Cotroneo v. Shaw Env't & Infrastructure Inc.

• Decision Date: 14 April 2011
• Docket Number: No. 07–20939.,07–20939.
• Citation: 639 F.3d 186
• Parties: Dominic COTRONEO; Arthur Anillo; Alan Danford; Jack Broday; Vanessa Dougherty; Tanya French; Joseph Garcia; Duane Gills; Alex L. Luna; John McBryde; Aaron Merkel; Steven Norris; Tim Petrie; Angelia Renee Toole; Dustin Gills; Michael Wright, Plaintiffs–Appellees, Cross–Appellants,v.SHAW ENVIRONMENT & INFRASTRUCTURE, INC.; Gerald J. Joy; Barbara Reider; Peter Chin; Butch Daniels; John McGowan; Serafin C. Munoz, Jr.; Renee Garo; David Duncan; James Langsted; Shaw Environmental, Inc., Defendants–Appellants, Cross–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

639 F.3d 186

32 IER Cases 138

Dominic COTRONEO; Arthur Anillo; Alan Danford; Jack Broday; Vanessa Dougherty; Tanya French; Joseph Garcia; Duane Gills; Alex L. Luna; John McBryde; Aaron Merkel; Steven Norris; Tim Petrie; Angelia Renee Toole; Dustin Gills; Michael Wright, Plaintiffs–Appellees, Cross–Appellants,

v.SHAW ENVIRONMENT & INFRASTRUCTURE, INC.; Gerald J. Joy; Barbara Reider; Peter Chin; Butch Daniels; John McGowan; Serafin C. Munoz, Jr.; Renee Garo; David Duncan; James Langsted; Shaw Environmental, Inc., Defendants–Appellants, Cross–Appellees.

No. 07–20939.

United States Court of Appeals, Fifth Circuit.

April 14, 2011.

Linda Radko Shaw (argued), Alan Jon Knauf, Amy Lynn Reichhart, Knauf Shaw, L.L.P., Rochester, NY, for Plaintiffs–Appellees, Cross–Appellants.Ellen Kittredge Scott (argued), Pepper Hamilton, Philadelphia, PA, John Kevin Spiller, William A. Worthington, III, Strasburger & Price, L.L.P., Houston, TX, for Defendants–Appellants, Cross–Appellees.Appeals from the United States District Court for the Southern District of Texas.Before KING, DENNIS and ELROD, Circuit Judges.DENNIS, Circuit Judge:

The plaintiffs in this case, workers who were employed in cleaning up radioactive materials, alleged that they were harmed by excessive exposure to radiation at a Texas work site and brought a tort claim suit in a New York state court against their employer and supervisors under the Price–Anderson Act, 42 U.S.C. § 2011 et seq. (“the PAA”), and Texas state law. Under the explicit removal provision of the PAA, 42 U.S.C. § 2210(n)(2), the defendants removed this case to the United States District for the Southern District of Texas, where the alleged injuries occurred. That district court granted the defendants' motion for summary judgment as to the plaintiffs' claims that were predicated on bodily injuries and illnesses, holding that the plaintiffs had failed to show a genuine issue of material fact as to whether their physical harms had been caused by overexposure to radiation. At the same time, the district court denied the defendants' motion for summary judgment with respect to the plaintiffs' claims for damages based on “offensive contact” battery by radiation. The district court held that, whereas the bodily injury and illness claims arose under federal law by operation of the PAA, 42 U.S.C. § 2014(hh), the plaintiffs' “offensive contact” claims arose solely under Texas law. The district court declined to exercise supplemental jurisdiction over what it saw as purely state-law claims and dismissed them without prejudice.

This panel unanimously affirms the district court's summary judgment dismissing the plaintiffs' physical injury and illness claims. But we unanimously conclude that the district court erred in treating the plaintiffs' “offensive contact” claims as if they arose solely under Texas law. Although all of the plaintiffs' claims are derived from Texas law, they are deemed to arise under federal law by the PAA, because they are part of a “suit asserting public liability” as defined by the PAA. See id. This panel is divided, however, upon what further action the district court must take in respect to the “offensive contact” battery claims. A majority of the panel, Judges KING and ELROD, concludes that the “offensive contact” claims fail under the PAA and must be dismissed with prejudice because the plaintiffs have not shown that these claims arose from a nuclear incident, and therefore cannot establish public liability. In a separate dissenting opinion, infra at 200–07, I explain why I disagree with that result and would remand the plaintiffs' “offensive contact” battery claims to the district court for further adjudication.

I.

Pursuant to a government contract, Shaw Environmental, Inc. cleaned up radioactive material at a former nuclear source fabrication facility in Webster, Texas. The plaintiffs, who were employed by Shaw's subcontractors at the Texas work site for the project, contend that Shaw and its supervisors exposed them to excessive levels of radiation during their employment. Such exposure, especially to americium–241 and cesium–137, allegedly caused them to suffer certain bodily injuries and illnesses.¹ According to the plaintiffs, defendants failed to take appropriate precautions that could have prevented this excessive exposure. They claim, for instance, that “inappropriate radiation waste bags were purchased from the Dollar Store to save money.”

They sued the defendants in a New York state court, asserting Texas state-law claims for negligence, gross negligence, negligence per se, and assault and battery. The plaintiffs' complaint alleges not only that the defendants' intentional or negligent conduct caused their bodily injuries and illnesses (bodily injury claims), but also that the defendants intentionally or knowingly caused excessive amounts of radiation to make offensive physical contact with them (“offensive contact” claims). The “offensive contact” claims are battery claims, which do not require a showing of physical injury.

It is undisputed that the plaintiffs' bodily injury claims are deemed to arise under federal law by virtue of the PAA, 42 U.S.C. § 2014(hh). Pursuant to the PAA's venue and removal provision, 42 U.S.C. § 2210(n)(2), the defendants removed this action to the United States District Court for the Southern District of Texas, the district where the incidents giving rise to the complaint occurred. The parties proceeded with discovery, and on the plaintiffs' motion, the district court admitted two expert reports by Dr. Marvin Resnikoff. These reports opined that the plaintiffs' injuries could have been caused by their workplace exposure to radiation. The district court also admitted the report of the defendants' expert, Dr. Robert E. Jackson, to the contrary. After the deadline for expert discovery, the plaintiffs attempted to designate a previously undisclosed expert, Dr. Kalpana Patel, but the district court excluded Dr. Patel as a witness and her affidavit as untimely.

Following discovery, the defendants moved for summary judgment, arguing that the plaintiffs had not provided legally sufficient evidence to create a factual issue as to whether their physical injuries or illnesses had been caused by their exposure to radiation at the cleanup site. The defendants also argued that the “offensive contact” claims were legally excluded by the PAA and therefore were extinguished and not actionable. The district court held that the plaintiffs had failed to show a genuine issue of material fact as to whether their physical harms had been caused by overexposure to radiation, and accordingly granted the defendants' summary judgment motion in part.

As to the plaintiffs' “offensive contact” claims, however, the district court determined that the defendants were not entitled to summary judgment. The district court held that these claims were not deemed to arise under the PAA by operation of 42 U.S.C. § 2014(hh) and were therefore purely state-law claims. The district court reasoned that federal causes of action under the PAA are available only for suits asserting liability arising out of “nuclear incident[s],” which are defined as occurrences causing “bodily injury, sickness, disease, or death,” id. § 2014(q); and that because the “offensive contact” claims did not arise out of a “nuclear incident,” they fell outside the PAA's scope. Furthermore, the district court declined to exercise supplemental jurisdiction over the “offensive contact” claims, which it observed “present novel legal issues not previously addressed by the Texas Supreme Court.” Accordingly, the district court dismissed the “offensive contact” claims without prejudice, allowing the plaintiffs to refile them in state court.

This appeal followed. The defendants argue that the plaintiffs' “offensive contact” claims should have been dismissed on the merits because they are barred by the PAA. The plaintiffs cross-appeal, challenging the summary judgment dismissing their bodily injury and illness claims.

II.

We review a district court's summary judgment de novo, “guided by the same standard as the district court: Federal Rule of Civil Procedure 56.” In re Segerstrom, 247 F.3d 218, 223 (5th Cir.2001). Summary judgment is appropriate when “there is ‘no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir.2010) (quoting Fed.R.Civ.P. 56(a)). “The party moving for summary judgment must establish that there are no genuine issues of material fact. ‘Once the moving party makes that showing, however, the burden shifts to the nonmoving party to show that summary judgment is not appropriate.’ ” Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir.2001) (quoting Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir.1991)). “Thus, to defeat a motion for summary judgment, the nonmoving party must ‘go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.’ ” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal quotation mark omitted).

The PAA, as amended in 1988, establishes a federal cause of action known as a “public liability action” for tort claims arising out of incidents involving radioactive materials. This cause of action “is built around preexisting state law, [but] contains some distinctively federal elements as well.” O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1096 (7th Cir.1994).² “In explicitly providing that the ‘substantive rules for decision’ in...