. The plutonium that so escaped caused Karen Silk-
wood actual injuries to her person or property;
and

3. The nature and extent of the injuries.

As stated in the stipulation of fact, element number
1 above has been agreed to and admitted by the parties,
leaving only elements 2 and 38 to be established by the
evidence.

Once these facts are established, liability for this injury
exists. This is true without regard to the degree of care
with which defendant Kerr-McGee Nuclear Corporation
carried on its activities at the Cimarron facility.

The liability of defendants, or either of them, under
the doctrine of strict liability, is, of course, subject to the
jury’s determination of the self-contamination defense of
Kerr-McGee as set forth in the following paragraph.

You are further instructed that a verdict for both de-
fendants must result if Kerr-McGee Nuclear Corporation
has proved by a preponderance of the evidence its affirma-
tive defense that Silkwood intentionally removed plu-
tonium from the Cimarron facility, and as a result thereof
negligently or intentionally contaminated herself.

INSTRUCTION NO. 8

The fact that plaintiff’s legal theory of liability or re-
covery against defendants Kerr-McGee Corporation and
Kerr-McGee Nuclear Corporation is in legal parlance or
language referred to as “strict liability,” does not mean in
any sense that plaintiff can recover because he files a law-
suit and claims strict liability is the basis of his legal
theory.

INSTRUCTION NO. 9

The plaintiff’s other claim of liability of the defendants
in this case is negligence.

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As used in these instructions, negligence is the lack of
that degree of care as would be exercised by a very care-
ful, prudent and competent person under the same or
similar circumstances. It is the failure of a person to do
something that a very careful or prudent person would
do, or the act of a person in doing something that a very
careful or prudent person would not do, measured by all
the circumstances then existing.

To constitute actionable negligence three elements are
necessary and must concur. First, the existence of a duty
on the part of the party charged; second, failure of said
party to perform that duty; and third, injury to the
party charging the negligence and which proximately re-
sults from such failure.

A proximate cause of an injury is a cause which in
direct, unbroken sequence produced the injury. It is
one without which the injury would not have occurred.

Because the operation of the Cimarron facility by the
defendant Kerr-McGee Nuclear Corporation constitutes
an abnormally dangerous activity, a duty of utmost due
care is placed upon Kerr-McGee Nuclear Corporation by
the law.

By “utmost due care” the law means that the defendant
is required to exercise a degree of caution that corre-
sponds to the riskiness of the activity. For an abnor-
mally dangerous activity every known foreseeable pre-
caution must be taken.

In the context of the evidence in this case on the issue
of negligence, you may find that escape of plutonium
from the Cimarron plant caused Karen Silkwood’s injury,
without finding that it was specifically foreseeable that
Karen Silkwood in particular would be injured by an es-
cape of plutonium. It is enough for proximate cause for
you to find that it was foreseeable that the escaped plu-
tonium would injure anyone who would be exposed to it.

193a
INSTRUCTION NO. 10

Evidence has been admitted in this case regarding the
existence of government standards for the operation of
the Cimarron facility and the accounting for plutonium
within the facility. You are instructed that these stand-
ards may be considered by you as evidence of expert
opinion on what constitutes reasonable care on the part of
defendant Kerr-McGee Nuclear Corporation. You may
consider this evidence as any other expert testimony and
it is to be tried by the same tests. It should receive such
weight and credit as you, the jury, deem it entitled, when
viewed in connection with all the other facts and circum-
stances of the case. Its weight and value are questions for
you to decide.

You may consider compliance with these standards as
evidence of the exercise of reasonable care by Kerr-
McGee Nuclear Corporation and to negative a finding of
the conduct necessary to establish a basis for exemplary
damages. Failure to comply with these standards, how-
ever, may be considered by you as negligence per se, that
is, such conduct in and of itself shall be considered by
you as negligence, or the failure to exercise reasonable
care. Either a single incident of gross and/or wanton
disregard, or a series of acts of negligence, per se, may
also be considered in judging conduct necessary to im-
pose exemplary damages. ;

You are instructed, however, that you are not bound
by these standards. Your duty is to determine what con-
stitutes the exercise of reasonable care in handling plu-
tonium, or the existence of reckless and wanton conduct,
in light of the physical characteristics of that material
and the risks associated with it.

INSTRUCTION NO. 11

Evidence has been admitted in this case regarding the
existence of government standards for the acceptable

194a

levels of exposure to radiation permitted in such facili-
ties in regard to plant safety and evaluation of the na-
ture and extent of personal injury. You are instructed
that these standards may be considered by you as evidence
of expert scientific and medical opinions on what levels
of exposures may result in actual physical injuries, of
whatever severity, to persons who work in such facilities.
You may consider this evidence as any other exper? opin-
ion, and you should give it such weight and credit to which
you deem it entitled, when viewed in connection with all
other facts and circumstances.

You are instructed, however, that you are not bound
by these standards. Compliance with such standards
does not necessarily mean injury cannot occur for which
liability may be imposed. Your duty is to determine ac-
cording to your own best judgment, in light of all the
evidence, the nature and extent of the actual injuries
suffered by Karen Silkwood, if any, and the emotional
suffering and anguish proximately caused thereby, if any.

INSTRUCTION NO. 12

One of the defendants’ principal contentions and de-
fense in this case to both negligent conduct or conduct
meriting an award of exemplary damages is that Kerr-
McGee Nuclear Corporation has always, and in particular
at the time of events in this case, been in substanial com-
pliance with its license and AEC regulations pertaining
to its Cimarron plant.

You are instructed that subsiantial compliance with
the license conditions imposed by the Atomic Energy
Commission in the defendants’ license and the regulations
of the Atomic Energy Commission as they pertain to
Karen Silkwood and her exposure to plutonium on No-
vember 5, 6 and 7, 1974, may be considered by you in
determining whether or not the defendant, Kerr-McGee
Nuclear Corporation was negligent in its plant opera-
tions, directly causing the claimed injuries to Silkwood.

195a

You may further consider compliance or substantial com-
pliance in determining whether exemplary damages
should be awardable against the defendants, or either of
them, and the amount thereof.

As stated before in these instructions on the effect of
government standards, such compliance would not neces-
sarily preclude a finding of blameworthy conduct under
all the facts and circumstances shown by the evidence.

INSTRUCTION NO. 138

Plaintiff was permitted in his case in chief to present
evidence of several statements of Karen Silkwood and
evidence relating to her activities from September to
November, 1974. This evidence was admitted primarily
through the testimony of Jean Jung, whose deposition
was read to you, the testimony of union officials Steven
Wodka and Tony Mazzochi, and the playing of certain
tape recordings of Karen Silkwood’s conversations and
scientific lectures that Silkwood attended. Slides of Silk-
wood’s notebooks containing her observations of events
and conditions at the Cimarron facility were displayed,
and the original notebooks were admitted as exhibits for
you to examine.

This evidence was comprised of Silkwood’s statements
to AEC investigators, union officials, and her own allega-
tions of unsafe working conditions at the plant, and
purported falsification of quality assurance records for
fuel rod manufactured at the plant. It was not admitted
to prove, and must not be considered by you as evidence
of the conditions or events at the Cimarron facility they
purport to describe. The truth or falsity of Silkwood’s
allegations or charges is not in issue in this case.

This evidence was introduced solely to show Silkwood’s
knowledge and state of mind at the time the statements
were made or the events transpired. This evidence must
be considered by you solely in this regard.

196a

Substantive evidence of conditions at the facility was
presented by plaintiff through other evidence—witnesses
who testified first hand as to what they observed at the
plant or knew of their own knowledge and through official
records of the facility that reflect actual events or condi-
tions at the plant. You the jury must rely solely on that
evidence, and the evidence of the defendants that may
rebut or contradict it, to resolve the issue before you of
whether plutonium escaped from the facility by reason
of the negligence of defendant Kerr-McGee Nuclear
Corporation, and thereby injured Silkwood.

The evidence of Silkwood’s statements and allegations
is before you solely for your consideration regarding
Nuclear Corporation’s affirmative defense in this case.
Both defendants contend that Silkwood intentionally re-
moved plutonium from the Cimarron facility to contami-
nate urine samples she voided at home. As _ indicated
elsewhere in these instructions, the burden is on the de-
fendants to prove this fact by a preponderance of the
evidence. The above-mentioned evidence may be considered
by you in your determination of Silkwood’s state of
mind, motivation or intentions to aid you in deciding
whether or not Silkwood intentionally removed plutonium
from the facility. In this regard, it is not material
whether Silkwood’s statements, allegations and beliefs
were, in fact, true or false. What Silkwood believed and
felt was true, however, is material in your determination
of her motivation and intentions that might lead to cer-
tain conduct. This evidence is admitted solely for your
consideration of Silkwood’s state of mind or intentions,
to aid you in determining whether it is likelier than not
that Silkwood intentionally removed plutonium from the
facility.

INSTRUCTION NO. 14

The Court has admitted certain evidence in this case
to show the motivation, the intent or the credibility of

197a

various parties. Among these is plaintiff’s Exhibit 307—
a list of questions submitted by Kerr-McGee Nuclear
Corporation to its Cimarron facility employees on or
about late December, 1974, and early January, 1975.
This exhibit has been admitted for the sole purpose of
showing Kerr-McGee Nuclear Corporation’s state of mind
as to its employees, their association with the Oil, Chemi-
eal and Atomic Workers Union, and problems arising out
of its plant operations prior to that time, and particularly
in the last half of the year 1974. You are to consider
this exhibit for no other purpose.

INSTRUCTION NO. l4a

The Court reminds you that plaintiff’s Exhibits 87, 93,
97, 99 and 114 were admitted, even though they consti-
tute hearsay, as providing background information perti-
nent to the Oil, Chemical and Atomic Workers Union’s
activities and interest in the Cimarron facility, and they
are not to be considered as evidence of the truth of the
matters set forth in the exhibits.

INSTRUCTION NO. 15

The plaintiff in this action was permitted to demon-
strate in his case in chief evidence of incidents at the
Cimarron facility occurring prior to the death of Karen
Silkwood that might show or tend to show the alleged
carelessness or negligent behavior on the part of the de-
fendants or their employees in operation of the plant.
You, the jury, are instructed that this evidence was ad-
mitted for the purpose of determining Kerr-McGee Nu-
clear Corporation’s knowledge of, and attitude toward,
any alleged defective, unsafe or hazardous working con-
ditions in the plant. You may consider such incidents and
such knowledge, if any, in your determination of whether
to award plaintiff punitive damages against the defend-
ants, as elsewhere instructed. This evidence was also ad-
mitted to aid you in deciding whether it is more likely

BEST AVAI

198a

than not that negligent conduct of either defendant caused
the escape of plutonium from the Cimarron facility and
thereby caused, or contributed to cause, Karen Silkwood’s
injuries, if any.

Evidence of incidents in the plant occurring after
Silkwood’s death was also admitted which might show
or tend to show alleged careless or negligent conduct on
the part of the defendants or their employees in: plant
operation. You are instructed that this evidence was
admitted solely for the limited purpose of establishing
whether a course of conduct existed on the part of the
defendants, prior to Silkwood’s death and continuing for
some time thereafter, from which an inference might be
drawn that conditions existed at the Cimarron facility
in November, 1974, that might cause or contribute to
cause the escape of plutonium that caused Silkwood’s in-
juries, if any. As with any testimony in this case, you
may find it either believeable or not, or give it whatever
weight you desire. It was admitted solely to aid you in
your determination of whether either defendant is liable
for injuries to Karen Silkwood, if any, as instructed
above.

Such evidence of incidents occurring after the con-
tamination of Silkwood must not be considered by you
in assessing the nature and extent of any conduct of
Kerr-McGee for which you might determine punitive
damages to be awardable in this case.

INSTRUCTION NO. 16

You are instructed that Kerr-McGee Corporation is
liable for the damage to the person and property of
Karen Silkwood resulting from the activities of the Kerr-
McGee Nuclear Corporation at the Cimarron Plutonium
Plant if you find that Kerr-McGee Corporation so domi-
nated the management, policies, and finances of the Kerr-
McGee Nuclear Corporation so that that corporation had

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199a

no actual will or existence of its own but was only a
mere instrumentality of Kerr-McGee Corporation.

In considering the relationship between Kerr-McGee
Corporation and Kerr-McGee Nuclear Corporation, you
should consider the evidence presented to you in the light
of the following factors:

L.

10.

The ownership of stock of Kerr-McGee Nuclear
Corporation by Kerr-McGee Corporation.

The presence on both corporations of the same
officers or directors, if any.

The financial support, if any, of the Kerr-McGee
Nuclear Corporation’s operations by Kerr-McGee
Corporation.

The underwriting of the incorporation and pur-
chase of the capital stock of Kerr-McGee Nuclear
Corporation by

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1151%3A2. Public record. Not legal advice.