Silkwood v. Kerr-McGee Corp., KERR-M

• Decision Date: 19 February 1982
• Docket Number: KERR-M,No. 79-1894,79-1894
• Citation: 667 F.2d 908
• Parties: 12 Envtl. L. Rep. 20,367 Bill M. SILKWOOD, Administrator of the Estate of Karen G. Silkwood, Deceased, Plaintiff-Appellee, v. ThecGEE CORPORATION, a Delaware corporation, and Kerr-McGee Nuclear Corporation, a Delaware corporation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 908

667 F.2d 908

12 Envtl. L. Rep. 20,367

Bill M. SILKWOOD, Administrator of the Estate of Karen G Silkwood, Deceased, Plaintiff-Appellee, v. The KERR-McGEE CORPORATION, a Delaware corporation, and Kerr-McGee Nuclear Corporation, a Delaware corporation, Defendants-Appellants.

No. 79-1894.

United States Court of Appeals Tenth Circuit.

Argued Nov. 17, 1980.

Decided Dec. 11, 1981.

Rehearing Denied Feb. 19, 1982.

William G. Paul, Oklahoma City, Okl., and Glenn W. McGee, Chicago, Ill. (L. E. Stringer, Richard C. Ford and John J. Griffin, Jr., of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., C. Lee Cook, Jr., William Van Hagey, Stephen A. Gorman and Pamela J. Kempin, of Chadwell, Kayser, Ruggles, McGee & Hastings, Chicago, Ill., and Elliott C. Fenton and Larry D. Ottaway of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., with them on the briefs), for defendants-appellants.

Arthur R. Angel, Oklahoma City, Okl. (Jim Ikard, Oklahoma City, Okl., G. L. Spence, Jackson Hole, Wyo., and Daniel P. Sheehan, Washington, D. C., with him on the briefs), for plaintiff-appellee.

Harry H. Voigt, Leonard M. Trosten and Michael F. McBride of LeBoeuf, Lamb, Leiby & MacRae, and Harvey S. Price, Gen. Counsel, Washington, D. C., on brief for amicus curiae Atomic Industrial Forum, Inc.

Karin P. Sheldon, Sierra Club Legal Defense Fund, Washington, D. C., on brief for amici curiae Environmental Policy Institute and Sierra Club.

Before DOYLE, McKAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This is an appeal by Kerr-McGee Corporation and Kerr-McGee Nuclear Corporation (hereinafter collectively referred to as Kerr-McGee) from judgments after jury trial in a diversity suit brought against them by Bill M. Silkwood as administrator of the estate of Karen Silkwood, deceased. The action was based upon common law tort principles ¹ under Oklahoma law, and sought damages for injuries (primarily fear and anxiety) suffered by Karen Silkwood during a nine-day period as a result of plutonium contamination occurring November 5, 6, and 7, 1974. Her death on November 13, 1974, in an unrelated automobile accident marked the end of any damages that might have been suffered had she lived beyond that date. The jury awarded $500,000 damages for these injuries and an additional stipulated $5,000 for property in her apartment that had to be destroyed because it was contaminated. In addition it awarded $10,000,000 punitive damages. The opinion of the trial court overruling Kerr-McGee's post-trial motions is reported at 485 F.Supp. 566 (W.D.Okl.1979).

A number of issues are raised and argued on appeal, including applicability of the Oklahoma Workers' Compensation Act as the exclusive remedy, federal preemption, standard of care, applicability of strict liability, availability of certain defenses, excessiveness of actual damages, invalidity and excessiveness of punitive damages, insufficiency of the evidence, and denial of a fair trial because of adverse publicity, prejudicial conduct of counsel, and errors in evidentiary rulings and instructions to the jury. We recite below such essential facts and treat such of these issues as are necessary to resolve all aspects of the appeal.

I. Personal Injury

Karen Silkwood was a laboratory analyst at the Cimmaron plant of Kerr-McGee located near Crescent, Oklahoma. The plant fabricated fuel pins containing plutonium for use as reactor fuel. Silkwood was contaminated by plutonium on November 5, 6, and 7, 1974, and the parties have stipulated that this plutonium came from the Kerr-McGee plant. Precisely how and when the contamination occurred is not stipulated and there is little evidence to fill this void.

Plutonium is an artificially produced radioactive chemical element which has been instrumental in the development of nuclear weapons and nuclear power. It emits alpha particles, beta particles, neutrons, gamma rays, and x-rays. The extent of radiation damage to human cells exposed to plutonium is dependent upon the amount of energy in the radiation. Alpha particles have the largest mass, carry the greatest amount of energy, and are the most hazardous. Damage can occur when alpha particles strike a cell. Damage to an individual cell is not, however, invariably harmful to the human body; a cell is capable of repairing itself and the body normally sheds and replaces millions of cells on a continuous basis. It is acknowledged, however, that plutonium is one of the most carcinogenic and dangerous substances known.

Silkwood was a member of the Oil, Chemical and Atomic Workers Union (OCAW), which represented some of the workers at Kerr-McGee's plant. As an elected member of the union negotiating team, Silkwood was responsible for health and safety matters. In September 1974 she, together with her fellow committee members, met with OCAW leaders in Washington, D. C., and presented charges to the Atomic Energy Commission (AEC) of numerous health and safety violations by Kerr-McGee. The AEC required documentation of the charges, and Silkwood was assigned the job of collecting this documentation. Silkwood was engaged in collecting information and recording it in notebooks and on tapes from September 1974 until the time of her death.

There is no real dispute in the evidence concerning Silkwood's contamination. She reported to work at the Cimmaron plant on November 5, 1974, at 1:20 p. m. At 2:45 p. m. and at 3:15 p. m., before and after taking a break, Silkwood monitored herself with plutonium detecting devices provided by Kerr-McGee in accordance with the company policies and AEC license requirements. No plutonium was detected on her person. At about 3:45 p. m. Silkwood began to work in two glove boxes containing plutonium. A glove box is a supposedly impervious box surrounding the plutonium processing equipment which has glove holes permitting the operator to work on the equipment or with the plutonium from outside the box. Silkwood again monitored herself before and after her break at 5:30 p. m. and at 5:45 p. m., and at those times detected no contamination. She continued to work in the glove boxes and, upon withdrawing her hands from one of the boxes at about 6:30 p. m., she found contamination. Further checks were made in the laboratory and other contaminations were found, particularly inside the gloves in the glove box in which Silkwood had been polishing and cleaning plutonium.

Contamination was found on Silkwood's left hand, right wrist, upper arm, neck, face, hair, and in her nostrils. Pursuant to regulations, Silkwood was immediately decontaminated and placed on a five-day voiding collection program, and furnished urine and fecal kits to take home for the purpose of obtaining samples which would be sent to the United States testing laboratory for analysis. Later that day Silkwood returned to work, but not to the glove boxes; she monitored herself when she left work at about 1:10 a. m. and found no contamination. The glove box was later tested by the AEC investigators, and no leaks were found. Further, the investigators found no significant airborne contamination in the laboratory.

The next day, November 6, 1974, Silkwood arrived at work at 7:50 a. m., and did some paper work in the lab until 8:50 a. m., at which time she left to attend a union meeting. At that time she tested herself and found contamination on her hands; tests showed fixed contamination on her right forearm, face, and neck. Her hands were decontaminated; since the other spots appeared to be fixed contamination she was allowed to attend the union meeting. She returned to the health office at 4:30 p. m., where slight contamination was found on her right forearm, neck and face, and in her nostrils. She was again decontaminated and, at her request, her locker and auto were tested and found to be free of contamination.

On November 7, 1974, when she reported to work Silkwood went directly to the plant's health physics office. She was found to be contaminated in her nostrils and on her hands, arms, chest, back, neck and right ear. Four urine and one fecal sample collected on November 5th, 6th and 7th were found to be contaminated, although the exterior of the kits showed no contamination. The parties stipulated that urine samples brought to the plant had been spiked with plutonium; that is, they contained insoluble, not naturally excreted, plutonium. Also, Silkwood's apartment was found to have been contaminated, with highest concentrations of plutonium found in the bathroom and on a package of bologna and cheese in the refrigerator.

Silkwood's roommate, Sherri Ellis, was also a laboratory analyst at Kerr-McGee, and was found not to be contaminated when she left work at 8:00 a. m. on November 7th after working a midnight shift. After returning to the apartment, Ellis used the bathroom and retired to her bedroom. Subsequent checks revealed contamination of Ellis' buttocks and hands. Ellis' auto and the refrigerator where her lunch had been placed in the plant lunchroom were free of contamination. Silkwood's boyfriend, who spent the night of November 6th in Silkwood's apartment, had left the apartment at about 7:00 a. m. on November 7th after using the bathroom. Neither he, his car, nor his residence were contaminated.

Silkwood's possessions were destroyed and Silkwood was sent to the Los Alamos Scientific Laboratory in New Mexico to undergo further tests concerning her contamination. She reported back to work on November 13th at which time she was reassigned. She participated in a union negotiating session that day, met with AEC inspectors concerning her contamination, and attended a union strategy session. On her way to meet a New York Times reporter and an OCAW leader, Silkwood was killed in an automobile accident. A subsequent autopsy revealed that the amount of plutonium within Silkwood's body at the time of her death was between 25% and 50% of the permissible lifetime body burden...