Rainer v. Union Carbide Corp., 03-6032.

• Citation: 402 F.3d 608
• Decision Date: 08 March 2005
• Docket Number: No. 03-6032.,03-6032.
• Parties: Alphonse RAINER et al., Plaintiffs-Appellants, v. UNION CARBIDE CORPORATION et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

402 F.3d 608

Alphonse RAINER et al., Plaintiffs-Appellants, v. UNION CARBIDE CORPORATION et al., Defendants-Appellees.

No. 03-6032.

United States Court of Appeals, Sixth Circuit.

Argued: December 1, 2004.

Decided and Filed: March 8, 2005.

Opinion Amended on Rehearing March 25, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Douglas H. Morris II, Oldfather & Morris, Louisville, Kentucky, for Appellants. Robert E. Tait, Vorys, Sater, Seymour & Pease, Columbus, Ohio, Elizabeth R. Geise, Goodwin Procter, Washington, D.C., for Appellees.

ON BRIEF:

Douglas H. Morris II, Andrew J. Horne, Oldfather & Morris, Louisville, Kentucky, William F. McMurry, McMurry & Associates, Louisville, Kentucky, for Appellants. Robert E. Tait, Gail C. Ford, Vorys, Sater, Seymour & Pease, Columbus, Ohio, Mark C. Whitlow, Whitlow, Roberts, Houston & Straub, Paducah, Kentucky, G. Wilson Horde, Kramer, Rayson, Leake, Rodgers & Morgan, Knoxville, Tennessee, Elizabeth R. Geise, Matthew M. Hoffman, Goodwin Procter, Washington, D.C., Charles S. Cassis, Lori E. Hammond, Frost, Brown & Todd, Louisville, Kentucky, for Appellees.

Before: DAUGHTREY and GILMAN, Circuit Judges; RICE, District Judge.^*

OPINION

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 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 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 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 fuel in this manner.

Spent uranium is known to include two unwanted byproducts: 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 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 not 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 that 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

[w]hen 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 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 "[n]o, 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 "[n]o present bodily injury." And Charles 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."

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 "[t]he 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 "[t]he 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 ...