McMunn v. Babcock & Wilcox Power Generation Grp., Inc.

• Decision Date: 15 September 2015
• Docket Number: 2:13cv704,2:10cv744,2:13cv1527,Nos. 2:10cv143,2:10cv728,2:10cv908,2:14cv639.,2:11cv898,2:10cv1736,2:10cv368,2:12cv1459,2:12cv1221,2:10cv650,2:13cv186,2:11cv1381,s. 2:10cv143
• Citation: 131 F.Supp.3d 352
• Parties: Michelle McMUNN, Personal Representative of the Estate of Eva Myers, et al., Plaintiffs, v. BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants. Jessi Ann Casella, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Michael P. Huth, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Linda W. Dilik, Plaintiff, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Bonnie Aikens, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Patricia Altimire, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Marcia Baustert, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Sandra L. Ament, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Elizabeth Mitcheson, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Karen L. Skroupa, as personal representative of Howard D. Skroupa, deceased, Plaintiff, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Heather Lorraine Baynar, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Marlene Ament, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Patricia Aldene West, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Alynda Talmadge, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants. Margaret S. Culp, et al., Plaintiffs, v. Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

131 F.Supp.3d 352

Michelle McMUNN, Personal Representative of the Estate of Eva Myers, et al., Plaintiffs,

v.BABCOCK & WILCOX POWER GENERATION GROUP, INC., et al., Defendants.

Jessi Ann Casella, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Michael P. Huth, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Linda W. Dilik, Plaintiff,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Bonnie Aikens, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Patricia Altimire, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Marcia Baustert, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Sandra L. Ament, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Elizabeth Mitcheson, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Karen L. Skroupa, as personal representative of Howard D. Skroupa, deceased, Plaintiff,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Heather Lorraine Baynar, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Marlene Ament, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Patricia Aldene West, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Alynda Talmadge, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Margaret S. Culp, et al., Plaintiffs,

v.Babcock & Wilcox Power Generation Group, Inc., et al., Defendants.

Nos. 2:10cv143

2:10cv368

2:10cv650

2:10cv728

2:10cv744

2:10cv908

2:11cv898

2:11cv1381

2:12cv1221

2:12cv1459

2:10cv1736

2:13cv186

2:13cv704

2:13cv1527

2:14cv639.

United States District Court, W.D. Pennsylvania.

Signed Sept. 15, 2015.

David B. Rodes, Jason T. Shipp, Goldberg, Persky & White, P.C., Pittsburgh, PA, Temitope Leyimu, Motley Rice, LLC, Charleston, SC, Victoria Antion, Motley Rice, Morgantown, WV, Anne Kearse, Motley Rice LLC, Mt. Pleasant, SC, Fidelma Fitzpatrick, Jonathan D. Orent, Michaela S. McInnis, Motley Rice, Providence, RI, for Plaintiff.

Caley M. Heekin, Christopher M. Mooney, Elisa M. Pandolfi, John P. Phillips, Peter C. Meier, Sean Unger, Elizabeth Dorsi, Paul Hastings LLP, Edward A. Bayley, Sean M. Callagy, Simona A. Agnolucci, Arnold & Porter LLP, San Francisco, CA, Chris Michael Temple, K&L Gates LLP, Jarrod Shaw, Reed Smith LLP, Pittsburgh, PA, Nancy G. Milburn, Mary E. Sylvester, Matthew D. Grant, Philip H. Curtis, Reuben S. Koolyk, Tanya E. Kalivas, Arnold & Porter, New York, NY, Joel D. Rohlf, Kevin M. Henley, Arnold & Porter LLP, Washington, DC, Jonathan I. Coronel, Arnold & Porter, Los Angeles, CA, Matthew H. Meade, Buchanan Ingersoll, Pittsburgh, PA, for Defendant.

MEMORANDUM ORDER

DAVID STEWART CERCONE, District Judge.

The above captioned cases were referred to United States Magistrate Judge Robert C. Mitchell for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate Judges. In these actions, Plaintiffs allege that Defendants, Babcock & Wilcox Power Generation Group, Inc., B & W Technical Services, Inc. ("B & W") and Atlantic Richfield Co. ("ARC") (together "Defendants"), as successors in interest to Nuclear Materials Corporation ("NUMEC"), are responsible for the release of radioactive uranium from a nuclear processing facility located in Apollo, Pennsylvania and operated from approximately 1953 to 1983. Plaintiffs further allege that inhalation of radioactive uranium from the facility caused the Plaintiffs to develop cancer. Plaintiffs assert jurisdiction under the Price–Anderson Act (the "PAA"), 42 U.S.C. § 2210(n)(2), and the Atomic Energy Act (the "AEA"), 42 U.S.C. § 2011.

The following motions were filed by the Defendants: (1) motions for judgment on the pleadings, filed in all fifteen (15) cases, contending that the state law claims in Counts II–V (in some cases, Counts II–VI and in some cases, Counts II–VII) should be dismissed as preempted by the Price–Anderson Act claims asserted in Count I; (2) motions for summary judgment, filed in the first eleven (11) cases, contending that Plaintiffs have failed to raise a genuine issue of material fact on the element of breach of duty (because average annual radioactive airborne releases or uranium never exceeded the amounts set by 10 C.F.R. § 20.106); (3) motions for summary judgment, filed in the first eleven (11) cases, contending that Plaintiffs have failed to present evidence regarding exposure and dose, as well as motions (filed with their reply brief) to have their statements of undisputed fact deemed admitted; (4) motions for summary judgment, filed in the first eleven (11) cases by Defendant Atlantic Richfield, contending that Plaintiffs have failed to demonstrate that it can be held liable as a successor in interest to NUMEC, as well as motions (filed with its reply brief) to have its statements of undisputed fact deemed admitted; and (5) motions for summary judgment, filed in five of the cases, contending that Plaintiffs failed to comply with the Court's order of September 12, 2012, in that some of the Plaintiffs are continuing to allege exposure other than to inhalation of uranium from the Apollo facility, as well as motions (filed with their reply brief) to strike the supplemental affidavit of James Melius, M.D., DR. P.H. that Plaintiffs filed with their opposition to the motions.

The Magistrate Judge's Report and Recommendation (Document No. 370 at 2:10cv143), filed on May 7, 2015, recommended as follows: (1) that Defendants' Motions for Judgment on the Pleadings Based on Price–Anderson Act Preemption be granted; (2) that Defendants' Motions for Summary Judgment Based on Plaintiffs' Failure to Raise a Genuine Issue for Trial on Breach of Duty be granted; (3) that Defendants' Motions for Summary Judgment Based on Plaintiffs' Lack of Evidence Regarding Exposure and Dose be granted; (4) that Defendants' Motions to Deem Admitted Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment Based on Plaintiffs' Lack of Evidence Regarding Exposure and Dose be granted; (5) that Defendant Atlantic Richfield Company's Motions for Summary Judgment Based on No Shareholder Liability be denied as moot; (6) that Defendant Atlantic Richfield Company's Motions to Deem Admitted Its Local Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment Based on No Shareholder Liability be denied as moot; (7) that Defendants' Motions for Summary Judgment Due to Plaintiffs' Failure to Comply With the Court's September 12, 2012 Order be denied as moot; and (8) that Defendants' Motions to Strike the Supplemental Affidavit of James Melius, M.D., DR. P.H. be denied as moot.

Plaintiffs' filed Objections to the Report and Recommendation in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72.D.2 of the Local Rules of Court. After a comprehensive review of the record of these cases, and upon consideration of the Magistrate Judge's Report and Recommendation, and the Objections thereto, the Court will adopt the Report and Recommendation as the Opinion of this Court.

Accordingly

ORDER OF COURT

AND NOW, this 15th day of September, 2015, upon consideration of the motions set forth above,

IT IS HEREBY ORDERED as follows:

(1) Defendants' Motions for Judgment on the Pleadings Based on Price–Anderson Act Preemption (Document No. 308 at 2:10cv143; Document No. 265 at 2:10cv368; Document No. 259 at 2:10cv650; Document No. 273 at 2:10cv728; Document No. 276 at 2:10cv744; Document No. 295 at 2:10cv908; Document No. 266 at 2:10cv1736; Document No. 205 at 2:11cv898; Document No. 187 at 2:11cv1381; Document No. 137 at 2:12cv1221; Document No. 134 at 2:12cv1459; Document No. 53 at 2:13cv186; Document No. 40 at 2:13cv704; Document No. 31 at 2:13cv1527; and Document No. 19 at 2:14cv639) are GRANTED;

Defendants' Motions for Summary Judgment Based on Plaintiffs' Failure to Raise a Genuine Issue for Trial on Breach of Duty (Document No. 314 at 2:10cv143; Document No. 267 at 2:10cv368; Document No. 269 at 2:10cv650; Document No. 275 at 2:10cv728; Document No. 282 at 2:10cv744; Document No. 305 at 2:10cv908; Document No. 272 at 2:10cv1736; Document No. 207 at 2:11cv898; Document No. 189 at 2:11cv1381; Document No. 139 at 2:12cv1221; and Document No. 136 at 2:12cv1459) are GRANTED;

(3) Defendants' Motions for Summary Judgment Based on Plaintiffs' Lack of Evidence Regarding Exposure and Dose (Document No. 318 at 2:10cv143; Document No. 275 at 2:10cv368; Document No. 273 at 2:10cv650; Document No. 279 at 2:10cv728; Document No. 286 at 2:10cv744; Document No. 309 at 2:10cv908; Document No. 276 at 2:10cv1736; Document No. 216 at 2:11cv898; Document No. 193 at 2:11cv1381; Document No. 143 at 2:12cv1221; and Document No. 140 at 2:12cv1459) are GRANTED;

(4) Defendants' Motions to Deem Admitted Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment Based on Plaintiffs' Lack of Evidence Regarding Exposure and Dose (Document No. 361 at 2:10cv143; Document No. 320 at 2:10cv368; Document No. 323 at 2:10cv650; Document No. 324 at 2:10cv728; Document No. 338 at 2:10cv744; Document No. 363 at 2:10cv908; Document No. 325 at 2:10cv1736; Document No. 268 at 2:11cv898; Document No. 237 at 2:11cv1381; Document No. 178 at 2:12cv1221; and Document No. 175 at 2:12cv1459) are GRANTED;

(5) Defendant Atlantic Richfield Company's Motions for Summary Judgment Based on No Shareholder Liability (Document No. 310 at 2:10cv143; Document No. 279 at 2:10cv368; Document No. 277 at 2:10cv650; Document No. 283 at 2:10cv728; Document No. 290 at 2:10cv744; Document No. 313 at 2:10cv908; Document No. 280 at 2:10cv1736; Document No. 220 at 2:11cv898; Document No. 197 at 2:11cv1381; Document No. 147 at 2:12cv1221; and ...