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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2005
- **Citation:** 546 U.S. 978

## Text

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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.

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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.

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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.

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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

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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.

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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

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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

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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

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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

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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.

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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.

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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” ).

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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

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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» |.

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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.

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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

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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:

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“[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

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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

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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.,

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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.

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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].

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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).

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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

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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

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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

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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

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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

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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” inclu

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_0144%3A1. Public record. Not legal advice.