Opposition Brief — Rainer v. Union Carbide Corp.

6

was “synonymous” with Kentucky's “present physical

injury requirement.” Reply Br. at 16. Accordingly, peti-

tioners framed the question presented for review as

whether their showing of asymptomatic subcellular

damage from radiation exposure was “insufficient as a

matter of law to establish a bodily/physical injury or

disease under Kentucky Law.” Appellants’ Br. at 2.

The Sixth Circuit affirmed the District Court's deter-

mination that petitioners’ claims were governed by the

Price-Anderson Act, but that Kentucky law would pro-

vide the “substantive foundations” for those claims.

App. 19a: It further affirmed the District Court's hold-

ing that the Kentucky Supreme Court's decisions in

Wood and Capital Holding compelled the grant of

summary judgment based on petitioners’ “lack of any

present physical illness.” App. 19a-28a.

B. The Bivens Claim

The District Court dismissed petitioners’ Bivers

claim relying on this Court's decision in Malesko, 534

U.S. at 66, which held that a Bivens action may not be

maintained against a private corporation. App. 79a-

80a. The Sixth Circuit afiirmed the dismissal, but on

different grounds. Relying on Schweiker v. Chilicky,

487 U.S. 412 (1988), and Bush v. Lucas, 462 U.S. 367

(1983), it held that the comprehensive statutory frame-

work established in the Price-Anderson Act for claims

arising out of a “nuclear incident” foreclosed any rem-

edy under Bivens. App. 29a-33a.5

5 Following the initial dismissal of their Bivens claim, petition-

ers sought to amend their complaint to assert an “equitable” con-

stitutional claim for unjust enrichment and disgorgement of profits.

The District Court denied this motion, holding that “|t}he ‘equitable’

claim is just a disguised version of [petitioners'] money damages

claim and it should be foreclosed for the same reasons set out in

Malesko.” App. 69a. In the light of its disposition of the Bivens

claims. the Sixth Circuit held that the request for equitable relief

was moot. App. 33a.

7

REASONS FOR DENYING THE WRIT

Petitioners have asserted that eight different ques-

tions are presented in this case. Questions | through 4

of the Petition, and Parts I to Ill of the Reasons for

Granting the Petition, relate to the grant of summary

judgment on petitioners’ tort claims under the Price-

Anderson Act.

We respond to these arguments in Parts | and Il

below. In Part I, we show that review by this Court

would be inappropriate because the Sixth Circuit

affirmed the grant of summary judgment based on its

interpretation of Kentucky law, and none of the parties

has contended that Kentucky law is inconsistent with

the Price-Anderson Act. Consequently, these issues do

not present any question of federal law. In Part II, we

show that the Sixth Circuit's decision does not conflict

with any of the various decisions of this Court and the

federal courts of appeals cited in the Petition.

Question 5 of the Petition and Part [V of the Reasons

for Granting the Petition relate to the dismissal of peti-

tioners’ Bivens claim. We respond to these arguments

in Part III below. We show that the Sixth Circuit's deci-

sion was based on a straightforward application of the

principles set fortr by this Court in Schweiker and

Bush, which held that a Bivens remedy should not be

implied where Congress has provided what it considers

to be an adequate alternative remedy. The Sixth Circuit

decision does not conflict with any decision of this

Court or any federal court of appeals, and in any case,

as the District Court correctly held, this Court's deci-

sion in Malesko forecloses any Bivens remedy against

private corporations like GE.

The remaining questions and issues presented in the

Petition relate only to the Paduc; contractors and

thus are not addressed in this brief.

8

I. Review of the Sixth Circuit's Decision With

Respect to the Price-Anderson Claims Is Unwar-

ranted Because the Decision Was Based on an

Interpretation of Kentucky Law.

The Sixth Circuit agreed with the District Court that

although petitioners’ state law tort claims were gov-

erned by the Price-Anderson Act, Kentucky law would

provide the substantive rules of decision for those

claims. See 42 U.S.C. § 2014(hh). Petitioners did not

argue in the Sixth Circuit that the Price-Anderson Act

imposed different requirements from Kentucky law. To

the contrary, they conceded that the Act contained a

“bodily injury or disease requirement” that was “syn-

onymous” with Kentucky's “present physical injury

requirement.” Reply Br. at 16. Petitioners’ sole argu-

ment concerning the Price-Anderson claims before the

Sixth Circuit was that the claims were viable under

Kentucky law. Appellants’ Br. at 33. Therefore, the

Sixth Circuit properly looked to Kentucky law to

determine whether petitioners could withstand sum-

mary judgment on these claims.

Because the Sixth Circuit's decision turned on the

interpretation of Kentucky law, review by this Court is

unwarranted.

A. The Sixth Circuit Decided the Case Based

on Kentucky Law.

The Sixth Circuit made it clear that it was deciding

the Price-Anderson claims based on Kentucky law. It

stated:

“The key question before us . . . is whether Ken-

tucky caselaw equates ‘subcellular damage’ with

‘bodily injury.’ The issue has been previously ad-

dressed by the Kentucky courts, but, as the plain-

6 See App. 20a (“Courts are required to look to state law for the

substantive rules to apply in deciding claims brought under the

Act.”)

9

tiffs note, the underlying facts have been slightly

different. We must therefore make the ‘best predic-

tion, even in the absence of direct state court

precedent, of what the Kentucky Supreme Court

would do if it were confronted with this question.'”

App. 20a. (citation omitted)

It then proceeded to examine the Kentucky Supreme

Court's decisions in Wood and Capital Holding, App

20a-23a, decisions from lower courts in Kentucky,

App. 23a-24a, cases from other jurisdictions, App.

25a-26a, and public policy considerations, including

those considerations to which Kentucky courts had

previously given weight. App. 26a-28a. After consid-

ering these sources, the Sixth Circuit concluded:

“Kentucky caselaw provides sufficient guidance for

us to conclude that, if this case were to be decided

in thai state’s courts, the public policy considera-

tions and lack of any present physical illness

would require the grant of summary judgment in

favor of the defendants.” App. 28a.

Thus, the court's decision was based on an interpreta-

tion of Kentucky law as enunciated by the Kentucky

Supreme Court and lower Kentucky courts.

Petitioners fault the Sixth Circuit (at 11) for citing

public policy considerations as one of the factors in its

decision process. Petitioners cite nothing to suggest

that this was inappropriate, and in any event the

opinion makes it clear that the Sixth Circuit was rely-

ing on these considerations simply as an aid to its con-

struction of Kentucky law, which the court deemed

dispositive. Moreover, the policy considerations that

the Sixth Circuit cited were essentially the same policy

considerations that the Kentucky Supreme Court relied

on in Wood and Capital Holding. See App. 22a-23a.

10

Petitioners also contend (at 10, 14) that the Sixth

Circuit's opinion conflicts with Kentucky precedent.’

GE submits that the Sixth Circuit's conclusion was

plainly correct under the governing Kentucky prece-

dents of Wood and Capital Holding. But even if the

Sixth Circuit had erred in its construction of Kentucky

law—which it did not—that would not present a proper

question for review by this Court. The Kentucky

Supreme Court, not this Court, is the final arbiter of

Kentucky law.

B. Petitioners’ New Argument Concerning the

Price-Anderson Act Does Not Warrant

Review.

Petitioners now argue for the first time in this Court

(at 12) that under the Price-Anderson Act, “irradiation”

is a compensable injury, even in the absence of any

manifestation of disease symptoms. To the extent that

petitioners now contend that the Price-Anderson Act

imposes different requirements from Kentucky law, this

new argument should not be considered. As noted

above, before the Sixth: Circuit, petitioners conceded

that the requirements of the Price-Anderson Act were

“synonymous” with the requirements of Kentucky law.

Having made that concession, and argued their case

solely with reference to Kentucky law, petitioners

should not now be permitted to argue in this Court

that Kentucky law (as interpreted by the Sixth Circuit)

somehow conflicts with the Price-Anderson Act.

In any event, whether the Price-Anderson Act permits

a plaintiff to recover personal injury damages based

solely on “irradiation” is not a question that merits re-

view by this Court. To our knowledge, only one federal

? The only Kentucky decision that petitioners cite (at 13) is

Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980). which they assert (at

13) stands for the proposition that “irradiation” can support a

cause of action for personal injury. The Kentucky Supreme Court

expressly rejected this reading of Deutsch in both Wood, 82 S.W.3d

at 853. and Capital Holding, 873 S.W.2d at 193.

11

court of appeals has addressed this question—the

Ninth Circuit in Berg—and that decision squarely re-

jected the notion that exposure to radiation gives rise

to a cause of action under the Price-Anderson Act.

Instead, the Ninth Circuit held in that case that per-

mitting plaintiffs to recover damages without showing a

“physical injury” would be inconsistent with the

requirements of the Act. 293 F.3d at 1131-33. Since

Berg is the only reported case to address this issue,

there obviously is no conflict among the circuits, and

hence no basis for review by this Court.

ll. The Sixth Circuit's Decision With Respect to

the Price-Anderson Claims Does Not Conflict

With Any Decision of This Court or Any Federal

Court of Appeals.

As we have shown, the Sixth Circuit concluded that

under Kentucky law, subcellular changes would not

constitute a “bodily injury” sufficient to give rise to a

cause of action for negligence or strict liability. App.

20a-28a. Petitioners contend that this holding conflicts

with various decisions from this Court and other

federal courts of appeals. There is no merit to these

arguments.

A. The Sixth Circuit’s Decision Does Not

Conflict With This Court's Decisions in

Silkwood and Ayers.

Petitioners argue {at 10-15) that the Sixth Circuit's

decision conflicts with this Court's decisions in Silk-

wood v. Kerr-McGee Corp., 464 U.S. 238 (1984), and

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

(2003). Notably, petitioners did not cite Silkwood or

Ayers in the District Court or in their Sixth Circuit

briefs or rehearing petition. Accordingly, petitioners’

arguments concerning these cases shou!d not even be

considered by this Court. In any case, the decision

does not conflict with Silkwood or Ayers.

1. Silkiwood was decided before the enactment of the

Price-Anderson Amendments Act of 1988, 102 Stat.

12

1066. At that time, the federal courts did not have

jurisdiction over claims arising out of or resulting from

“nuclear incidents.”* In Silkwood, the decedent was

exposed to plutonium in her workplace, and as a result

of this exposure her home was also contaminated. 464

U.S. at 241-42. She later died in an unrelated car

accident, and her estate sued for damages for personal

injury and property damage under Oklahoma law.

The issue before this Court in Silkiwwood was whether

federal law precluded the plaintiff from recovering

punitive damages on her property damage claim. This

Court, analyzing the Price-Anderson Act as it then

existed, determined that an award of punitive damages

was not preempted. It held 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.” Id. at 256.

In the light of the 1988 amendments, the precise

holding of Silkwood is no longer good law. The 1988

amendments gave federal courts jurisdiction over

“public liability actions’"—ie., claims arising out of or

resulting from “nuclear incidents"—and barred any

award of punitive damages in such cases where the

defendant is indemnified by the United States. See 42

U.S.C. § 2014(q), (w), (hh); id. § 2210(n)(2), (s).

Petitioners argue (at 11) that Silkwood and the 1988

amendments reflect a policy that “state law remedies

be available to those injured by nuclear incidents.” GE

agrees that under the 1988 amendments, state law

continues to provide the substantive rules for decision

for claims arising out of nuclear incidents, unless such _

8 Prior to the 1988 amendments, federal court jurisdiction

under the Price-Anderson Act was limited to claims arising out of or

resulting from a much more narrow category of “extraordinary

nuclear occurrences.” See, e.g., Acuna v. Brown & Root Inc., 200

F.3d 335, 339 (5th Cir. 2000); Kiick v. Metro. Edison Co., 784 F.2d

490, 494 (3d Cir. 1986) (quoting pre- 1988 version of § 2210(n)(2))

13

law is inconsistent with the Price-Anderson Act. See 42

U.S.C. § 2014(hh). But this argument does not he'p

petitioners, because—as noted above—the Sixth Circuit

decided this case based its interpretation of Kentucky

law. Thus, petitioners were not deprived of a remedy

they would have had under state law.

Petitioners also argue (at 13) that Silkwood stands

for the proposition that “irradiation” is “sufficient to

support an action for personal injury absent clinically

manifest disease.” Silkwood does not support this pro-

position at all. Although the plaintiff had originally

asserted both property damage and personal injury

claims, the Tenth Circuit held that the personal injury

claim was barred by the Oklahoma worker's compen-

sation statute. 464 U.S. at 246. Consequently, the only

claim before this Court was a claim for property

damage, not personal injury.

And in any event, Silkwood was decided under Okla-

homa law—not Kentucky law. Even assuming that the

Oklahoma courts would recognize an action for “irra-

diation” in the absence of any disease manifestation,

that would not mean that the Sixth Circuit erred in

finding, based on Wood and Capital Holding, that the

Kentucky courts would not recognize such an action.

In short. to the extent that Silkwood remains good law,

it does not conflict with the Sixth Circuit's ruling in

this case.

2. In Ayers, this Court held that a plaintiff suffering

from the disease of asbestosis may recover damages for

fear of cancer unver the Federal Employers’ Liability

Act (“FELA”). 538 U.S. at 141. Petitioners appear to be

relying on Ayers to suggest that they should also be

entitled to recover damages for fear of cancer.

Ayers is distinguishable for two reasons. First, in

Ayers, the substantive rules for decision were a matter

of federal law under FELA. By contrast, as we have

shown, the Price-Anderson Act provides that the sub-

stantive rules of decision are to be provided by state

14

law, 42 U.S.C. § 2014(hh), and the Sixth Circuit

decided the case based on Kentucky law. Even if FELA

did permit a plaintiff to recover fear of damages absent

any symptoms of disease (which, as discussed below, it

does not), that would not mean that the Sixth Circuit

erred in its interpretation of Kentucky law.

Second, in Ayers, it was undisputed that the plain-

tiffs were suffering from asbestosis, which the Court

characterized as a “clinically serious, often disabling,

and progressive disease.” 538 U.S. at 148; see also id.

at 142 n.2 (listing symptoms of asbestosis). By con-

trast, petitioners here do not exhibit any symptoms of

any disease; they merely contend that they are at

increased risk of developing cancer some time in the

future. Nothing in Ayers suggests that an increased

risk of disease, without any symptoms, gives rise to a

cause of action under FELA, To the contrary, this

Court expressly rejected that argument in Metro-North

Commuter Railroad v. Buckley, 521 U.S. 424 (1997),

holding that under FELA, a “worker negligently ex-

posed to a carcinogen . . . cannot recover unless, and

until, he manifests symptoms of a disease.” Id. at 426-

27.

Accordingly, Ayers does not support petitioners’ con-

tention that they are entitled to recover damages for

fear of cancer even though they do not currently

manifest any symptoms of disease.

B. The Sixth Circuit's Decision Does Not Con-

flict With Any Decision of Any Other Court

of Appeals.

Petitioners also assert (at 13-14, 19-22) that the

Sixth Circuit's decision conflicts with various other

decisions of federal appellate courts.® These arguments

also lack any merit.

9 Petitioners also cite several district court decisions and a few

decisions from state courts. While GE believes that petitioners have

mischaracterized many of these cases, we will not address them in

15

1. Pe mers (at 19) cite Lead Industries Ass'n, Inc. v.

EPA, 6-.. #.2d 1130, 1158 (D.C. Cir. 1980), for the pro-

position that the “modern trend” in preventive medicine

is to detect and correct health problems at their sub-

clinical stages.'° Lead Industries, however, was not a

tort case, but an industry petition for review of air

quality standards issued by the Environmental Protec-

tion Agency. Lead Industries thus has nothing to say

about whether subclinical changes that have not

resulted in disease symptoms are sufficient to give rise

to a cause of action in tort under any state’s law—

much less under Kentucky law.

2. Petitioners also (at 19-21) cite several cases (some

unpublished and non-precedential) involving the con-

struction of the term “bodily injury” in liability insur-

ance policies.'' Petitioners did not cite any of these

decisions in the District Court or the Sixth Circuit.

Furthermore, none of these cases involves the applica-

tion of Kentucky law. But in any event, courts have

recognized a “clear distinction” between the time when

“bodily injury” occurs for purposes of triggering cover-

age under an insurance policy and the time when such

injury becomes compensable for purpose of tort law,

iLe., when a cause of action accrues. Ins. Co. of N. Am.

v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1223

detail because (1) the cases do not involve the application of

Kentucky law. and (2) conflict between a court of appeals decision

and a district court decision is not generally a ground for Supreme

Court review in any event. See Sup. Ct. R. 10. We alse note that

several of these cases were not cited in either the District Court or

the Sixth Circuit.

10 Petitioners mistakenly describe Lead Industries as a Second

Circuit decision. .

'! See VoiceStream Wireless Corp. v. Fed. Ins. Co., 112 Fed.

Appx. 553 (9th Cir. 2004); N. Ins. Co. of N.Y. v. Baltimore Bus.

Conun. Inc., 68 Fed. Appx. 414 (4th Cir. 2003); Campbell v. Metro.

Prop. & Cas. Ins. Co., 239 F.3d 179 (2d Cir. 2001): Am. Home Prods.

Corp. v. Liberty Mut Ins. Corp., 748 F.2d 760 (2d Cir. 1984); other

cases cited in Petition (at 20).

16

(6th Cir. 1980).'2 Thus the construction of insurance

policies is not relevant to the issues in this case.

3. Finally, petitioners argue (at 21) that the Sixth Cir-

cuit’s decision is inconsistent with Hagerty v. L&L Mar-

ine Services, Inc., 788 F.2d 315 (5th Cir.), reh'g denied,

797 F.2d 256 (Sth Cir. 1986). Petitioners failed to cite

Hagerty in either the District Court or the Sixth Cir-

cuit. In any event, Hagerty does not involve any

interpretation of Kentucky law. Furthermore, it does

not hold (as petitioners claim) that “cellular and chro-

mosomal damage [is] sufficient to support liability for

emotional injury.” ‘

The plaintiff in Hagerty was a seaman who was acci-

dentally soaked with toxic chemicals, as a result of

which he developed “[{djizziness, leg cramps, and a per-

sistent stinging sensation in [his! feet or fingers.” 788

F.2d at 317. Thus, unlike petitioners in this case, he

did manifest some symptoms of disease or illness. The

Fifth Circuit held that this was sufficient injury to

permit him to assert a cause of action in tort under the

Jones Act. Id.!° Consequently, Hagerty does not stand

for the proposition that a plaintiff may recover tort

damages under federal law absent any symptoms of

illness or disease. In any case, as noted above, this

Court’s subsequent decision in Metro-North made it

clear that a plaintiff cannot recover tort damages under

12 See also Keene Corp. v. Ins. Co. of N. Am. 667 F.2d 1034,

1043 n.17 (D.C. Cir. 1981) (because different policy considerations

apply. cases regarding accrual of a claim for statute of limitations

purposes are “not at all relevant” to construction of insurance

policies).

'3 Although Hagerty did appear to suggest that a plaintiff

could recover damages for fear of cancer absert a physical injury,

the Fifth Circuit clarified on rehearing that it had “assumed an

actionable injury and . . . intended no opinion as to the nature of

the injury required to give rise to an actionable claim.” 797 F.2d at

56.

17 .

federal law unless and until disease symptoms become

manifest. 521 U.S. at 426-27.'4

Ill. Review of the Sixth Circuit's Decision With

Respect to the Bivens Claim Is Unwarranted,

Because It Does Not Conflict With Any Decision

of This Court or a Federal Court of Appeals.

The Sixth Circuit held that the comprehensive reme-

dial scheme set forth in the Price-Anderson Act for

claims arising out of a “nuclear incident” precluded

petitioners from asserting a Bivens claim. It based this

conclusion primarily on Schweiker v. Chilicky, 487 U.S.

412 (1988), and Bush v. Lucas, 462 U.S. 367 (1983).

In both of these decisions, this Court declined to

imply a damages remedy under Bivens where Congress

had established an alternative statutory remedial

scheme. In Bush, the Court held that the existence of

“comprehensive procedural and substantive provisions

giving meaningful remedies against the United States”

precluded a federal civil servant from asserting a

Bivens claim against his supervisor for alleged viola-

tions of his First Amendment rights. 462 U.S. at 368.

In Schweiker, the Court held that the Social Security

Act foreclosed a Bivens remedy for improper denial of

Social Security benefits. 487 U.S. at 424-29. The Court

explained that “[wjhen the design of a Government pro-

gram suggests that Congress has provided what it

considers adequate remedial mechanisms for constitu-

tional violations that may occur in the course of its

administration, we have not created additional Bivens

remedies.” Id. at 423.

The Sixth Circuit's decision rests on a straight-

forward application of the principles set forth in

Schweiker and Bush. After examining the legislative

history of the Price-Anderson Act, the court concluded

'# Jones Act cases follow cases under FELA. E.g., Brown v.

Parker Driiling Offshore Corp., 410 F.3d 166. 178 (Sth Cir. 2005).

18

that “Congress indisputably intended for the Act to be

the primary remedial mechanism for claims arising out

of ‘nuclear incidents."” App. 3la. Because Congress

had provided what it considered to be an adequate

remedial mechanism, the Sixth Circuit found no basis

for implying an additional Bivens remedy. App. 33a.

Petitioners argue (at 24) that under Carlson v. Green,

446 U.S. 14 (1980), a Bivens claim is only precluded if

Congress “explicitly” declares an alternative remedy to

be a substitute for direct recovery under the Constitu-

tion and viewed as equally effective. In neither Bush

nor Schweiker, however, did the statutory scheme

contain any such “explicit” statement.'5 The Sixth Cir-

cuit’s decision is thus consistent with the governing

precedent from this Court.

Petitioners do not argue that the Sixth Circuit's

ruling conflicts with any decision of any other court of

appeals. Indeed, to our knowledge, no other court has

ever addressed whether the Price-Anderson Act remedy

precludes a Bivens claim. Thus there is no conflict

among the circuits that might justify review of this

question.

But in any event, even assuming that the Sixth

Circuit erred in holding that the Price-Anderson Act

precludes a Bivens remedy, this Court's decision in

Malesko would still prevent plaintiffs from asserting a

Bivens claim. In Malesko, this Court unequivocally

held that the Bivens remedy could not be extended “to

confer a right of action for damages against private

entities acting under color of federal law.” 534 U.S. at

66. Thus, as the District Court recognized, App. 79a,

petitioners cannot assert a Bivens action against GE or

'S See Bush, 462 U.S. at 372-73 (noting that “Congress has

not expressly precluded the creation of [a Bivensl remedy by

declaring that existing statutes provide the exclusive mode of

redress” and assuming that civil service remedy would not be as

effective as individual damages remedy); Schweiker, 487 U.S. at

425 (finding case indistinguishable from Bush).

19

the Paducah contractors, all of which are private cor-

porations.

For all of these reasons, review by this Court of the

dismissal of the Bivens claim is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

CHARLES S. CASSIS ELIZABETH RUNYAN GEISE

LORI E. HAMMOND (Counsel of record)

FROST BROWN TODD LLC MATTHEW M. HOFFMAN

400 West Market St. GOODWIN PROCTER LLP

Louisville, KY 40202 901 New York Ave.

(502) 889-5400 Washington, DC 20001

(202) 346-4000

Counsel for Respondent General Electric Company

September 29, 2005

APPENDIX

STATUTORY PROVISIONS INVOLVED

1. Section 11 of the Atomic Energy Act of 1954, as

amended by the Price-Anderson Act, 71 Stat. 576, and

as subsequently amended, 42 U.S.C. § 2014, provides

in relevant part:

“Sec.11. DEFININONS.—The intent of Congress in

the definitions as given in this section should be

construed from the words or phrases used in the

definitions. As used in this Act:

“e. The term ‘byproduct material’ means (1) any

radioactive material (except special nuclear mate-

rial) yielded in or made radioactive by exposure to

the radiation incident to the process of producing

or utilizing special nuclear material, and (2) the

tailings or wastes produced by the extraction or

concentration of uranium or thorium from any ore

processed primarily for its source material content.

“q. The term ‘nuclear incident’ means any occur-

rence, including an extraordinary nuclear occur-

rence, within the United States causing, within or

outside the United States, bodily injury, sickness,

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

or loss of use of property, arising out of or resulting

‘from the radioactive, toxic, explosive, or other haz-

ardous properties of source, special nuclear, or by-

product material ....

see —_

“w. The term ‘public liability’ means any legal

liability arising out of or resulting from a nuclear

incident or precautionary evacuation (including all

reasonable additional costs incurred by a State, or

a political subdivision of a State, in the course of

2a

responding to a nuclear incident or a precautionary

evacuation)... ..

“z. The term ‘source material’ means (1) uranium,

thorium, or any other material which is determined

by the [Atomic Energy] Commission pursuant to

the provisions of section 61 [42 U.S.C. § 2091] to

be source material; or (2) ores containing one or

more of the foregoi1.g materials, in such concen-

tration as the Commission may by regulation de-

termine from time to time.

“aa. The term ‘special nuclear material’ means (1)

plutonium, uranium enriched in the isotope 233 or

in the isotope 235, and any other material which

the Commission, pursuant to the provisions of

section 51 [42 U.S.C. § 2071], determines to be

special nuclear material, but does not include

source material; or (2) amy material artificially en-

riched by any of the foregoing, but does not include

source material.

“hh The term ‘public liability action’, as used in

section 170 [42 U.S.C. § 2210], means any suit as-

serting public liability. A public liability action

shall be deemed to be an action arising under sec-

tion 170 [42 U.S.C. § 2210], and the substantive

rules for decision in such action shall be derived

from the law of the State in which the nuclear inci-

dent involved occurs, unless such law is inconsis-

tent with the provisions of such section.”

2. Section 170(n)(2) of the Atomic Energy Act of

1954, as added by the Price-Anderson Act and as sub-

sequently amended, 42 U.S.C. § 2210(n)(2), provides in

relevant part:

“(2) With respect to any public liability action

arising out of or resulting from a nuclear incident,

the United States district court in the district

3a

where the nuclear incident takes place . . . shall

have original jurisdiction without regard to the citi-

zenship of any party or the amount.in controversy.

Upon motion of the defendant or of the Commis-

sion or the Secretary, as appropriate, any such

action pending in any State court... or United

States district court shall be removed or trans-

ferred to the United States district court having

venue under this subsection. Process of such dis-

trict court shall be effective throughout the United

States. In any action that is or becomes removable

pursuant to this paragraph, a petition for removal

shall be filed within the period provided in section

1446 of title 28, United States Code... .”

3. Section 170(s) of the Atomic Energy Act of 1954,

as added by the Price-Anderson Act and as sub-

sequently amended, 42 U.S.C. § 2210(s), provides:

“s. LIMITATION ON PUNITIVE DAMAGES.—No court

may award punitive damages in any action with

respect to a nuclear incident or precautionary

evacuation against a person on behalf of whom the

United States is obligated to make payments under

an agreement of indemnification covering such

incident or evacuation.”

IN THE

Supreme Court of the United States

ALPHONSE RAINER, et ai.,

Petitioners,

v,

UNION CARBIDE CORPORATION, et ai.,

Respondents.

On Petirion For a Writ of CERTIORARI TO THE

Unrrep States Court or ApreaLs ror THe Sixtu Circuit

BRIEF IN OPPOSITION

G. Witson Horpe Ropert E. Tarr

KRAMER, RAYSON, LEAKE, _ Counsel of Record

Ropaers & MorGaNn Vorys, SATER, SEYMOUR

P.O. Box 629 AND Pease LLP

Knoxville, TN 37901-0629-——_ 52 East Gay Street

P.O. Box 1008

Mark C, WHITLow Columbus, OH 43216-1008

WuttLow, RoBeRrts, (614) 464-6341

Houston & STRAUB

300 Broadway

P.O. Box 995 |

Paducah, KY 42002-0995

Counsel for Respondents

Union Carbide Corporation, Lockheed Martin Corporation

Lockheed Martin Energy Systems, Inc.,

Lockheed Martin Utility Services, Inc.

196964 £

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

‘cdusittien seh bee, att. .

i

QUESTIONS PRESENTED FOR REVIEW

Are allegations of “subcellular changes” which cause no

physical symptoms and which may or may not later

develop into a “clinically relevant disease” sufficient to

establish a present physical injury under either the Price-

Anderson Act or the applicable Kentucky law?

Absent evidence demonstrating a defendant/employer’s

“deliberate intention to produce injury or death”, are

physical injury suits by employees, such as the claims

advanced by Petitioners herein, barred by the Kentucky

Workers’ Compensation Law?

Are Petitioners’ federal constitutional claims against the

Respondent contractors cognizable under Bivens v. Six

Unknown Named Agents of the Federal Bureau of

Narcotics and its progeny?

Did the District Court error in finding that an

inadvertently produced document was protected from

disclosure by the attorney-client privilege?

ll

PARTIES TO PROCEEDING

The parties to this proceeding are as follows:

Petitioners: Alphonse Rainer

David M. Sacharanoski

Harold Hargan

Charles A. Ramsey

Mrs. H. C. (Sylvia) Mathis

Mrs. Alphonse (Janie) Rainer

Sybil Mathis

Shanda M. Mathis

Chyanne Rainer Stevens

Respondents: Union Carbide Corporation

Martin Marietta Corporation

Martin Marietta Energy

Systems, Inc.

Martin Marietta Utility

Services, Inc.

Lockheed Martin Corporation

Lockheed Martin Energy

Systems, Inc. i.

Lockheed Martin Utility

Services, Inc.

General Electric Company

Union Carbide Corporation is a wholly-owned subsidiary

of The Dow Chemical Company. The Dow Chemical

Company has no parent. Martin Marietta Corporation is now

known as Lockheed Martin Corporation. Martin Marietta

Energy Systems, Inc. is now known as Lockheed Martin

Energy Systems, Inc. Martin Marietta Utility Services, Inc.

is now known as Lockheed Martin Utility Services, Inc. Both

Lockheed Martin Energy Systems, Inc. and Lockheed Martin

Utility Services, Inc. are wholly-owned subsidiaries of

Lockheed Martin Corporation. U.S. Trust Company

ill

(16.16%), and State Street Bank and Trust Company

(19.26%), as fiduciaries, currently hold more than a 10%

ownership interest in Lockheed Martin Corporation.

Lockheed Martin Corporation has no parent.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ......

PARTIES TO PROCEEDING ....cccccccctocves

STATEMENT OF THE CASE ......ccccccccens

PEPE EL OE CIUED oc ccccccevedecentesss

REASONS FOR DENYING THE PETITION ....

I.

Il.

I i a aa

Contrary to Petitioners’ claims, the rulings

below are not in conflict with precedent of

this Court or the Kentucky Supreme Court

with regard to the requirement that Plaintiffs

establish “a present physical injury” in order

3 kk rrr ry errr eee

A. Both the District Court and the Court of

Appeals properly applied Kentucky law

to the undisputed facts in this case. ...

B. The Courts properly required a “present

SG TE oa cncevassadabvanets

Contents

Page

C. Decisions by other Circuits and/or other

States are largely irrelevant to the

determination herein. .............. 10

D. Price-Anderson mandates the result

reached in this case. ...............- 10

lll. Deliberate intent to harm is an absolute

prerequisite to recovery for an intentional tort

Sy TONE, -s dwccuussoswesecsus lI

IV. Petitioners have no cognizable Bivens

Gc wbudod suseeus dednceusbedeasds 14

A. Bivens applies only to individuals. .... 14

B. Price-Anderson provides an adequate

remedial mechanism for Petitioners’

| TRAINS AOI em Smee Ree Ree 17

V. Respondents were entitled to the return

of the inadvertently disclosed privileged

BD G0 nn ctdentecdecevécseueeixe 17

SE co vnveerucniseernanyeeetsunns 19

APPENDIX — RELEVANT STATUTORY

SPEED cv denesevenutdsubbetaseeueus la

vi

TABLE OF CITED AUTHORITIES

Page

Cases: 8

Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971) .... passim

Blanton v. Cooper Industries, Inc., 99 F.Supp. 2d 797

SNe GEE vocaeee sun gee caddauenesedes 12

Brierly v. Alusuisse Flexible Packaging, Inc.,

184 F.3d 527 (6" Cir. 1999) .........c cee eee 12, 13

Bush v. Lucas, 462 U.S. 367 (1983) ............. 17

Capital Holding Co. v. Bailey, 873 S.W.2d 187

Se BOOED kwevexrivesccvsaceadvetasse vera 7, 8,9

City of Waukesha v. EPA, 320 F.3d 228 (D.C. Cir.

BE “ka dcadwtavendveviactidastdsebvaesans 9

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

et Brrr eT rere 3, 14, 15, 16

FDIC v. Meyer, 510 U.S. 471 (1994) ............ 15, 16

Fryman v. Electric Steam Radiator Corp.,

yep ph & pF 2% per reer 12

In re Berg Litigation, 293 F.3d 1127 (9" Cir. 2002)

vii

Cited Authorities

Page

In re TMI Litigation Cases Consolidated, 940 F.2d

832 (3 Cir. 1991), cert. den., 503 U.S. 906 (1992)

Seine s cd dded cetdneabasesiianetoussia 6,9, 11

Metro-North Commuter R.R. Co. vs. Buckley,

ee Wee. PEED bkc0 oekcttasionacaacen 9

Moore v. Environmental Construction Corp.,

crf § & fi CR | rer re rrr: 13

Neiman v. NLO, Inc., 108 F.3d 1546 (6" Cir. 1997)

been ae eddahets Ceddss teed 6, 8, 17

O’Conner v. Commonwealth Edison Co., 13 F.3d

1090 (7" Cir. 1994), cert. den., 512 U.S. 1222

ID ck bocce cdducdesd tac bebeedeea tein 6

Rainer v. Union Carbide, 402 F.3d 608 (6" Cir. 2005)

-edavedédevereravetecaleneteelteeees 1,7,8

Schweiker v. Chilicky, 487 U.S. 412 (1988) ...... 17

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)

eens oenecthevesdedacssenvauneeenereai 8

Union Underwear Co. v. Scearce, 896 S.W. 2d 7

(Ky. 1995), cert. den., 516 U.S. 869 (1995) .... 11

Wood v. Wyeth-Ayerst Laboratories, 82 S.W. 3d 849

SUED ede viinedcdckaktanensaaneeea 7,8,9

vill

Cited Authorities

Page

Statutes:

Ct ie ccgecpecectoouceecsedeese 10,17

Ge 6, 8, 10, 15, 17

cece vel be ehecesecensseeeees 12, 13

DT SaAdeedéececececsoctcoesteceecs 12

STATEMENT OF THE CASE

Petitioners, past and present workers at the U.S.

Department of Energy (“DOE”) owned Paducah Gaseous

Diffusion Plant (“PGDP”) and members of their households,

allege that they were exposed to excessive radiation from

that facility. They filed this putative class action against these

Respondents', corporations that operated PGDP at various

times under contracts with the federal government, asserting

various tort claims for damages. Petitioners later filed a

second class action Complaint (on behalf of, and against the

same parties) to assert a federal Bivens claim. The District

Court granted all or part of a series of motions for summary

judgment, which cumulatively dismissed all claims against

all Respondents. Those decisions were upheld by the Sixth

Circuit Court of Appeals, Rainer v. Union Carbide Corp.,

402 F.3d 608 (6th Cir. 2005), and Petitioners subsequent

application for rehearing en banc was denied by that Court.

STATEMENT OF FACTS

The Paducah Gaseous Diffusion Plant (“PGDP”) is one

of two existing federally-owned uranium enrichment

facilities in the United States. Production began at PGDP in

1952 after President Truman directed the federal government

to expand the nation’s capacity to produce fissionable

material used in nuclear weapons. Contrary to Petitioners’

assertions,’ the Paducah plant was designed and directed by

the Atomic Energy Commission and its successor agencies

to process both natural uranium and recycled uranium

(primarily “reactor returns”) from other facilities within the

U.S. nuclear complex.

1. The Petitioner Plaintiffs also sued several entities that

supplied materials to the PDGP, including Respondent General

Electric Company.

2. See Petition for Writ of Certiorari (“Petition”) at p. 2.

2

At all relevant times, PGDP was operated by three

successive corporations (all joined as Respondents herein)

under contracts with the federal government.’ Union Carbide

Corporation (“Union Carbide”) operated the facility from the

outset in 1952 until April |, 1984; Lockheed Martin Energy

Systems, Inc. (“LMES”) conducted the operations from

April 1, 1984, until June 30, 1993, and performed

environmental remediation activities at the site until April 1,

1998; and Lockheed Martin Utility Services, Inc. (““LMUS”)

conducted uranium enrichment operations at PGDP between

July 1, 1993 and May 17, 1999. All such operations were

performed pursuant to contracts with the United States

government‘ or, in the case of LMUS, with the United States

Enrichment Corporation (“USEC”), then a government

corporation formed by the National Energy Policy Act of

1992.

This case was initiated as a purported class action by

current and former PDGP employees’ who asserted that they

had been exposed to excessive levels of radiation in the

course of their employment. Although the Petition filed

herein cofttains the same exaggerated and misleading

recitation of “facts” that characterized the Plaintiffs’ various

memoranda below, the facts relevant to the rulings that they

seek to be reviewed are uncontroverted by the evidence of

record.

3. Contrary to Petitioners’ statement, the facility was never

“leased” by Respondents.

4. The Department of Energy or its predecessor agencies.

5. Although the Amended Complaint identifies four putative

classes, the distinctions between the asserted classes are not relevant

to this Court’s consideration of the Appellants’ Petition.

3

First, it is undisputed that the only “physical injury”

claimed by Petitioners in this action consists of purported

subcellular changes, found after highly technical expert

analysis, which are completely symptomless, and are part of

a natural biologic process by which the body responds to

exposures to radiation, including natural radiation from the

sun and earth. Petitioners do not and cannot claim that they

currently suffer from radiation-induced illnesses or

diseases, or even that they likely will suffer such harm in

the future. The most they can say is that the allegedly

damaged chromosomes “may well appear years later as a

recognized clinically relevant illness” (Raff Affidavit,

Jt. App. 1336; emphasis added).

It is also undisputed that the majority of Petitioners’

claims, at least against these Respondents, are asserted

against the entities who were their employers at the time

of the alleged radiation exposures. Both the District Court

and the Court of Appeals found those claims to be subject

to, and barred by the “exclusive remedy” provisions of the

Kentucky workers’ compensation law, since Petitioners did

not as much as allege that Respondents “deliberately

intended” them harm. Petitioners continue to challenge this

application of the Kentucky law, but their failure to present

evidence of a “deliberate intent to harm” is not at issue.

Finally, there is no question that each of the Respondents

herein is a private corporation, and/or that Petitioners’

federal constitutional cause of action is based solely on

Bivens v. Six Unknown Named Agents of the Federal Bureau.

of Narcotics, 403 U.S. 388 (1971) and its progeny. This Court

has specifically held that such claims are not cognizable

against corporate defendants, Correctional Services Corp.

v. Malesko, 534 U.S. 61 (2001).