Opposition Brief — Rainer v. Union Carbide Corp.

4

in addition to these “substantive” rulings, Petitioners also

seek review of the District Court's decision® requiring them

to return a privileged document that was inadvertently

produced during discovery. The facts relating to this issue

are also undisputed and, from an examination of the

document, the District Court found that it was within the

scope of the attorney-client privilege, that the privilege had

not been waived, and that the document was not connected

to any crime or fraud that would give rise to an exception to

the privilege. Petitioners cite no facts that in any way alter

those conclusions

Although Appellants’ Petition is littered with

misstatements of fact, particularly with regard to the nature

and extent of Petitioners’ exposure and the alleged

deficiencies in Respondents’ safety programs, none of those

assertions impacts the determination of the Questions

here presented for review; accordingly, Respondents see no

need to further “point out” Petitioners’ misstatements,

S.Ct.R. 15(2). In each instance, the courts below ruled as a

matter of law based on uncontroverted facts.’ Those facts

are clearly dispositive of all of the Questions now presented

to this Court.

ae -t—e ee ——

6. Affirmed by the Court of Appeals

7. Or, in the case of Appellants’ alleged chromosomal changes,

claims assumed to be true.

5

REASONS FOR DENYING THE PETITION

I. Introduction

In this case, Petitioners seek to maintain an action in

tort for a class of individuals who, although arguably exposed

to low levels of radiation® are not injured or ill, demonstrate

no present physical symptoms of disease and, even according

to their own experts, may or may not suffer from a related

health problem in the future. Both Kentucky law and the

Price-Anderson Act preclude recovery for such premature

claims.

Although Petitioners present eight separate Questions

for review, the case involves, and the courts below

considered, four basic issues: (1) whether Petitioners’

purported symptomless subcellular changes constitute a

sufficient “present physical injury” to state a cause of action

under Kentucky law; (2) whether Petitioners presented any

. evidence of Respondents’ “deliberate intention to produce

injury or death”, so as to bring their claims within the

exception to employers’ immunity from physical injury suits

by employees under Kentucky workers’ compensation law;

(3) wnether there is any basis for a claim by Petitioners

against Respondents under Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics and its progeny;

and finally (4) whether the District Court erred in ordering

the return of a document protected from disclosure by the

attorney-client privilege. None of these issues demonstrates

“compelling reasons” for a writ of certiorari, as required by

S.Ct.R. 10.

8. For purposes of summary judgment, the courts below

assumed that Plaintiffs were exposed to some form of radiation during

their employment at PGDP. However, the records fail to establish

any such potentially injurious exposure.

6

Il. 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

physica! injury” in order to recover in tort.

A. Both the District Court and the Court of Appeals

properly applied Kentucky taw to the undisputed

facts in this case.

The Price-Anderson Act (“Price-Anderson’’) grants original

jurisdiction to federal courts to adjudicate “any public liability

action arising out of or resulting from a nuclear incident”.

42 U.S.C. § 2210(n)(2). All parties agree that this case represents

a “public liability action” under that Act, and that “a claim

growing out of [an alleged] nuclear incident is compensable

under the terms of the Price-Anderson Act or it is not

compensable at all.” Jn re TMI Litigation Cases Consolidated,

940 F.2d 832, 854 (3d Cir. 1991), cert. denied, 503 U.S. 906

(1992). Under such circumstances, it is incumbent upon the

federal court to “derive from the relevant state law” the legal

principles applicable to the action. See Nieman v. NLO, Inc.,

108 F.3d 1546, 1553 (6th Cir. 1997); O'Conner v.

Commonwealth Edison Co., 13 F.3d 1090, 1105 (7th Cir. 1994),

cert. denied, 512 U.S. 1222 (1994). In this case, there is clear

Kentucky precedent’ from which to “derive the relevant state

law” with regard to each of the issues presented. Applying that

precedent to the undisputed facts, both the District Court and

the Court of Appeals held that each and all of Petitioner’ claims

failed as a matter of law.

Under Kentucky law, “a cause of action in tort requires a

present physical injury to the plaintiff” that “actually ...

produces loss or damage”, and “mere ingestion of a toxic

substance does not constitute sufficient physical harm upon

—_— —$

9. Or in the case of Petitioners’ Bivens claims, clear precedent

from this Court.

7

which to base a claim for damages.” Wood v. Wyeth-Ayerst

Laboratories, 82 S.W.3d 849, 852, 856 (Ky. 2002), quoting in

part Capital Holding Co. v. Bailey, 873 S.W.2d 187, 192 (Ky.

1994). In the present case, Petitioners have no “physical injuries”

as that phrase has traditionally been defined and commonly

understood. Each specifically denied that he or she suffered from

any physical injury, condition, or disease attributed to radiation

exposure. Nevertheless, they claim that exposure to radiation is

per se a physical injury, because it results in symptomless

subcellular changes in DNA in some exposed cells.

Both the District Court and the Court of Appeals rejected

that argument as totally inconsistent with established Kentucky

law. As the Court of Appeals noted:

Although the plaintiffs contend that they have real

and concrete physical injuries, the evidence shows

that their DNA damage is harmful only insofar as it

is predictive of future disease . . . Indeed, plaintiff

Charles Ramsey testified that his main fear was not

present injury, but 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 . . . 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.

402 F.3d at 622 (citations omitted).

8

This determination in no way conflicts with either

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

clear precedents of the Kentucky Supreme Court. The issue

in Silkwood involved whether the imposition of punitive

damages amounted to impermissible state regulation under

Price- Anderson. \|n answering that question in the negative,

this Court merely reiterated that “state law remedies”

(provided here by Kentucky law) are “available to those

injured by nuclear incidents”. 464 U.S. at 256 (emphasis

added). Neither the courts below nor Respondents herein

have suggested otherwise. In affirming the District Court's

grant of summary judgment, the Court of Appeals did nothing

more than apply settled Kentucky law. Moreover, the cited

“policy considerations” that Petitioners now assail were not

the creation of the Court of Appeals, but rather were taken

directly from decisions of the Kentucky Supreme Court.'®

As was their mandate under Price-Anderson, both the

District Court and the Court of Appeals derived the applicable

legal principles “from the relevant state law”, Nieman v. NLO,

Inc., supra, and determined that Petitioners failed to state a

claim under that law. They were clearly correct in so finding,

and there is no conflict herein.

B. The Courts properly required a “present physical

injury”.

Petitioners next assert that the District Court and Court

of Appeals misapplied Wood and Capital Holding because

the plaintiffs in those cases did not offer evidence of any

subcellular changes following the involved toxic exposure.

10. Petitioners’ quotation of the relevant portion of the Court

of Appeals decision (Petition at p. 11) omits, after the phase “public

policy considerations”, the Sixth Circuit's further statement:

“.. many of which have already been articulated by the Kentucky

courts”. 402 F.3d at 621.

9

However, the Kentucky Supreme Court’s opinion in Wood

clearly indicates that such evidence would have made no

difference. Likewise, far from being in conflict with this

Court’s decision in Metro-North Commuter R.R. Co. v.

Buckley, 521 U.S. 424 (1997) (which denied recovery to a

Plaintiff even though, as described by the Court of Appeais,

“needle-like asbestos fibers . . . lodged in [plaintiff's] lungs”

and “cause[d] subclinical changes” that “could create grave

health problems later in life,” ''), both the Kentucky Supreme

Court in Wood and the federal courts below cited Metro-North

as “persuasive” that such subclinical changes do not

constitute a present physical injury.

The physical injury requirement prevents “the systemic

harms that can accompany unlimited and unpredictable

liability.” Wood, supra, 82 S.W.2d at 857, quoting Metro-

North, supra, 521 U.S. at 442. “All persons are exposed

to radiation in their day to day existence.” Jn re TMI, 927

F. Supp. 834, 840 (M.D. Pa. 1996), aff'd in part, 193 F.3d

613 (3d Cir. 1999), cert. denied, 530 U.S. 1225 (2000).

Petitioners’ alleged subcellular “physical injury” can result

from exposure to any type of radiation, natural or otherwise,

and “a single radiation track ... can cause unrepaired or

misrepaired DNA lesions and chromosomal aberrations.”

City of Waukesha v. EPA, 320 F.3d 228, 244 (D.C. Cir. 2003).

Accordingly, if Petitioners’ definition of “physical injury” is

correct, every person in this country is “physically injured”

every moment of their lives, and can assert tort claims against

every extant source of radiation exposures ranging from

manufacturers of television sets and ceramic dinnerware to

airlines, farmers, and dentists, even if they never suffer any

illness, disease, or other physical harm. Kentucky wisely

precludes these kinds of claims by requiring an actual

physical injury, manifested by actual symptoms, that creates

a “harmful change”. See Capital Holding, 873 S.W.2d at 194.

11. 79 F.3d at 1341-43.

10

Despite Petitioners’ protestations to the contrary, their experts

did not and could not testify that any of the alleged subcellular

changes they observed would likely result in cancer or any

other disease. Summary judgment dismissing Petitioners’ tort

claims for failure to satisfy Kentucky’s present physical injury

requirement was properly granted in this case.

C. Decisions by other Circuits and/or other States

are largely irrelevant to the determination herein.

In support of their appeal, Petitioners cite decisions from

“other circuits and many district courts”, applying the law

of states other than Kentucky, and argue that the Court

of Appeals’ decision herein is in conflict with those

determinations. What this tortured analysis fails to explain,

however, is how any of those decisions is relevant to this

case. Price-Anderson requires that the federal court derive

and apply the legal principles of the state where the alleged

harm occurred, here Kentucky. That is precisely what was

done by both the District Court and Court of Appeals.

Whether those “legal principles” are consistent with or

contrary to the laws of other jurisdictions is irrelevant. Where,

as here, the state law is clear, it is of no consequence whether

“fo]}n a national level, the law is extremely unsettled on the

issue of whether cellular damage with subclinical effects

constitutes a cognizable injury”."?

D. Price-Anderson mandates the result reached in

this case.

Finally, although Plaintiffs’ make no mention of it in

their Petition, Price-Anderson specifically limits recovery

to “bodily injury, sickness, disease, or death . : . arising out

of or resulting from the radioactive . . . properties of source,

special nuclear, or by-product material.” 42 U.S.C. § 2014(q).

12. Petition at p. 18.

1]

Accordingly, plaintiffs’ claims are not cognizable unless and

until they sustain “bodily injury, sickness, disease, or death”

as a result of their alleged workplace exposure to radiation.

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

the Court specifically held that plaintiffs’ claims of “cellular

injury” from alleged excessive exposures to workplace

radiation did not satisfy the “bodily injury, sickness, or

disease” criteria under the Act. 294 F.3d at 1133. Moreover,

Petitioners’ expansive view of the physical injury requirement

would open the federal courts to a flood of trivial claims by

plaintiffs who have sustained only the kind of subcellular

changes that every person sustains every day through

exposures to sunlight, soil, televisions, x-rays, and a host of

other substances. The purpose of Price-Anderson was

“to encourage private sector participation in the beneficial

uses of nuclear materials”, /n re TMI Litigation, supra, 940

F.2d at 853, and Congress sought to achieve that goal by,

inter alia, limiting recovery to only those plaintiffs who

actually sustain bodily injury, sickness or disease. Petitioners

have sustained no such injuries in this case, and the decisions

below are entirely consistent with the applicable state and

federal law.

lil. Deliberate intent to harm is an absolute prerequisite

to recovery for an intentional tort under Kentucky

law.

Kentucky's workers’ compensation system provides the

exclusive remedy for workplace injuries. KRS § 342.690(1).

The “primary purpose” of that statute “is the elimination of

common-law actions for personal injuries growing out of

industrial operations”, Union Underwear Co. v. Scearce, 896

S.W.2d 7, 8 (Ky. 1995), cert. denied, 516 U.S. 869 (1995),

and there is only one exception: “{i}f injury or death results

to an employee through the deliberate intention of his

12

employer to produce such injury or death ...” KRS

§ 342.610(4) (emphasis added). Despite the fact that they

presented no evidence that Respondents deliberately intended

to inflict the injuries alleged, Petitioners now assert that the

courts below “misapplied” the Kentucky law. There simply

is no factual or legal basis for this position.

Although Petitioners acknowledge that a half-century of

supposed injurious exposure has produced, at most, non-

specific chromosomal changes in a few individual workers,

they nevertheless maintain that the plethora of Kentucky

cases requiring proof of “deliberate intent to harm” are

inapplicable because “[njone of these ... cases can be

compared to the knowing injuries inflicted upon the workers

at the PDGP”"’, and ask this Court to create a broader

exception to Kentucky's exclusive remedy statute.

Petitioners’ argument completely ignores the plain language

of the Kentucky statute, and has been repeatedly considered

and unanimously rejected by Kentucky courts.

The language in KRS § 392.690(4) requiring proof of

an employer's deliberate intent to injure an employee is “clear

and straightforward” and means exactly what it says:

“[t]o have deliberate intention, the employer must have

determined to injure an employee and used some means

appropriate to that end, and there must be a specific intent

{to injure}].” Blanton v. Cooper Industries, Inc., 99 F. Supp.

2d 797, 803, 805 (E.D. Ky. 2000), quoting Fryman v. Electric

Steam Radiator Corp., 277 S.W.2d 25, 27 (Ky. 1955).

Likewise, in Brierly v. Alusuisse Flexible Packaging, Inc.,

184 F.3d 527, 535 (6th Cir. 1999), cert. denied, 528 U.S.

1076 (2000), the Court expressiy held that the requisite

“deliberate intention” to injure cannot be “inferred” from

13. Petition at p. 28.

13

evidence that the employer acted with knowledge of the

danger of injury to its employees:

[A]js the district court noted, “the statutory

standard . . . requires more than implied intent; it

requires deliberate intention”. . . .

184 F.3d at 535.

Finally, less that a year ago in Moore v. Environmental

Construction Corp., 147 S.W.3d 13, 15-16 (Ky. 2004) the

Kentucky Supreme Court reiterated that allegations an

employer knew of dangerous workplace conditions or

exposures are legally insufficient to invoke the intentional

tort exception:

“[Djeliberate intention” [implies] 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.

The evidence of record does not satisfy the “deliberate

intent” exception in KRS § 342.610(4) as a matter of law.

The courts below were clearly correct in dismissing the tort

claims that Petitioners asserted against their employers.

14

IV. Petitioners have no cognizable Bivens claims.

A. Bivens applies only to individuals.

Approximately one year after instituting this action,

Petitioners filed a new and separate case alleging that

Respondents violated their constitutional rights by exposing

them to excessive levels of radiation at PGDP."* (See Class

Action Complaint, Jt. App. 139 at para. 39.) Petitioners based

this claim on Bivens v. Six Unknown Named Agents, supra.,

which recognized a civil cause of action against individual

defendants for constitutional violations. (/d. at para. 61.)

Respondents moved for summary judgment with regard to

this claim after this Court held in Correctional Services

Corp. v. Malesko, 534 U.S. 61 (2001), that such claims are

not cognizable against a corporate defendant that performs

contractual services for the federal government. The District

Court granted the Motion, holding that Malesko was

“fatal to Plaintiffs’ claims” because “Bivens claims may not

be brought against private corporations under any

circumstances.”

Undeterred, Petitioners moved the Court to “amend” its

ruling and “clarify” that /“ /esko does not bar Bivens claims

that seek equitable relief rather than damages and, failing

that, moved to ainend their Complaint to assert a Bivens claim

for unjust enrichment requesting disgorgement of money

as a remedy for past alleged constitutional violations.

The District Court denied both Motions, and its rulings were

affirmed by the Court of Appeals.

14. That action, styled Alphonse Rainer, et al. v. Bill

Richardson, et al., Case No: 5:00-CV-220-M, was subsequently

consolidated with this case for “purposes of discovery and, if

appropriate trial”. See Order of Consolidation, (Jt. App. 1147).

15. See Memorandum Opinion and Order on Motion to

Dismiss Bivens Claims, (Jt. App. 342).

15

Although Petitioners assail the Court of Appeals’ finding

that Price-Anderson preempts their Bivens claims, they cite

no legal basis for maintaining those claims against

Respondents herein. Respondents are private corporations,

not individual federal actors, see Bivens, 403 U.S. at 395-

96, and this Court has repeatedly held that “the purpose of

Bivens is to defer the officer” individually. See FDIC v.

Meyer, 510 U.S. 471, 485 (1994) (original emphasis).

Malesko merely reconfirmed that rule when it held that a

Bivens action cannot be maintained against a corporation

for its acts as a government contractor:

Bivens from its inception has been based . . . on

the deterrence of individual officers who commit

unconstitutional acts.... With respect to the

alleged constitutional deprivation, [plaintiff's]

only remedy lies against the individual. . . .

534 U.S. at 71 (emphasis added).

Petitioners do not as much as mention Malesko;

nevertheless they argue that their Bivens claims are viable

because the alleged constitutional violations purportedly

related to “a corporate policy”, and/or since the remedies

that they seek include “disgorgement of profits” '*. Neither

position has merit.

In Malesko, this Court specifically rejected the

contention that Bivens claims are cognizable against

corporations if the constitutional violation is the result of a

corporate policy:

Bivens . . . is concerned solely with deterring the

unconstitutional acts of individual officers. If

deterring the conduct of a policy-making entity

16. Petition at p. 26. See also Questions Presented, No. 7.

16

was the purpose of Bivens, then /FDIC v./ Meyer

[supra] would have implied a damages remedy

against the [FDIC]. It was, after all, an agency

policy that led to Meyer’s unconstitutional

deprivation. Meyer, supra, at 473-74. But Bivens

from its inception has been based not on that

premise, but on the deterrence of individual

officers. ...

534 U.S. at 70-71. This Court has “consistently refused to

extend Bivens liability to any new context or new category

of defendants”, 534 U.S. at 72, and the courts below properly

held such claims are not cognizable against the Respondents

in this case.

Petitioners thinly-veiled attempt to rescue their Bivens

claims by denominating them as “equitable” must suffer a

similar fate. Although Malesko arguably did not limit the

availability of “equitable relief”, as the District Court

properly observed, that “relief” is limited to “prevent[ing]

an entity from acting unconstitutionally”:

The Plaintiffs’ “equitable” claim is not for

injunctive relief. It does not seek to prevent any

ongoing unconstitutional policy or practice. It

simply seeks to recover “profits” instead of

“damages” under an equitable theory....

Plaintiffs’ disgorgement claim is clearly more akin

to money damages. . . . The “equitable” claim is

just a disguised version of their money damages

claim and it should be foreclosed for the same

reasons set out in Malesko."’

17. Opinion and Order on Rainer Plaintiffs Motion to

Amend Pleadings (Jt. App. 366 at 3.)

17

B. Price-Anderson provides an adequate remedial

mechanism for Petitioners’ claims.

In Schweiker v. Chilicky, 487 U.S. 412, 423 (1988)

this Court held that where Congress provides what it considers

“adequate remedial mechanisms for constitutional violations”,

there is no basis for Bivens claim. See also Bush v. Lucas, 462

U.S. 367 (1983). After reviewing the legislative history behind

Price-Anderson, the Court of Appeals found that Congress

“indisputably intended for the Act to be the primary remedial

mechanism for claims arising out of ‘nuclear incidents’”.

402 F.3d at 12.

Petitioners cite no reasons why the comprehensive remedial

scheme provided by Price-Anderson is not “adequate” to address

their claims. Moreover, they acknowledge that Congress

intended the act to cover “any legal liability arising out of or

resulting from a nuclear incident” 42 U.S.C. § 2014(w)

(emphasis added), and that such claims must be made under

Price-Anderson . . . “or not at all”. See Nieman v. NLO, supra.

There is no reviewable issue herein, and the Court of Appeals

was clearly correct in dismissing Petitioners’ Bivens claims.

V. Respondents were entitled to the return of the

inadvertently disclosed privileged document.

During the massive discovery proceedings in this action,

involving literally thousands of documents, Respondents

inadvertently produced a memorandum containing legal advice

from a Union Carbide attorney to a Union Carbide employee.

Paragraph 8 of the parties’ Agreed Protective Order (Jt. App.

1129) specifically provided that any privileged documents so

produced would be returned, but Petitioners claimed that the

document was not privileged and refused to return it. The District

Court granted Appellees’ Motion to Compel the return of the

document, holding that it was clearly privileged under state and

federal law and that the privilege had not been waived.

The Court of Appeals affirmed that finding.

Petitioners’ argument on this issue consists of one paragraph

and asserts (1) that the “crime-fraud exception” applies because

the document was intended to “prevent workers from

questioning Union Carbide procedures”, and/or (2) that the

privilege was “lost” when the document was “shared” with the

Atomic Energy Commission.'* Both arguments were considered

and rejected by the courts below:

[P]laintiffs in making their argument mis-

characterized the content of the [document]. . . .

({P}laintiffs have demonstrated no relationship

between the Harwell communication and the fraud

alleged by plaintiffs. . . . In sum, there is no merit to

plaintiffs’ contention that the Harwell document is

excepted from the attorney-client privilege by the

crime-fraud exception.

[U}nder the terms of the operating contract all

records related to Union Carbide’s operation of the

Paducah Plant were the property of the federal

government and had to be retained or disposed as

the Department of Energy directed ... [T]he

contractual relationship created a “common interest”

between Union Carbide and the government

whereby confidential communications are clearly

privileged”.

Petitioners advance no reasons why either of those conclusions

was erroneous.

18. Petition at p. 30.

i9. Memorandum and Order (Jt. App. 370) at 5-6, 9.

19

CONCLUSION

Petitioners’ have not presented a “compelling reason”

why the Court should issue a writ of certiorari. Their Petition

should be denied.

Respectfully submitted,

G. Witson Horpe Rosert E. Tair

Kramer, Rayson, LEAKE, Counsel of Record

Ropcers & MorGan 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

Wurr_ow, Roserts, (614) 464-6341

Houston & Straus

300 Broadway

P.O. Box 995

Paducah, K Y 42002-0995

Counsel for Respondents

Union Carbide Corporation, Lockheed Martin Corporation

Lockheed Martin Energy Systems, Inc.,

Lockheed Martin Utility Services, Inc.

APPENDIX

la

APPENDIX

RELEVANT STATUTORY PROVISIONS

A. Provisions of the Price-Anderson Act, as Amended

1. 42 U.S.C. § 2014 provides in relevant part:

§ 2014. Definitions

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

chapter:

(e) The term “byproduct material” means (1) any

radioactive materials (except special nuclear

material) yielded in or made radioactive by

exposure to the radiation incident to the process

of producing or utilizing special nuclear material,

and (2) the trailing 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

occurrence, including an extraordinary nuclear

occurrence, within the United States causing,

within or outside of United States, bodily injury,

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

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

2a

Appendix

of or resulting from the radioactive, toxic,

explosive, or other hazardous properties of source,

special nuclear, or byproduct material. . . .

(w) the term “public liability” means any ‘egal

liability arising out cf 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 responding to a nuclear incident or a

precautionary evacuation), except: (i) claims

under State or Federal workmen’s compensation

acts of employees of persons indemnified who are

employed at the site of and in connection with

the activity where the nuclear incident occurs;

(ii) claims arising out of an act of war; and

(iii) whenever used in subsections (a), (c), and

(k) of [42 U.S.C. § 2210], claims for loss of, or

damage to, or loss of use of property which is

located at the site of and used in connection with

the licensed activity where the nuclear incident

occurs. “Public liability” also includes damage to

property of person indemnified: Provided, That

such property is covered under the terms of the

financial protection required, except property

which is located at the site of and used in

connection with the activity where the nuclear

incident occurs.

3a

Appendix

(z) The term “source material” means (1) uranium,

thorium, or any other material which is determined

by the Commission pursuant to the provisions of

[42 U.S.C. § 2091] to be source material; or (2) ores

containing one or more of the foregoing materials,

in such concentration as the Commission may by

regulation determine 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 [42 U.S.C. § 2071], determines to be special

nuclear material, but does not include source

material; or (2) any material artificially enriched

by any of the foregoing, but does not include

source material.

(hh) The term “public liability action”, as used

in [42 U.S.C. § 2210],-means any suit asserting

public liability. A public liability action shall be

deemed to be an action arising under [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 incident involved

occurs, unless such law is inconsistent with the

provisions of such section.

4a

Appendix

2. 42 U.S.C. § 2010(n)(2) provides in relevant part that:

With respect to any public liability action arising

out of or resulting from a nuclear incident, the

United States district court in the district where

the nuclear incident takes place, or in the case of

a nuclear incident taking place outside the United

States, the United States District Court for the

District of Columbia, shall have original

jurisdiction without regard to the citizenship of

any arty or the amount in controversy. Upon

motion of the defendant to of the Commission or

the Secretary, as appropriate, any such action

pending in any State court ... or United States

District court shall be removed or transferred to

the United States district court having venue under

this subsection. Process of such district court shall

be effective throughout the United States. In any

action that is or become removable pursuant to

this paragraph, a petition for removal shall be filed

within the period provided in section 1446 of title

28, Untied States Code. ...

Sa

Appendix

B. Provisions of the Kentucky Workers’ Compensation

Act

1. KRS § 342.690(1) provides in relevant part:

If an employer secures payment of compensation as

required by this chapter, the liability of such

employer under this chapter shail be exclusive and

in place of all other liability of such employer to the

employee . . . at law or in admiralty on account of

such injury or death.

2. KRS § 342.610(4) provides in relevant part:

If the injury or death results to an employee through

the deliberate intention of his employer to produce

such injury or death, the employee or his dependents

may take under this chapter, or in lieu thereof, have

a cause of action at law against the employer as if

this chapter had not been passed ...