Petition for Writ of Certiorari — Rainer v. Union Carbide Corp.

l

PETITION FOR WRIT OF CERTIORARI

Petitioners Alphonse Rainer, David M. Sacharnoski,

Harold Hargan, Charles A. Ramsey, Mrs. H.C. (Sylvia)

Mathis, Mrs. Alphonse (Janie) Rainer, Sybil Mathis, Shanda

M. Mathis and Chyanne Rainer Stevens respectfully petition

for a writ of certiorari to review the judgment of the United

States Court of Appeals for the Sixth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit is published at 402 F.3d 608 (6 Cir.

2005). The decisions of the United States District Court for

the Western District of Kentucky were unreported and are

appended hereto.

JURISDICTION

The United States Court of Appeals for the Sixth Circuit

issued its opinion on March 8, 2005. Rehearing was granted

and the opinion was amended on March 25, 2005. A

Petition for Rehearing En Banc was denied May 27, 2005.

This Court has federal question subject matter jurisdiction

over the claims herein pursuant to 42 U.S.C. §2210(n)(2)

and 28 U.S.C. §1331.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case raises issues involving the Fourth Amendment,

Fifth Amendment, the Supremacy Clause to the United

States Constitution, Art. 6 CL 2, and the Price-Anderson

Act, 42 U.S.C. § 2014.

2

STATEMENT OF THE CASE

Ten miles west of the city of Paducah, Kentucky, is a

uranium gascous diffusion plant that was constructed in the

early 1950s (hereinafter, Paducah Gaseous Diffusion Plant,

or “PGDP”). Although owned by the government, since its

construction through 1999, PGDP was leased and operated

by private contractors. Jnion Carbide was the original

operator, replaced by Martin Marietta in 1984. Martin

Marietta operated the plant through its subsidjary, Martin

Marietta Utilities Services untill1995, when it became

Lockheed Martin Utilities Services, which operated the plant

until May of 1999.

PGDP was designed to receive uranium in its natural

state and enrich it through a gaseous diffusion process. The

enriched uranium was then transferred to other sites for

further enrichment. Had PGDP only received naturally

occurring uranium as intended, “transuranics”, which are

extremely radioactive man-made products of a nuclear

reaction, should not have been present at PGDP.

Unfortunately, PGDP was not operated as intended. PGDP

also accepted and processed spent nuclear reactor fuel,

primarily from Respondent General Electric’s Hanford

Nuclear Reservation in Richland, Washington. This

“recycled uranium” or “reactor tails” was contaminated

with transuranics including neptunium 237 and plutonium

239. Transuranics are thousands of times more lethal than

naturally occurring uranium.’ Unbeknownst to workers,

PGDP’s use of this material as a feed stock contaminated the

' The specific radioactivity of neptunium 237 is two thousand times

higher than the radioactivity of depleted uranium. Plutonium’s

specific radioactivity is approximately eighty nine times that of

neptunium 237.

3

entire plant with transuranics, radioactive materials that

PGDP was simply not designed to protect against.

The failure of Respondents to protect workers from

radioactive exposure was confirmed by the government in

October 1999, when the Department of Energy (“DOE”)

issued the first in a series of reports regarding the

contamination at PGDP. The DOE’s “Phase I Report”

found that the PGDP site contained numerous previously

undisclosed contaminated areas, and that worker safety

programs “do not insure familiarity with workplace hazards

and have not adequately addressed the presence of

transuranics.” (Phase I Report, Jt. App. 598’). According

to the Phase II Report:

As early as 1957, the site became aware of the

presence of transuranic elements . . . in feed

materials processed from spent reactor fuel at the

Hanford and Savannah River sites. Transuranics and

fission products have a much higher specific activity

than uranium and resulted in much higher dose to

some workers. These materials were a concern

where they were concentrated. . . . However, the —

presence of these materials, the increased risks

involved, and the rationale for additional controls

were not shared with workers.”

(Phase II Report, Jt. App. 654)(emphasis added).

The record below contains numerous examples of

internal ducumentation that PGDP management was well

aware of the hazards oftramsuranics at PGDP. (See e.z.,

* References herein to “Jt. App.” are to the parties’ Joint Appendix

before the United States Court of Appeals for the Sixth Circuit.

4

July 1959, report entitled “The Neptunium Problem at The

Paducah Plant” in which it is recorded that one convertor

(there were thousands at the plant) contained enough

neptunium 237 to provide a maximum body burden for up to

920 men (Jt. App. 1076)).

Plant contamination continued throughout the decades.

For example, a plant spill in 1990 contained enough

transuranic material to expose approximately 700,000

workers to their annual exposure limit and the material

remaining in the drum contained enough radioactive material

to expose approximately 1.2 million workers to their annual

limits. (Thorne Affidavit, Jt. App. 1084-1087). There were

approximately 30,000 such drums at PGDP.

Although management knew of the hazards presented by

plutonium and neptunium in the process, no special

precautions were instituted at the plant because of the

presence of transuranics. Workers like Alphonse Rainer,

Charles Ramsey and Charles Deuschle were taught that all

of the radioactive materials at PGDP were low level uraniurn

and that the material they handled was safe enough to cat.

(See, e.g., Phase Il report, Jt. App. 691-696, noting

contaminated work stations, eating areas, clothing, failures

of management to implement the most basic radiation

protection and contamination control requirements.)

In document after document, it is painfully evident that

the Respondents’ motivation for not informing workers of

the presence of transuranics was to keep costs down at the

plant. As the DOE observed in the “Phase II Report”:

A March 1960 letter revealed that AEC and

contractor management, including the PGDP Health

Physics and Hygiene Department, were aware of the

5 =

potential hazards presented by transuranic elements

contained in the feed material the Plant received

from Hanford reactor tails and the workers’ lack of

compliance with respiratory protection measures.

The documents stated that 300 persons at Paducah

“should be checked out,” but that management was

hesitant to study the issue intensively for fear that

the labor union would demand hazard pay.

(Phase II Report, Jt. App. 654-55) (emphasis added).

Blood samples obtained from Alphonse Rainer, Charles

Ramsey and David Sacharnoski confirmed unequivocally

that they have sustained genetic injury and are currently

experiencing a disease process affecting their well-being at a

subcellular level as a direct result of their exposure to

plutonium and neptunium at PGDP.’ Petitioners’ experts,

whose testimony was never refuted, uniformly hold that the

genetic damage suffered by Petitioners resulted from

exposure to ionizing radiation at PGDP and constitutes both

injury and disease. Gordon K. Livingston, Ph. D. is a

geneticist with over twenty five years of experience devoted

to the study and research of human chromosomes in relation

to genetics and diseases and the effects of genotoxic agents

on human chromosomes. From 1996 to 1998 he served as a

senior toxicologist in the Occupational Medicine Department

at the Rocky Fiat Environmental Technology site near

Denver, Colorado. He has conducted investigations and

> Geneticists, Gordon K. Livingston, Ph. D. and Dr. Ernst

Schmid, Ph.D., performed chromosome tests on blood samples

obtained from Alphonse Rainer, Charles Ramsey and David

Sacharnoski in March of 2002. Harold Hargan was not tested

because medical treatments he received for cancer would affect the

validity of his results.

6 -

published research concerning human exposure to medical

(radiotherapy), environmental (Chernobyl!) and occupational

(plutonium) sources of radiation. Dr. Livingston describes

the injury and disease process seen in the samples obtained

from Petitioners:

[T]est results show significantly elevated rates of

chromosome damage and this form of biological

damage (i.e. mutations) is known to arise from

double-strand breaks in DNA molecules, I conclude

this finding constitutes unequivocal physical injury to

the body. . . . {7Jhe DNA and chromosome damage

sustained by Rainer, Ramsey and Sacharnoski has

resulted in a disease process. ... [T}he human

genome which resides within the nucleus of the cell

and the DNA which resides within each of the 46

chromosomes inside the nucleus constitutes a

complex genetic system which regulates all aspects

of form and function for the life of the individual.

The genome is a complete set of instructions or

master blueprint for all cellular structures and

activities throughout the life of the cell or individual.

The ionizing radiation to which Kainer, Ramsey and

Sacharnoski were exposed has caused significant

disruption of this system by causing the loss and

rearrangement of genes which are linearly arranged

within the chromosomes. .. . [T]he DNA and

chromosome damage was clearly caused by a

“recognized etiologic agent”, namely, ionizing

radiation. Finally, ionizing radiation has caused a

“consistent anatomical alteration” at a microscopic

level involving DNA strand breakage and the

structural alteration of chromosomes in Rainer,

Ramsey and Sacharnoski. . . . The fact that DNA

damage cannot be seen with the naked eye and must

7

be visualized in the microscope does not diminish the

fact that it constitutes a present physical injury and

disease.

(Livingston Affidavit, Jt. App. 1315-16).

Dr. Dan Sullivan, M.D., a board certified specialist in

oncology and cancer research at the Moffitt Cancer Center

and Research Institute, Tampa, Florida, who studies DNA

damage by drugs and radiation and who clinically diagnoses

and treats patients with chromosomal aberrations and

mutations that have resulted in hematologic malignancies

and tumors, states that chromosomal aberrations are causally

associated with an increased likelihood of the occurrence of

cancer because cells that have sustained such damage are —

known to have suffered a loss of tumor suppressor genes.

(Sullivan Affidavit, Jt. App. 1402). Consequently, these

injuries constitute a disease process. (Id.) Dr. Sullivan cites

to a well accepted medical text - Stedman’s Medical

Dictionary, 24th Edition - to explain why this condition is a

disease:

The DNA and chromosomal injuries sustained by

Rainer, Ramsey and Sachronoski constitute a

disease process. Stedman’s Medical Dictionary,

24th Edition, defines “Disease” as follows, “1.

Morbus; illness; sickness; an interruption, cessation,

or disorder of body functions, systems, or organs. 2.

A disease entity characterized usually by at least two

of these criteria: a recognized etiologic agent (or

agents), an identifiable group of signs and

symptoms; or consistent anatomical alterations.”

Clearly, the injuries sustained by Rainer, Ramsey

and Sachronoski meet the terms of both definitions.

The DNA and chromosomes are vital bodily systems

8

controlling all aspects of the form and function of

individuals. The DNA and chromosomal damage

sustained by these three Plaintiffs unquestionably has

caused “an interruption, cessation, or disorder” of

this bodily system. Under definition 2, the Plaintiffs

are in a diseased state (increased susceptibility to

cancer) caused by a “recognized etiologic agent”

(ionizing radiation) and evidenced by “consistent

anatomical alterations." (DNA _ injury and

chromosomal aberrations.)

(Sullivan Affidavit, Jt. App. 1402) (emphasis in original).

Likewise, Dr. Martin J. Raff, a board certified internal

medicine and infectious disease specialist, Professor of

Medicine, Division of Infectious Diseases and Associate

Professor of Microbiology at the University Of Louisville

School Of Medicine, states: “Disease is best defined as a

disorder of physiologic function. A specific disease entity

can be recognized by an etiologic entity and an identifiable

group of signs and symptoms, or recognizable anatomic

alterations. . . . Rainer, Ramsey and Sacharnoski are in a

diseased state. . . . They have sustained a disorder of

physiologic function. . . . The damage done is to the basic

building block of our very bodies. They also meet the

definition of having recognizable anatomic alterations

(chromosomal abnormalities) caused by a recognized

etiologic entity (ionizing radiation).” (Raff Affidavit, Jt.

App. 1332-1333, 1336).

Although it is necessary to perform microscopic

examination of the cells of Petitioners in order to diagnose

their condition, this is not an unusual occurrence in

medicine. For example, cancers are diagnosed by

microscopic examination of cells; infections are diagnosed

9

by microscopic examination and counting of white blood

cells. Similarly, X-rays, ultrasounds, CAT scans and MRI's

have allowed physicians and scientists to identify injuries

and to detect the presence of tumors, collections of fluids

and gases within the body, “all or many of which are not

apparent to the naked eye or physical examination.”

(Sullivan Affidavit, Jt. App. 1403; Livingston Affidavit, Jt.

App. 1316). Furthermore, although Petitioners” bodily

responses to their damaged cells are not clinically

observable, they are irrefutably experiencing adverse health

effects. Dr. Raff notes, “We know that ionizing effects of

radiation may also induce release of cytokines (biologically

active substances released from one cell which influence the

behavior of other cells), thereby altering physiologic

function, particularly of the immune system.” (Raff

Affidavit, Jt. App. 1333-4).

Relying upon a single unreported federal case from

Massachusetts - Caputo v. Boston Edison Co., 1990 WL

98694 (D. Mass. 1990), the district court held as a matter of

law that Kentucky would not rec. nize genetic and

chromosomal damage as a present physical injury. The

Sixth Circuit affirmed, citing “public policy” as its primary

reason for agreeing that Kentucky would not recognize any

injury in this case.

The trial court also held, and the Sixth Circuit agreed,

that despite the reprehensible nature of the employers’

conduct, their actions did not fall within the deliberate intent

exception of the Kentucky Workers’ Compensation Act,

KRS 342.610(4). The position of the courts below is that no

matter how reprehensible its actions, an employer cannot be

liable under the deliberate intent exception unless the only

motive was to inflict harm on its employees, and they

erroneously equated the facts of this case (where the

10

employers repeatedly subjected their employees to illegal

levels of radiation) to cases in which the employers merely

acted in reckless disregard of possible injuries. The trial

court also found Petitioners’ Bivens claims and equitable

claims were not cognizable against non-governmental

entities under Malesko v. Correctional Services Corp, 534 —

U.S. 61 (2001). The Sixth Circuit affirmed the result, but

found such claims preempted by Pr*~e-Anderson.

Finally, an internal Union Carbide document regarding

the cover-up at PGDP that was shared with third parties was

deemed protected from disclosure by the attorney/client

privilege.

REASONS FOR GRANTING THE PETITION

I. The Sixth Circuit’s Opinion Conflicts with Precedent

of this Court and the Kentucky Supreme Court

Permitting Personai Injury Actions for Irradiation

In Silkwood v. Kerr-McGee Corp., 464 U.S. 238

(1984), Karen Silkwood was contaminated with plutonium

over a three day period in early November, 1974. She died

less than a week later in an unrelated automobile accident.

The Silkwood estate successfully sued Kerr-McGee under

Oklahoma common law and recovered both compensatory

and punitive damages for Ms. Silkwood’s plutonium

contamination. The company challenged the verdict

claiming that it constituted impermissible state regulation of

nuclear safety preempted by the Price-Anderson Act.

Upholding the verdict, this Court stated, “it is clear that in

enacting and amending the Price-Anderson Act, Congress

assumed that state-law remedies, in whatever form they

might take, were available to those injured by nuclear

incidents.” 464 U.S. at 256.

11

Subsequent to this Court's Silkkwood decision, Congress

amended Price-Anderson in 1988 to give the federal courts

jurisdiction over lawsuits for injuries arising out of “nuclear

incidents.” The amendment reinforces the policy recognized

in Silkwood that Congress intended that state law remedies

be available to those injured by nuclear incidents. This

policy was abrogated by the Sixth Circuit's decision, based

on policy considerations, affirming summary dismissal of

Petitioner’s claims. Predicting that Kentucky law would

hold that physical injury and disease that is detectable at the

genetic and chromosomal! level is not an injury or disease as

a matter of law, the Sixth Circuit precluded recovery under

Price-Anderson.*

In contravention of this Court's and Congress’ stated

policy to permit recovery by those improperly exposed to

radiation, the Sixth Circuit opined in this case:

[T]he most persuasive reason to deny the plaintiffs’

claims in the present case comes from public policy

considerations .. . . Accepting the plaintiffs’ claim

would therefore throw open the possibility of

litigation by any persop experiencing even the most

benign subcellular damage. Based upon the average

American's exposure to chemically processed foods,

toxic fumes, genetically modified fruits and

vegetables, mercury-laden fish, and hormonally

* As discussed in Section II, bodily injury, sickness, or disease is a

prerequisite to recovery for personal injury under the Price

Anderson Act. State law provides the substantive rules that

determine a party's liability so long as the state law is consistent

with the act. 42 U.S.C. §2014(hh). As discussed further below,

there is no Kentucky law that precludes recovery for subcellular

injury.

12

treated chicken and beef, this might encompass a

very large percentage of the total population.

Rainer, 402 F.3d at 621 (emphasis added). It is rare that

there are answers for such “‘floodgate’ concerns,” as this

Court plainly recognized in Metro-North Commuter R. Co.

v. Buckley, 521 U.S. 424, 436 (1997) (“We do not raise

these questions to answer them (for we do not have the

answers).”) Here, however, there is a simple answer that

negates such concerns. Namely, irradiation is a very

specific type of injury that Price-Anderson recognizes as

compensable. lt cannot be equated to eating hormone

enhanced meats or mercury-laden fish. As stated by the

Ninth Circuit:

The case before us is different. Radiation is capable

of causing a broad range of illnesses, even at the

lowest doses. This has been recognized by scientific

and legal authority. See In re TMI Litigation, 193

F.3d 613, 643 (3 Cir. 1999) ("there is scientific

consensus that ionizing radiation can cause cancer");

Wash. Rev.Code § 70.99.010 (2002) ("[rjadioactive

wastes are highly dangerous, in that releases of

radioactive materials and emissions to the

environment are inimical to the health and welfare of

the people of the state of Washington, and contribute

to the occurrences of harmful diseases, including

excessive cancer and leukemia").

In re Hanford Nuclear Reservation Litigation, 292 F.3d

1124, 1137 (9* Cir. 2002). See also, Metro-North, 521 U.S.

at 435 (“cancer is both an unusually threatening and

unusually frightening disease” ).

13

Because of its unique and frightening effect on the

human body, this Court, the Kentucky Supreme Court and

many courts faced with the question have found irradiation

to be sufficient to support an action for personal injury

absent clinically manifest disease. Clearly, Ms. Silkwood

was not suffering a manifest clinical disease at the time of

her death only days after she was irradiated; yet this Court

believed her estate was entitled to a remedy for the conduct

of her employer. And although Kentucky has not addressed

the precise issue of whether subcellular mutations are an

injury, it found compensable injury as a result of irradiation

in Deutsch v. Shein, 597 S.W.2d 141 (Ky.1980). In

Deutsch, Kentucky addressed the “physical contact”

requirement in relation to a plaintiff who was subjected to

radiation (x-rays) during her pregnancy, causing her mental

anguish when she “determined there was a ser:ous risk her

fetus had been damaged.” Id. at 143. The doctor argued

that “an action will not lie for fright, shock or mental

anguish which is unaccompanied by physical contact or

injury.” Id. at 145-146. The Kentucky Supreme Court

acknowledged the “contact” rule stating, “the amount of

physical contact or injury that must be shown is minimal.”

Id. The Kentucky Supreme Court concluded as follows:

We find no difficulty in concluding that physical

contact necessary to support the claim for mental

suffering occurred when, through Dr. Shein’s

negligence, Ms. Deutsch’s person was bombarded by

X-rays.

Id. at 146.

Similarly, in McCafferty v. Centerior Service Co., 983

F.Supp. 715, 720 (N.D. Ohio 1997) and Day v. NLO, 851

F.Supp. 869, 878 (S.D. Ohio 1994), the federal courts

44

determined that sufficiently high doses of radiation will

constitute a physical impact and/or injury sufficient to bring

an action for emotional distress. See also Carey v. Kerr-

McGee Chemical Corp., 60 F.Supp.2d 800, 813 (N.D. Ill.

1999) (plaintiffs need only establish that they have a

reasonable need for the protective measure of medical

monitoring due to radioactive exposure’).

Thus, for the federal court below to find a “floodgates”

policy consideration precludes recovery for subcellular

disease caused by radiation exposure under Price-Anderson

in the absence of Kentucky law requiring such a result is

clear error and contravenes the purpose of the Act.

Il. The Sixth Circuit’s Opinion Conflicts with this

Court’s Precedent and Kentucky Supreme Court

Precedent Defining Injury and Disease Sufficient to

Support Recovery for Pain and Suffering

In Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135

(2003), this Court heid that a plaintiff who has asbestosis

can recover damages for fear of cancer if the alleged fear is

“genuine and serious.” 538 U.S. at 157. In Ayers, 538

U.S. at 141, the Court reinforced the “line drawn” between

mere exposure and actual injury:

In resolving the first issue, we follow the line drawn

by (Metro-North, supra], a decision that relied on

and complemented Consolidated Rail Corporation v.

* At least two members of this Court would extend recovery when

a plaintiff suffers a significantly increased risk of contracting a

serious latent disease by reason of a toxic exposure. Metro-North,

521 U.S. at 45% (J. Ginsburg and Stevens, concurring in part and

dissenting inp» |.

15

Gottshall, 512 U.S. 532 (1994). In Metro-North, we

held that emotional distress damages may not be >

recovered under the FELA by disease-free asbestos-

exposed workers; in contrast, we observed, workers

who “suffe[r] from a disease” (here, asbestosis)

may “recover for related negligently caused

emotional distress." 521 U.S., at 432... .

Accordingly, we hold that mental anguish damages

resulting from the fear of developing cancer may be

recovered under the FELA by a railroad worker

suffering from the actionable injury asbestosis caused

by work-related exposure to asbestos.

No one would suggest that Petitioners’ fear of

developing cancer in light of the years of radiation exposure

at PGDP far in excess of federal limits is irrational,

disingenuous or trivial. Moreover, Petitioners did not just

show rational fear from exposure to plutonium and

neptunium. They produced abundant medical evidence that

they were suffering from cellular mutations medically

recognized as injuries and disease as a result of their

exposure.

Kentucky addressed the physical injury requirement in

the asbestos case, Capital Holding v. Bailey, 873 S.W.2d

187 (Ky. 1994). In that case, the plaintiff had been exposed

to asbestos dust, yet there was no evidence that the exposure

had caused “any harmful change of any nature.” Id. at 193.

The court held:

{U}ntil such time as the plaintiff can prove some

harmful result from the exposure, albeit he need not

prove he is already suffering from cancer, his cause

of action has yet to accrue.

16

Id. at 195. Stating the rule conversely, when a plaintiff,

such as Petitioners here, do prove “some harmful result

from the exposure,” they need not wait until cancer develops

to seek recovery.

The Kentucky Supreme Court was again presented with

the physical injury requirement in the context of a Fen-Phen

case in Wood v. Wyeth-Ayerst Laboratories, Div. of

American Home Products, 82 S.W.3d 849 (Ky. 2002).

Like the plaintiff in Capital Holding, Wood did not even

allege a present physical injury and presented no evidence

that she had in fact sustained any physical injury. The court

reiterated the rule of Capital Holding that “mere contact

with toxic or harmful substances” does not give rise to a

cause of action in tort and that “a plaintiff must have

sustained some physical injury before a cause of action can

accrue.” Wood, 82 S.W.3d at 852, 854.

The Sixth Circuit recognized that the Kentucky Supreme

Court was not dealing with a present physical injury in

either Wood or Capital Holding, yet inexplicably relied on

those cases to find that Kentucky would not countenance

Petitioners’ injuries. To reconcile the obvious

distinguishing factor in this case (proof positive of physical

injury and disease), the Sixth Circuit presumed the Kentucky

Supreme Court was “aware that asbestos inhalation causes

subclinical tissue damage to the lungs” yet refused to

- “recognize this damage as sufficient to constitute a ‘present

physical injury.’"” Rainer, 402 F.3d at 619. This

presumption was clearly erroneous, first, because there was

no discussion of subclinical illness in either Capital Holding

or Wood, and secondly, because the Kentucky Court has

clearly stated that when a plaintiff proves “a harmful

change” from wxic exposure, even though he may not have

yet developed disease, he is permitted to proceed: “Our

17

present decision permits recovery for enhanced risk of

cancer as well as mental distress if first the plaintiff can

cross the threshold of establishing a harmful change has

resulted from exposure to the potentially cancer producing

agent.” Capital Holding, 873 S.W.2d at 194.

Finally, to begin subdividing the types of physical injury

or disease that support claims for emotional distress in order

to limit such claims, as the Sixth Circuit did here, is to

engage in exactly the type of case-by-case examination of

“objective” proof of emotional distress that this Court

rejected in Metro-North, supra. For example, compare the

present case to the Sixth Circuit’s decision in Sterling v.

Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988)(en

banc), where, in a different context the same court found

cellular damage sufficient to support fear of cancer claims.

In Sterling, residents living near defendant’s chemical waste

burial site were properly awarded damages for emotional

distress as a result of contact with chemical contaminants

that “invade each particular plaintiff's body, and impacted

upon his or her body [b]Jecause those contaminants were of

such a nature as to cause the Teported symptoms and cellular

darrage, and adverse biological change, (however slight).”

Id., 855 F.2d at 1206 n. 23.

In Metro-North, 521 U.S. at 433, this Court disapproved

of this kind of effort to “separate meritorious and important

claims from invalid or trivial claims” by appraising the

“kinds of ‘objective’ evidence--the confirming and

disconfirming evidence” that tended to validate emotional

distress. The Court observed that such evidence “seem{s]

only indirectly related to the question at issue, the existence

and seriousness of [the] claimed emotional distress.” Id. at

433-34. The Court concluded:

18

“[T]he common law in this area does not examine

the genuineness of emotional harm case by case.

Rather, it has developed recovery-permitting

categories the contours of which more distantly

reflect this, and other, abstract general policy

concerns. The point of such categorization is to

deny courts the authority to undertake a case-by-

case examination. The common law permits

emotional distress recovery for that category of

plaintiffs who suffer from a disease (or exhibit a

physical symptom){.]

Metro-North, 521 U.S. at 436 (emphasis added).

Here, Petitioners submitted abundant medical evidence

that they currently suffer a physical injury and disease, albeit

subcellular, from illegal radiation exposure. The Sixth

Circuit’s opinion carving out Petitioner's proven subcellular

damage as a class of non-actionable injuries in order to

prevent a flood of claims deemed trivial (the Sixth Circuit

gives examples of other claims it would deem trivial,

including, “the most benign subcellular damage. . . [b]ased

upon the average American’s exposure to chemically

processed foods” Rainer, 402 F.3d at 621), is no different

than the “case-by-case” approach to evaluating emotional

distress claims rejected by this Court in Metro-North.

III. The Sixth Circuit’s Opinion that Petitioners’ Genetic

and Chromosomal Injury Is Insufficient to Support a

Claim Conflicts with the Second Circuit and Many

District Courts Predicting States’ Highest Law Which

Would Find a Compensable Injury

On a national level, the law is extremely unsettled on the

issue of whether cellular damage with subclinical effects

19

constitutes a cognizable injury. The Second Circuit rejected

the argument that subclinical harm is not a true medical

harm in Lead Industries Ass'n, Inc. v. Environmental

Protection Agency, 647 F.2d 1130, 1158 (2nd Cir. 1980). In

Lead Industries, an association of manufacturers that

included lead in their product challenged the EPA’s

establishment of maximum levels for purposes of air quality

standards. The Second Circuit rejected challenges to the

evidence of negative “subclinical” health effects of lead:

...the clinical/subclinical distinction has little to do

with the question whether a particular effect is

properly viewed as adverse to health. Rather, the

distinction pertains to the means through which the a

particular effect may be detected: observation or

physical examination in the case of clinical effects,

and laboratory tests in the case of subclinical effects.

Thus describing a particular effect as a “subclinical”

effect in no way implies that it is improper to

consider it adverse to health. ...Expert medical

testimony in the record confirms that the modern

trend in preventive medicine is to detect health

problems in their “subclinical” stages, and thereupon

to take corrective action. Moreover, as we have

already noted, the Center For Disease Control uses

the same “subclinical” effect as the key indicator of

the need for medical intervention in its lead

poisoning screening program.

Lead Industries, 647 F.2d at 1158-1159. Similarly, in

American Home Products Corp. v. Liberty Mut. Ins. Co.,

748 F.2d 760 (2nd Cir. 1984), where insurance companies

disputed whether non-symptomatic injuries caused by

exposure to various drugs manufactured by American Home

20

Products were “bodily injuries” under their policies, the

Second Circuit opined:

Some types of injury to the body occur prior to the

appearance of any symptoms; thus, the manifestation

of the injury may well occur after the injury itself...

We find no basis...for a ruling that “injury in fact”

means injury that is “diagnosable” or “compensable”

during the policy period. . . . [C]ompensability is a

legal concept that is not material to the determination

of whether an injury has in fact occurred. As the

district court ruled, that determination must be made

according to the facts of the particular case based on

medical evidence as to which drug was used and

what type of injury is claimed.

American Home Products, 748 F.2d at 764-65. The issue of

whether non-symptomatic injuries constitute “bodily injury”

or “disease” under insurance policies has arisen often. In an

unreported decision, the Ninth Circuit held that the cellular

damage alleged to be caused by cell phones is a “bodily

injury” for the purposes of insurance coverage. Voicestream

Wireless Corp. v. Federal Ins. Co., 112 Fed. Appx. 553 (9

Cir. 2004) (unpublished opinion). See also Northern Ins. —

Co. of New York v. Baltimore Business Communications,

Inc., 68 Fed.Appx. 414 (4° Cir. 2003) (unpublished

opinion) (cellular damage from cell phone radiation is a

bodily injury absent extrinsic evidence to the contrary);

Chantel Assocs. v. Mt. Vernon Fire Ins. Co. , 338 Md. 131,

656 A.2d 779, 884 (Md.1995) (lead exposure causing direct

and indirect damage to cells, tissues, and organs constitutes

"bodily injury"); Lloyd E. Mitchell, Inc. v. Md. Cas. Co.,

324 Md. 44, 595 A.2d 469, 476-78 (Md.1991) (cellular-

level bodily changes occurring after asbestos exposure

constitutes “bodily injury”).

‘

21

Factual issues of the existence of an “injurv” remarkably

similar to the present case, were at issue in the case,

Campbell v. Metropolitan Property and Cas. Ins. Co., 239

F.3d 179 (2nd Cir. 2001). There, the issue was whether

expert testimony of the nature of the initial injury caused by

lead paint was sufficient to trigger coverage. Plaintiff's

expert “described the metabolic pathway by which lead

enters a child's bloodstream, invades bone marrow, and

inhibits the production of heme, i.e., ‘the building block of

hemoglobin, which is the red substance which coats our red

cells which all of us are dependent upon to provide oxygen

to the tissues and also to remove waste products from the

tissues.”” Campbell, 239 F.3d at 182. The Second Circuit

found the medical expert testimony of lead’s impact on this

“building block of hemoglobin” sufficient to support the

finding of “bodily injury.”

The Fifth Circuit and several district courts have also

found cellular and chromosomal damage sufficient to

support liability for emotional injury. The Fifth Circuit in

Hagerty v. L & L Marine Services, Inc. , 788 F.2d 315, 316

(S" Cir. 1986), found the headaches, tingling and dizziness

experienced by the plaintiff who was doused in a chemical

compound containing benzene, toluene and xyolene, were

manifestations of physical injuries sufficient to pursue his

fear of cancer claim. As noted above, the Ohio district

courts in McCafferty v. Centerior Service Co. and Day v.

NLO, and the Illinois court in Carey v. Kerr-McGee

Chemical Corp., supra, determined that sufficiently high

doses of radiation will constitute a physical impact and/or

injury. Likewise, in Brafford v. Susquehanna Corp., 586

F.Supp. 14 (D.Colo.1984), the court denied summary

judgment against plaintiffs exposed to waste materials

emitted by a uranium milling facility, concluding that

“plaintiffs have at least raised a question of fact with respect

22

to whether a present injury in the form of chromosome

damage was suffered by the plaintiffs as a result of their

exposure to the radiation emitted from the mill tailings.” In

Werlein v. United States, 746 F.Supp. 887, 901

(D.Minn. 1990), vacated in part, 793 F.Supp. 898 (1992),

the court found that plaintiffs exposed to contaminated air

and drinking water presented sufficient medical testimony

that they “suffered an actual physical injury in the form of

chromosomal breakage, and damage to the cardiovascular

and immunal systems” causing the district court to conclude

that it could not “rule as a matter of law that plaintiffs’

alleged injuries are not ‘real’ simply because they are

subcellular.” See also Barth v. Firestone Tire & Rubber

Co., 661 F.Supp. 193, 196 (N.D.Cal.1987) (plaintiff's

allegations of injury to his immune system and increased

risk of cancer satisfied burden to allege injury,

notwithstanding plaintiff's failure to “allege any symptom of

injury which can be clinically diagnosed at this time”);

Anderson v. W.R. Grace & Co., 628 F.Supp. 1219, 1227

(D. Mass. 1986) (subcellular harm proven to exist through

expert medical testimony based on objective evidence can

support emotional distress claims). State courts have also

found injury without manifest symptoms. See Laxton v.

Orkin Exterminating Co., 639 S.W.2d 431 (Tenn.1982)

(ingestion of chlordane in polluted household water supply

constituted injury).

Other Circuits, including the Sixth Circuit in the case

below, have issued opinions disagreeing with the view that

cellular injury absent clinical effects is recognizable as an

injury. See Schweitzer v. Consolidated Rail Corp., 758

F.2d 936, 942 (3rd Cir.1985) (holding “that subclinical

injury resulting from exposure to [toxins] is insufficient to

constitute the actual loss or damage to plaintiff's interest

required to sustain a cause of action under generally

23

applicable principles of tort law”); Laswell v. Brown, 683

F.2d 261, 269 (8th Cir. 1982) (rejecting, under Federal Tort

Claims Act, “expos[ure] to an unusually high risk of disease

in genetically passed cellular damage” as cognizable injury).

But see Plummer v. U.S., 580 F.2d 72 (3 Cir. 1978)

(inmates who tested positive for tubercle bacillus need not

show signs of tuberculosis to recover under Federal Tort

Claims Act for negligent exposure to infected inmate).

As the decisions above illustrate, there is also wide

discrepancy in the courts regarding whether the existence of

an injury from toxic exposure is a question of law or fact.

The Third Circuit concluded that with respect to asbestos-

related pleural thickening, substantial medical disagreement

over the classification of such a “condition” prevented the

court from declaring it to be an injury as a matter of law.

“This question is factual and remains within the province of

the trier of fact.” Howell v. Celotex Corp. , 904 F.2d 5 (3rd

Cir.1990).° See also, Werlein, supra. Clearly, the Sixth

Circuit here disagreed, finding, despite Petitioners’

substantial evidence of their injuries, that they had failed to

show injury as a matter of law.

Petitioners’ genetic mutations caused by irradiation at the

PGDP are serious injuries, deserving of this Court’s

* Asbestos cases also illustrate the diverse positions taken by the

federal circuits and state courts regarding compensable subcellular

injuries. Multiple courts, including this Court and the Sixth

Circuit in the decision below, acknowledge that the body incurs

microscopic injury as asbestos fibers become lodged in the lungs

and as the surrounding tissue reacts to the fibers. However, the

courts differ widely on whether a cause of action in such cases

arises upon inhalation, upon proof of pleural thickening, or upon

development of asbestosis or cancer.

24

attention. The Sixth Circuit’s refusal to recognize a disease

process and physical injury that can only be identified

through the use of microscopic analysis impacts thousands of

individuals. Microscopic examination of cells to diagnose a

health condition is not an unusual occurrence in medicine.

As noted by Dr. Sullivan, “there are many medical

conditions that are not observable to the naked eye. Science

has developed numerous tools and diagnostic aids to identify

those conditions.” (Sullivan Affidavit, Jt. App. 1402-1403).

IV. THE SIXTH CIRCUIT’S OPINION THAT PRICE-

ANDERSON PREEMPTS PETITIONERS’

CONSTITUTIONAL CLAIMS CONFLICTS WITH

THIS COURT’S PRECEDENT IN BIVENS AND ITS

PROGENY

The Sixth Circuit, relying primarily upon Schweiker v.

Chilicky, 487 U.S. 412 (1988) and Bush v. Lucas, 462 U.S.

367 (1983), decided that because Price-Anderson “regulates

the ability of individuals to sue as a result of a ‘nuclear

incident,’” that the Act provides an “adequate remedial

mechanism” for Petitioners, and thus refused to recognize a

Bivens claim. Rainer, 402 F.3d at 624. However, in

Carlson v. Green, 446 U.S. 14, 18 (1980), the Court

established that legislation may defeat a Bivens claim only if

defendants demonstrate “‘special factors counseling

hesitation in the absence of affirmative action by Congress’

. . . for if] Congress has provided an alternative remedy

which it explicitly declared to be a substitute for recovery

directly under the Constitution and viewed as equally

effective.” (Emphasis in original, quoting Bivens, 402 U.S.

at 396 (other citations omitted)). Price-Anderson clearly

does not contain an “explicit congressional declaration that

persons [injured by radiation exposure] ... may not recover

money damages ..., but must instead be remitted to another

25

remedy, equally effective in the view of Congress.” Bivens,

403 U.S. at 397. Indeed, quite the opposite is true. With

the exception of punitive damages, Price-Anderson expressly

recognizes the entire host of legal remedies for personal

injury, property damage, and so on, from radiation

exposure, albeit granting the federal courts jurisdiction over

these claims. 42 U.S.C. § 2210(n)(2).

Moreover, for such preemption to occur, Price-Anderson

must provide “meaningful safeguards or remedies for the

tights of [Petitioners]” as discussed by this Court in

Chilicky and Bush. See Chilicky, 487 U.S. at 425. In

Chilicky, the plaintiffs brought a Bivens action for wrongful

termination of their social security disability benefits. This

Court concluded that Congress had considered and addressed

the problem of wrongful termination of disability benefits

through the Social Security Act's elaborate remedial

structure, Chilicky, 487 U.S. at 425-26, and further, that the

Social Security Act's comprehensive remedial scheme was a

special factor counseling hesitation to permit a Bivens

action. Id. at 429. Similarly, the plaintiff in Bush could not

justify the creation of a new legal remedy under Bivens

against supervisors who violated his First Amendment rights

in light of the comprehensive nature of the remedies

available before the Civil Service Commission. Bush, 462

U.S. at 388.

Price-Anderson is uniquely characterized by the absence

of any “special factors counseling hesitation in the absence

of affirmative action by Congress,” Bivens at 396, and

virtually no discussion of the mechanism of seeking recourse

for personal injury beyond a general right to sue in federal

court. “{W]here legal rights have been invaded, and a

federal statute provides for a general right to sue for such

invasion, courts may use any available remedy to make good

26

the wrong done.” Bivens at id. (internal quotations and

Citation omitted). Accordingly, there are “no special factors

counseling hesitation in the absence of affirmative action by

Congress.” Id. Congress clearly intended that individuals

adversely impacted by radiation exposure have some

remedy. “[{N]o congressional determination foreclose[es]

the damages” and Price-Anderson is not declared “to be a

substitute for a Bivens action.” Bush, 462 U.S. at 377-78.

If this Petition is granted, and the Court agrees Price-

Anderson does not preempt Petitioners’ Bivens claims, then

the Court will also be asked to address the viability of

Bivens claims against corporate agents of the federal

government and the availability of equitable remedies such

as disgorgement of profits from the Respondents’ illegal

activities, as well as the denial of the Petitioners’ motion to

amend their Bivens claims. As _ discussed above,

Respondents’ unconstitutional conduct which included hiding

workers’ exposure to avoid hazard pay and failing to

implement required safety measures at PGDP, was

motivated by a desire for profit. .Disgorgement of the

financial benefit realized from this conduct is an appropriate

remedy and is within the federal courts’ equity authority. In

circumstances arising from constitutional violations, the

Supreme Court has long held that district courts have broad

authority to fashion equitable remedies. Swann v. Charlotte-

Mecklenburg Bd. of Ed., 402 U.S. 1, 15-16 (1971). See

also U.S. v. Universal Management Services, Inc., Corp.,

191 F.3d 750, 760-761 (6th Cir. 1999) (court’s equitable

authority includes the power to order disgorgement of

profits). In U.S. v. 1461 West 42nd Street, Hialeah, Fla.,

251 F.3d 1329, 1334-1335 (11th Cir. 2001), the Eleventh

Circuit addressed the remedies available for the federal

government's improper seizure of real property in “violation

of the Fifth Amendment Due Process Clause.” The court

27

noted that “the return of any rents received or other

proceeds realized from the property during the period of

illegal seizure” was the appropriate remedy and was not

barred by sovereign immunity. Id. at 1337-1338. If courts

readily impose disgorgement against actual federal agencies,

no rationale can support the argument that non-governmental

actors are somehow above this remedy.

IV.THE SIXTH CIRCUIT ERRED IN_ ITS

APPLICATION OF KENTUCKY LAW

REGARDING EMPLOYER LIABILITY FOR

INTENTIONAL TORTS

The Sixth Circuit adopted an extremely narrow

interpretation of the phrase, “deliberate intent” and refused

to apply the Kentucky’s Workers’ Compensation exception

to the employers’ conduct in this case. KRS 342.610(4)

preserves a cause of action when “injury or death results to

an employee through the deliberate intention of his employer

to produce such injury or death.” in each of the Kentucky

cases Cited by the Sixth Circuit to deny Petitioners’ action,

the protected employers were aware of “the possible

consequences” of their unsafe practices. Moore v.

Environmental Const. Corp., 147 S.W.3d 13, 18 (Ky.

2004) (unsafe trenching practices caused plaintiff's death)

(emphasis added). See also McCray v. Davis H. Elliott

Co., 419 S.W.2d 542 (Ky.1967) (employee electrocuted

while working on a tall, dangerous electrical pole); Fryman

v. Electric Steam Radiator Corp., 277 S.W.2d 25

(Ky.1955)(employee injured by unsafe machine press).

Each of these cases illustrate the application of the Kentucky

rule that a “defendant who acts in the belief or

consciousness that the act is causing an appreciable risk of

harm to another may be négligent, and if the risk is great the

conduct may be characterized as reckless or wanton, but it is

28

not an intentional wrong.” Moore, 147 S.W.3d at 17-18

(emphasis added; internal quotation omitted).

None of these Kentucky cases can be compared to the

knowing injuries repeatedly inflicted upon the workers at the

PGDP. The workers at PGDP were not being exposed to an

“appreciable risk of harm,” but a known harm. The

employers here were not just aware of “possible

consequences,” but knew workers and their families were

being exposed daily to illegal levels of radiation. These

employers hid known radioactive contamination from their

workers, convinced workers the materials they handled were

safe enough to eat and continued calling them to work in

highly radioactive conditions with no protection. In 1960,

Dr. Bruner of the AEC reported to Union Carbide that

neptunium was in the reclaimed Hanford materials and

suggested PGDP workers be checked for neptunium

exposure, but Union Carbide refused for fear the union

would demand hazard pay. (Bruner memo, Jt. App. 1074).

1961, Dr. Baker, the head of Health Physics for Union

Carbide, collected urine specimens from 21 men known to

have been exposed to neptunium 237 contaminated dust.

Dr. Baker reported that the urinalyses performed could

properly be interpreted to “indicate that 15 out of the 21

men. . . could have more than one half the permissible body

burden of neptunium...:” In fact, based on Baker’s own

tabulation, the numbers show that seven of the men had

body burdens exceeding the permissiole body burden.

Nonetheless, this method of analysis of neptunium was

abandoned because it was felt to be “tedious and expensive.”

(“Neptunium 237 Contamination Control and Evaluation of

Employee Exposure” Jt. App. 1124-1126).

None of the workers were ever advised of these findings.

Baker was denied his request to make his findings public.

29

Clyde Hopkins, the plant manager from 1972 to 1978,

testified that he was aware that plutonium and neptunium

were present at PGDP, and that they contaminated the

reactor tails processed through the cascade. He testified,

“we had convinced all of our employees that their health and

safety was the number one issue in our company.” (Hopkins

deposition, Jt. App. 2105). In fact, Mr. Hopkins boasted

the workers trusted Union Carbide and Martin Marietta to

protect them. (Id., Jt. App. 2106).

Air samples taken throughout the course of PGDP’s

operation confirm extremely high levels of neptunium and

plutonium within the plant. Air samples taken in the first

quarter of 1962 showed airborne contamination of

neptunium up to 100 times the PGDP maximum permissible

concentration in air for neptunium. Health physics reports

in 1980 indicated that the plant guidelines for airborne alpha

activity were exceeded for uranium by a factor of 1,680,

neptunium 237 by a factor of 2,121 and plutonium 239 by a

factor of 2,483. (Phase II Report, Jt. App. 690-691).

None of the Kentucky cases relied upon by the Sixth

Circuit come close to the deliberate actions of these PGDP

employers and the Sixth Circuit's refusal to discern the

difference is a misapplication of Kentucky precedent.

V. THE SIXTH CIRCUIT ERRONEOUSLY APPLIED

THE ATTORNEY-CLIENT PRIVILEGE

When Union Carbide employee, R.C. Baker, prepared

his scientific paper entitled, “ Neptunium-237 Contamination

Control and Evaluation of Employee Exposure” (Jt. App.

2489) in 1964, he wanted to present the paper at the 10th

Annual Bio-Assay and Analytical Chemistry meeting in

Cincinnati, Ohio, October 1964, but was denied permission

30

by Union Carbide, who claims the advice of counsel.

Petitioners submitted proof that the purpose of the denial

was to further concealment of the hazardous conditions at

PGDP and to prevent workers and others from questioning

Union Carbide’s procedures. “‘[T}here is no privilege if the

communication was made to enable anyone to commit a

crime or fraud.” U.S. v. Zolin, 491 U.S. 554, 566 (1989)

(quoting C. Wright & K. Graham, Federal Practice &

Procedure: Evidence § 5055, p. 276 (1977)). This crime-

fraud exception to ">= privilege applies to the documents at

issue here. Furthesmore, if any privilege ever attached, it

was lost when the subject matter of the documents including

the unfavorable impact on Union Carbide was shared with a

representative of the Atomic Energy Commission, and

certainly when the documents themselves were passed on to

successors, and ultimately found in the custody and control

of the United States Enrichment Corporation and Bechtel

Jacobs Corporation, LLC.

CONCLUSION

The Petition for Writ of Certiorari should be granted.

Respectfully submitted,

Douglas H. Morris

(Counsel of Record)

OLDFATHER & MORRIS

1330 South Third Sereet

Louisville, KY 40208

(502) 637-7200

William F. McMurry

MCMURRY & ASSOCIATES

4801 Olympia Park Plaza, Suite 4800

Louisville, KY 40241

(502) 327-9000

Mark P. Bryant

BRYANT & KAUTZ, PSC

601 Washington Street

P.O. Box 1876

Paducah, Kentucky 42002

(270) 442-1422

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 03-6032

[May 27, 2005, Filed]

ALPHONSE RAINER, ET AL.,

Plaintiffs-Appellants,

v.

UNION CARBIDE CORP., ET AL.,

)

)

)

)

)

)

Defendants- Appellees. )

)

BEFORE: DAUGHTREY and GILMAN, Circuit Judges;

and RICE,” District Judge.

ORDER

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

* Hon. Walter H. Rice, Senior United States District Judge for the

Southern District of Ohio, sitting by designation

2a

—

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case No: 03-6032

[Filed, March 25, 2005]

ALPHONSE RAINER, ET AL.,

Plaintiffs-Appeilants,

UNION CARBIDE CORP., ET AL.,

)

)

)

v. )

)

)

Defendants-Appellees. )

)

BEFORE: DAUGHTREY and GILMAN, Circuit Judges;

and RICE, District Judge’

ORDER

Upon consideration of the petition for rehearing filed by

the appellees,

“Hon. Walter H. Rice, Senior United States District Judge for the

Southern District of Ohio, sitting by designation.

4a

It is ORDERED that the petition for rehearing be, and it

hereby is, GRANTED and this court’s opinion is hereby

amended to read as follows:

Although the Department of Energy (DOE) retains full

ownership of the Plant, the PGDP has been managed

since its construction by three successive operators, all

who have been named as Defendants in this suit.

ENTERED BY ORDER OF THE COURT

Sa

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 03-6032

[Filed, March 8, 2005]

ALPHONSE RAINER et al.,

Plaintiffs-Appellants,

v.

UNION CARBIDE

CORPORATION et al.,

)

)

)

)

)

)

)

Defendants-Appellices. )

)

OPINION

RONALD LEE GILMAN, Circuit Judge. Workers at a

uranium-enrichment plant near Paducah, Kentucky were

exposed over many years to dangerous radioactive substances

without their knowledge. Although not yet suffering from any

symptoms of a clinical disease, four such workers and

members of their families have sued General Electric (GE),

the supplier of the spent uranium fuel to the plant, and the

plant's three successive operators (the defendant-operators) on

various state and federal grounds. In a series of orders, the

district court rejected all of the plaintiffs’ claims on the basis

that no present harm has been shown and that the Kentucky

6a

Workers’ Compensation Act provides the exclusive remedy

for the former workers. For the reasons set forth below, we

AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

The Paducah Gas Diffusion Plant (PDGP) is a sprawling

industrial plant located on a 3,425-acre tract of land in

western Kentucky. It was built by the federal government in

the early 1950s as part of an initial foray into uranium

processing. Although the Department of Energy (DOE)

retains full ownership of the plant, the PGDP has been

managed since its construction by three successive operators

all who have all been named as defendants in this suit. They

are Union Carbide (formerly known as Carbide and

Chemicals Company, 1950-1984), Martin Marietta (and its

subsidiary Martin Marietta Utilities Services, 1984-1995), and

Lockheed Martin Utilities Services (1995 to the present).

Approximately 1 ,800 individuals have been employed by the

PGDP at any one time.

The primary purpose of the PGDP is and always has been

to enrich uranium. Unprocessed uranium, a naturally

occurring element, arrives at the PGDP in solid form. The

solid uranium is then converted into a gaseous form and

forced through a series of membranes that increase the

concentration of uranium-235, an isotope of the element, from

approximately 0.7 percent to 2 percent. This “enriched”

uranium is then shipped both domestically and overseas for

use in commercial nuclear reactors and in military

applications. The PGDP has, since 1952, processed over one

million tons of uranium in this manner. Although enriched

Ta

uranium is not a highly radioactive material, it is known to be

toxic, both chemically and radiologically, if ingested.

In addition to enriching unprocessed uranium, the PGDP

has intermittently reprocessed spent uranium that has been

removed from nuclear reactors. Much of this spent uranium

was first processed by GE, as the operator of the Hanford

Nuclear Reservation in Richland, Washington, from reactor

fuel rods. The Hanford Nuclear Reservation would in turn-

send the uranium, by this time in the form of an ash-like

powder, to the PGDP for further enrichment through its

normal gas-diffusion process. Between 1953-64 and 1969-74,

the PGDP processed over 100,000 tons of used uranium fue!

in this manner.

Spent uranium is known to include two unwanted by

products: neptunium-237 and plutonium-239. Both are highly

radioactive, with long half-lives. Specifically, neptunium-237

is 2,000 times more radioactive than unprocessed uranium

and has a half-life of 2.14 million years. Plutonium-239 is

even more dangerous, being 89 times as radioactive as

neptunium-237, with a half-life of 24,065 years. Elements

such as neptunium-237 and plutonium-239 do not exist in

nature and are known in the scientific community as

“transuranics.”

As a consequence of receiving and processing spent

uranium, the PGDP became contaminated with these toxic

transuranics. Tests conducted by the DOE and other

organizations confirmed the existence of neptunium and

plutonium at the PGDP as early as 1959, only a few years

after the plant’s opening. Monthly tests of air quality and

annual or biannual reports provided further evidence that

dangerous quantities of these substances were present at the

PGDP. Recent reports have concluded that approximately

8a

18.4 kilograms of neptunium-237 and 330 grams of

plutonium-239 were received at the PGDP. Both quantities

are well beyond the amount considered safe for a plant the

size of the PGDP.

The rank-and-file PGDP employees were apparently kept

ignorant about the presence of transuranics at the plant. One

manager testified during a deposition that, despite his ten-year

tenure, he could wot recall whether workers were ever

informed about the presence of either neptunium or

plutonium. Company documents also reveal a disregard for

worker safety. A 1960 memo written by a medical researcher,

for example, noted that management hesitated to have

approximately 300 workers examined because of the “union's

use of this as an excuse for hazard pay.” The same researcher

noted that he had “watched one man push up his mask and

smoke a Cigarette using potentially contaminated hands and

gloves.” Another memo commented that analyzing neptunium

exposure through urine samples would be too “tedious and

expensive.” Workers were not required to wash their hands

and, into the late 1970s, not required to use respirators.

Neither party disputes iat transuranics are extremely

toxic. Once ingested or inhaled, they quickly settle in the

bones and liver, posing a risk as they decay. Dr. Gordon K.

Livingston, a genetics expert for the plaintiffs, submitted that

when energy associated with ionizing radiation is

transferred to atoms and molecules in human tissue,

the molecular structure and function of the tissue is

disrupted in a manner which is related to the dose or

amount of energy absorbed. . . . Laboratory studies

on animals and human populations exposed to ionizing

radiation have shown that it induces cancer. Some

population groups where this relationship has been

9a

conclusively demonstrated includes radium-dial

painters (bone cancer), uranium miners (lung cancer),

early medical radiation workers (various

malignancies), atomic bomb survivors (leukemia and

carcinomas) and individuals exposed to fallout

radiation as a result of the nuclear reactor accident at

Chernobyl (thyroid cancer).

Despite the fact that these transuranics are dangerous

carcinogens, however, the plaintiffs have yet to display any

salient clinical symptoms. Plaintiff Shanda Mathis, for

example, was asked:

Q. When was the last time you had a physical?

A. A full physical, July of 2000 through a program

with our job. You know, cholesterol, blood, diabetes,

all that.

Q. Did your physical reveal any problems of any

kind?

A. None, none.

Another plaintiff, Sybil Mathis, was asked whether a

doctor had ever told her that she should be “concerned” about

her health because her father worked at the PGDP. She

replied that “ao, I don’t know what they have had a reason to.

Like I said, I'm in seemingly good health. I go for a regular

checkup once a year, and I don’t--I don’t know that a doctor

has had a reason to tell me.” Similarly, plaintiff Janie Rainer

testified that she had “no present bodily injury.” And Cliarles

Ramsey , one of the lead plaintiffs in the case, testified that his

main fear was not present injury, but that he was “worried to

death what [the radiation] is doing to me. This is [not]

something (that will) give you cancer today or tomorrow; this

is something [that will give you cancer] 10, 20 years from

now.” :

10a

The plaintiffs nevertheless assert that they have suffered

certain subcellular damage to their DNA and chromosomes.

As proof, they point to the testimony of several experts. Dr.

Livingston, for example, stated in his affidavit that he, along

with Dr. Ernst Schmid, performed chromosome tests on blood

samples provided by Alphonse Rainer, Charles Ramsey, and

David Sacharnoski, three of the lead plaintiffs in this case.

(Apparently not all the plaintiffs have been tested. For the

purposes of summary judgment, however, we will assume

that all of the plaintiffs have similar subcellular damage.) The

tests revealed “various structural chromosome abnormalities”

within some of the cells. Dr. Livingston stated in an affidavit

that “the 8% of [plaintiffs’] cells which showed various

structural chromosome abnormalities can be compared to an

average of 1.3% recently reported in the scientific literature.”

In his opinion, “the high frequency of structural chromosome

alternations . . . was caused by exposure to ionizing radiation

in excess of acceptable radiation protection standards.”

Other experts testified that this exposure constitutes

irreversible harm and damage to the body. Dr. Livingston

concluded that “the physical injuries sustained by the DNA

and the misrepair of those DNA strands is analogous to a

knife wound of the skin dividing the cells of the body and the

scar tissue that is generated as the body attempts to repair that

cellular damage.” Dr. Martin Raff, another expert, drew the

analogy to HIV, noting that “patients who test positive for the

HIV virus may not have any signs or symptoms of clinical

disease for many years . . . . But even though a person with

HIV does not have ‘clinical disease’ they are clearly in a

diseased state.” He also explained that “radiation damage to

chromosomes is the quintessential determinant of altered

physiologic function because our chromosomes control each

and every bodily function . . . . As such this premorbid state

is disease.” Dr. Daniel M. Sullivan stated in his affidavit that

lla

“the physical injuries sustained by the DNA [of the plaintiffs]

and the misrepair of those DNA strands is analogous to a

cutting wound of the tissue of the body. . . . The primary

difference is that DNA injury and chromosome misrepair

have much more ominous consequences for the individual

since such an injury is associated with an increased likelihood

of the occurrence of cancer.”

B. Procedural background

The plaintiffs are divided into four classes. Class I is

comprised of current and former PGDP employees who assert

claims against all of the defendant-operators. Those in Class

II consists of employees who worked at PGDP between 1984

and 1988 who were never employed by Union Carbide, but

are suing the company on the basis of its “radioactive

legacy.” Class III consists of those employees who worked at

the plant between 1952 and 1998 and who assert claims

against GE because it supplied the PGDP with spent uranium

containing the transuranics. Finally, Class IV consists of the

family members of the plaintiffs in the first three classes.

The plaintiffs commenced suit in September of 1999. In

an order dated March 30, 2001, the district court dismissed

the claims brought by the Class | plaintiffs, concluding that

the Kentucky Workers’ Compensation Act provided the

exclusive remedy for claims brought by employees against

their employers. A year later, in orders filed on March 15,

2002 and May 15, 2002, the court dismissed the Bivens

claims (based upon the case of Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388,

29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971)) brought by the

remaining plaintiffs, relying upon the Supreme Court’s

decision in Correctional Services Corp. v. Malesko, 534 U.S.

61, 151 L. Ed. 2d 456, 122 S. Ct. 515 (2001). In a

I2a

memorandum opinion filed on July 11, 2003, the district court

concluded that the Price-Anderson Act, 42 U.S.C. § 2011,

preempted the plaintiffs’ state-law claims. The court further

concluded that, in light of the Kentucky Supreme Court's

opinion in Wood v. Wyeth-Ayerst Laboratories, 82 S.W.3d

849 (Ky. 2002), the plaintiffs’ evidence of subcellular damage

was insufficient to be considered “bodily injury” under the

Price-Anderson Act. A final judgment was ultimately entered

on July 28, 2003, dismissing all of the plaintiffs’ claims with

prejudice. This appeal followed.

Il. ANALYSIS

A. Standard of review

We review the district court's grant of summary judgment

de novo. Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d

623, 629 (6th Cir. 2002). Summary judgment is proper where

there exists no genuine issue of material fact and one party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

In considering a motion for summary judgment, the district

court must construe the evidence and draw all reasonable

inferences in favor of the nonmoving party. Matsushita Elec.

Indus. Co, v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L.

Ed. 2d 538, 106 S. Ct. 1348 (1996). The central issue is

“whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson vy.

Liberty Lobby, Inc., 477 U.S. 242, 251-252, 91 L. Ed. 2d

202, 106 S. Ct. 2505 (1986).

B. Claims brought by the Class I plaintiffs

The defendant-operators submit that all of the claims

brought by the Class I plaintiffs are barred by the Kentucky

13a

Workers’ Compensation Act. Ky. Rev. Stat. Ann. § 342

(2004). This Act, they argue, provides the exclusive remedy

for on-the-job injuries. The relevant provision of the Act

states as follows:

If an employer secures payment of compensation as

required by this chapter, the liability of such employer

under this chapter shall be exclusive and in place of all

other liability of such employer to the employee, his

legal representative, husband or wife, parents,

dependents, next of kin, and anyone otherwise entitled

to recover damages from such employer at law or in

admiralty on account of such injury or death.

Ky. Rev. Stat. Ann. § 342.690(1) (2004).

The plaintiffs acknowledge the normal exclusivity of the

Kentucky Workers’ Compensation Act, but contend that their

claim falls under one of the Act’s main exceptions, which

reserves a cause of action to a worker who is injured “through

the deliberate intention of his employer to produce such injury

or death.” Ky. Rev. Stat. Ann. § 342.610(4) (2004). In so

arguing, the plaintiffs assert that the phrase “deliberate

intention” must “include conduct undertaken with the

knowledge that it will produce a certain result, or is

subsiantially certain to do so.” They claim that a narrower

interpretation “would mean that a landscaping employer who

ordered his workers to mow grass and plant trees in a garden

filled with land mines . . . would not be liable under the

common law due to the exclusive remedy provisions of the

Kentucky Workers’ Compensation Act.”

We do not find the plaintiffs’ hypothetical to be analogous

to the facts before us, nor is their position supported by

Kentucky law. In Fryman v. Electric Steam Radiator Corp.,

l4a

277 S.W.2d 25 (Ky. 1955), the first case to directly address

the specific meaning of Ky. Rev. Stat. Ann. § 342.610(4)’s

“deliberate intention” language, the Kentucky Supreme Court

considered the case of a employee injured while operating a

defective metal press. The court dismissed the worker's

claims, concluding that the employer had not possessed the

“deliberate intention” to injure as required by Ky. Rev. Stat.

Ann. § 342.610(4), and noting that “the phrase ‘deliberate

intention’ implies that the employer must have determined to

injure the employee.” /d. at 26. As the court observed,

many states have workmen’s compensation statutes

very similar to ours and contain the exception identical

to ours; namely, that liability at law exists where the

injuries result through the deliberate intention of the

employer. Most of the cases, if not all, from the other

jurisdictions have interpreted the meaning of the

phrase “deliberate intention” to be that the employer

must have determined to injure an employee and used

some means appropriate to that end, and there must be

a specific intent.

Id. at 27.

This narrow reading of “deliberate intention” has been

adopted by subsequent Kentucky cases addressing the

question. In McCray v. Davis H. Elliott Co., 419S.W.2d 542

(Ky. 1967), for example, the estate of a deceased worker

claimed that the employer had demonstrated a “deliberate

intention” to injure the worker by forcing him to work on a

tall, dangerous electrical pole on which he was electrocuted.

The Kentucky Supreme Court rejected the estate’s claim,

citing Fryman in declining the invitation to “to equate wanton

and gross negligence with ‘deliberate intention’ as used in

KRS [§ 342.610(4)].” /d. at 543.

15a

A similar conclusion was reached by the Kentucky

Supreme Court in the recent case of Moore v. Environmental

Constr. Corp., 147 S.W.3d 13 (Ky. 2004). In that case, a

worker was killed when a trench collapsed on him. His estate

alleged that the employer's conduct was within the “deliberate

intention” exception to the Kentucky Workers’ Compensation

Act. Rejecting the estate’s claims, the court observed that

“‘deliberate intention’ [has been interpreted to mean] that the

employer must have determined to injure an employee and

used some means appropriate to that end, and there must be

specific intent. The defendant who acts in the belief or

consciousness that the act is causing an appreciable risk of

harm to another may be negligent, and if the risk is great the

conduct may be characterized as reckless or wanton, but it is

not an intentional wrong.” Id. at 16-17 (emphasis added)

(quotation marks omitted).

At the federal level, this court addressed the same

Kentucky-law question in Brierly v. Alusuisse Flexible

Packaging, Inc., 184 F.3d 527 (6th Cir. 1999). In that case,

a worker at a food-packing factory was killed when a washing

machine exploded. The court rejected the application of the

“deliberate intention” exception, noting that

in light of the Kentucky Supreme Court precedent

interpreting the phrase “deliberate intention,” we

conclude that the plaintiff did not present evidence to

the district court from which a reasonable jury could

conclude that Alusuisse deliberately intended to cause

[the plaintiff's] death . . . . Even if [the employer's]

actions were reckless or wanton, which may be a fair

characterization, there is no indication or reasonable

inference that the company intended to injure or kill

[the plaintiff].

16a

Id. at 536 (emphasis added). This same narrow standard was

also followed by the district court in Blanton vy. Cooper

Indus., 99 F. Supp. 2d 797 (E.D. Ky. 2000), in which

workers at a chemical plant claimed that they developed

cancer because of contamination at the plant. The court

entered summary judgment in favor of the defendants, citing

Fryman and McCray and noting that “the plaintiff in this case

has not alleged or produced any evidence that the defendants

either determined to injure the employees or had any specific

intent to this end.” /d. at 805.

The plaintiffs nonetheless point to a number of cases from

other jurisdictions and to secondary authorities that support

the proposition that “deliberate intention” may also include

instances where the employer acts with the knowledge that

harm might follow. But even if this is the appropriate standard

in other jurisdictions and in other fields of law, this is not the

Kentucky Supreme Court's interpretation of the Kentucky

Workers’ Compensation Act. As the district court noted in its

lengthy and persuasive assessment, “the definition of

‘deliberate intention to produce injury’ as used in the

{Kentucky Workers’ Compensation Act] is much narrower

than ‘intent’ in general tort law, where the substantial

certainty analysis is proper. And . . . although a few states

have either legislatively or judicially adopted the substantial

certainty standard for their intent-based exclusivity exception,

none had their genesis in a federal court.”

In sum, Kentucky caselaw is dispositive of the claims

brought by the Class I plaintiffs. Cases like Fryman have

established that the “deliberate intention” exception to the

Kentucky Workers’ Compensation Act is viable only when the

employer has “determined to injure an employee and used

some means appropriate to that end, and there must be a

specific intent.” Fryman, 277 S.W.2d at 27. Because no proof

17a

has been presented in this case to demonstrate that the

defendants possessed the specific intention to injure the PGDP

employees, the district court did not err in dismissing the

claims of the Class I plaintiffs.

C. Waiver of claims under the under the Price-Anderson

Act

In addressing the claims of the plaintiffs in Classes II-IV

(i.e., the claims brought by plaintiffs against defendants who

were not their immediate employers), the district court noted

the applicability of the Price-Anderson Act, 42 U.S.C.

§§ 2011. This Act was originally passed in 1957 as a

provision limiting the legal liability of owners, operators, and

suppliers of nuclear plants, and mandating that they purchase

a specified amount of liability insurance. Thirty years later,

however, “Congress enacted the Price-Anderson Amendments

Act of 1988, creating a federal cause of action for ‘public

liability actions’ arising from nuclear incidents. The federal

courts were granted jurisdiction over these actions, and

actions filed in state court were subject to removal. The

amendment was not intended to alter the state law nature of

the underlying tort claims.” Day vy. NLO, Inc., 3 F.3d 153,

154 n.1 (6th Cir. 1993).

As the district court noted, this court has interpreted the

Price-Anderson Act as preempting otherwise applicable state-

law causes of action. In Nieman vy. NLO, Inc. , 108 F.3d 1546

(6th Cir. 1997), this court considered the claims of a plaintiff

who lived near a nuclear facility. In addition to claims under

the Price-Anderson Act, the plaintiff raised arguments under

various state common-law theories of trespass. The Nieman

court rejected these arguments, concluding that

18a

the Price-Anderson Act preempts [the plaintiff's] state

law claims; the state law claims cannot stand as

separate causes of action. [The plaintiff] can sue under

the Price-Anderson Act, as amended, or not at ali. His

federal claim will be derived from state law, as

mandated by § 2014(hh), to the extent it is not

inconsistent with federal law.

Id. at 1553. The district court below therefore properly

dismissed the plaintiffs’ state-law claims.

No appeal was taken by the plaintiffs in the present case

regarding the district court’s ruling that the Price-Anderson

Act preempts any separate causes of action under state law.

As a result, the defendants argue that “since plaintiffs have

not challenged the district court’s interpretation of federal

law, the district court’s holding that they failed to present

sufficient evidence to withstand summary judgment under the

Price-Anderson Act must be deemed correct.” In sum, the

defendants request that all of the plaintiffs’ claims be

dismissed on procedural grounds.

The problem with this argument is that it ignores the

boundaries established by Congress when it enacted the Price-

Anderson Act. As this court has noted, the amendments to the

Act “were not intended to alter the state law nature of the

underlying tort claims. [The Act] provides that ‘the

substantive rules for decision in such action shall be derived

from the State in which the nuclear incident occurs, unless

such law is inconsistent with the provisions of such section.”

Day, 3 F.3d at 154 n.1 (citations omitted); see also Heinrich

ex rel. Heinrich v. Sweet, 62 F. Supp. 2d 282, 296-97 (D.

Mass. 1999) (“The [Price-Anderson] Act incorporates state

law as the substantive rule of decision to govern the federal

cause of action, so long as the state law is not inconsistent

19a

with the purposes of the Act.”) Thus, the Act specifically

calls for state law to provide the substantive foundations for

a Price-Anderson claim.

The plaintiffs in the present case necessarily had to argue

on the basis of Kentucky law in order to demonstrate the

legitimacy of their “bodily injury” claim under the Price-

Anderson Act. Because the true underlying conflict was based

upon the district court's interpretation of Kentucky law, the

plaintiffs appropriately tailored their brief to address that

concern. The fact that the words “Price-Anderson Act” go

unmentioned in the plaintiffs’ brief is, moreover, inconclusive

as to whether they intended to waive their argument that the

district court's interpretation of the Act was incorrect. To the

contrary, we interpret their failure to mention the Act is

essentially a concession by the plaintiffs that the Price-

Anderson Act governs their claims. Indeed, the plaintiffs

admit that “if the trial court's interpretation of Kentucky law

stands[,] . . . no state tort law claims would be available

directly against the Appellees.” To mention the Price-

Anderson Act by name would have added nothing to the

substance of their arguments, which, as noted, necessarily had

to rely on substantive Kentucky law. We therefore decline the

defendants’ invitation to dismiss all of the plaintiffs’ claims

under the Price-Anderson Act solely because of the latters’

failure to mention the Act in their brief.

D. “Bodily injury” under the Price-Anderson Act

After dismissing the claims of the Class I plaintiffs on the

basis of the Kentucky Workers’ Compensation Act, the

district court subsequently dismissed the claims of the

remaining plaintiffs by finding that they had failed to meet the

Price-Anderson Act's “bodily injury” requirement. The

plaintiffs argue on appeal that the district court erred in not

20a

recognizing that subcellular damage is a real, concrete bodily

injury.

As noted above, the Price-Anderson Act creates a private

right of action for claims arising out of “nuclear incidents.”

A “nuclear incident” is defined as “any occurrence .. .

causing, within or outside the United States, bodily injury,

sickness, disease, or death, or loss of or damage to property

. . » arising out of or resulting from the radioactive, toxic,

explosive, or other hazardous properties of source, special

nuclear, or byproduct material.” 42 U.S.C. §2014(q). Courts

are required to look to state law for the substantive rules to

apply in deciding claims brought under the Act. Day, 3 F.3d

at 154 n.1.

The key question before us, then, is whether Kentucky

caselaw equates “subcellular damage” with “bodily injury.”

This issue has been previously addressed by the Kentucky

courts, but, as the plaintiffs note, the underlying facts have

been slightly different. We must therefore make the “best

predictic 1, even in the absence of direct state court precedent,

of what the Kentucky Supreme Court would do if it were

confronted with this question.” Welsh vy, United States, 844

F.2d 1239, 1245 (6th Cir. 1988). To this end, we “may rely

upon analogous cases and relevant dicta in the decisional law

of the State’s highest court, opinions of the State’s

intermediate appellate courts to the extent that they are

persuasive indicia of State Supreme Court direction, and

persuasive opinions from other jurisdictions, including the

‘majority rule.’” Id.

The Kentucky Supreme Court spoke most recently on the

relevance of an undetectable physical injury in Wood v.

Wyeth-Ayerst Labs. , 82 S.W.3d 849 (Ky. 2002). In that case,

the plaintiff sued the makers of the appetite-suppressing diet

2la

drug fenfluramine, contending that her injury consisted of

‘significantly increased risk of serious injury and disease.’

She further claimed that she and others [would] ‘probably . .

. be required to pay sums to ascertain the existence, nature

and extent of their injuries in the future.’” Id. at 851. In

rejecting her claim, the court noted that it “has consistently

held that a cause of action in tort requires a present physical

injury to the plaintiff,” even in those cases “based on

exposure to toxic or otherwise harmful substances.” Id. at 852

(emphasis added). The Wood court concluded that “taken

together, [Kentucky cases] lead to the conclusion that a

plaintiff must have sustained some physical injury before a

cause of action can accrue. To find otherwise would force us

to stretch the limits of logic and ignore a long line of legal

precedent.” Id. at 854.

A similar conclusion was reached by the Kentucky

Supreme Court in Capital Holding Corp. v. Bailey, 873

S.W.2d 187 (Ky. 1994). In that case, a worker and his wife

brought an action against a building owner due to asbestos

exposure. They claimed mental and emotional suffering and

the increased risk of future harm. In dismissing the claims,

the court noted that “with a substance capable of causing

cancer, just as with any other defective product, no cause of

action accrues until the potentially harmful exposure actually

causes injury that produces loss or damage.” Id. at 192

(quotation marks omitted). Thus, “the mere ingestion of a

toxic substance does not constitute sufficient physical harm

upon which to base a claim for damages. We make no

distinction between damages for ‘fear of cancer and damages

for enhanced risk of developing the dreaded disease in the

future.” Id. at 195. Kentucky cases are therefore clear in

holding that a ciaim of an enhanced risk of illness or disease

- is insufficient to establish a “present physical injury.”

22a

The plaintiffs are quick to note that Wood and Capital

Holding are distinguishable in that those plaintiffs did not (and

perhaps could not) point to any concrete physical damage.

Instead, their claims were based upon the theory that their

exposure might lead to an increased risk of disease. Here, in

contrast, the plaintiffs argue that “appellants have much more

than ‘potential’ consequences from ‘the mere ingestion’ or

exposure to a toxic substance. There is ample proof of a

physical/bodily injury and disease from their exposure to

plutonium and neptunium. Their injuries are not speculative.”

The plaintiffs correctly point out that their counterparts in

Wood and Capital Holding did not claim a physical injury.

Nonetheless, the inhalation of asbestos--the toxic substance at

issue in Capital Holding--does in fact cause recognized

subclinical changes. See, ¢.g., Ins. Co. of N. Am. v. Forty-

Eight Insulations, Inc., 633 F.2d 1212, 1218 (6th Cir. 1980)

(“Injury, in the sense that there is tissue damage, occurs

shortly after the initial inhalation of asbestos fibers.”);

Buckley v. Metro-North Commuter R.R., 79 F.3d 1337,

1343 (2d Cir. 1996) (“When inhaled. . . asbestos fibers

become imbedded in lung tissue and . . . cause subclinical

changes to occur.”). So even though the plaintiffs in Capital

Holding did not mention these subclinical changes in their

complaint, the Kentucky Supreme Court was presumably

aware that asbestos inhalation causes subclinical tissue

damage to the lungs. Yet it did not recognize this damage as

sufficient to constitute a “present physical injury.”

Wood and Capital Holding, moreover, highlight the public

policy considerations made by the Kentucky Supreme Court

that are directly relevant to the case before us. In Wood, for

example, the court considered, and rejected, the plaintiffs’

claim for “medical monitoring,” and for damages for years of

periodic hospital visits and medical tests to determine whether

23a

disease might be at an onset. 82 S.W.3d at 856. The court

noted that “another shortcoming of medical monitoring is

that. . . it is simply too far-reaching,” id. at 857, and cited a

recent study which concluded that “given that negligently

distributed or discharged toxins can be perceived to lie around

every corner in the modern industrialized world, and their

effects on risk levels are at best speculative, the potential tort

claims involved are inherently limitless and endless.” Id. at

857-58 (citations omitted). These are the same public policy

considerations implicated by the plaintiffs’ claims in the

present case.

Wood and Capital Holding also make the important

observation that a cause of action does not develop until actual

harm is realized. Wood, for example, noted that in Kentucky

a “plaintiff may bring only one claim for a given cause of

action.” Id. at 858. In light of this limitation; it reasoned that

“those who have ingested fenfluramine, but in whom no

disease is yet manifest, will be forced to either forego medical

evaluations or proceed with them at their own cost.

Nevertheless, any other outcome would result in inordinate

burdens for both the potential victim and the alleged negligent

party.” Id. at 859. It concluded that “because [the plaintiff]

has shown no present physical injury, her cause of action

under theories of negligence and strict liability have [sic] yet

to accrue.” Id. Capital Holding similarly alluded to the fact

that public policy require a demonstration of physical illness,

noting that “the effect of this order [denying plaintiffs’ claims]

is to preserve plaintiffs’ rights to further pursue tort litigation

if and when a ‘disease related to the asbestos exposure’

Should manifest itself.” 873 S.W .2d at 189 (emphasis added).

Lower courts in Kentucky have also shied away from

allowing exposure to dargcrous chemicals to stand alone as a

cause of action. In Rockwell International Corp. v. Wilhite,

24a

143 S.W.3d 604 (Ky. Ct. App. 2003), for example, the

plaintiffs were landowners whose property had been

contaminated by minute quantities of polychlorinated

biphenyls (PCBs) by the defendant. They brought suit,

alleging that this exposure constituted trespass and a nuisance

on their property.

In dismissing their claims, the Kentucky Court of Appeals

relied in part on Wood. It noted the similarities between

injury to property and injury to the body, commenting that in

the present case, the presence of PCBs currently on

the land can be likened to Wood’s already-ingested

fenfluramine; although the land has been exposed to a

substance, PCBs, no present injury to the land has

been shown. In contrast, the landowners’ theory that

the presence of PCBs in itself should be recognized as

an injury is analogous to Wood’s position regarding

her having ingested a potentially harmful or toxic

substance (i.¢., its mere presence in her body), a

theory rejected by the Supreme Court. Were we to

adopt the landowners’ argument, it would result in an

allowance of recovery for alleged injury to property in

instances in which individuals who have ingested a

toxic substance may not recover.

Id. at 623.

In concluding that the property owners had insufficient

grounds upon which to state a claim, the court further noted

Wood's public policy rationale that “unfortunate as it may be,

the harsh; reality of life in the present day is that thousands, if

not millions of people, have been exposed to and/or ingested

potentially harmful or toxic substances.” Id. Although

Rockwell is obviously a case about trespass, not about bodily

25a

injury, its dicta and public policy discussions nonetheless help

clarify the leanings of the Kentucky courts. Combined with

Wood and Capital Holding, this case suggests that a Kentucky

court would be averse to allowing a claim based solely upon

subcellular damage.

The district court also noted the similarities between this

case and Caputo vy. Boston Edison Co., Nu. 88-2126-Z, 1990

U.S. Dist. LEXIS 8546, at *1 (D. Mass. 1990) (unpublished).

In that case, a boiler-room worker at a nuclear power station

was exposed to heavy doses of radiation. He later sued,

alleging physical injury and emotional distress. Like the

plaintiffs in the present case, he cited “cellular damage.”

1990 U.S. Dist. LEXIS 8546 at *5. Although the bulk of the

court’s attention was devoted to assessing the expert

witnesses’ credibility, the court concluded that “even if [the

expert’s]testimony were admissible, and accepting as true the

allegations in plaintiff's affidavit, such cellular damage does

not rise to the level of physical injury as a matter of law

because nothing in the record relates them to any objective

symptoms of illness or disease.” 1990 U.S. Dist. LEXIS 8546

at *11 (emphasis added).

‘We acknowledge, however, that a few cases have come

down on the other side of the line. The plaintiffs can point to

at least two cases that have refused to dismiss tort claims

based upon subcellular damage. One is Brafford v.

Susquehanna Corp. , 586 F. Supp. 14 (D. Colo. 1984), which

is directly on point. In that case, the plaintiffs were exposed

to waste materials emitted by a uranium milling facility. The

trial judge declined to enter summary judgment in favor of the

defendants, noting that “I fully understand the impact of

defendant’s charge that plaintiffs’ characterization of

subcellular changes as a present injury is an attempt to

circumvent the present injury requirement.” Id. at 18.

26a

Ultimately , however , the court concluded that “plaintiffs have

at least raised a question of fact with respect to whether a

present injury in the form of chromosome damage was

suffered by the plaintiffs as a result of their 2xposure to the

radiation emitted from the mill tailings.” Id.

The other case is Werlein v. United States, 746 F. Supp.

887, 901 (D. Minn. 1990), where the plaintiffs were exposed

to water contaminated by the defendants. Like the plaintiffs in

the present case, the plaintiffs in Werlein claimed

“chromosomal breakage” and “damage to the cardiovascular

and immunal systems.” Id. In a terse discussion, the court

concluded that “the effect of volatile organic compounds on

the human body is a subtle, complex matter. It is for the trier

of fact, aided by expert testimony, to determine whether

plaintiffs have suffered present harm.” Id. But we are not

persuaded by either of these opinions, both because they are

not consistent with Kentucky law and because the issue of

whether chromosome damage constitutes a “present physical

injury” is essentially a legal question, not a factual one.

Ukimately, however, the most persuasive reason to deny

the plaintiffs’ claims in the present case comes from public

policy considerations, many of which have already been

articulated by the Kentucky courts. There are three primary

concerns with the plaintiffs’ position. The first was noted by

the court in Wood: “Given that negligently distributed or

discharged toxins can be perceived to lie around every corner

in the modern industrialized world, and their effects on risk

levels are at best speculative, the potential tort claims

involved are inherently limitless and endless.” 82 S.W.3d at

857-58 (citations omitted). Accepting the plaintiffs’ claim

would therefore throw open the possibility of litigation by any

person experiencing even the most benign subcellular

damage. Based upon the average American's exposure to

27a

chemically processed foods, toxic fumes, genetically modified

treated chicken and beef, this might encompass a very large

percentage of the total population. Nowhere in their

arguments do the plaintiffs address these “floodgate”

concerns.

Second, allowing this suit to proceed would be of little

service to the plaintiffs themselves, particularly in the long

run. Kentucky has a “one claim” rule, which limits plaintiffs

in tort cases to one chance in which to have their grievances

redressed. if this suit is allowed to proceed, the plaintiffs

would be able to claim relief for only a nominal injury. After

all, as the district court observed, “none of the Plaintiffs is

‘sick."” But they would be left adrift without a legal remedy

_ and without recompense should they later develop a truly

debilitating disease. Allowing this suit to proceed would thus

do a great disservice to those plaintiffs who might in fact later

come down with the very diseases they so rightly fear.

Finally, the plaintiffs fail to explain how damages could

present!) be calculated. Losses resulting from salient physical

diseases such as cancer or asbestosis are at least quantifiable,

and courts have familiarized themselves with methods of

computing the associated costs of medical care, absences from

work, and physical pain. Here, however, the plaintiffs have

suggested no mechanisms for calculating losses resulting from

subcellular damage. Indeed, the injuries claimed to date have

caused no financial losses or impairments. If any damages

were to be assessed, they would fall in the realm of the purely

theoretical, and would be nearly impossible for a trier of fact

to accurately assess.

Although the plaintiffs contend that they have real and

concrete physical injuries, the evidence shows that their DNA

28a

damage is harmful-only insofar as it is predictive of future

disease. The plaintiffs have amply demonstrated that

chromosomal damage is directly linked with an increased

likelihood of cancer. Indeed, plaintiff Charles Ramsey

testified that his main fear was not present injury, but that he

was “worried to death what (the radiation] is doing to me. .

. 10, 20 years from now.” In this sense, the plaintiffs are

similarly situated to the plaintiffs in Wood and Capital

Holding, whose primary claims were that their exposure to

toxic substances had created an increased risk of disease.

Those claims were dismissed by the Kentucky Supreme Court

because they were premature. The claims of the plaintiffs here

are likewise premature. See Wood, 82 S.W.3d at 859

( Because [the plaintiff] has shown no present physical injury,

her causes of action under theories of negligence and strict

liability have yet to accrue.”). In sum, Kentucky caselaw

provides sufficient guidance for us to conclude that, if this

case were to be decided in that state’s courts, the public

policy considerations and the lack of any present physical

illness would require the grant of summary judgment in favor

of the defendants.

E. Plaintiffs’ Bivens claims

Plaintiff Classes I-IV brought additional constitutional

claims against all of the defendants under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) (creating

a cause of action against federal officials for constitutional

violations). The district court dismissed these claims, relying

on the Supreme Court case of Correctional Services Corp. v.

Malesko, 534 U.S. 61, 151 L. Ed. 2d 456, 122 S. Ct. S15

(2001) (declining to extend Bivens to a suit against a private

contractor).

29a

In this appeal, the plaintiffs claim that the district court

erred because (1) the court relied on dicta in Malesko, (2)

Bivens has a wider application than solely where the plaintiff

lacks any “alternative remedy for harms caused by

unconstitutional conduct,” and (3) Bivens does not bar

equitable claims. The defendant-operators respond by

charging that the plaintiffs are untimely in their appeal of the

district court's rejection of their Bivens claims. GE further

claims that, because the Price-Anderson Act is the exclusive

remedy against operators and suppliers of nuclear reactors,

Congress has already established a regulatory regime that

precludes Bivens's application.

With regard to the timeliness defense, the district court

issued its order denying the plaintiffs’ Bivens claims against

GE on March 15, 2002, and against the defendant-operators

on May 15, 2002. This appeal was taken on August 3, 2003,

approximately 14 months after these orders were handed

down. Generally, in civil cases, “the notice of appeal must be

filed . . . within 30 days after the judgment or order appealed

from is entered.” Fed. R. App. P. 4(a)(1). But Rule 58

requires that a judgment be set forth in a separate document.

Fed. R. Civ. P. 58. In this case, the interim orders were not

accompanied by a separate judgment in accordance with Rule

58. The final judgment that dismissed all of the plaintiffs’

claims was not entered until July 29, 2003. Because the

plaintiffs filed their notice to appeal on August 6, 2003, their

appeal falls within the 30-day statute of limitations and is

therefore timely.

GE's contention that the Price-Anderson Act preempts a

Bivens claim has greater merit. The Supreme Court has noted

that “when the design of a Government program suggests that

Congress has provided what it considers adequate remedial

mechanisms for constitutional violations that may occur in the

30a

course of its administration, we have not created additional

Bivens remedies.” Schweiker v. Chilicky, 487 U.S. 412, 423,

101 L. Ed. 2d 370, 108 S. Ct. 2460 (1988); see also Bivens,

403 U.S. at 397 (noting that a Bivens remedy would not be

available in cases of “explicit Congressional declaration”

creating an alternative scheme).

In Schweiker, for example, the Court declined to entertain

a Bivens claim brought by plaintiffs claiming disability

benefits. It noted the extensive administrative framework that

already existed to hear disability claims, and concluded that

“Congress is the body charged with making the inevitable

compromises required in the design of a massive and complex

welfare benefits program. Congress has discharged that

responsibility to the extent that it affects the case before us,

and we see no legal basis that would allow us to revise its

decision.” Id. at 429 (citations omitted).

Ultimately, therefore, where “the design of a Government

program suggests that Congress has provided what it

considers adequate remedial mechanisms for constitutional

violations that may occur in the course of its administration,

we have not created additional Bivens remedies.” Id. at 423;

see also Bush vy. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103

S. Ct. 2404 (1983) (“The federal courts’ statutory jurisdiction

to decide federal questions confers adequate power to award

damages to the victim of a constitutional violation. When

Congress provides an alternative remedy, it may, of course,

indicate its intent, by statutory language, by clear legislative

history, or perhaps even by the statutory remedy itself, that

the courts’ power should not be exercised.”); Fishburn y.

Brown, 125 F.3d 979, 983 (6th Cir. 1997) (“Since Congress

has created statutory provisions that enabled [the plaintiff] to

challenge the [government's] actions, she does not have an

3la

actionable Bivens claim for a violation of due process” with

regard to her unlawful seizure claim).

The key question, therefore, is whether the Price-

Anderson statutory framework excludes a Bivens claim. An

examination of the legislative history behind the Price-

Anderson Act indicates that Congress indisputably intended

for the Act to be the primary remediai mechanism for claims

arising out of “nuclear incidents.” The Senate, when

considering the 1988 amendments to the Act, stated that the

purpose behind the Price-Anderson Act was “to assure

adequate public compensation in the case of a nuclear

accident; and to set a limit on the liability of private industry

to remove a major deterrant to private participation in the

development of nuclear energy.” S. Rep. 100-70(1988). It

noted that

the Price-Anderson system is a comprehensive,

compensation-oriented system of liability insurance for

Department of Energy contractors and Nuclear

Regulatory Commission licensees operating nuclear

facilities. Under the Price-Anderson system, there is

a ready source of funds available to compensate the

public after an accident, and the channeling of liability

to a single entity and waiver of defenses insures that

protracted litigation will be avoided. That is, the

Price-Anderson Act provides a type of “no fault”

insurance, by which all liability after an accident is

assumed to rest with the facility operator, even though

other parties (such as subcontractors or supplicrs)

might be liable under conventional tort principles.

This “omnibus” feature permits a more unified and

efficient approach to processing and settlement of

claims, thus allowing quick compensation to the public

from the pool of funds set up by the Price-Anderson

32a

system. If damages exceed the limit established by

law, the Price-Anderson Act would require Congress

to review the situation and determine what action

should be taken to make additional funds available to

compensate the public.

Id.

In addition, a 2003 Senate Committee Report

reauthorizing the Act commented that the Act’s impetus was

“to ensure that adequate funds would be available to

compensate victims of a nuclear accident. [Congress] also

recognized that the risk of extraordinary liability that

companies would incur if a nuclear accident were to happen

would render insurance costs prohibitively high, and thwart

the development of nuclear energy.” S. Rep. No. 108-218

(2003). That report also notes that “as currently constituted,

Price-Anderson places a cap on liability for commercial

nuclear facilities and activities licensed by the U.S. Nuclear

Regulatory Commission, and allows for deferral of a portion

of the payments such licensees must make.” Id.

Another committee report explains that “the Price-

Anderson Act (PAA) provides for compensation cf ‘njured

parties in the event of a nuclear accident and sets a maxims

liability amount per accident.” H.R. Rep. No. 107-299

(2001); see also David M. Rocchio, The Price-Anderson Act:

A llocati rE r Risk of Nucl : ,

Electricity, 14 B.C. Envtl. Aff. L. Rev. 521, 523 (1987) (“In

1957, Congress passed the Price-Anderson Act in an attempt

to guarantee that the fledgling private nuclear power industry

could develop nuclear power without assuming the high risk

involved.”). These comments suggest that Congress viewed

the Price-Anderson Act as the key federal mechanism for

33a

containing and limiting the legal costs arising out of nuclear

The plaintiffs counter that the primary purpose of the

Price-Anderson Act is not to limit legal liability, but to ensure

that nuclear facilities have adequate insurance policies. Even

if true, both parties agree that the Act, at a basic level,

regulates the ability of individuals to sue as a result of a

“nuclear incident.” It strictly defines “public liability” to

include “any legal liability arising ost of or resulting from a

nuclear incident or precautionary evacuation.” 42 U.S.C.

§ 2014(w) (emphasis added). Because Supreme Court

precedent clearly calls for judicial restraint where “Congress

has provided what it considers adequate remedial mechanisms

for constitutional violations,” and because the Price-Anderson

Act constitutes such an adequate remedial mechanism, we

find no basis for the plaintiffs to bring their Bivens claims.

See Nieman v. NLO, Inc, 108 F.3d 1546, 1553 (6th

Cir. 1997) (“Nieman can sue under the Price-Anderson Act,

as amended, or not at all.”). For these reasons, the plaintiffs’

Bivens claims were appropriately dismissed by the district

court.

F. The plaintiffs’ motion to amend their Bivens complaint

The piai atiffs claim that the district court erred when it

denied them the ability to amend their Bivens complaint to

explicitly include claims for equitable relief. Based upon our

conclusion in Part [1.E. above that the Price-Anderson Act is

a wide-reaching statutory scheme that prevents federal courts

from entertaining Bivens actions for “nuclear incidents,” the

plaintiffs’ argument on this point is moot

34a

G. Confidential work-product

The final issue of contention between the parties is the

disposition of a sensitive piece of attorney-client work product

produced by the defendants during the course of discovery,

consisting of correspondence that discussed managerial

attempts to keep workers ignorant of the dangerous radiation

exposure. Under the Agreed Protective Order signed by all

the parties, if a party inadvertently produced a document later

found to be protected by the attorney-client privilege, “upon

request of the producing party, the inadvertently produced

document(s) or thing(s) and all copies, notes, compilations,

tabulations, analysis or summaries thereof shall be promptly

returned to the producing party.” The plaintiffs, however,

refused to hand over the document after several requests,

prompting the magistrate judge involved to order its return.

The plaintiffs now argue that the attorney-client privilege

is not applicable because the document will “expose the fraud

being perpetrated on the PGDP workers. Thus, the crime-

fraud exception to the privilege applies.” They further argue

that Union Carbide waived its attorney-client privilege when

it handed the document over.

The plaintiffs’ arguments are unpe.suasive. In the grand

jury context, the test for claiming the crime-fraud exception

is twofold: “First, the government must make a prima facie

showing that a sufficiently serious crime or fraud occurred to

defeat the privilege; second, the government must establish

some relationship between the communication at issue and the

prima facie violation.” In re Antitrust Grand Jury, 805 F.2d

155, 164 (6th Cir. 1984).

We have found no caselaw relating to private citizens

seeking to claim the crime-fraud exception as a basis to keep

35a

privileged information. Moreover, the plaintiffs fail to cite

any facts to support their argument that the document exposes

criminal fraud perpetrated by the defendants. They also fail

to explain how this one particular document unlocks the secret

to the defendants’ alleged “crime.”

Finally, we are not persuaded by the argument that the

defendants waived their privilege when producing the

document. The Agreed Protective Order signed by all the

parties was clear instating that a producing party waived no

rights in the event a privileged document was accidentally

produced. In sum, the district court did not err in granting the

defendants’ request that the plaintiffs return this document.

Ill. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

judgment of the district court.

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

PADUCAH DIVISION

No. 5:99-CV-255-M

[July 28, 2003)

ALPHONSE RAINER et al.,

Plaintiffs-Appellants ,

Vv.

UNION CARBIDE

CORPORATION et al.,

)

)

)

)

)

)

)

Defendams-Appeliees. )

)

FINAL JUDGMENT

This Court having entered its Memorandum Opinion and

Order [DN 253] on July 11, 2003, granting summary

judgment for the defendants; and in light of the Court's

previous rulings; and the Court being otherwise sufficiently

advised,

IT IS HEREBY ORDERED that all of Plaintiffs’ claims

against Defendants, Union Carbide Corporation, Lockheed

Martin Corporation, Lockheed Martin Energy Systems, Inc.

37a

Lockheed Martin Utility Services, Inc., and/or General

Electric Company are dismissed with prejudice.

Pursuant to Fed. R. Civ,. P. 54(a), this is a final judgment

and appealable order and there is no just reason for delay

Dated: 7/28/03 /s/ Hon. Joseph H. McKinley, Jr...

United States District Court

38a

APPENDIX E

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

PADUCAH DIVISION

No. 5:99-CV-255

[July 11, 2003)

ALPHONSE RAINER. et al.

Plaintiffs,

v.

UNION CARBIDE CORP.., et al.

)

)

)

)

)

)

Defendants. )

)

)

MEMORANDUM OPINION AND ORDER

This matter is before the Court on motions for summary

judgment filed by Defendants, General Electric Company

(“GE”) [DN 194], and by Co-Defendants, Union Carbide

Corporation, Lockheed Martin Corporation, Lockheed Martin

Energy Systems, Inc., and Lockheed Martin Utility Services,

Inc. (“Employer Defendants”) [DN 196]. The parties have

briefed the issues and the matters are ripe for determination

Oral srguments were heard on May 23, 2003. The Court has

reviewed the parties’ filings and the record herein, and has

considered the arguments inade by the parties at the summary

39a

judgment hearing. For the reasons set forth below, the

Defendants’ Motions are GRANTED.

I. BACKGROUND

The facts of this case are well-documented and need not

be restated at length. Plaintiffs are former employees of the

government contractors who operated the Paducah Gaseous

Diffusion Plant (PGDP) and members of those employees’

households. As the basis of their various tort claims, Plaintiffs

allege that they were exposed to radioactive and other toxic

substances from the PGDP and that, as a result, they have

suffered compensable injuries.

This action’ originally involved four classes of plaintiffs

but, following the Court’s Memorandum Opinion on

Preliminary Lega! Issues [DN 104], only the claims asserted

by Classes II-IV remain.’ Class II consists of employees who

' On Aprii 12, 2002, the Court entered an Agreed Order [DN 174]

consolidating Rainer v. Union Carbide (“Rainer 1”), No. 99-CV-

255 and Rainer vy. Richardson (“Rainer II"), No. 00-CV-220

(which included Dew y. Richardson (“Dew”), No. 00-CV-221).

On March 14, 2003, the Court approved the parties’ settlement

agreement in Dew and dismissed those claims with prejudice [DN

228]. Moreover, certain claims asserted in Rainer | and Rainer Il

have already been dismissed or otherwise abandoned. Accordingly,

the present Memorandum Opinion addresses the remaining

negligence, strict liability, and intentional tort claims asserted in

Rainer | and Rainer II against GE and the Employer Defendants.

? Class I consisted of current and former employees of the operators

of the PGDP who asserted common law claims against their

employers for injuries received in the course of their employment.

All of the Class I plaintiffs’ claims were dismissed pursuant to the

Court's ruling that the Kentucky Workers’ Compensation Act

. li al o=

4a

worked at the PGDP between April |, 1984 and April |, 1988

and who assert claims against Union Carbide based on the _.

radioactive “legacy” that it allegedly left behind. Class Ill

consists of employees who worked at the plant between 1952

and 1998 and who assert claims against GE arising from its

shipments of contaminated uranium feedstock to the PGDP.

Finally, Class IV consists of members of the households of

those plaintiffs in Classes II and III.

In August 2000, GE and the Employer Defendants

(collectively “Defendants”) moved for summary judgment on

Plaintiffs’ negligence and strict liability claims, arguing that

none of the named Plaintiffs had suffered a present physical

injury. On March 21, 2002, the Court denied those motions

Laboratories --a case then pending before the Kentucky

Supreme Court - was slated to address the continued viability

of the “present physical injury rule” in Kentucky. The Court

declared that it was “unwilling to decide these dispositive

motions before a decision is reidered in Wood,” but granted

the parties leave to “make or renew any Motions on these

issués once the Kentucky Supreme Court has spoken.” (Order

of 03/21/02.) [DN 170}.

On August 22, 2002, the Kentucky Supreme Court

rendered its decision in Wood and, in accordance with the

Court's previous instructions, Defendants now renew their

respective motions for summary judgment. In addition,

Defendants now expand the scope of their motions to include

not only Plaintiffs’ negligence and strict liability claims, but

4la

Il. STANDARD OF REVIEW

In order to grant a motion for summary judgment, the

Court must find that the pleadings, together with the

depositions, interrogatories and affidavits, establish that there

is no genuine issue of material fact and that the moving party

is entitled to judgment as a matter of law. Fed. R. Cir. P. 56.

The moving party bears the initial burden of specifying the

basis for its motion and of identifying that portion of the

record which demonstrates the absence of a genuine issue of

matdrial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Once the moving party satisfies this burden, the non-

" moving party thereafter must produce specific facts

demonstrating a genuine issue of fact for trial. Anderson vy.

Liberty Lobby, Inc., 477 US. 242, 247-48 (1986).

Although the Court must review the evidence in the light

most favorable to the non-moving party, the non-moving

party is required to do more than simply show that there is

some “metaphysical doubt as to the material facts.”

Matsushita Elec, Indus, Co. v. Zenith Radio Co., 475 U.S.

574, 586 (1986). The Rule requires the non-moving party to

present “specific facts showing there is a genuine issue for

trial.” Fed. R. Civ. P. 56(e) (emphasis added). “The mere

existence of a scintilla of evidence in support of the [non-

moving party's} position will be insufficient; there must be

evidence on which the jury could reasonably find for the

{non-moving party].” Anderson, 477 U.S. at 252.

Ill. DISCUSSION

A. Price-Anderson Act

As a preliminary matter, the Court must address

Defendants’ contention that the present controversy is

42a

governed by the Price-Anderson Act (“Price-Anderson” or

“the Act”), as mended in 1988, 42 U.S.C. §§ 2011, et seq.

The Sixth Circuit has summarized the purpose and effect of

Price-Anderson as follows:

The Price-Anderson Act was enacted in 1957 as an

amendment to the Atomic Energy Act to encourage

private sector investment in the development of

nuclear power by limiting the liability of private

owners and operators in the event of a nuclear

incident. Under the Act, private owners and operators

are required to purchase a speoified amount of

insurance, and damages awards over and above that

amount are then indemnified by the government. In

August, 1988, Congress enacted the Price-Anderson

Amendments Act of 1988, creating a federal cause of

action for ‘public liability actions’ arising from

nuclear incidents. The federal courts were granted

jurisdiction over these actions, and actions filed in

State court were subject to removal. The amendment

was not intended to alter the state law nature of the

underlying tort claims. It provides that “the

substantive rules for decision in such action shall be

derived from the law of the State in which the nuclear

incident occurs, unless such law is inconsistent with

the provisions of such section.”

Day yv. NLO, Inc., 3 F.3d 153, 154 n.i (6" Cir. 1993)

(internal citations to Price-Anderson omitted). As set forth

above, Price-Anderson creates a federal cause of action for

“public liability actions” arising from “nuclear incidents.”

The Act defines “public liability,” in relevant part, as “any

legal liability arising out of or from a nuclear incident,” and

a “public liability action” as- “any suit asserting public

liability.” 42 U.S.C. § 2014(w), (hh). “Nuclear incident,” in

43a

turn, is defined as “any occurrence... within the United States

causing... bodily injury, sickness, disease, or death, or loss

of or damage to property... arising out of or resulting from

the radioactive; toxic, explosive, or other hazardous

properties of source, special nuclear, or byproduct material.”

Id., at § 2014(q).

Without question, the claims asserted here fall squarely

within the statutory language of the Act Specifically,

Plaintiffs’ suit asserts “legal liability” for DNA and

chromosomal damage resulting from their exposure to the

radioactive properties of uranium, plutonium, and

neptunium.’ As such, Price-Anderson effectively preempts

Plaintiffs’ state law tort claims. See Nieman v. NLO, Inc, 108

F.3d 1546, 1553 (6"Cir. 1997) (holding that Price-Anderson

preempted state law trespass claim such that plaintiff could

“sue under the Price-Anderson Act, as amended, or not at

all.”).

Evén so, Kentucky law still provides the substantive rules

in deciding Plaintiffs’ “federal” claims, so long as such law

is not inconsistent with the Act. 42 U.S.C. § 2014 (hh). On

this point, the Court finds, and the parties appear to agree,

that Kentucky law is consistent with the provisions of Price-

Anderson --at least insofar as Plaintiffs’ negligence and Strict

> The Act defines ordinary uranium as a “source material” and

enriched uranium and plutonium as “special nuclear material[s}.”

42 U.S.C. § 2014(z). Neptunium, in turn, would be classified as a

“byproduct material,” because it is “yielded or made radioactive by

exposure to the radiation incident to the process of producing or

utilizing special nuclear material [i.e., plutonium].” Id., at §

2014(e).

44a

liability claims are concerned.* Accordingly, the Court will

look to Kentucky tort law in evaluating those claims.

B. Plaintiffs’ Negligence and Strict Liability Claims’

In Wood v. Wveth-Averst Laboratories, 82 S.W.3d 849

(Ky. 2002), the Kentucky Supreme Court re-affirmed the long

standing notion that, in Kentucky, “to recover on a theory of

tort, like negligence or strict liability,” the law “requires a

plaintiff to show some present physical injury to support a

cause of action.” Wood, 82 S.W.3d at 851-52 (emphasis

added). In the present case, Plaintiffs specify “chromosomal

damage” as the present physical injury supporting their

negligence and strict liability claims. Defendants do not

dispute Plaintiffs’ allegation that certain named plaintiffs have

suffered chromosomal damage* but rather, insist that summary

judgment in their favor is warranted because this type of harm

does not constitute a present physical injury. Thus, the

paramount issue before the Court is whether the chromosomal

* Specifically, Kentucky's p:2sent physical injury rule-applicable to

Plaintiffs’ negligence and strict liability claims- is consistent with

Price-Anderson’s requirement of “bodily injury, sickness, disease,

or death, or loss of or damage t property.” 42 U.S.C. § 2014(q);

see also In re Berg Litig., 293 F.3d 1127, 1131 (9 Cir. 2002)

(holding that “physical harm to persons or property” is a

“jurisdictional prerequisite” to bringing a claim under Price-

Anderson). The effect of Price-Anderson on Plaintiffs’ intentional

tort claims is discussed in Part I11.C., infra.

* Plaintiffs’ strict liability claims include claims for both “strict

products liability,” as well “ultra-hazardous activity strict liability.”

* Defendants do note, however, that the record is devoid of any

evidence of chromosomal damage in anyone other than Alphonse

Rainer, —— and David Sacharnoski.

45a

damage alleged by Plaintiffs constitutes a present physical

injury under Kentuc’sy law.

Although Kentucky clearly requires a present physical

injury to recover on a theory of tort, the precise issue of

whether chromosomal damage constitutes such an injury

appears to be an issue of first impression. As such, the Court

must predict how the Kentucky Supreme Court would rule if

it were confronted with this question. See Managed Health

Care Associates, Inc. v. Kethan, 209 F.3d 923, 927 (6" Cir.

2000). In so doing, the Court must ascertain the siate law

from “all relevant data,” including “state appellate court

decisions, supreme court dicta, restatements of law, law

review commentaries, and the majority rule among other

states.” Hisrich v. Volvo Cars of N. Am. Inc. 226 F.3d 445,

449 n.3 (6"Cir. 2000) (citing Garden City Osteopathic Hosp.

V._HBE Corp., 55 F.3d 1126, 1130 (6" Cir. 1995)). In

addition, the Court may look to other jurisdictions that ove

addressed the issue as persuasive authority. Managed Health

Care Associates, 209 F.3d at 929. In this case, the “relevant

data” includes: (1) prior Kentucky decisions, including dicta

from the Kentucky Supreme Court’s decision in Wood; (2)

decisions from other jurisdictions that have confronted this

precise issue; and (3) the Restatement (Second) of Torts (also

cited in Wood).

As set forth above, the Wood decision represents the

Kentucky Supreme Court’s most recent pronouncement

regarding the present physical injury role. To fully understand

the holding in Wood, however, it is helpful to first examine

the Kentucky Supreme Court’s earlier decision in Capital

Holding Corporation v. Bailey, 873 S.W.2d 187 (Ky. 1994).

In Capital Holding, a construction worker asserted claims

against his employer for negligence and intentional infliction

of emotional distress resulting from his exposure to asbestos.

46a

Although the plaintiff had not yet developed cancer, he

argued that he had suffered a compensable injury in the form

of an increased risk of cancer, as well as emotional distress

from the fear of developing cancer. Thus, the court was faced

with two “complex questions”: (1) at what point a tort claim

for asbestos exposure accrues; and (2) “whether damages may

be recovered when there is no present manifestation of 4

diseased condition.” Id. at 189. In response to the first

question, the court held that “no cause of action accrues until

the potentially harmful exposure actually ‘causes injury that

produces loss or damage.’” Id, at 192 (quoting Louisville

Trust Co. v. Johns-Manville Products, 580 S.W.2d 497, 500

(Ky. 1979) (quoting Saylor v. Hall, 497 S.W.2d 218, 225

(Ky. 1973)). As to the second question, the court held that

“mere ingestion of a toxic substance does not constitute

sufficient physical harm upon which to base a claim for

damages.” Id. at 195. Thus, because the plaintiff in that case

had failed to prove any harmful result from his exposure to

asbestos, the court concluded that his claims did not allege a

present physical injury sufficient to survive summary

judgment. Id.

Eight years later, in Wood the Kentucky Supreme Court

was again 2sked to address the present physical injury rule. In

that case --a class-action lawsuit involving the diet drug

fenfluramine - the present physical injury alleged by the

plaintiff was “significantly increased risk of serious injury and

disease.” Wood, 82 S.W.3d at 851. Although the named

plaintiff had not yet manifested any symptoms of disease or

illness, she sought to recover future medical costs that she

would likely incur in monitoring her condition. Both the trial

court and the Kentucky Court of Appeals rejected plaintiff's

theory of recovery, finding that she had not alleged sufficient

present physical harm to support her claim. The plaintiff

appealed and, in light of recent developments in toxic tort

47a

litigation in other states, the Kentucky Supreme Court granted

discretionary review to decide “whether the injury required

by Capital Holding was intended to be narrowly construed

and evidenced by present physical symptoms or illness, or, as

Appellant contends, broadly inclusive of any subjective harm,

present or anticipated, resulting from a defendant's

irresponsible conduct.” Id. at 854.

The court ultimately decided in favor of a narrow

construction of the present physical injury rule, thus affirming

both the trial court and the Court of Appeals. In reaching this

conclusion, the court relied not only upon Capital Holding

and cases cited therein, but also looked to the Restatement, as

well as public policy considerations, for guidance. First, the

court examined the Restatement’s definition of “physical

harm” as “physical impairment of the human body, or of

tangible property ...." Wood, 82 S.W.3d at 855 (quoting

Restatement (Second) of Torts § 7, cmt. ¢ (1965)). Under this

definition, the court concluded that the plaintiff had not

suffered a present physical injury, noting that, “Appellants

body has not yet been impaired by her ingestion of

fenfluramine, and the only tangible property in question is

Appellant’s money, which likewise has not been expended.”

Id.

In addition, the court noted that public policy

considerations favor a narrow construction of the present

was preserving a remedy for those who actually become ill

after being exposed to hazardous substances. Because a

plaintiff in Kentucky may bring only one claim for a given

cause of action, the court properly recognized that the present

physical injury requirement “is essentially a safeguard that

benefits victims.” Id. at 858. With that, the court reasoned

that allowing claims based on mere exposure could result in

48a

a “‘flood’ of less important cases (potentially absorbing

resources better left to those more seriously harmed).” Id. at

857 (quoting Metro-North Commuter R.R. vy. Buckley, 521

U.S. 424, 442, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997)).

Thus, having considered both the meaning of “physical

harm,” as well as the public policy implications underlying

the present physical injury rule, the court held that

To interpret Capital Holding as authorizing a cause of

action where a person is harmed in any manner not

only undermines the obvious intent of the Court, but

also produces an absurd result. Without an actual

injury requirement, any subjective harm suffered by

any person could give rise to tort liability. In the arena

of toxic or harmful substances, any exposure might

result in litigation, supported only by speculative fears

of future injury and costs. We can only construe as

standing for the continued requirement of apresent

physical injury as a precursor to a cause of action for

negligent exposure to a potentially dangerous

substance, and we hold today that this rule still

prevails.

Id. at 856. After stating the general rule, the court noted that,

“[hjaving suffered no actual loss or detriment, nor any harm

in the legal sense, Appellant can prove at most that she

ingested fenfluramine, a potentially toxic substance.” Id.

Hence, applying the rule articulated in Capital Holding (i.e. ,

that “mere ingestion” of a harmful substance cannot support

. a Claim for damages), the court concluded that the plaintiff

had not sustained a present physical injury, Id.

Of course, Plaintiffs’ theory of recovery in this case

differs considerably from those put forward by the plaintiffs

49a

in Wood and Capital Holding. In those cases, the plaintiffs

presented no credible evidence of physical injury. Rather,

they sought compensation for emotional and financial harm

resulting from their increased risk of becoming ill in the

future. Here, by contrast, Plaintiffs have adduced expert

testimony from renowned nuclear physicists concluding that

Plaintiffs have suffered an actual physical injury in the form

of DNA and chromosomal damage. Although the question of

whether this type of damage constitutes a present physical

injury is one of first impression in Kentucky, courts from

other jurisdictions have addressed the issue.

In particular, the Court finds Caputo v. Boston Edison

Co., 1990 WL 98694 (D. Mass. 1990) to be squarely on

point. In that ease, the plaintiff asserted various tort claims

after being exposed to excessive radiation while working at

Boston Edison’s nuclear power plant. There, as in the present

case, the only evidence of physical injury was cellular and

chromosomal damage testified to by the plaintiff's expert. On

summary judgment, the defendant argued that this type of

injury was insufficient under Massachusetts’ version of the

present physical injury rule. The District Court fer the

District of Massachusetts agreed. Unlike here, the court in

Caputo harbored considerable doubt as to the credentials and

methodology of the plaintiff's expert. Nevertheless, it

ultimately concluded that, even accepting as true the

plaintiff's allegations of chromosomal damage, “such cellular

damage does not rise to the level of physical injury as a

matter of law because nothing in the record relates them to

any objective symptoms of illness or disease.” Id. at *4

(citations omitted). Cf. Schweitzer v. Consolidated Rail, 758

F.2d 936, 942 (3% Cir. 1985) (concluding that subclinical

injury resulting from exposure to asbestos was insufficient

loss or damage to sustain a cause of action under generally

applicable principles of tort law).

50a

Not all courts have reached this conclusion. See Brafford

y. Susqnehana Corp., 586 F.Supp. 14, 18 (D. Colo. 1984)

(denying summary judgment where plaintiffs “at least raised

a question of fact with respect to whether a present injury in

the form of chromosome damage was suffered by the

plaintiffs as a result of their exposure to... radiation”);

Werlein v. United States, 746 F.Supp. 887, 901 (D. Minn.

1990) (holding that plaintiffs’ evidence of subcellular injuries

resulting from exposure to toxic chemicals was sufficient to

survive summary judgment). Nevertheless, based on the

principles articulated in Wood and oases cited therein, the

Court believes that the Kentucky Supreme Court would

concur with the district court's conclusion in Caputo that a

present physical injury requires objective symptoms of illness

or disease or, at the very least, some physical harm.

That being said, it is undisputed that none of the Plaintiffs

here currently manifests any symptoms of illness or disease

resulting from radiation exposure. Nor has the injury alleged

by Plaintiffs resulted in any physical harm, i.ec., “physical

impairment of the human body.” Restatement (Second) of

Torts § 7, cmt. e (1965). As explained by the Restatement,

“[hjarm implies a loss or detriment to a person, and not a

mere change or alteration ... Physical changes or alterations

may be either beneficial, detrimental, or of no consequence

to a person” Id, at cmt. b (emphasis added). Here, the

chromosomal damage alleged by Plaintiffs is more akin to a

“mere change or alteration” which, unless and until some

harmful result ensues, it is of no consequence to those

afflicted.

Moreover, allowing Plaintiffs to go forward with the

present claims would not serve the public interest. The

function of the present physical injury rule is to serve the

underlying purpose of tort law, namely, the compensation of

Sla

victims who have suffered. In light of Kentucky's “one-

claim” rule, however, if Plaintiffs were to recover now for

their symptomiess chromosomal damage, they would have no

further remedy should they ultimately develop cancer or some

other exposure-related malady. As such, allowing recovery

based on the type of damage alleged here would likely result

in a “windfall{] for those who never take ill and insufficient

compensation for those who do.” Schweitzer, 758 F.2d at

942.

Finally, and perhaps most significantly, the Kentucky

Supreme Court has already determined that the present

physical injury rule should be narrowly construed. To allow

Plaintiffs’ negligence and strict liability claims to proceed

based on these types of “injuries” - chromosomal aberrations

that have not yet produced any objective symptoms of illness,

disease or harm - would be wholly inconsistent with that

determination. In the end, the comprehensive scientific data

proffered by Plaintiffs’ experts. while impressive, simply

canno. overcome the following admittedly unscientific

observation: none of the Plaintiffs is “sick.” Accordingly,

because this Court is of the opinion that Plaintiffs’

chromosomal damage docs not constitute a present physical

injury under Kentucky law, Defendants are entitled to

summary judgment on Plaintiffs” negligence and strict

liability claims.

C. Plaintiffs’ Intentional Tort Claims

In addition to the negligence and strict liability claims

discussed above, Plaintiffs also assert various intentional tort

S2a

claims.’ As set forth in Part III.A., all of Plaintiffs’ tort

claims, including their intentional tort claims, are effectively

preempted by Price-Anderson Thus, although Kentucky law

still provides the substantive rules for decision, those rules

may only be applied tu the extent that they are consistent with

the provisions of the Act.

In In re Berg Litigation, 293 F.3d 1.127 (9" Cir. 2002),

a recent decision of the Ninth Circuit Court of Appeals, the

court discussed the relationship between Price-Anderson and

state tort law. In that case, also involving radiation exposure,

the plaintiffs brought claims for emotional distress and

medical monitoring’ which, under Washington law, could be

asserted even in the absence of any physical injury. The

district court held that plaintiffs’ claims were cognizable

under Price-Anderson. The Ninth Circuit reversed, however,

holding that - in light of the Act's definition of “nuclear

incident” as an occurrence causing “bodily injury, sickness,

disease or death” - it follows that “[p}hysical harm to persons

or property is thus a jurisdictional prerequisite.” Ip re Berg,

293 F.3d at 1131. Hence, the court concluded that “although

Washington law permits emotional distress claims in the

’ The remaining intentional tort claims from Rainer | include claims

oe tical worine, | wr tench iefiietion of

emotional distress (IIED). The remaining intentional tort claims

from Rainer [I], in addition to the aforementioned claims, include

claims for assault, fraud, deceit, misrepresentation, conspiracy,

concert of action, and joint venture.

* The Kentucky Supreme Court has now made it clear that

Kentucky does not recognize 2 cause of action for medical

monitoring. See Wood. 82 S.W.3d at 859 (holding that medical

monitoring is merely an element of damages and does not constitute

an independent cause of action).

53a

absence of physical injury, allowance of such claims here

would be inconsistent with the Act’s “bodily injury’

requirement.” Id. (citation omitted).

In light of the Ninth Circuit’s decision in In re Berg,

Defendants now expand their original motions for summary

judgment to include not only Plaintiffs’ negligence and strict

liability claims, but also Plaintiffs” intentional tort claims.

Defendants contend that they are entitled to summary

judgment on Plaintiffs’ intentional tort claims because, like

the claims asserted in In re Berg Plaintiffs’ claims here cannot

satisfy the Act's jurisdictional prerequisite of “bodily injury.”

The Court agrees.

The Court finds persuasive the Ninth Circuit’s conclusion

that allowing state law tort claims to proceed under Price-

Anderson, in the absence of any bodily injury, would be

inconsistent with the Act’s requirement of physical harm. See

In_re Berg, 293 F.3d at 1131 (holding that State law tort

claims for medical monitoring and emotional distress, absent

some physical harm, failed to meet the jurisdictional

requirements of Price-Anderson). The Court has already

concluded that Plaintiffs have not suffered any bodily injury -

~ i.e., any present physical injury,’ under Kentucky law. Thus,

because Plaintiffs’ intentional tort claims fail to satisfy Price-

Anderson’s jurisdictional pr »..,aisite of physical harm, those

claims likewise cannot sur\ ve summary judgment.

” In Inte Berg, the court noted that both the Supreme Court and the

Ninth Circuit have interpreted the terms “bodily injury” and

“present physical injury” as being essentially synonymous. In re

Berg, 293 F.3d at 1132 (citing Eastern Airlines Inc. v. Floyd, 499

U.S. 530, 542, 111 S.Ct. 1489, 113 LEd.2d 569 (1991); Carey v.

United Airlines, 255 F.3d 1044, 1052 (9 Cir. 2001)).

S4a

IV. CONCLUSION AND ORDERS

Accordingly, and for the reasons set forth above, IT IS

HEREBY ORDERED that the motions for summary judgment

by GE [DN 194] and the Employer Defendants [DN 196] are

GRANTED.

This the 11th day of July 2003.

/s/ Joseph H. McKinley, Jr.

Judge, United States District Court

APPENDIX F

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY AT

PADUCAH-

No. 5:99CV-255-M

[May 2, 2003]

ALPHONSE RAINER, et al.

Plaintiffs,

Vv.

UNION CARBIDE CORP., et al.

Defendants.

ee

MEMORANDUM OPINION AND ORDER

Before the Court is defendants consolidated motion to

compel, for a protective order, to strike, and for reasonable

expenses incurred (DN 229). Essentially, defendants are

seeking from the Court an order that: (1) compels plaintiffs to

return an inadvertently produced document that contains a

privileged communication between attor~ »y and client; (2)

prohibits plaintiffs from introducing and/or making any

reference to said document in the future; (3) strikes from the

56a

Court’s record' any and all references to this document that

may have already occurred; and (4) award defendants

reasonable expenses, including attorneys fees, caused by

plaintiffs’ failure to return the document (DN 229).

Plaintiffs object to said motion because they believe

defendants have failed to satisfy their burden of demonstrating

the document is a privileged communication between attorney

and client (DN 232). Alternatively, plaintiffs’ set forth four

different reasons why they think defendants have waived the

attorney-client privilege as to this document (DN 232).

Finally, plaintiffs contend the crime-fraud exception to the

attorney-client privilege applies to the document (DN 232).

By their silence, plaintiffs apparently concede that if the Court

finds the subject document is privileged then Paragraph 8 of

the Agreed Protective Order mandates return of the document

~to defendants.

In reply, defendants set forth argument with a

corroborating affidavit from G. Wilson Horde, former in-

house counsel to Union Carbide, and exhibits in an effort to

satisfy their burden of demonstrating the document is a

privileged communication between attorney and client (DN

235, 238). Defendants also set forth the reasons why they do

not believe a waiver of the privilege tas Occurred (DN 235).

Finally, defendants explain why the elements of the crime-

fraud exception are not satisfied (DN 235).

' Defendants contend pursuant to Paragraph 8 of the Agreed

Protective Order they have formally requested return of the

inadvertently produced privileged document (DN 229). According

to defendants, plaintiffs have refused to return the document despite

their duty to do so under Paragraph 8 of the Agreed Protective

Order (DN 229).

S7a

Plaintiffs, citing one section of Fed.R.Evid. 501, argue

since this is a diversity case and Kentucky law provides the

rule of decision as to the claims and defenses raised by the

parties then Kentucky law on pr vilege should be applied to

this dispute (DN 232). Star Editorial v. U.S. Dist. Ct. C.D.

Cal.,7 F.3d 856, 859 (9" Cir. 1993). Defendants, citing

another section of Fed.R.Evid. 501, contend since the action

is governed by the Price-Anderson Act then federal common

law should be applied to this dispute (DN 235) See Hancock

v. Dodson, 958 F.2d 1367, 1373 (6" Cir. 1992);

Humphreys, Huteheson and Moseley v. Donovan, 755 F.2d

1211, 1219 n. 12 (6" Cir. 1985). Alternatively, defendants

point out since the elements under federal common law are

essentially the same as those enunciated by the Kentucky

Supreme Curt in Lexington Public Library v. Clark, 90

S.W.3d 53, 58 (Ky. 2002), the Court should find the privilege

applies under either legal framework (DN 235).

Plaintiffs brought a diversity action and defendants have

recently argued, in their summary judgment memoranda, that

the Price-Anderson Act preempts be diversity action. Since

that issue has yet to be resolved by the Court, the undersigned

has evaluated the dispute under both laws of privilege and

concludes that the result will be the same.

At issue is a document dated October 8, 1964 labeled

“internal correspondence” from W.L. Harwell with the Legal

and Information Control Department of the Nuclear Division

of Union Carbide. The written communication is addressed to

R.W. Levin at the “Paducah Plant” with copies to R.C. Baker

and E.C. Cain. The communication addresses a request for

approval for public dissemination of a paper written by R.C.

Baker.

58a

The question of whether the attorney-client privilege

applies to a document is a mixed question of fact and law.

Reed vy. Baxter,134 F.3d 351,355 (6" Cir. 1998) (citation

omitted); Lexington Public Library, 90 S.W.3d at 62. The

party asserting a claim of privilege has the burden of

satisfying each element of the privilege. Under federal

common law and Kentucky law, the essential elements of the

privilege are as follows: (1) a communication made in

confidence, (2) between privileged persons, (3) for the

purpose of seeking or obtaining legal advice or assistance, (4)

are at the client’s instance permanently protected from

disclosure, (5) unless the protection is waived. Reed, 134

F.3d at 355 (citing Fansek v. White, 965 F.2d 126, 129 (6th

Cir. 1992, and United States v. Goldfarb, 328 F.2d 280, 281

(6th Cir. 1964)); K.RE 503(a), (b), and (c); Lexington Public

Library, 90 S.W.3d at 58-63.

“Privileged persons” are the client, a representative of the

client, the lawyer, and a representative of the lawyer. Upjohn

yv. United States, 449 U.S. 383, 390-397 (1981); Reed. 134

F.3d at 355-356; KRE 503 (a)(1)-(4); Lexington Public

Library, 90 S.W.3d at 58-63. There is no dispute that the

“client” is Union Carbide. In the corporate setting a

“representative of the client” can be a person having the

authority to obtain professional legal services or to act on

legal advice rendered to the corporate client. Upjohn, 449

U.S. at 390-397; KRE 503(aX2)A) However, a

“representative of the client” can alsc be an employee who

makes or receives a confidential communication in the course

and scope of his or her employment about the subject matter

of his or her employment im order to effectuate legal

representation for the client. Upjohn, 449 U.S. at 390-397;

KRE 503(a)(2)(B); Lexington Public Library, 90 S.W.3d at

58-60; Robert G. Lawson, The Kentucky Evidence Law

Handbook, § 5.10 at 245-248 (3d ed. 1993). There is no

59a

dispute that Mr. Levin was a “representative of the client” at

the time he received the communication from Mr. Harwell

(DN 232 at 8-9). Nor is there any dispute that Messrs. Baker

and Cain were “representatives of the client” at the time they

received copies of the communication from Mr. Harwell to

Mr. Levin (DN 232 at 8-9).

Plaintiffs first argue the defenaants have provided no

evidence to substantiate their claim that Mr. Harweli was an

attorney (DN 232 at 8-9). Next, plaintiffs contend defendants

have not presented evidence concerning the type of legal

advice reflected in the correspondence (DN 232 at 8-9).

Based on a review of the October 8, 1964 correspondence,

the affidavit of G. Wilson Horde, and other materials

submitted by defendants (DN 235, 238), the undersigned

makes the following findings. The document at issue is a

communication made in confidence by Mr. Harwell, an

- attorney, in response to a request for a legal opinion by Mr.

Levin in the Paducah Gaseous Diffusion Plant (“Paducah

Plant”). Mr. Harwell rendered a legal opinion that addresses

the appropriateness of publicly disseminating a paper written

by Mr. Baker which is entitled “Neptunium-237

Contamination Control and Evaluation of Employee

exposure.” In sum, there is no merit to the first and second

arguments by plaintiffs.

Alternatively, plaintiffs argue it is clear that the

information provided to Mr. Harwell was noi kept in

confidence as reflected in the reference to a review of the

Baker paper by Wayne Range, a Public Information Officer

with the Atomic Energy Commission (DN 7232 at 9).

However, there is no claim that the paper written by Mr.

Baker is privileged nor is it necessary for the document

conveyed to Mr. Harwell to be confidential information; it is

60a

sufficient that it is conveyed in confidence and in the context

of an attorney-client relationship. Edna Selan Epstein, The

a iyi i : ion

American Bar Association Section of Litigation at 168 (4" ed

2001). Thus, plaintiffs’ argument is without merit.

Though not an issue expressly raised by plaintiffs, the

undersigned finds Union Carbide has expressly indicated that

it is exercising its privilege to refuse to disclose and to prevent

any other person from disclosing this confidential

communication. In sum, defendants have satisfied their

burden as to the first four elements identified above. That

takes the Court to the final element, has the privilege been

waived?

Plaintiffs argue defendants waived the attorney-client

privilege because the text of the confidential communication

indicates disclosure to an unrelated third party, Mr. Range.”

See United States vy. Dakota, 197 F.3d 821,825-826 (6 Cir.

1999); In re von Bulow, 828 F 2d 94, 101 (2d Cir. 1987);

Drimmer v. Appleton, 628 F.Supp. 1249, 1252 (S.D.N.Y.

1986). The undersigned agrees with the defendants’

~ contention that the conduct in this case is not analogous to the

conduct found to create a waiver in the cases cited by the

plaintiffs. Union Carbide operated the Paducah Plant under

the terms of a contract with the Atomic Energy Commission,

~ which was the owner of the plant and the regulatory agency

in charge of overseeing operations at the plant. The affidavit

and exhibits submitted by defendants (DN 235, 238)

substantiate defendants’ claim that Union Carbide was

2 Plaintiffs focus on a sentence in the letter that mentions Mr.

Range reviewed the Baker paper and concurred with Mr. Harwell’s

opinion.

6la

contractually required to submit the Baker paper to Mr.

Range’s office and obtain approval before it could be publicly

disseminated.

The undersigned concludes that plaintiffs’ position is

untenable because it eviscerates the attorney-client privilege

any time a business enters into an operational contract that

includes a review and approval provision similar to the one set

forth in the contract between Union Carbide and the Atomic

Energy Commission. The review and approval provision

within the contract is akin to when two or more clients share

a common legal or commercial interest and, therefore, share

legal asvice from one attorney with respect to that common

interest.’ Edna Selan Epstein, The Attorney-Client Privilege

and Work-Product Doctrine, American Bar Association

Section of Litigation at 196-197, 203-206 (4"ed. 201); Robert

G. Lawson, The Kentucky Evidence Law Handbook, § 5.10

at 245 (3d ed. 1993). There are two lines of cases, one line

insisting that the common interest must be legal in nature for

the privilege to apply to any information shared among the

parties. Epstein, supra at 203-206. The other line of cases

involves a broader standard that allows sharing of legal advice

even if the interest is primarily commercial or financial in

nature. Id. Since the common interest here is legal in nature,

the undersigned finds the narrower of the two standards is

satisfied.

* This “joint client” or “common interest” relationship that existed

between Union Carbide and the Atomic Energy Commission is

different from the “joint defense” or “common interest”

relationship that KRE 503(b)(3) addresses. The privilege set forth

in KRE 503(b)3) is limited to communications during a “pending

action” between co-defendants or co-plaintiffs represented by

different counsel. Robert G. Lawson, The Kentucky Evidence Law

Handbook, § 5.10 at 238.

62a

Next, plaintiffs contend Union Carbide waived the

attorney-client privilege when it surrendered all documents

pertaining to its operations at the Paducah Plant to USEC and

Bechtel Jacobs, LLC, who are unrelated third parties.

Defendants argue under the terms of the operating contact all

records related to Union Carbide’s operation of the Paducah

Plant were the property of the federal government and had to

be retained or disposed of as the Depariment of Energy

directed. (DN 235, Exhibits 1 and 2 to Horde Affidavit).

Defendants assert although the privilege is Union Carbide’s,

the Harwell document was and remains government property.

Further, argue defendants, the Department of Energy has the

right to direct custody to be transferred to each succeeding

contractor.

The undersigned finds plaintiffs’ argument untenable

because ii seeks to eviscerate the attorney-client privilege

based on a provision within the operational contract between

Union Carbide and the Government. The undersigned finds

that the contractual relationship established a “common

interest” between Union Carbide and the Government

whereby confidential communications are clearly privileged

from the disclosure at the instance of a third party such as

plaintiffs’ herein. Epstein, supra, at 203-206. Lawson, supra,

at 245. In sum, Union Carbide did not waive the attorney-

client privilege as to this document by surrendering all

documents pertaining to its operations at the Paducah Plant

when the term of the operational contract ended.

Next, plaintiffs assert that defendants waived the attorney-

client privilege because they failed to describe the Harwell

document in a privilege log as required by Fed.R.Civ.P.

26(b)(5) and Paragraph 3 of the Agreed Vrotective Order.

Defendants contend the argument fails for two reasons. First,

a privilege log typically is provided at the conclusion of a

63a

document j » ction “when the universe of responsive

privilege docus.ents withheld is known” (DN 235 at 8).

Defendants reason in a large document production such as we

have here, any other approach would require the creation of

multiple piecemeal logs, a result defendants believe is not

required by Fed.R.Civ.P. 26(b)(5) or the Agreed Protective

Order. Next, defendants assert before plaintiffs filed their

response to the motion defendants had already informed

plaintiffs that they were asserting a claim of privilege for the

Harwell document.

Both parties seem to overlook the obvious, since plaintiffs-

are in possession of a copy of the Harwell document they do

not need a description of the document, as required by

Fed.R.Civ.P. 26(b)(5) and Paragraph 3 of the Agreed

Protective Order, in order to respond to defendants’

contention that the document is privileged. In sum,

defendants’ failure to comply with Fed.R.Civ.P. 26(b)(5) and

Paragraph 3 of the Agreed Protective Order is harmless and

the remedy of waiver is inappropriate.

Finally, plaintiffs contend the Harwell document is

excepted from the attorney-client privilege by the crime-fraud

exception (DN 232). Plaintiffs assert from the text of the

document, it is clear that Mr. Harwell was well aware of the

ongoing misrepresentations to the workers at the Paducah

Plant and his advice to suppress Mr. Baker’s report was

intended to prevent the workers from learning of the

misrepresentation. Plaintiffs allege Mr. Harwell’s direct

participation in defendants’ scheme to deceive the workers

and the public obviates the application of the attorney-client

privilege.

Defendants argue application of the crime/fraud exception

is not appropriate here because plaintiffs have not (1) made a

64a

prima facie showing that a sufficiently serious crime or fraud

occurred and (2) established a relationship between the

privileged communication and the prima facie violation

shown. Defendants contend the first and dispositive reason

that plaintiffs cannot make the requisite prima facie showing

of fraud is that plaintiffs have no remaining claims for

fraudulent concealment or misrepresentation to workers in

1964 or at any other time while Union Carbide was operating

the plant (DN 235 at 11). Defendants point out the Court

dismissed plaintiffs’ outrage claim because all claims of

plaintiffs who had worked for Union Carbide at the Paducah

Plant were barred by the workers’ compensation exclusive

remedy provision (DN 235 at 11, citing DN 104 at 17-18 and

20-21). Defendants reason since there is no viable fraud

claim, the crime-fraud exception to the attorney-client

privilege cannot apply herein (DN 235 at 11). The

undersigned agrees.

Alternatively , defendants argue that at best plaintiffs have

made bare allegations of fraud because they have not been

able to come up with any evidence of fraud (DN 235 at 11-

12). Defendants assert that plaintiffs in making their argument

mis-characterized the content of the letter from Mr. Baker to’

Mr. Butler (DN 232, Exhibit 4) in an effort to substantiate

their claim of fraud (DN 235 at I 1-12). After reviewing

Exhibit 4 to plaintiffs’ response (DN 232), the undersigned

agrees with defendants. Additionally, defendants argue that

plaintiffs have demonstrated no relationship between the

Harwell communication and the fraud alleged by plaintiffs

(DN 235 at 12-14). The undersigned agrees. In sum, there is

no merit to plaintiffs’ contention that the Harwell document is

excepted from the attorney-client privilege by the crime-fraud

exception.

65a

For the reasons set forth above the undersigned concludes

that defendants have satisfied their burden of demonstrating

the Harwell document is a privileged communication between

attorney and client representatives. Furthermore, there is no

merit to plaintiffs’ contentions that defendants waived the

attorney-client privilege as to this document. Nor is there any

merit to plaintiffs’ contention that the crime-fraud exception

vitiates the attorney-client privilege as to this document.

ORDER

IT IS HEREBY ORDERED as follows:

(1) Within twenty (20) days of entry of this order,

plaintiffs shal! ceturn to defendants alt copies of the Harwell

document that are in their possession, custody or control;

(2) Absent further direction from the Court, plaintiffs are

prohibited from reproducing, publishing, referring to, and/or

making any use whatsoever of the Harwell document;

(3) The Harwell document, ineluded in plaintiffs’ response

to defendants’ surreply memorandum in opposition to Rainer

plaintiffs’ motion to amend the pleadings (DN 224, Appendix

A Tab 14) and all other references to said document, shall be

stricken from the record in this consolidated case. The Clerk

of the Court is directed to remove the copy of said document

from DN 224, Appendix A, Tab 14 and file it under seal; and

(4) Defendants’ request for reasonable expenses is

DENIED because plaintiffs’ memorandum (DN 232) sets

forth an arguable basis for challenging defendants’ assertion

of the attorney-client privilege as to the Harwell document.

This 2“ day of May, 2003.

66a

/s/ E. Robert Goebel

UNITED STATES MAGISTRATE JUDGE

Copies to: Counsel of Record

67a

APPENDIX G

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

PADUCAH DIVISION

No. 5:99-CV-255

{February 19, 2003]

ALPHONSE RAINER, et al.

Plaintiffs,

V.

UNION CARBIDE CORP., et al.

Defendants.

)

)

)

)

)

)

)

)

)

OPINION AND ORDER ON RANIER PLAINTIFFS’

MOTION TO AMEND THE PLEADINGS

This matter is before the Court on the Rainer Plaintiffs’

Motion to Amend the Pleadings [DN 195], wherein Plaintiffs

request leave to amend the pleadings to add Sylvia Mathis as

a party plaintiff in both actions’ and to assert claims for unjust

' The two actions at issue are Ranier v. Union Carbide Corp.,

(Civil Action No. 5:99-CV-255-M) (“Ranier I”), and Ranier

v. Richardson, (Civil Action No. 5:00-CV-220-M) (“Ranier

68a

enrichment and disgorgement of profits against Defendants in

Ranier IL. For the reasons set forth below, Plaintiffs’ Motion

is GRANTED in part and DENIED in part.

“If a proposed amendment would not withstand a motion

to dismiss, leave to amend should be denied.” Tidik vy.

Ritsema, 938 F.Supp. 416, 426 (E.D. Mich. 1996) (citing

Keweenaw Bay Indian Cmty. v. State of Mich., 11 F.3d

1341, 1348 (6" Cir. 1993)). As such, when deciding whether

to grant a motion to amend, a court must accept the plaintiff's

factual allegations as true, but “need not accept as true legal

conclusions or unwarranted factual inferences.” Murphy v.

Sofamor Danek Group, Inc.(In re Sofamor Danek Group,

Inc.), 123 F.3d 394, 400 (6" Cir. 1997) (internal quotation

marks and citation omitted).

Having had their claim for money damages foreclosed by

Corr, Services Corp, v, Malesko, 534 U.S. 61, 122 S. Ct.

515, 151 L.Ed.2d 456 (2001), Plaintiffs wish to amend their

complaint to assert an equitable claim of unjust enrichment

with disgorgement as a remedy. In support of the present

Motion, Plaintiffs contend that the Malesko decision “did not

limit the availability of equitable relief against federal

agencies or corporate defendants, such as Union Carbide,

Martin Marietta, Lockheed Martin or General Electric for

violations of the United States Constitution.” (Pis.’ Reply

Mem. at 1) (emphasis added).

The Supreme Court in Malesko recognized that the

original purpose of a Bivens claim was to deter the conduct of

individual federal actors. If suits against corporate defendants

II"), which have been consolidated under the caption of

Ranier I.

69a

were allowed, the Supreme Court believed that claimants

would focus their attention on corporations instead of the

individuals directly responsible for the injury which would not

serve the original purpose of Bivens. And while the Supreme

Court recognized that requiting payment for the constitutional

harms corporations commit might be the best way to

discourage future harms, it refused to expand sanction such

suits because Bivens, from “ts inception, has only been

concerned with deterring the unconstitutional conduct of

individual officers.

Thus, it is clear that a constitutional tort remedy against

private corporations is foreclosed by Malesko. In discussing

available alternative remedies, the Supreme Court noted that

the proper vehicle for preventing an entity from acting

unconstitutionally is injunctive relief. Such relief is available

to prevent unconstitutional actions and policie

This text is long and has been trimmed here. Open the source document for the complete record.