Petition for Writ of Certiorari — Mallinckrodt, Inc. v. Bennett
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85 be 17 J 6 iT Supreme Court, U.S.
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APR 18 1986
No. 85- | JOSEPH F. SPanioL. Je.
wo & = “sae
IN THE
Suprenve Court of the United States
OCTOBER TERM, 1985
MALLINCKRODT, INC.,
Petitioner,
Wa
SAMUEL F. BENNETT, ef ai.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE MISSOURI COURT OF
APPEALS, EASTERN DISTRICT
Of Counsel: PETER J. NICKLES*
RICHARD A. MESERVE
WILLIAM A. RICHTER WILLIAM F. GREANEY
Lewis R. MILLS
COVINGTON & BURLING
PEPER, MARTIN, JENSEN, 1201 Pennsylvania Avenue, N.W.
MAICHEL & HETLAGE
720 Olive Street
St. Louis, Missouri 63101
(314) 421-3850
RAYMOND M. ASHER
RoGee2 A. KELLER
MALLINCKRODT, INC.
675 McDonnell Boulevard
St. Louis, Missouri 63134
(314) 895-2906
P.O. Box 7566
Washington, D.C. 20044
(202 ) 662-6000
Attorneys for Petitioner
MALLINCKRODT, INC.
*Counsel of Record
QUESTION PRESENTED
Whether a federally licensed iadiopharmaceutical facility
that is operated in full compliance with comprehensive radio-
logical emission standards established by the Nuclear Regu-
latory Commission can, consistent with the federal preemption
of the field of nuclear safety, be subjected to suits for monetary
damages on the basis of the planned, periodic emissions of low-
level radiation that occur in the normal course of operations.
PARTIES TO THE PROCEEDING
The petitioner herein is Mallinckrodt, Inc.* The parties to
the proceedings below not listed in the caption of the case are
Frank Fogerty, Vera J. Howell, Charles Wilkerson, Leonard
Bodus, Lynn Carroll, Douglas Wesley and Owen Arney, appel-
lants below.
* Petitioner is a wholly owned subsidiary of IMC Holdings, Inc., which
itself is a subsidiary of International Minerals and Chemical Corp. Petitioner
has the following non-wholly owned subsidiaries: Daiichi Radioisotope
Laboratones, Ltd.; Mallinckrodt Iberna, S.A.; Bunnell, Inc.; and Orange
Medical Instruments.
ii
TABLE OF CONTENTS
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STATUTES AND REGULATIONS INVOLVED ......... 2
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REASONS FOR GRANTING THE PETITION ............ 6
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TABLE OF AUTHORITIES
Page
CASES:
Chicago & North Western Transportation Co. v. Kalo
mick & Tite Ce., 450 U.S. SUE C EGG } eccccncccnssesccciccuns: 12
Cipollone v. Liggett Group, Inc., No. 85-5073 (3d Cir.
Fs Fi Per nihneancedacitbeian gai castbelatdcipele daeutalcaa: 13
Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146
(D.N.J. 1984), rev'd, No. 85-5073 (3d Cir. Apr. 7,
PME I s::si:a7sanecivicnnbomidciciendenuausrcamecaesemenie ena aamacoameuads 13
.
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) ...
Fidelity Federal Savings & Loan Association v. de la
on Gk a | k . * 5 Seen Neen NOt: 12
Johnston v. United States, 597 F. Supp. 374 (D. Kan.
ROME sc cis Leistchstake eked eraaienelanseceakcmie a renatac oc emanate 5
McKay v. United States, 703 F.2d 464 ( 10th Cir. 1983). 8
Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241
Oe | Pee NR RG aE RSID NT APN IaRS EAH os Seer 7 FANE Ce URI 2
Pacific Gas & Electric Co. v. State Energy Resources
Conservation and Development Commission, 461 U.S.
FO WF sas tecenicatacasasnscdciansacesinnn ember eikaaatinnaaanae. 7.14
San Diego Building Trades Council v. Garmon, 359 U.S.
rh Te, | pron aise iiauesaciaaadien sRasmusneaeeacakonmacgnne 7.12
Silkwood v. Kerr-McGee Corp., 464 U.S. 238 ( 1984) ...... 4.
passim
Silkwood v. Kerr-McGee Corp., 667 F.2d 908 (10th Cir.
1981), rev d on other grounds, 464 U.S. 238 (1984) .... 8
Train v. Colorado Public Interest Research Group, 426
Ses ASME D cnc sdees cues tones cedure ya suddauaeedcemuaninidas 7
STATUTES:
Atomic Energy Act of 1954,
Oe Ria ee Oe hisses noni ae ‘.
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RS ee Fed tS Speman ind deee clr melt Om inal eM RIL are 5
Ge a Ee BT csc ceases 6
Price-Anderson Act.
Oe a ee I oocsccteccrvecngnssties meee 8.
LEGISLATIVE MATERIALS:
S. Rep. No. 454, 94th Cong., Ist Sess., reprinted in 1975
Th. Cee Cee, GE Pid, TOS BIS Gov ccescscscknvessccvetancccces
H.R. Rep. No. i115, 93d Cong., 2d Sess. (1974) ooo.
S. Rep. No. 296, 85th Cong., Ist Sess.. reprinted in 1957
US. Code Cong. & Ad. News 1803.....................0:........
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ADMINISTRATIVE REGULATIONS:
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MISCELLANEOUS:
International Comm’n on Radiation Protection, Recom-
mendations of the International Comm'n on Radio-
logical Protection ( Report No. 26} (1977) wo..ccccceeeeeee
American Medical Ass’n. Risks of Nuclear Energy and
Low-Level Ionizing Radiation ( 1981) ....c.cccccccceeeeeee basi
Nat'l Council on Radiation Protection and Measure-
ments, Basic Radiation Protection Criteria ( Report
Pa: ae Be ie eee ee PEE ERE ONE EL
Natl Research Council, Comm. on the Biological Ef-
fects of Ionizing Radiauon. The Effects on Popu-
lations of Exposure to Low Levels of Ionizing Radi-
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IN THE
Suprene Court of the United States
OcTOBER TERM. 1985
No. 85-
MALLINCKRODT, INC.,
Petitioner,
vw.
SAMUEL F. BENNETT, ef ai.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE MISSOURI COURT OF
APPEALS, EASTERN DISTRICT
Mallinckrodt, Inc. (**Mallinckrodt”) petitions this Court
for a writ of certiorari to review the judgment of the Missouri
Court of Appeals, Eastern District, in this proceeding.
OPINIONS BELOW
The opinion of the Missouri Court of Appeals and its order
denying petitioner’s motion for rehearing or. in the alternative,
for transfer to the Supreme Court of Missouri are reported at
698 S.W.2d 854. App. A, infra. The order of the Supreme
Court of Missouri denying petitioner’s motion for transfer
(App. B, infra) is not reported. The decision of the trial court
(App. C, infra) also is not reported.
JURISDICTION
The judgment of the Missouri Court of Appeals was
entered on July 16, 1985. A motion for rehearing or, in the
alternative, for transfer to the Supreme Court of Missouri was
denied by the court of appeais on September 26, 1985. App. A,
infra, at 27a. A motion for transfer was denied by the Supreme
Court of Missouri on November 21, 1985. App. B, infra. On
February 12, 1986, justice Blackmun entered an order extend-
ing the ume for filing a petition for a writ of certiorari to April
19, 1986. The jurisdiction of this Court is invoked pursuant to
28 U.S.C. § 1257(3).'
STATUTES AND REGULATIONS INVOLVED
Relevant portions of the Atomic Energy Act of 1954, Pub.
L. No. 83-703, 68 Stat. 919, as amended, 42 U.S.C. § 2011
et seq. (1982 & Supp. II 1984) are reprinted in App. D.
infra. Relevant portions of the Act’s implementing regula-
tions promulgated by the Nuclear Regulatory Commission
(“NRC”) and its predecessor, the Atomic Energy Commission
(“AEC”), are reprinted in App. E, infra, and are codified at 10
C.F.R. Part 20 (1985).
‘ Although this case has been remanded for further proceedings in the
trial court, the holding of the court of appeals that respondents* suit is not
preempted by federal law constitutes a conclusive determination of a dis-
positive federal issue by the Missourn courts. No other federal! issues remain
to be decided. It is well established that where a federal issue has been finally
decided by the appellate courts of a State. and where reversal of the state
court on the federal issue would both obviate the need for further liugation
and prevent the erosion of an important federal policy, the judgment or
decree of the state court is considered “final” for purposes of 28 U.S.C.
§ 1257. See, e.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-487
(1975); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)
Because the Missoun court’s decision on the ‘ederal preemption issue will, if
allowed to stand, have a senous adverse impact on important federal policies
established in the Atomic Energy Act, it is mpe for review in this Court.
les
STATEMENT OF THE CASE
This case originated as a class action lawsuit filed in the
Circuit Court of St. Louis County, Missoun. The named
plaintiffs (respondents herein) purport to represent a class ot
persons who have worked or will work in the vicinity of a
radiopharmaceutical processing plant operated by Mailinckrodt
in Maryland Heights. Missoun. In their petinon, respondents
seek compensatory and punitive damages of $1 billion and
broad injunctive relief? on the ground that low-level radiation
emitted by Mailinckrodt’s pliant in the normal course of oper-
ations allegedly presents a health hazard. Respondents assert
common-law tort theories of negligence, assault and battery.
and “ultrahazardous activities.”
A. The Proceedings Below
Mallinckrodt moved the trial court to dismiss respondents’
petition,” contending, inter alia, that the suit was preempted by
the comprehensive and exclusive scheme of federal regulation
of Malinckrodt’s radiopharmaceutical operations under the
Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011 ef
seg. On August 18, 1985. the tral court dismissed the suit on
the grounds that the court lacked subject matter jurisdiction
and that the petition failed to state a claim upon which relief
could be granted. App. C. infra. Respondents thereafter
appealed the dismissal to the Missoum Court of Appeais,
Eastern District.
On appeal, Mallinckrodt argued that tort recovery was
preempted because of the comprehensive federal regulatory
control of nuclear safety. Respondents’ petition contained no
allegation that they had sustained any injury as a result of a
“nuclear incident” — a significant accidental release of radi-
ation that exceeded the federal exposure and emission limits
applicable to Mallinckrodt’s plant. Moreover, Mallinckrodt
argued that permitting the case to proceed when no viclaton
had been alleged of federal exposure and emission standards
2 In partcular, respondents seek an injunction sequinng Mallinckrodt to
cease its radiopharmaceutical operations and to provide tree medical care to
the members of the alleged class.
3 The document that would constitute a complaint in a federal court ts
termed a “petition” in the Missouri courts.
would create an irreconcilable conflict between federal and
state regulatory standards and would frustrate the devel-
opmental objectives of the Atomic Energy Act.
On July 16, 1985, the Missouri Court of Appeals issued an
opinion reversing the trial court’s dismissal of the petition.
App. A, infra, at la-26a. The court agreed with Maliinckrodt’s
contention that injunctive relief against a federally licensed
nuclear facility was barred by the doctrine of federal preemp-
tion. Jd. at 26a. However, the court concluded that respond-
ents’ claims for damages were not barred even if Mallinckrodt’s
plant was operated in full compliance with federal safety
requiremenis. /d. at 2a-|4a. The Missouri court purported to
derive its conclusions from this Court’s decision in Silkwood v.
Kerr-McGee Corp., 464 U.S. 238 (1984), which held that a
common-law award of punitive damages against the operator
of a nuclear facility for property damage caused by the
accidental escape of radioactive material was not preempted by
federal law.
Mallinckrodt sought rehearing on the federal presmption
issues before the court of appeals. The motion for rehearing cr.
alternatively, for transfer to the Supreme Court of Missoun was
denied in a brief order. App. A. infra, at 27a. A subsequent
motion for transfer was summarily denied by the Supreme
Court of Missour. App. B. infra.
B. The Comprehensive Framework of Federa: Safety
Regulations Governing Mallinckrodt’s Operations
Mallinckrodt’s plant is engaged in the production of
various radiopharmaceuticals for use in the practice of nuclear
medicine. Radiopharmaceuticals are diagnostic and therapeu-
tic agents containing radioisotopes that are injected into the
body under the supervision of licensed physicians trained in
nuclear medicine. Over 10.000 physicians are licensed to
administer radiopharmaceuucals to patients in the United
States, and at least 10-12 million doses are administered each
year.4
4 See Nat'l Research Council. Comm. on the Biological Effects of
lonizing Radiation, The Effects on Populations of Exposure to Low Levels of
Ionizing Radiation: 1980 47-49 ( 1980).
The radioisotopes processed at Mallinckrodt’s piant con-
stitute “byproduct material,” a nuclear material specifically
regulated under the Atomic Energy Act. See 42 US.C.
§§ 2014(e), 2111. Mallinckrodt is therefore required to main-
tain an operating license from the NRC, and its plant is subject
to an array of federal regulations governing matters of nuclear
safety.
The NRC and its predecessor, the AEC, have promulgated
extensive regulations establishing detailed standards to protect
the public from any radiation hazards that could result from the
operation of nuclear facilities. See, e.g. 10 C.F.R. Part 20
(1985).5 Of particular relevance here, these comprehensive
safety regulations include strict limitations on permissible ex-
posures to radiation for both workers and the general public.
and specify maximum permissible concentrations of same 400
different radionuclides (including those commonly uulized in
nuclear medicine) tn air or water in “restricted” (1.e., On-site )
areas and in releases to “unrestricted” (i.e., public or off-site )
areas. See 10 C.F.R. § 20.101-.106 and App. B (1985) ( App.
E, infra). These basic federal emission and exposure standards
have been set far below the level at which adverse health effects
have ever been observed.®
5 The provisions of Part 20 fit within a broader regulatory framework
governing the possession, use, processing, storage. transfer, packaging and
disposal of nuclear matenais. See 10 C.F.R. Parts 9-170 ( 1985).
§ See. e.g., Johnston v. United States. 597 F.Supp. 374. 390-392, 423 ( D.
Kan. 1984) (expert medical and scientific testimony establishes that the only
evidence of a carcinogenic effect from exposure to radiation occurs at levels of
exposure roughly 100-200 umes greater than the annual NRC exposure limit
for members of the general public); see also id. at 377.
The NRC standards are fully consistent with the radiation protection
recommendations of major medical and health physics organizations, in-
cluding the International Commission on Radiation Protection (“ICRP’’), the
Nauonal Council on Radiation Protection and Measurements (“NCRP”)
and the American Medical Association (“AMA”). See ICRP, Recommenda-
tions of the International Comm'n on Radiological Protection ( Report No. 26)
(1977); NCRP, Basic Radiation Protection Criteria ( Report No. 39) (1971);
AMA. Risks of Nuclear Energy and Low-Level Ionizing Radiation 27 (1981).
Mallinckrodt must conform to these NRC standards in
order to continue to Operate. Moreover, it must conduct its
operations under the terms of an NRC license that imposes
additional conditions on the possession, use, storage and dis-
posal of its radiopharmaceutical products. See 10 C.F.R.
§ 30.33-.34. The NRC conducts regular inspections of Mallinck-
rodt’s plant to assure compliance with safety regulations and
licensing requirements.
Violations of the Atomic Energy Act, the implementing
regulations, or the license conditions can lead to the imposition
of severe civil and criminal fines and other penalties. See 42
U.S.C. §§ 2271-2284. In addition, the NRC has been author-
ized to initiate proceedings to modify, suspend or even revoke
any license issued under the Act. 10 C.F.R. § 2.201-.206. In an
appropriate emergency, any such proposed action becomes
effective immediately. /d. § 2.202(f).
REASONS FOR GRANTING THE PETITION
This case presents a legal issue of profound importance in
defining the appropriate role of federal and state authority in
the nuclear energy field: whether a licensed nuclear facility
operated in full compliance with comprehensive federal safety
standards can be liable under state tort law for the planned.
federaily authorized releases of radiation that occur in the
normal course of operations. The issue is also of critical
importance to the commercial nuclear industry because the
decision of the state court, if allowed to stand, could signifi-
cantly inhibit the development and use of nuclear technology
for peaceful purposes in the United States.
As demonstrated below, the Missouri court’s decision is
inconsistent with the structure and purpose of the Atomic
Energy Act and with recent decisions of this Court construing
the broad scope of federal preemption of nuclear safety.
Although the Missoun! court stated that its decision was com-
pelled by this Court’s holding in Silkwood v. Kerr-McGee Corp..
464 US. 238 (1984).” neither the facts nor the reasoning of
Silkwood provide support for the Missouri court’s decision.
’ App. A, infra, at |4a.
Accordingly, Mallinckrodt respectfully requests that this Court
review the decision both to clarify its prior preempuon decisions
and to protect the integrity of the federa! regulatory scheme
governing matters Of nuclear safety.
A. State Tort Remedies Against Licensed Nuclear Facil-
ities Are Available Only in the Event of a “Nuclear
Incident.”
This Court repeatedly has emphasized that the com-
prehensive federal regulation of radiation hazards established
under the Atomic Energy Act has broadly preempted ai// state
regulation of nuclear safety. In Pacific Gas & Electric Co. v.
State Energy Resources Conservation and Development Com-
mission, 461 U.S. 190, 212 (1983), the Court characterized the
sweeping federal preemption of the field of nuclear safety in the
following terms:
State safety reguiation is not preempted only when it
conflicts with federal law. Rather, the federal gov-
ernment has occupied the entire field of nuclear safety
concerns, except the limited powers expressly ceded
to the states.
(Emphasis added ).
This Court has also held that an award of monetary
damages can serve as a potent means of exercising regulatory
control. See San Diego Building Trades Council v. Garmon,
359 U.S. 236, 247 (1959). Accordingly, one of the necessary
corollaries of the sweeping federal preemption of nuclear safety
is that common-law actions for damages against nuclear facil-
ities are generally prohibited by federal law.
8 See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. at 25uU ( Congress
“prohibit(ed] the States from regulating the safety aspects of nuclear
development” because the NRC “was more qualified to determine what type
of safety standards should be enacted in this complex area”); Train v.
Colorado Pub. Intezest Research Group. 426 U.S. |, 17 (1976) (despite
congressional amendments establishing jimited exceptions to preempton of
state regulation by the Atomic Energy Act. “the exclusive regulatory scheme
created by the [Act] for source. byproduct. and special nuclear matenals was
to remain unaltered”).
In the Price-Anderson Act.? however. Congress recognized
a narrow exception to this general principle of broad federal
preemption of state regulation of nuclear safety. The Price-
Anderson Act established a government indemnification
scheme and limited the liability of certain nuclear facilities for
damages arising from a “nuclear incident.” '° The overall
design of the Act established that private nghts of action under
state tort law could exist in the event of such an incident.
In light of the Price-Anderson Act, courts have held that
compensatory damages can be recovered under state tort law
for injumes and property damage caused by a “nuclear in-
cident.” '' However, this exception to the genera! rule of
preemption is a narrow one. Indeed, the recent decision of this
Court in Si/kwood demonstrates that a “nuclear incident”
triggering common-law damages liability is synonymous with a
nuclear accident.
In Silkwood, the decedent’s estate sought compensatory
and punitive damages for injuries and property damage resul-
ting from the escape of plutonium (a dangerous radioactive
substance) from a Kerr-McGee nuclear plant. Silkwood had
been contaminated by plutonium: on three successive days. 464
U.S. at 241-242. The contamination level in her apartment was
sufficiently extensive to require the destruction of many of her
personal belongings. /d. at 242. Although the precise circum-
stances surrounding the contamination were never conclusively
determined. the jury returned a verdict in favor of Silkwood’s
estate and awarded the estate both compensatory and punitive
damages. Jd. at 243, 245.
Kerr-McGee appealed the punitive damages award, con-
tending that such awards served to regulate nuclear safety and
should be preempted. Although the Tenth Circuit agreed with
Kerr-McGee’s analysis, this Court ultimately held that the
942 U.S.C. § 2210 er seq.
‘0 Although the Act applies only to a limited class of nuclear facilities, its
legislative history contains a revealing congressional discussion of the
relationship between the Atomic Energy Act and state tor remedies.
") See. e.g, McKay v. United States. 703 F.2d 464, 468-469 ( 10th Cir.
1983): Silkwood v. Kerr-McGee Corp.. 667 F.2d 908 ( 10th Cir. 1981). rev'd
on other grounds, 464 U.S. 238 ( 1984).
punitive damages award was not preempted. The Court
emphasized that despite the broad federal preemption of
nuclear safety, Congress never intended to prohibit the states
from providing common-law tort remedies “for those injured
by illegal conduct” of nuclear licensees. 464 U.S. at 251. After
examining the legislative history of the Prce-Anderson Act, the
Court concluded that Congress intended to preserve some state
tort remedies against operators of nuclear facilities, but ond for
injtries caused by a “nuclear incident” — an unplanned
or accidental release of radioactive materials. The Court
observed:
{T]he discussion osreceding [the] enactment and
subsequent amendment [of the Price-Anderson Act]
indicates that Congress assumed that persons injured
by nuclear accidents were free to uulize existing state
tort law remedies.
Id. at 251-252 (emphasis added) (footnote omitted). Sim-
ilarly, when summarizing congressional deliberations con-
cerning the Price-Anderson Act, the Court noted:
In sum, it is clear that in enacting and amending the
Price-Anderson Act, Congress assumed that state-law
remedies, in whatever form they migh: take, were
available to those injured by nuclear incidents.
Id. at 256 (emphasis added ). In short, the Court was careful to
distinguish between claims arising from “nuclear incidents.”
wnich are not preempted. and all other common-law tort
claims, which are subject to the preemptive strictures of the
Atomic Energy Act.
The legislative history of the Price-Anderson Act confirms
this Court’s holding in Si/kwood that Congress intended to
preserve only those tort suits that result from a significant
accidental release of radiation into the surrounding environ-
ment. The Joint Committee Report on the proposed bill states
that its purpose was to address the largely hypothetical problem
of uninsurable liability “in the remote event of a reactor
meltdown with the resulting release of fission products and
radioactive materials into the air.” S. Rep. No. 296, 85th
Cong.. Ist Sess. 2, reprinted in 1957 U.S. Code Cong. & Ad.
LO
News 1803. 1804. During the legislative hearings and debates.
reference was continually made to che need to protect the public
from the potentially disastrous consequences of nuclear acci-
dents involving unplanned releases of massive amounts of
radiation.'2 The principal House sponsor of the bill stated that
its primary purpose was “to see that the public is protected in
the unlikely event of a runaway reactor.” 103 Cong. Rec.
10711 (1957) (remarks of Rep. Price).
When Congress extended the Prmce-Anderson Act in i975,
the Joint Commitiee once again confirmed that the term
“nuclear incident” is synonymous with accidental releases of
large amounts of radiation.'3 In fact, the terms “nuclear
incident” and “nuclear accident” are sed interchangeably
throughout the committee reports.
Thus, contrary to the Missouri court’s assumption here.
Congress has never intimated that the planned, routine release
of low levels of radiation by a nuclear facility in the normal
course of operations and in conformity with federal emission
and exposure standards could trigger common-law tort liability.
Throughout its deliberation’ on the Price-Anderson Act. Con-
gress consistently assumed that state tort remedies would be
available ony in the unlikely event of a nuclear accident
involving a significant unintentional release of radiation into the
'2 See, e.g., 103 Cong. Rec. 10712 (1957) (statement of Rep. Cole)
(principal focus of Joint Committee was on “this question of protecting the
public against any unforeseen accident”) (emphasis added): id. at 10714
(remarks of Rep. Holifield) (discussing “unplanned and unexpected acci-
dents” such as a reactor meltdown “releas{ing] radioactive clouds of gas and
contaminated matenal in solid or liquid form into the countryside”’); id. at
10715 (remarks of Rep. Holifield) (“they call [a runaway reactor] a nuclear
‘mmcident’, | call it an accident”’); id. at 5046 ( remarks of Rep. Vanik ) ( noting
AEC’s concern over “possibility of a catastrophic accident in the newly
proposed private enterprise atomic energy establishments”).
'3 See, e.g., S. Rep. No. 454. 94th Cong., Ist Sess. 2, reprinted in 1975
U.S. Code Cong. & Ad. News 2251 ( Act designed to afford compensation “in
the unlikely event of a catastrophic nuclear accident”); H.R. Rep. No. 1115,
93d Cong.. 2d Sess. 7 (1974) (Act intended to protect against “highly
improbable severe nuclear incident”): sd. at 28 ( statement of Rep. Roncalio )
(“cornerstone” of Act’s coverage is to provide prompt compensation to
“victuums of a nuclear accident’’).
surrounding environment. Outside of that narrow range of
circumstances, ail common-law tort actions against licensed
nuclear facilities remain barred by the sweeping federal pre-
emption of nuclear safety.
This Court’s decision in Silkwood 1s perfectly consistent
with these controlling expressions of congressional intent. See
pp. 8-9 supra. Indeed, the Court emphasized in Silkwood that
its decision upholding a damages award against the operator of
a nuclear facility was limited to the unusual facts pre-
sented — the unauthorized escape of highly toxic plutonium
resulting in the contamination of Karen Silkwood’s home and
possessions. 464 U.S. at 241-242, 256.
In sharp contrast te the facts underlying Si/kwood, re-
spondents’ petition contains no allegation of any nuclear in-
cident involving a significant accidental release of radiation
from Mallinckrodt’s plant. Instead, respondents’ suit seeks
recovery solely on the basis of planned, periodic emissions that
are a normal and necessary component of Mallinckrodt’s
authorized operations. As such, this case falls squarely within
the preempted field of exclusive federal authority over matters
of nuclear safety.
B. Tort Recevery Would Create An irreconcilable Con-
flict Between Federal and State Safety Standards and
Would Frustrate the Objectives of the Atomic Energy
Act.
This Court also concluded in Si/kwood that even if a suit
results from a nuclear incident, federal law might nonetheless
preempt recovery of damages based on state law. 464 U.S. at
256. The Court held that the test for determining whether
preemption applies in such cases consists of two factors:
... Whether there is an irreconcilable conflict be-
tween the federal and state standards or whether the
imposition of a state standard in a damages action
would frustrate the objectives of the federal law.
Id. These tests compel the conclusion that respondents’ suit is
preempted.
The Missouri court concluded that respondents’ suit did
not create an irreconcilable conflict with federal safety stan-
12
dards on the basis that “payment of damages and compliance
with federal safety standards are clearly possible.” App. A.
infra, at 8a.'4 But the theoretical possibility of compliance with
federal and state regulatory standards has never been viewed as
the determinative factor in assessing the applicability of federal
preemption. See, e.g., Fidelity Federal Savings & Loan Associ-
ation v. de la Cuesta, 458 U.S. 141, 155 (1982). Moreover, the
Missouri court’s constricted focus on the physical possibility of
compliance with dual regulatory standards ultimately proves
too much. If the court’s approach were correct, state damage
awards could never be found to create an irreconcilable conflict
with a federal regulatory scheme. because it is at least theo-
retically possible for any regulated entity to comply with federal
safety standards and to pay damages as well. Under the
Missouri court’s analysis, state damage awards would never be
subject to federal preemption. The existing !aw is clearly to the
contrary. See, e.g., Chicago & North Western Transportation
Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981); San Diego
Building Trades Council v. Garmon, 359 U.S. at 247.
Because the Missouri court focused solely on the theo-
retical possibility that Mallinckrodt could comply with both
federal and state safety requirements, it failed to recognize the
irreconcilable conflict between federal and state safety stan-
dards that is presented by respondents’ suit. The NRC has
established strict ( but non-zero) emission and exposure limits
for the radionuclides used in Mallinckrodt’s operations. See pp.
5-6 supra. If a radiopharmaceutical facility operating in full
compliance with these federal limits could be subjected to
billion-dollar damage claims for its routine emissions, the states
would effectively establish a zero-release standard for al! nu-
clear licensees. This is so because. if the permissiblity of a
release were to be determined after the fact by a jury, a licensee
could protect itself from liability only by preventing all emis-
sions. But the imposition of such a zero-release standard would
irreconcilably conflict with the NRC’s countervailing judgment
'4 The court also noted that “Mallinckrodt can continue to meet federal
standards. and. if found wanting by state standards. simply pay the piper.” /a.
(embodied in 10 C.F.R. Part 20) that a zero-release standard ts
not necessary to protect the public. 'S
Because an accidental release of radiation almost in-
vaniably involves a violation of the strict federal emission
standards, it was not unreasonable for Congress to conclude
that state-iaw damage actions should be permitted in the event
of a nuclear incident- Indeed, as this Court implicitly recog-
nized in Silkwood, the recovery of damages under the highly
unusual facts presented in that case served to reinforce federal
emission and exposure standards by penalizing a licensee for
'S The Missoun court may have been led astray by its heavy reliance on
the district court decision in Cipollone v. Liggett Group, Inc., 593 F.Supp.
1146 (D.N.J. 1984). It praised the Cipollone court’s discussion of the
preemption doctrine for its “scholarly detail.” App. A, infra, at 2a n.1.
Moreover, it cited Cipollone in support of the incredible proposition that
“common law liability dces not impose requirements on Mallinckrodt” — a
proposition that the Missoun court candidly acknowledged “may appear to be
disingenuous and smack of sophistry.” /d. at 8a. The theoretical under-
pinnings for the Missoun court’s decision recently collapsed when the Third
Circuit unantmously reversed the district court decision. Cipollone v. Liggett
Group, Inc., No. 85-5073 (3d Cir. Apr. 7, 1986).
Cipollone inv»ived state tort claims that were premised on the assertion
that certain manufacturers and sellers of cigarettes had failed to provide an
adequate warning of the full spectrum of health msks caused by smoking.
Although cigarette packages have included a warning label with wording that
is required by federal law, the distnct court struck the defendants’ preemption
defense on the same theory applied by the Missoun court here, i.e., that there
was no irreconcilable conflict between federal and state safety standards
because a defendant can comply with federal law and still pay state-
authonzed damages. 597 F.Supp. at 1167. The Third Circuit reversed,
finding that “where the success of a state law damage claim necessarily
depends on the assertion that a party bore the duty to provide a warning to
consumers in addition to the warning Congress has required on cigarette
packages, such claims are preempted as conflicting with the [Federal
Cigarette Labeling and Advertising} Act.” Slip op. at 13.
Precisely the same reasoning should have been applied here. Respon-
dents’ claims are premised on the theory that Mallinckrodt bears a duty to
meet siate emission requirements in addition to those imposed by federal law.
Accordingly, their claims are preempted.
id
property damage caused by the unauthorized escape of nuclear
material.'® 464 U.S. at 251-258. Here, by contrast, even a
licensee that has fully complied with federai safety standards
could be subjected to burdensome claims for damages. Allow-
ing respondents’ suit to proceed under these circumstances
thoroughly undermines the existing federal regulatory scheme
and directly conflicts with Congress’ express intent to prohibit
dual regulation of the field of nuclear safety. '7
The recovery of damages in this case also would frustrate
the developmental objectives of the Atomic Energy Act. In
Pacific Gas & Electric Co. v. State Energy Resources Con-
servation & Development Commission, this Court stated:
There is little doubt that a primary purpose of the
Atomic Energy Act was. and continues to be, the
promotion of nuclear power. The Act itself states
that it is a program “to encourage widespread partici-
pation in the development and utilization of atomic
energy for peaceful purposes to the maximum extent
consistent with the common defense and security and
with the health and safety of the public”.... The
House and Senate Reports confirmed that it was “a
major policy goal of the United States” that the
involvement of private industry would “speed the
further development of the peaceful uses of atomic
energy”....
'6 Although some of the evidence presented at the Si/kwood tna!
suggested that Kerr-McGee complied with most federal safety regulations,
464 U.S. at 244, Kerr-McGee stipulated that the plutonium which caused the
contamination ct Silkwood’s residence came from its plant. /d. at 243.
Moreover, the jury was presented with evidence indicating that plutonium
levels found in Silkwood’s apartment inay have “exceeded that permitted in
an unrestricted area such as a residence.” /d.
'7 See Silkwood v. Kerr-McGee Corp., 464 U.S. at 265 ( Blackmun, J..
dissenting) (“It 1s incredible to suggest that Congress intended the Federal
Government to have the sole authonty to set safety regulations, but left intact
the authonty of States to require adherence to a different state standard
through the imposition of jury fines’’).
‘a
461 U.S. at 221. See also Silkwood v. Kerr-McGee Corp., 464
U.S. at 281 ( Powell, J., dissenting ).
This developmental policy will be entirely frustrated if
licensees could be subjected to damage claims for alleged
injuries arising from emissions in total compliance with appli-
cable federal standards. Indeed, the decision opens the door to
a proliferation of common-law damage claims against a wide
array of nuclear facilities ranging from commercial reactors to
hospitals utilizing x-ray machines.'® Although the Missouri
court assumes that licensees wiil simply absorb the cost of
expanded tort liability (App. A, infra, at 7a-8a), a more
plausible conclusion is that the unlimited exposure to tort
liability foreshadowed by the opinion below will induce many
licensees to curtail or abandon their operations, further dis-
courage investment in nuclear technology, and generally inhibit
the development and use of nuclear energy on a national scale.
In sum, respondents’ suit creates a stark and irreconcilable
conflict with an exclusive federal regulatory scheme, and serves
impermissibly to frustrate the primary developmental objec-
tives of the Atomic Energy Act. The decision of the Missouri
court is based on a misreading of this Court’s preemption
analysis in Si/kwood and other cases, and ignores clear ex-
pressions of congressiona! intent to preclude such intrusive state
regulation of nuclear safety. As a result, the decision threatens
to have a profoundly adverse impact on the integrity of the
federal regulatory system and on the viability of the nuclear
energy industry.
'8 The Missoun court's broad analysis suggests that analogous claims to
those raised here could be brought against hospitals, radiologists, specialists in
nuclear medicine or the operators of any nuclear facility.
16
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Of Counsel: PETER J. NICKLES*
RICHARD A. MESERVE
WILLIAM A. RICHTER WILLIAM F. GREANEY
Lewis R. MILLS
COVINGION & BURLING
Peper, MARTIN, JENSEN, 1201 Pennsylvania Avenue, N.W.
MaAICHEL & HETLAGE P.O. Box 7566
720 Olive Street Washington, D.C. 20044
St. Louis. Missoun 63101 { 202 ) 662-6000
(314) 421-3850
{trorneys for Petitioner
RAYMOND M. ASHER MALLINCKRODT, INC.
ROGER A. KELLER
*Counsel of Record
MALLINCKRODT, INC.
675 McDonnell Boulevard
St. Louis, Missoun 63134
(314) 895-2906
Apnil 1986
APPENDIX
la
APPENDIX A
IN THE
Sissmut Count of Appedis
Eastern Bistrict
DIVISION ONE
No. 47771
SAMUEL F. BENNETT, ef al.,
Plaintiffs-Appellants,
VS.
MALLINCKRODT, INC..,
Defendant- Respondent.
Appeal from the Circuit Court of St. Louis County
Opinion Filed:
July 16, 1985
Plaintiffs appeal from the trial court’s dismissal of their
petition. We reverse and remand.
In their petition, plaintiffs allege they are representatives of
a class who have worked or will work on property adjacent to a
radiopharmaceutical processing plant operated by defendant.
Mallinckrodt, Inc. (Mallinckrodt). Alleging injunes to their
physical and mental health from exposure to radioactive emis-
sions released by the plant, plaintiffs seek damages from
Mallinckrodt based on three theories of common law tort:
negligence, assault and battery and strict liability for “ultrahaz-
ardous activities.” In the trial court, Mallinckrodt filed a
motuon to dismiss, arguing that plaintuffs’ action was barred (1 )
by the federal preemption doctrine. (2) by the politica! ques-
tion doctrine and (3) by the action being based upon mere
speculative possibilities of future harm. The tmal court dis-
2a
missed plaintuffs’ petition on two grounds: the court lacked
subject matter jurisdiction and the petition failed to state a
claim upon which relief could be granted.
We disagree with the tral court. The court does have
subject matter jurisdiction, and plaintiffs’ petition, although not
artfully drawn, does state a claim upon which relief can be
granted.
The issues before us are the same three issues which were
before the tnal court. We address them in order.
FEDERAL PREEMPTION
The doctrine of federal preemption springs from the
Supremacy Clause of the United States Constitution, U-S.
Const., Art. VI, cl. 2. E.g., Fidelity Fed. Savings & Loan Ass'n v.
de la Cuesta, 458 U.S. 141, 152, 102 S. Ct. 3014, 3022, 73 L.
Ed.2d 664 (1982). The question of whether federal law
preempts state action is “ ‘largely one of statutory construc-
tion’ ” and, therefore, cannot be resolved by general formulas.
Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146, 1150
(D.N.J. 1984).1 Certain principles, however, have been clearly
established. First. federal law may expressly preempt state law,
Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1145-
46 (8th Cir. 1971). aff'd, 405 U.S. 1035, 92 S. Ct. 1307, 31 L.
Ed.2d 576 (1972). or. state law in a given area may be
preempted by Congress’ implied intent to occupy that area.
E.g., Fidelity Fed., 458 U.S. at 153. 102 S. Ct. at 3022; Rice v.
Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146,
1152, 91 L. Ed. 1447 (1947). Even if Congress has not entirely
displaced state regulation in a given area, state law may still be
preempted to the “extent it actually conflicts with federal law.
that is, when it is impossible to comply with both state and
federal law... ., or where the state law stands as an obstacle to
the accomplishment of the full purposes and objectives of
Congress ....” Silkwood v. Kerr-McGee Corp., 464 U.S. 238,
104 S. Ct. 615, 621. 78 L. Ed.2d 443 ( 1984).
‘In Cipollone, the court describes the development and application of
the preemptuon doctrine in schoiariy detail.
3a
Congressional intent pertaining to nuclear energy surfaces
in the Atomic Energy Act and its amendments. Until 1954, the
development of nuclear energy was a federal monopoly. See
Atomic Energy Act of 1946, Pub. L. No. 79-585, 60 Stat. 755.
With the enactment of the Atomic Energy Act of 1954, ch.
1073, 68 Stat. 919. codified as amended, 42 U.S.C. §§ 2011-
2284 (1982), private industry was encouraged to take part in
the development and utilization of nuclear energy for peaceful
purposes. The federal government, however, retained extensive
control over this development by means of a licensing scheme
administered by the Atomic Energy Commission, AEC, the
predecessor of the present Nuclear Regulatory Commission,
NRC.
In 1959, Congress amended the Atomic Energy Act and
authorized the NRC to turn over some regulatory authority to
those states that adopted a suitable regulatory program, see 42
U.S.C. § 2021, but states were still precluded from regulating
the safety aspects of nuclear development, see 42 U.S.C.
§ 2021(k). See also Pacific Gas & Electrics Co. v. State Energy
Resources Conservation & Development Comm., 461 U.S. 190,
205, 103 S. Ct. 1713, 1722, 75 L. Ed.2d 752 (1983); Northern
States Power Co., 447 F.2d at 1153-54; State ex rel. Utility
Consumers Council v. Public Service Comm., 562 S.W.2d 688.
698 (Mo. App. ), cert. denied, 439 U.S. 866, 99S. Ct. 192, 58 L.
Ed.2d 177 (1978).
Congress also amended the Atomic Energy Act in 1957 by
passing the Price-Anderson Act, Pub. L. No. 85-256, 71 Stat.
576 (1957), to encourage private enterprise to participate in the
nuclear industry. Companies contemplating entry into the field
had expressed considerable concern over the possibility of a
nuclear accident with concomitant bankrupting liability. See
Silkwood v. Kerr-McGee Corp., 104 S. Ct. at 623; S. Rep. No.
296, reprinted in 1957 U.S. Code Cong. & Ad. News !803,
1816. Through financial protection and indemnification provi-
sions, the Price-Anderson Act attempted to alleviate this con-
cern by shielding the nuclear industry while safe guarding the
public financially. As a result, the Act requires certain licensees
to purchase private insurance to cover liability claims, 42 U.S.C.
§ 2210(a). (b), provides government indemnity for those
4a
licensees, 42 U.S.C. § 2210(c), (d), and establishes maximum
limits on liability for nuclear incidents,? 42 U.S.C. § 2210(e).
See also Silkwood v. Kerr-McGee Corp., 667 F.2d 908, 921
(tOth Cir. 1981). Then, in response to a concern that many
states would not apply strict liability to radiation injuries,
Congress again amended the Act in 1966 and required all
indemnified nuclear facilities to waive certain legal defenses
such as contributory negligence and governmentai immunity in
the event of an extraordinary nuclear occurrence.? See 42
U.S.C. § 2210(n).4
The enactment of the Price-Anderson Act and _ its
subsequent amendments triggered an extensive legislative his-
lory concerning the relationship between federal statutes per-
taining to the nuclear industry and state tort law. No less an
authority than the United States Supreme Court has interpreted
this history and defined this relationship for us. See, e.g.,
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104S. Ct. 615, 78
L. Ed.2d 443 (1984); Pacific Gas & Electric Co. v. State Energy
Re: >urces Conservation & Development Comm’n, 461 U.S. 190,
103 S. Ct. 1713, 75 L. Ed.2d 752 (1983).
The Supreme Court has declared, in essence, that states are
precluded from regulating the safety aspects of nuclear devel-
opment and of hazardous nuclear materials. Pacific Gas &
2 The term “‘nuclear incident” means:
“any occurrence, including an extraordinary nuclear occurrence
... casing... bodily injury, sickness, disease, or death, or loss of
or damage to property, or loss of use of property, arising out of or
resulting from the radioactive, toxic, explosive, or other hazard-
Ous properties of source, special nuclear, or byproduct mate-
nal....” 42 U.S.C. § 2014(q).
3 The term “extraordinary nuclear occurrence” means:
“any event causing a discharge or dispersal of source, special
nuclear, or byproduct material from its intended place of con-
finement in amounts offsite, or causing radiation levels offsite,
which the Commission determines to be substantial, and which
the Commission determines has resulted or wiil probably result in
substantial damages to persons offsite or property offsite.” 42
U.S.C. 2614()).
4 Nothing of record shows Mallinckrodt ts licensed by the NRC under
the Pnce-Anderson Act.
Electric Co., 461 U.S. at 265, 103 S. Ct. at 1722; Silkwood, 104
S. Ct. at 622. This prohibition is premised on Congress’ belief
that the NRC is more qualified than the individual states to
determine what type of safety standards should be enacted in
this complex area. Silkwood, 1048S. Ct. at 622. Acknowledging
Congress’ concern over the state’s inability to formulate effec-
tive safety standards, the Court in Si/kwood, nonetheless, found
“ample evidence” in the legislative history that Congress had
no intention of forbidding states from providing tort remedies
for injuries caused by nuclear radiation. Jd. at 623. For
example, the Court quoted from Senate Report No. 296 which
explains the Price-Anderson Act does not interfere with state
tort law until there is a likelihood that damages would exceed
the amount of financial responsibility required together with the
amount of federal indemnity. Up to this threshold point, the
rights of injured parties are established and defined by state
law. Id. at 623. See also S. Rep. No. 296, 1957 U.S. Code
Cong. & Ad. News !803, 1810.5
As a result, “[s]tate law remedies, in whatever form they
might take, [are] available to those injured by nuclear in-
cidents.”” Silkwood, 104 S. Ct. at 625. Consequently, the mere
fact the federal government has occupied the field of safety
5 The Court also cited Senate Report No. 1605 which reiterates this
principle:
Since its enactment by Congress in 1957 one of the cardinal
attnbutes of the Price-Anderson Act has been its minimal
interference with State law. Under the Prce-Anderson system,
the claimant’s mnght to recover trom the fund established by the
act is left to the tort law of the vamous States; the only
interference with State law is a potential one, in that the
limitation of liability feature of the act would come into play tn
the exceedingly remote contingency of a nuclear incident giving
rise to damages in excess of the amount of financial responsibility
required together with the amount of the governmental in-
demnity. S. Rep. No. 1605, 1966 U.S. Code Cong. & Ad. News
3201, 3206.
6a
does not foreclose state remedies for radiation injuries. Rather.
the test for determining preemption !n the nuclear energy field
IS:
“{1] whether there is an irreconcilable conflict be-
tween the federal and state standards or [2] whether
the imposition of a state standard in a damages
action would frustrate the objectives of the federal
law.” Silkwood, 104 S. Ct. at 626.
THE RECORD
Mallinckrodt contends plaintiffs’ action irreconcilably con-
flicts with federal standards and also frustrates federal objec-
tives. A fact essential to this contention is Mallinckrodt’s
compliance with federal statutes and regulations. This fact,
however, has neither been pleaded nor proved. |
Plaintiffs have not alleged Mallinckrodt’s compliance with
federal statutes or regulations, nor is this fact implicit in any of
plainuffs’ claims. Moreover, Mallinckrodt has not filed an
answer to plainuffs’ petition, nor has it filed a motion for
summary judgment based upon facts established by affidavit or
discovery. Mallinckrodt has simply filed a motion to dismiss
plaintiffs’ petition.
Mallinckrodt, in effect. is seeking an advisory opinion
before pleading or proving compliance. Plaintiffs, nevertheless.
address Mallinckrodt’s arguments as if Mallinckrodt’s com-
pliance existed. We address the arguments as presented, rather
than avoiding the preemption issues on a procedural defect.®
§ Mallinckrodt appears to tacitly admit plaintuffs may state a claim for
relief if Mallinckrodt’s noncompliance were pleaded. Plaintiffs do allege
Mallinckrodt’s noncompliance with certain federal regulations but these
regulations do not set or affect emission standards.
7a
IRRECONCILABLE CONFLICT
Permitting plaintiffs’ petition to state a claim for relief
under Missouri law, Mallinckrodt argues, would create an
irreconcilable conflict between Missouri and federal standards.
Malliickrodt contends that subjecting it to state tort liability
effectively establishes a “‘zero-release standard.” More specifi-
cally, Mallinckrodt argues, that if a permissible release is to be
determined by a jury “after the fact on an ad hoc basis,” a
federal licensee, like Mallinckrodt, “could assure avoidance of
liability only by a zero release of emissions.” This state
imposed standard, Mallinckrodt reasons, irreconcilably conflicts
with federal standards.
Mallinckrodt’s logic is questionable. More important, its
conclusion is not persuasive. As other manufacturers, producers
and operators functioning in a regulated field, Mallinckrodt is
not guaranteed absolute insulation from the consequences of its
acts through compliance with federal regulation. See McKay v.
United States, 703 F.2d 464, 470 (10th Cir. 1983) and
Silkwood v. Kerr-McGee Corp., 485 F. Supp. 566, 578-79 ( W.D.
Okla. 1979) and cases cited therein. Thus, the issue here is not
whether Mallinckrodt will be assured of freedom from liability.
Rather, the issue is whether there is an irreconcilable conflict
between our state standards and federal standards: an issue
which, in turn, is answered by whether it is impossible for
Mallinckrodt to comply with both federal standards and those
standards implicitly reflected in plainuffs’ petition. Si/kwood.,
104 S. Ct. at 626.
As noted, we are at the pleading stage with only plaintiffs’
petition before us. Mallinckrodt has not shown our state
standards to be more stringent than federal standards, nor has
it shown our state standards to be theoretically or practically
impossible to meet, if our state standards are in fact more
stringent. Moreover. even if Mallinckrodt cannot reduce its
radiation emissions below the federa! standards, Missouri can
decide that, as between Mallinckrodt and plainuffs, Mallin-
ckrodt ought to bear the costs of compensating those injuries
that could have been prevented with a theoretical emission rate
lower than the rate approved by the NRC. See Ferebee v.
Sa
Chevron Chemical Co., 736 F.2d 1529, 1540-41 (D.C. Cir. ),
cert. denied, US. 105 S. Ct. 548, 83 L. Ed.2d 432
(1984). On the present record. payment of damages and
compliance with federal standards are clearly possible.
Mallinckrodt can continue to meet federal standards, and, if
found wanting by state standards, simply pay the piper.
Arguably, imposing damages for state torts committed by
parties Operating under federal standards has a possible state
regulatory effect on the federal standards. A possibile regu-
latory effect on federal standards by state tort actions, however,
has long been accepted. See, e.g., Cipollone, 593 F. Supp. at
1155-56. Congress’ acceptance of this possibility in the nuclear
energy field was specifically noted by the Supreme Court in
Siikwood v. Kerr-McGee, 104 S. Ct. at 625:
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 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 liability if it does
not conform to state standards, but that regulatory
consequence was something that Congress was quite
willing to accept.
In short, common law liability does not impose require-
ments on Mallinckrodt; rather, it allows Mallinckrodt to choose
between risking liability by not changing its behavior or
attempting to negate the risk by lowering its emission rates.
Cipollone, 593 F. Supp. at 1167. This reasoning may appear to
be disingenuous and smack of sophistry; if so, the charge must
be made against the entire judiciary for the reasoning has been
continually used to jusufy the imposition of state tort liability as
Ya
a “complement to” federal standards. See Si/kwood, 104 S. Ct.
at 629-30 (Biackmun, J., dissenting); Ferebee, 736 F.2d at
1541; Cipollone, 593 F. Supp. at 1167, and cases collected
therein.
FRUSTRATION OF FEDERAL OBJECTIVES
Mallinckrodt also argues that to permit recovery here
would frustrate the objectives of federal law. The purpose of
the Atomic Energy Act, Mallinckrodt points out, is to promote
private nuclear development. If federal licensees like Mallin-
ckrodt are subjected to claims even if in compliance with
federal standards, then, Mallinckrodt reasons, the purpose of
the Act would be frustrated by permitting state law to regulate
federal licensees and discourage private industry.
As just noted, the Supreme Court addressed this specific
issue in Silkwood v. Keer-McGee. Tort recovery to injured
plainuffs may create a tension between state law and federal
law, but Congress was willing to accept this consequence.
Silkwood, 104 S. Ct. at 625. The fact that some plaintiffs may
be successful in recovering compensation from Mallinckrodt for
injuries suffered does not mean that the state is setting its own
emission levels. Si/kwood, 104 S. Ct. at 626.
Moreover, if plaintiffs’ recovery in tort merely inconven-
iences Mallinckrodt or makes its operation more costly, there 1s
no frustration of federal policy or purpose. See, e.g., Marshall
v. Consumers Power Co., 65 Mich. App. 237, 237 N.W.2d 266.
281-82 (1975). State tort actions may frustrate federal objec-
tives if the federal regulatory statutes have as an objective the
affirmative subsidization of the regulated industry and if the
statutes, explicitly or implicitly, command states to accept the
use of the regulated product. Ferebee, 736 F.2d at 1542-43.
The Atomic Energy Act, however, does not subsidize the
nuclear industry. One of the purposes of the Atomic Energy
Act may be to promote the peaceful development of nuclear
energy, but the Act does not subsidize the nuclear industry to
such an extent that states are commanded to use or accept the
Ua
use of nuclear energy. See, e.g., Pacific Gas, 461 U.S. at 205,
103 S. Ct. at 1722. States do have some control over the extent
of use of nuclear materials within their boundaries as well as
determining where and whether such use wiil occur. See, e.g.,
State ex rel. Utility Consumers Council, 562 S.W.2d at 698.
They are not always required to tolerate actions permissible
under federal law. see, e.g., Pacific Gas, 461 U.S. at 216, 222-
23, 103 S. Ct. at 1728, 1731-32; Ferebee, 736 F.2d at 1543, and
this is One such area.
Furthermore, radiation emission standards lower than
federal emission standards are consistent with the federal aim
of achieving radiation emissions as low as reasonably possible.
See 10 C.F.R. § 20.1(c¢). The NRC has established emission
standards designed to protect the public and, at the same time,
allow for further development of nuclear energy using current
technology. 10 C.F.R. § 20.1¢c), 10 C.F.R. § 20.105-.106; 42
U.S.C. § 2201(b). These standards reflect an administrative
decision—an administrative balancing of overall societal msks
against societal benefits. Si/kwood, 485 F. Supp. at 581-82:
Crowther v. Seaborg, 312 F. Supp. 1205, 1231 (D. Colo. 1970);
Keyes & Howarth, Approaches to Liability for Remote Causes:
The Low-Level Radiation Example, 56 lowa L. Rev. 531, 541.
568 (1971). Emission standards adequate for administrative
purposes in meeting governmental goals. however, are not
necessanly adequate for purposes of state tort law encompass-
ing broader compensatory goals. These administrative emis-
sion standards are not absolute safety levels below which no
injury can occur. Silkwood, 485 F. Supp. at 579-81; Keyes &
Howarth, supra, at 545. As a result, insofar as state law 1s
concerned, they are merely guidelines.
This conclusion is reflected in the prefatory language of 10
C.F.R. § 20. In various subsections, § 20 sets out the emission
standards for NRC licensees. Preceding these subsections, the
Purpose Clause of § 20 states:
“In accordance with recommendations of the Federal
Radiation Council, ... [licensees] should, in addi-
tion to complying with the requirements set forth in
this part, make every reasonable effort to maintain
lla
radiation exposures, ... as low as is reasonably
achievable.” 10 C.F.R § 20.1(c).
This language clearly implies the federal standards are, i.
best, g’ idelines to state tort law. “In addition to complying
with” the federa! standards, licensees are requested to make
every reasonable effort to achieve emissions as low as Is
reasonably achievable. Compliance with federal standards is
mandatory; the request to achieve emission rates lower than
these standards, however, implicitly acknowledges these lower
rates may, in fact, be achieved. Moreover, the determination of
the reasonableness of the effort to achieve these lower rates is
not exclusively arrogated by the NRC. Sensibly, this implies
state tort law can determine whether reasonable efforts have
been made, and, thus, complement the NRC standards. This
implication is reinforced by the industrial and commercial use
of nuclear energy still being at the cutting edge of science.
Scientific data affecting reasonable emission standards change
often and rapidly. See Silkwood, 485 F. Supp. at 581; Keyes &
Howarth, supra, at 540. Thus, even though NRC emission
standards may be based upon the best scientific data available
at the time they are promulgated, these standards necessarily
lag behind the change in scienufic data. Keyes & Howarth,
supra, at 540. To accept Mallinckrodt’s reasoning would leave
parties injured by radioactive emissions without recourse when
science or technology has improved to permit levels of emis-
sions lower than those currently established by the NRC.
This was not Congress’ intent. States may be preempted
from setting their own emission standards, but they are not
preempted from compensating injured citizens. See Silkwood,
104 S. Ct. at 625-26. “Congress... disclaimed any interest in
promoting the development and uulization of atomic energy by
means that fail to provide adequate remedies for those who are
injured by exposure to hazardous nuclear materials.” Si/kwood,
104. S. Ct. at 626.
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INCIDENT/ACCIDENT
Mallinckrodt also argues that if any state tort claim
survive preemption, the only permissible ones are those arisins
out of a “nuclear incident.”’ Relying on the facts of Silkwood
selected language from that case as well as selected passage:
from the legislative history of the Price-Anderson Act
Mallinckrodt defines ‘“‘nuclear incident” as ‘tan accidental re
lease of radiation in excess of federal limits.” Mallinckrod
then argues releases in compliance with federal regulation:
cannot constitute accidents or “nuclear incidents” and, there
fore. claims, like plaintiffs, seeking recovery for alleged injurie:
resulting from “pianned, federally permissible releases’? mus
be preempted. We read Si/kwood as well as the legislative
history differently.
Mallinckrodt views Si/kwood as dealing with three separate
incidents of contamination of Karen Silkwood away from Kerr
McGee’s plant. These three events are in turn viewed a:
constituting something out of the ordinary—a “nuclear in.
cident.”” Mallinckrodt also seizes on “nuclear incident” being
used interchangeably with “nuclear accident” by variou:
courts, including the Supreme Court in Si/kwood, to show the
latter term necessarily defines the former. See, e.g., Silkwood
104 S. Ct. at 623, 625.
Mallinckrodt’s logic is flawed. If “nuclear incident” is <
term of art, its definition is found in 42 U.S.C. § 2014(q)
which, as noted, defines “nuclear incident” to mean “an\
occurrence... causing... bodily injury, sickness, disease, o:
death,.... ” The courts’ use of “incident” interchangeably witt
“accident” to describe or refer to the particular facts before
them does not circumscribe the broad generic definition
Courts also use the term “hazard” and “occurrence”’ inter
changeably with the term “incident.” See, e.g., Silkwood, 10¢
S. Ct. at 624, 626. Obviously, the generic term ‘occurrence’
includes the more limited defined term “accident.”’ Applying
Mallinckrodt’s reasoning to these interchanged reference:
means the term “incident” could also be equated with “hazard’
or “occurrence.”’ No sensible argument can be made that any
emission or exposure is not an occurrence or does not entai
some hazard.
—_— le. UL
l3a
This same argument was summarily dealt with in Van
Dissel v. Jersey Central Power & Light Co., 194 N.J. Super. 108,
476 A.2d 310, cert. denied, 99 N.J. 186, 491 A.2d 690 (1984).
Upon remand by the United States Supreme Court for further
consideration in light of Silkwood v. Kerr-McGee Corp., 464
U.S. 238, 104 S. Ct. 615, 78 L. Ed.2d 443 (1984), the New
Jersey Superior Court found no preemption of claims for
property damage resulting from the normal operation of a
nearby nuclear power reactor plant. In reaching its decision,
the New Jersey Court concluded, as we conclude here, that
compensable injuries do not have to be caused by “nuclear
accidents.” 476 A.2d at 316. See also McKay v. United States,
703 F.2d at 46S.
We have also carefully read the selections of congressional
debates and reports cited by Mallinckrodt in support of its
position. We remain unpersuaded. The examples of “typical”
nuciear incidents Mallinckrodt selects from the legislative his-
tory are examples of incidents but are not necessarily typical.
One of Congress’ concerns in enacting the Price-Anderson Act
and its subsequent amendments was to prctect the public by
assuring the availability of funds for claims arising out of major
nuclear incidents. See, e.g., S. Rep. 454, 94th Cong., ist Sess.
(1975), U.S. Code Cong. & Admin. News 1975, p. 2251. H.R.
Rep. No. 2043, 89th Cong., 2d Sess. (1966). Most, if not all, of
Mallinckrodt’s cited examples address this concern and, thus,
are examples of major or catastrophic incidents.” This does not
mean that emissions or exposures less than federal limits are
preempted or are not included under the Price-Anderson
indemnification system. Standard insurance was assumed to
cover minor incidents, and, for these, the nuclear industry
would not need federal assistance. See, e.g., H.R. Rep. No.
2043, 89th Cong., 2d Sess. 11 (1966). Consequently, in the
hearings, reports and debates cited by Mallinckrodt, the precise
? See, e.g., Proposed Amendments to Price-Anderson Act Relating to
Waiver of Defenses: Hearings before the Joint Committee on Atomic Energy,
89th Cong., 2d Sess. 47 (1966) (statement of Joseph Hennessey, AEC
General Counsel ): S. Rep. No. 454, reprinted in 1975 U.S. Code Cong. & Ad.
News 2251: H.R. Rep. No. 1115, 93d Cong., 2d Sess. 7 (1974). See also
H.R. Rep. No. 2043, 89th Cong., 2d Sess. 9-11 ( 1966).
l4da
definition of a nuclear incident. especially in relation to minor
incidents. was not a concern.
If plaintiffs’ claims must be confined to “nuclear incidents”
as defined in federal statutes, plaintiffs’ claims are properly
pleaded. The term nuclear incident means:
“any occurrence,...causing,... bodily injury, sick-
ness, disease, or death, or loss of or damage to
property, or loss of use of property, arising out of or
resulting from the radioactive,... properties of
source, special nuclear, or byproduct material... .”
42 U.S.C. § 2014(q).
This definition is “designed to protect the public against any
form of damage arising from the special dangerous properties
of the materials used in the atomic energy program.” S. Rep.
No. 296, 1957 U.S. Code Cong. & Ad. News 1817. Moreover.
an incident does not necessarily have to occur within a short
period of time, and steady exposure to radiation, perhaps, from
an undetected leak of radioactive materials, can constitute an
incident. Jd. We also note 42 U.S.C. § 2014(q) itself does not
require an accidental or unplanned release. See also McKay v.
United States, 703 F.2d 464 ( 10th Cir. 1983).
In summary, the legislative history of the Price-Anderson
Act and its amendments, as well! as case law, consistently reflect
the underlying principle of interfering with state law to the
minimum extent necessary. £.g., S. Rep. No. 1605, 1966 US.
Code Cong. & Ad. News 3206. Consequently, the rights of a
party injured by radiation are for the most part left to state law.
S. Rep. No. 296, 1957 U.S. Code Cong. & Ad. News 1810.
While we rnay be attracted by the logic of some of Mallin-
ckrodt’s arguments supporting preempton, our understanding
of Silkwood is that its reach is greater and much more inclusive
than the limits Mallinckrodt would place on it. We are
constrained to follow not only the holding of Si/kwood but also
to follow our understanding of its teaching.
POLITICAL QUESTION DOCTRINE
The political question doctrine establishes a limitation on
the authority of the judiciary to resolve issues, decidedly
politica! in nature, that are properly left to the legislature. Ifa
case actually involves the resolution of a political question, the
matter is immune from judicial review. There should, however.
be no dismissal for nonjusticability on the basis of a political
question’s presence unless
“({p]rominent on the surface of any case held to
involve a political question [there] is found a text-
ually demonstrable constitutional commitment of the
issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without
an initial policy determination of a kind clearly for
nonjudicial discretion; or the impossibility of a court’s
undertaking independent resolution without ex-
pressing lack of the respect due coordinate branches
of government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarrassment from multifarious
pronouncements by various departments on one
question.” Baker v. Carr, 369 U.S. 186,217, 82S. Ct.
691, 710, 7 L.Ed.2d 663 (1962).
The propriety of nuclear related activiues is a political
question properly committed to the legislative and executive
branches of our government. Nonetheless, individual tort
recoveries stemming from those activities normally are not
precluded by the politicai question doctrine. McKay, 703 F.2d
at 470. “If Congress had intended that some department or
departments should have full and complete and exclusive
authority in the area of obtaining redress for injuries. it
certainly would have said so either in the legislative history or
in the Act itself.”” Jd. at 472.
Defendant relies on Crowther v. Seaborg, 312 F. Supp.
1205 (D. Colo. 1970) to assert plaintiffs’ claim was barred by
the political question doctrine. Crowther is distinguishabie.
however. The plainuffs in Crowther were seening an injunction
loa
to stop testing involving nuclear detonations and a determina-
tion that the applicable radiation safety standards were in-
adequate. The court in Crowther rightly held that the extent
and nature of government participation in the development of
energy sources was a political question as was the establishment
of radiation protection standards. 312 F. Supp. at 1231-32.
Plaintiffs in this case, however, are not trying to establish
standards that conflict with legislative determinations; they are
seeking compensation for injuries. Nor does the allowing of
recovery for those injumes which do occur mean the state is
creating new standards; rather, the state is protecting its citizens
by making defendant responsible for injuries arising from its
activities as a cost of doing business.
FAILURE TO STATE A CLAIM
Plaintiffs plead their three theories of liability in three
separate Counts: Count I—negligence, Count [I]—assault and
battery, Count Ili—strict liability. Although stated somewhat
differently in two of the three Counts, plaintiffs ailege their
injuries result from Mallinckrodt’s radioactive emissions which
have or will cause (1) “various health and physical illnesses”
and “injury, damages to health, property and safety of plain-
tiffs,” (2) “a drastic increase in the class of many physical
illnesses.” such as “leukemia, cancer and nervous disorders.”
and (3) “apprehension ... [because of] severe psychotic
trauma” from the exposure and increased risk of illness.®
Focusing on these allegations of damages, Mallinckrodt
argues that plaintiffs have failed to state a claim because they
do not “specifically allege any particuiar individual has sus-
tained an identifiable and detectable physical injury.” We
disagree.
8 These injuries are alleged by plaintuffs in Count I. In Count II. plainuffs
allege the “radiation stnking”™ them has caused and will cause (1) “vanous
health problems ... as well as apprehension and fear” and (2) “permanent
and irreparable physical and mental injunes as well as mental anguish and
damages.” In Count 'II. they ailege their damages are the same “as
hereinabove stated.”
17a
Injury is an essenual element of a tort based on negligence.
E.g., Chubb Group of Ins. Cos. v. C.F. Murphy & Assocs., Inc.,
656 S.W.2d 766, 774 (Mo. App. 1983); See also W. Prosser.
Law of Torts § 30, at 143 (4th ed. 1971). It also is an essential
element of a tort based on strict liability. £.g., Restatement
(Second) of Torts §519 (1977). Thus, unless plaintiffs
properly plead their injuries in their negligence and strict
liability claims, they have failed to state a claim upon which
relief can be granted.? See, e.g., Dix v. Motor Market, Inc., 540
S.W.2d 927, 932 (Mo. App. 1976).
PLAINTIFFS’ PLEADED INJURIES
(1) “Various health and physical illness” and “Injury, dam-
ages to health, property and safety to plaintiffs”
Technical forms of pleading are no longer required. Rule
55.04. To plead a claim for relief. the pleader must simply
allege a “plain statement of the facts showing [he] is entitled to
relief....°’ Rule 55.05. Although the pleader need not allege
evidentiary or operative facts. e.g., Scheibel v. Hillis, 531
S.W.2d 285, 290 (Mo. banc 1976), he must allege uitimate
facts, id. at 290, and cannot rely on mere conclusions, e.g.,
Commercial Bank of St. Louis County v. James, 658 S.W.2d 17.
22 (Mo. banc 1983). These rules and their interpretations are
much easier stated than applied. Many allegations simply do
not fall within a precise definition of a fact. They are mixed
statements of fact and conclusions. In Missoun, however, we
sull remain stuck in a semantic morass, attemptng to differ-
entiate fine and evanescent distinctions between evidentiary
facts. ultimate facts and conclusions. See, e.g., Einhaus v. Ames
Co., 547 $.W.2d 821, 825 (Mo. App. 1976). To us, the
distinction 1s really one between generality and particularity.
Admittedly, forceful argument can be made that plaintiffs’
allegations of injury are vague and ambiguous. Mere vague-
ness, however, is not grounds for a motion to dismiss, e.g.,
9 For an assault and battery, plainuffs’ Count II, “{tlhe establishment of
the technical cause of action. even without proof of any harm, enutles the
plainuff to vindication of his legal mght by an award of nominal damages.”
W. Prosser. Jorts § 10, at 38 ( 4th ed. 1971).
l8a
Pillow v. Gen. American Life Ins. Co., 564 S.W.2d 276, 279
(Mo. App. 1978), and we prefer to dispose of a case on its
merits instead of on the pleadings, see, e.g., Laclede Gas Co. v.
Hampton Speedway Co., 520 S.W.2d 625, 631 (Mo. App.
1975). More important, a petition should be dismissed only if
it appears the pleader can prove no set of facts in support of his
claim for relief. E.g., Gaines v. Monsanto Co., 655 S.W.2d 568.
570 (Mo. App. 1983); Pillow, 564 S.W.2d at 279-80.
The narrow issue here is whether plaintiffs’ allegations of
“various health and physical” iilnesses or “injury” generally
are ultimate facts or conclusions. Rational application of our
basic pleading principles can be used to classify plaintiffs’
allegation of injuries either as ultimate facts or conclusions.
Rather than torture logic to reach a preconceived result. we
focus on whether Mallinckrodt knows what this action involves.
We think it does. If plainuffs were pleading in the federal
courts, their allegations of injuries would withstand a motion to
dismiss. Pearl v. Allied Corp., 566 F. Supp. 400, 403-04 ( E.D.
Penn. 1983). Mallinckrodt is no less informed simply by being
sued in our state courts. Admittedly, there are differences
between the so-called “notice pleading” in the federal court and
our code pleading. The only relevant difference here, however.
would be that plaintffs*’ allegations of injumes in the federal
courts not only would withstand a motion to dismiss but also
would withstand a mouon to make more definite and certain.
see, e.g., 2A Moore’s Fed. Practice, §§ 12.08, 12.18 (2d ed.
1985), but, in our courts. these allegations wouid be and are
subject to a motion to make more definite and certain.
Plaintiffs’ pleadings are subject to a motion to make more
definite and certain because they lack sufficient detai! for
Mallinckrodt to prepare a responsive pleading. Rule 55.27(d).
Arguably, Mallinckrodt could answer by filing a general denial
and use discovery to gain information for tnal. But an
important element of plaintiffs’ claims is a medically diagnos-
able injury or illness. A clear diagnosis is essencial for
identufying the precise cause of the injury and identifying
Mallinckrodt as the culprit. Thus. although the injuries as pled
withstand the motion to dismiss, they are subject to make more
definite and certain. Rule 55.27(d).
1Y¥a
(2) “A drastic increase in the class of many physical ill-
nesses” such as “leukemia, cancer and nervous dis-
orders.”
In the pleaded injuries just discussed, plaintiffs’ claim
present physical injuries. The question there was whether the
language used was precise enough to state a claim. In this
claim of injury, plaintiffs allege future injuries. Sensibly read,
plaintiffs allege the exposure to radiation has increased their
risk as candidates for cancer. The question here is whether
plaintiffs may recover on the theory that their increased risk of
contracting cancer is a present injury.
In Missouri, no different than most other jurisdictions,
future damages in a personal injury action are not compensable
unless reasonably certain to occur. See, e.g., Hahn v. McDowell,
349 S.W.2d 479, 482 (Mo. App. 1961). No Missouri Court,
however, has been confronted with the precise issue here.
Courts in other jurisdictions have. In resolving the issue, they
quite logically determine whether the enhanced msk from
exposure to a toxic substance, as pleaded or proved, is a
reasonable certainty or can be considered a reasonable cer-
taintv. They find itis not. See, e.g., Morrissy v. Eli Lilly & Co.,
76 Ill. App.3d 753, 32 Ill. Dec. 30, 37, 394 N.E.2d 1369, 1376
(1979); Ayers v. Township of Jackson, 189 N.J. Super. 561. 461
A.2d 184, 187 (Law Div. 1983): Askey v. Occidental Chemical
Corp., 102 A.D.2d 130, 477 N.Y.S.2d 242, 247 (1984). See
also Laswell v. Brown, 683 F.2d 261, 269 (8th Cir. 1982), cert.
denied, 459 U.S. 1210, 103 S. Ct. 1205, 75 L.Ed.2d 446 (1983);
Mink v. University of Chicago, 460 F. Supp. 713, 719 (N.D. Ill.
1978).
This resolution makes sense. Plaintiffs here, like the
plaintiffs in the cited cases, base their claim on mathematical
probabilities. Damages based on mere mathematical proba-
bilities significantly undercompensate those who actually de-
velop cancer and are a windfall to those who do not. No
acceptable definition of justice would contemplate such a result.
Consequently, this claim of injury is fatally defective.
20a
(3) “Apprehension... {because of] severe psychic trauma
from the exposure and increased risk of illness.”
We have paraphrased this pleading of injury.'9 As we
understand it, plaintiffs seek to recover for emotional distress
allegedly suifered by them as a result of being exposed to
radiation, and plaintiffs seek compensation for this emotional
distress without a showing of physical injury. In short, plaintiffs
seek compensation for fear of cancer—cancerphobia.
Plainuffs allege their emotional distress is a direct result of
Mallinckrodt’s tortious conduct. Plaintiffs no longer need to
allege a contemporaneous physical injury to plead a tort action
for emotional distress. See Bass v. Nooney Co., 646 S.W.2d 765.
772 (Mo. banc 1983): Young v. Stensrude, 664 S.W.2d 263.
265 (Mo. App. 1984). Plaintiffs need only to plead Mallinck-
rodt should have realized its conduct involved an unreasonable
risk of causing plaintiffs’ emouonal distress and the distress is
medically diagnosable and medically significant. Bass v.
Nooney, 646 S.W.2d at 772-73.
We have read plaintiffs’ petition carefully, giving it the
most liberal interpretation. Our pleading principles may abol-
ish the technicalities of pleading. They do not abolish the need
for clear thinking and clanty. Plaintiffs do plead a “psychic
‘0 More specificaily, plainuffs plead:
“{they] have suffered apprehension and will continue in the
future under severe psychic trauma as a result of their exposure to
and the increased mnsk to the [noted] ilinesses.”
Obviously, plainuffs have failed to include several grammatical articles
necessary to give this pleading a precise meaning. No useful purpose is
served, however, in making these additions 2 prerequisite to our consid-
eration. We have paraphrased the pleading to reach the issue that wouid be
raised by an appropnate amendment.
2la
trauma,”’ which is medically diagnosable and can be medically
significant.’’ Plaintiffs, however, do not plead Mallinckrodt
should have realized its alleged conduct involved an unreason-
able risk of causing this psychic trauma. Thus, plaintiffs have
not met the minimal requirements of Bass v. Nooney, supra,
and, as now pleaded, this claim is fatally defective.
We do not address nor intend to comment on the extent of
plaintiffs’ possible problems in properly pleading forseeability
here, to say nothing of the complex and formidable problems of
proof this pleading entails. See generally G. Nothstein, Toxic
Torts § 16.05-.11 (1984).
STRICT LIABILITY
Plaintiffs last Count sounds in strict liability for “ultra-
hazardous” activities. Restatement of Torts §519 (1938)
creates a claim in strict liability for damages caused by an
“ultrahazardous activity.”” Restatement (Second) of Torts
§ 519 (1977), however, replaces the term ‘“ultrahazardous”
with the term “abnormally dangerous.” Our research has not
uncovered any Missouri case which expressly accepts or adopts
either version of § 519. Nonetheless. we believe strict liability,
as defined by the Restatement (Second) of Torts, should be
adopted and applied to claims based on radiation damage, and.
under this definition, we find plaintiffs have pleaded a claim for
relief in strict liability. '2
‘1 Psychic trauma is defined as:
“an upsetting experience precipitating or aggravating an emo-
tional or mental disorder,”” Stedman's Medical Dictionary 1476
(24th ed. 1982); or “An emouonal injury or shock that leaves a
lasting impression on the conscious or subconscious mind. It may
cause a permanent change in the personality of the patient.”” 3
Schmidt’s Attorneys’ Dictionary of Medicine P-302 ( 1984).
'2 As used in the Restatement. the terms “ultrahazardous” and “‘abnor-
mally dangerous” are terms of art. Each has a separate and distinct
definition. but these definitions overlap and are not mutually exclusive.
Compare Restatement of Torts § 520 (1938) with Restatement (Second) of
Torts § 520 (1977).
No useful purpose is served in affirming the dismissal because plainuffs
used “ultrahazardous” rather than “abnormally dangerous,” simply to have
plainuffs replead this claim using the latter and proper term.
22a
The doctrine of strict liability stems from the English case.
Rylands v. Fletcher, | L.R.-Ex. 265 (1866), aff'd, 3 L.R.-E. & I.
App. 330 (1868). The lower court, the Exchequer Chamber,
stated the “true rule” of law to be: “the person who for his own
purposes brings on his land and collects and keeps there
anything likely to-do mischief if it escapes, must keep it at his
peril, and if he does not do so is prima facie answereable for all
the damage which is the natural consequence of its escape.”
Fletcher v. Rylands, | L.R.-Ex. 265, 279-80 (1866). The House
of Lords limited the “rule” by making it applicable only to non-
natural uses of land. Rylands v. Fletcher, 3 L.R.-E. & | App.
330. 338 ( 1868). See also Prosser. Law of Torts § 78, at 505-06
(4th ed. 1971).
As Prosser explains, the “true rule” of Rylands v. Fletcher is
the limited rule. It makes the defendant liable “when he
damages another by a thing or activity unduly dangerous and
inappropmiate to the place where it is maintained, in the light of
the character of that place and its surroundings.” Jd. at 508.
Sections 519 and 520, Restatement (Second) of Torts (1977),
reflect this principle, with § 520 listing six factors pertinent in
determining whether an activity is abnormally dangerous. '3
In Missouri, we have expressly rejected the rule of the
Exchequer Chamber, i.e., a defendant is strictly liable when
anything under his control escapes and does damage. See, e.g.,
Kelley v. National Lead Co., 240 Mo. App. 47, 210 S.W.2d 728.
733 (1948): Greene v. Spinning, 48 S.W.2d 51, 61 (Mo. App.
1931). Thus, in Missouri, as in many other jurisdictions. the
'3 These six factors are:
(a) existence of a high degree of msk of some harm to the
person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the msk by the exercise of reasonable
care: ;
(d) extent :o which the activity is not a matter of common usage;
(e) inappropnateness of the activity to the place where it is
carned on; and
(f) extent tc which its value to the community is outweighed by
its dangerous attmbutes.
23a
“true rule” of Rylands v. Fletcher has been misstated and, as
misstated, has been almost totally rejected, “most often on facts
which had no proper application in the first place.” Prosser.
supra, at 508-09.
Be that as it may, the “rule of Rylands v. Fletcher” is very
narrowly applied in Missouri. In blasting cases, for example, a
claim for strict liability is as valid a claim as a claim based upon
nuisance or trespass. Summers v. Tavern Rock Sand Co., 315
S.W.2d 201 (Mo. 1958); Carson v. Blodgett Const. Co., 189
Mo. App. 120, 174 S.W. 447 (1915) (strict liability ); Blackford
v. Heman Const. Co., 132 Mo. App. 157, 112 S.W. 287 (1908)
(nuisance ); Johnson v. Kansas City Terminal! Ry. Co., 182 Mo.
App. 349, 170 S.W. 456 (1914): Faust v. Pope, 132 Mo. App.
287, LLL S.W. 878 (1908) (trespass). But our courts go no
further. In other cases, in which piainuff alleged his damage
was caused by an “ultrahazardous” or “abnormally dangerous”
thing or activity, our courts have rejected claims based upon
strict liability and required the claim to be brought in negli-
gence, nuisance or trespass. See generally II Mo. Tort Law.
Chap. 32, Strict Tort Liabilin (Mo. Bar CLE 1980); Comment,
The Rylands v. Fletcher Doctrine and Its Standing In Missouri,
18 Mo. L. Rev. 53 (1953).
Arguably, this history demonstrates a refusal to extend the
use of strict liability as a legal tool to hold liable for damages
those engaged in abnormally dangerous activities. If this ts
true, the question here is not would, but rather should, a nuclear
plant operator be held strictly liable for his actions? This
question is not answered by the usuaily salutary aphorism —if it
ain’t broke, don’t fix it. Theories of liability other than strict
liability may serve society better in resolving issues between
parties when normal danger is involved. These theories are not
equally effective in the nuclear industry.
Understandably, a record was not made for the purpose of
determining whether, strict liability, as defined by the Restate-
ment, should be applied here. Certain facts, however, are
common knowledge or part of the present record.
The nuclear industry is unique in its inherent and, at
present, unrectifiable danger. It is regulated by the federal
24a
government. Numerous safety standards have been set to
ensure the public welfare, but even with these precautions
taken, the potential danger is still enormous. Moreover, as
previously noted, the safety standards are not guarantees of
absolute safety. Federal emission standards are only guidelines
which are based upon an inherently inexact balancing of
human and environmental risks against social benefits. See
Silkwood, 485 F. Supp. at 581-82: Keyes & Howarth, supra, at
541, 568. See also 10 C.F.R. §20.1(c). Each licensee is
therefore requested to make every reasonable effort to maintain
radiation exposures and releases as low as reasonably achiev-
able. 10 C.F.R. § 20.1(c). The value of the nuclear industry to
society may be great, but the use of nuclear material is not yet
so common that strict liability should not be applied at this
tume.'* This is the basis for the Restatement and Prosser
recognizing the nuclear industry is particularly suited for the
application of strict liability. See Restatement (Second) of
Torts § 520, comments g, h ( 1977); Prosser, supra, § 78, at 5!6.
In short, the nuclear industry creates dangers as great as
blasi:ing operations, if not more so, and, thus, if it fits the cnteria
established for strict liability, it should be governed by those
legal liabilities imposed upon blasting operations because of its
danger.
Our Courts have not been deterred in the past from
adopting Restatement principles of tort deemed sensible and
necessary.'S We should not be deterred here. Plainuffs have
alleged that Mallinckrodt’s activities have created a high degree
‘4 Nuclear reactors may never be considered a natural use of the land.
On the other hand, nuclear reactors may follow the same path as the
“aeroplane,” and technological advances and widespread use may make stnct
liability inapplicable to the nuclear industry as it now is to the use of
aeroplanes. See Prosser, supra, § 78, at 514-15.
1S See Blevins v. Cushman Motors, 55\ S.W.2d 602 (Mo. banc 1977)
(products liabdility—Restatement (Second) of Torts § 402A); Pretsk v.
Southwestern Bell Telephone Co., 396 S.W.2d 566, 568-69 (Mo. 1965)
(intentional infliction of emouonal harm—Restatement (Second) of Torts
§ 48): Porter v. Crawford & Co., 611 S.W.2d 265 (Mo. App. 1980) ( pmma
facie tort—Restatement (Second) of Torts § 870); Anmnbar Associates v.
American Express Co., 565 S.W.2d 701 (Mo. App. 1978) (injunous faise-
hood— Restatement ( Second) of Torts § 623A ef seq.).
25a
of msk of harm, the harm has been and will be significant, the
risk cannot be eliminated, the harm outweighs the value of the
operation of the plant and they have suffered injuries. These
are the factors to be considered in a claim for strict liability.
Restatment (Second) of Torts §§ 519 and 520 (1977).
The Restatement (Second) of Torts § 519 (1977) speaks
of “abnormally dangerous activities,” and § 520 lists pertinent
faciors to determine the appropriateness of the activity in
question. The Restatement suggests the court should balance
the risks against the benefits and determine, as a matter of law,
whether the benefits outweigh the risks. This determination is
no different than the determination made by the court when it
determines the reasonableness of the use of the land in nuisance
cases. See, e.g., Clinic & Hospital, Inc. v. McConnell, 236
S.W.2d 384, 391 (Mo. App. 1951).'6 On remand, the tral
court should develop the appropriate record for its determina-
tion whether strict liability. as defined by Restatement ( Sec-
ond) of Torts § 520 (1977), should be applied here.*7
‘6 “What is a reasonable use of one’s property and whether a particular
use IS an unreasonable invasion of another's use and enjoyment of his
property cannot be determined by exact rules, but must necessanly depend
upon the circumstances of each case, such as locality and the character of the
surroundings, the nature, utlity and social value of the use, the extent and
nature of the harm involved, the nature, utlity and social value of the use or
enjoyment invaded, and the like.” 236 S.W.2d at 391.
'7 The factors listed by the Restatement are, as their designation implies.
simply factors to be considered by the court. They are not elements of a claim
for relief. Restatement, supra, § 520. Forceful argument can be made that
factor (f) of § 520—sociai msk weighed against social benefit—has been
predetermined by the federal government licensing Mallinckrodt’s operations.
if the operations are in fact licensed.
26a
INJUNCTIVE RELIEF
In addition to monetary damages, plaintiffs also seek to
enjoin Mallinckrodt’s operations. The propriety of this request
was not raised as an issue before us. It is clear, however,
plaintiffs are not entitled to this injunctive relief. Enjoining
Mallinckrodt’s operations would effectively establish a state
standard, anc. as a result, would frustrate federal law. See, e.g.,
Pennsylvania v. General Public Utilities Corp., 710 F.2d 117,
120 (3d Cir. 1983); Crowther v. Seaborg, 312 F. Supp. at 1235.
Judgment reversed. Cause remanded.
HAROLD L. SaTz
Harold L. Satz, Judge
ROBERT O. SNYDER Concurs
Robert O. Snyder, Presiding Judge
JAMES A. PUDLOWSKI Concurs
James A. Pudlowski, Judge
27a
IN THE
Missmumt Cont of Appenis
Eastern Bistrict
DIVISION ONE
SAMUEL F. BENNETT, ef-al.
Plaintiffs-Appellants,
VS.
MALLINCKRODT, INC.
Defendant- Respondent.
No. 47771
Appeal from the Circuit Court
of St. Louis County
Opinion Filed:
September 26, 1985
ON MOTIONS FOR REHEARING OR, IN THE
ALTERNATIVE, FOR TRANSFER TO
THE SUPREME COURT
PER CURIAM
In its motion for rehearing, Mallinckrodt points out that we
did not address one of its contentions raised on appeal. This
contention centers on statements made by plaintiffs’ counsel
during oral argument on Mallinckrodt’s motion to dismiss.
Mallinckrodt asserts these statements clarify and control the
meaning of plaintiffs’ petition. We were aware of this con-
tention. We read those cases cited by Mallinckrodt in support
cf its contention and found them to be inapposite. In addition.
we note counsel’s “clarifying” statements are not part of the
designated record but are merely part of an apparent excerpt
from the motion hearing appended to Mallinckrodt’s brief. On
28a
the present facts, we know of no principle of law or logic which
requires us to define the explicit meaning of plaintiffs’ allega-
tions by the fractional extemporaneous remarks of plaintiffs’
counsel. As we noted in our opinion, Mallinckrodt’s concern
can be alleviated by a motion to make plaintiffs’ allegations
more definite and certain.
Also, Mallinckrodt once again attempts to support some of
its arguments by information which is not part of the record.
Once again we note this case is before us only on the trial
court’s grant of Mallinckrodt’s motion to dismiss plaintiffs’
petition. If Mallinckrodt wishes to support its arguments by a
“Brandeis Brief,” it has the proper procedural devices to do so.
Finally, to allay Mallinckrodt’s new concern generated by
its reading of our opinion. we note that we were and are aware
of the difference in potential danger between a reactor melt-
down and a radioactive isotope. The present record, however.
does not intimate, much less disclose, the potential danger of
Mallinckrodt’s operation. Our opinion remains unchanged.
Strict liability is an appropriate principle for activities gener-
ating radioactive emissions. It is for Mallinckrodt to demon-
strate to the trial court that its particular activities do not fall
within the purview of strict liability as defined by Restatement
(Second) of Torts § 520 (1977).
Motions for rehearing and for Transfer to the Supreme
Court denied.
29a
APPENDIX B
No. 67532
ED 47771
IN THE
SUPREME COURT OF MISSOURI
September Session 1985
SAMUEL F. BENNETT ef ai.,
Plaintiffs-Appellants,
VS.
TRANSFER
MALLINCKRODT, INC..,
Defendant-Respondent.
Now at this day, on consideration of Defendant-
Respondent’s Application to transfer the above entitled cause
from the Eastern District Court of Appeals, it is ordered that said
application be, and the same is hereby denied.
STATE OF MISSOURI—SCT.
I, THOMAS F. SIMON, Clerk of the Supreme Court of the
State of Missouri, certify that the foregoing is a full, true and
complete transcript of the judgment of said Supreme Court.
entered of record at the September Session thereof, 1985, and on
the 21st day of November 1985, in the above entitled cause.
Given under my hand and seal of said Court, at the City of
Jefferson City, this 21st day of Novers er, 1985.
THOMAS F. SIMON
Clerk.
D.C.
30a
APPENDIX C
IN THE
CIRCUIT COURT
COUNTY OF ST. Louts. MISSOURI
August 18, 1983
SAMUEL F. BENNETT, ef ail.
VS.
Number 484711
Division 4
MALLINCKRODT, INC.
This matter is before the Court on Defendant’s Motion to
Dismiss Plaintiffs’ Petition, the same having been presented,
heard, ably argued and capably briefed.
The Court, being now sufficiently advised of and having
considered the premises. adjudges that the Court does not have
subject matter jurisdiction and Plaintiffs’ Petition fails to state a
claim upon which relief can te granted. Defendant’s Motion to
Dismiss Plaintiffs’ Petition is SUSTAINED.
The August 19, 1983 setting for hearings on various
motions is vacated. such motions now being moot. Costs cre
assessed against Plaintiffs.
re sa Brown, James & Rabbitt. P.C.
Whaley & McAuliffe
Peper, Martin, Jensen, Maichel & Hetlage
Covington & Burling
SO ORDERED
B. C. Drumm. Jr. |
31a
APPENDIX D
The Atomic Energy Act of 1954, as amended, 42 U.S.C
§ 2011 er seg., provides in relevant part:
42 U.S.C. § 2013:
It is the purpose of this Act to effectuate the policies
set forth above by providing for—
x x *
(d) a program to encourage widespread partici-
pation in the development and utilization of atomic
energy for peaceful purposes to the maximum extent
consistent with the common defense and security and
with the health and safety of the public:
- * - x
42 U.S.C. § 2014(e):
The term “byproduct material” means any radio-
activ? material (except special nuclear material)
yielded in or made radioactive by exposure to the
radiation incident to the process of producing or
utilizing special nuclear material.
42 U.S.C. § 2111:
No person may transfer or receive in interstate
commerce, manufacture. produce, transfer, acquire.
OWN, possess, import. or export any byproduct mate-
rial, except to the extent authorized by this section or
by section 82 [42 U.S.C. § 2112]. The Commission
is authorized to issue general or specific licenses to
applicants seeking to use byproduct material for
research or development purpvses. for medical ther-
apy, industrial uses, agricultural uses, or such other
useful applications as may be developed. The Com-
mission may distribute. sell. loan. or lease such
byproduct material as it owns to qualified applicants
with or without charge: Provided, however, That. for
byproduct material to be distributed by the Commis-
sion for a charge. the Commission shall establish
prices on such equitable basis as. in the opinion of the
Commission. (a) will provide reasonable com-
32a
pensation to the Government for such material, (b)
will not discourage the use of such material or the
development of sources of supply of such material
independent of the Commission, and (c) will encour-
age research and development. In distributing such
material, the Commission shall give preference to
applicants proposing to use such material either in
the conduct of research and development or in
medical therapy. The Commission shall not permit
the distribution of any byproduct material to any
licensee, and shall- recall or order the recall of any
distributed material from any licensee, who is not
equipped to observe or who fails to observe such
safety standards to protect health as may be estab-
lished by the Commission or who uses such matenal
in violation of law or regulation of the Commission or
in a manner other than as disclosed in the applica-
tion therefor or approved by the Commission. The
Commission is authorized to establish classes of
byproduct material and to exempt certain classes or
quantities of material or kinds of uses or users from
the requirements for a license set forth in this section
when it makes a finding that the exemption of such
classes or quantities of such material or such kinds of
uses or users will not constitute an unreasonable risk
to the common defense and security and to the health
and safety of the public.
42 U.S.C. § 2282(a):
(a) Any person who (1) violates any licensing
provision of section 53, 57, 62, 63, 81, 82, 101, 103,
104, 107, or 109 [42 U.S.C. §§ 2073, 2077, 2092,
2093, 2111, 2112. 2131, 2133, 2134, 2137, 2139] or
any rule. regulation. or order issued thereunder, or
any term, condition, or limitation of any license
issued thereunder, or (2) commits any violation for
which a license ray be revoked under section 186
(42 U.S.C. § 2236], shall be subject to a civil penalty,
to be imposed by the Commission, of not to exceed
$100,000 for each such violation.
33a
APPENDIX E
The U.S. Nuclear Regulatory Commission has promul-
gated regulations that establish limitations on permissible ex-
posures to radiation for the general public. These regulations
provide in relevant part:
10 C.F.R. § 20.105:
(a) There may be included in any application
for a license or for amendment of a license proposed
limits upon levels of radiation in unrestricted areas
resulting from the applicant’s possession or use of
radioactive material and other sources of radiation.
Such applications should include information as to
anticipated average radiation levels and anticipated
occupancy times for each unrestricted area involved.
The Commission will approve the proposed limits if
the applicant demonstrates that the proposed limits
are not likely to cause any individual to receive a
dose to the whole body in any period of one calendar
year in excess of 0.5 rem.
(b) Except as authorized by the Commission
pursuant to paragraph (a) of this section, no licensee
shall possess, use or transfer licensed materia! in such
a manner as to create in any unrestricted area from
radioactive material and other sources of radiation in
his possession:
(1) Radiation levels which, if an individual
were continuously present in the area. could
result in his receiving a dose in excess of two
millirems in any one hour, or
(2) Radiation levels which. if an individual
were continuously present in the area. could
result in his receiving a dose in excess of 100
millirems in any seven consecutive days.
34a
(c) In addition to other requirements of this
part, licensees engaged in uranium fuel cycie oper-
ations subject to the provisions of 40 CFR Part 190,
“Environmental Radiation Protection Standards for
Nuclear Power Operations,” shall comply with that
part.
10 C.F.R. § 20.106:
(a) A licensee shall not possess, use, or transfer
licensed material so as to release to an unrestricted
area radioactive material in concentrations which
exceed the limits specified in Appendix B, Table II of
this part, except as authorized pursuant to § 20.302 or
paragraph (b) of this section. For purposes of this
section concentrations may be averaged over a period
not greater than one year.
(b) An application for a license or amendment
may include proposed limits higher than those speci-
fied in paragraph (a) of this section. The Commis-
sion will approve the proposed limits if the applicant
demonstrates:
(1) That the applicant has made a reason-
able effort to minimize the radioactivity con-
tained in effluents to unrestricted areas; and
(2) That it is not likely that radioactive
material discharged in the effluent would result
in the exposure of an individual to concentra-
tions of radioactive material in air or water
exceeding the limits specified in Appendix B,
Table II of this part.
(c) An application for higher limits pursuant to
paragraph (b) of this section shall include informa-
tion demonstrating that the applicant has made a
reasonable effort to minimize the radioactivity dis-
charged in effluents to unrestricted areas, and shall
include, as pertinent:
(1) Information as to flow rates, total
volume of effluent. peak concentration of each
35a
radionuclide in the effluent. and concentration of
each radionuclide in the effluent averaged over a
period of one year at the point where the
effluent leaves a stack, tube, pipe. or similar
conduit;
(2) A description of the properties of the
effluents, including:
(1) Chemical composition:
(ii) Physical characteristics, including
suspended solids content in liquid effluents,
and nature of gas or aerosol for air
effluents:
(iii) The hydrogen ion concentration
(pH) of liquid effluents: and
(iv) The size range of particulates in
effluents released into air.
(3) A description of the anticipated human
occupancy in the unrestricted area where the
highest concentration of radioactive material
from the effluent is expected, and, in the case of
a river or stream, a description of water uses
downstream from the point of release of the
effluent.
(4) Information as to the highest concen-
tration of each radionuclide in an unrestricted
area, including anticipated concentrations aver-
aged over a period of one year:
(1) Im air at ary point of human
occupancy; or
(1) In water at points of use down-
Stream from the point of release of the
effluent.
(5) The background concentration of ra-
dionuclides in the receiving river or stream prior
to the release of liquid effluent.
(6) A description of the environmental
monitoring equipment. including sensitivity of
36a
the system, and procedures and calculations to
determine concentrations of radionuclides in the
unrestricted area and possible reconcentrations
of radionuclides.
(7) A description of the waste treatment
facilities and procedures used to reduce the
concentration of radionuclides in effluents pnor
to their release.
(d) For the purposes of this section the concen-
tration limits in Appendix B, Table II of this part
shall apply at the boundary of the restricted area.
The concentration of radioactive material discharged
through a stack, pipe or similar conduit may be
determined with respect to the point where the
material leaves the conduit. If the conduit discharges
within the restricted area. the concentration at the
boundary may be determined by applying appropn-
ate factors for dilution, dispersion, or decay between
the point of discharge and the boundary.
(e) In addition to limiting concentrations in
effluent streams, the Commission may limit quantities
of radioactive materials released in air or water
during a specified perod of time if it appears that the
daily intake of radioactive materia! from air, water,
or food by a suitable sample of an exposed popu-
lation group, averaged over a period not exceeding
one year, would otherwise exceed the daily intake
resulting from continuous exposure to air or water
containing one-third the concentration of radioactive
materials specified in Appendix B, Table II of this
part.
(f) The provisions of paragraphs (a) through
(e) of this section do not apply to disposal of
radioactive material into sanitary sewerage systems,
which is governed by § 20.303.
(g) In addition to other requirements of this
part, licensees engaged in uranium fuel cycle oper-
ations subject to the provisions of 40 CFR Part 190,
“Environmental Radiation Protection Standard for
Nuclear Power Operations.” shall comply with that
part.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.