Smith v. General Elec. Co., Civil Action No. 91-12912-RGS.

• Decision Date: 06 September 1996
• Docket Number: Civil Action No. 91-12912-RGS.
• Parties: Cynthia D. SMITH, Individually, as Guardian and Next Friend of Sara Smith and Benjamin Smith, and as Executrix of the Estate of Thomas B. Smith v. GENERAL ELECTRIC COMPANY and Boston Edison Company.
• Court: U.S. District Court — District of Massachusetts

938 F. Supp. 70

Cynthia D. SMITH, Individually, as Guardian and Next Friend of Sara Smith and Benjamin Smith, and as Executrix of the Estate of Thomas B. Smith v. GENERAL ELECTRIC COMPANY and Boston Edison Company.

Civil Action No. 91-12912-RGS.

United States District Court, D. Massachusetts.

September 6, 1996.

Edward T. Dangel, III, Dangel, Donlan & Fine, Boston, MA, for Thomas B. Smith, Cynthia D. Smith.

Michael R. Heyison, William F. Lee, Michael R. Heyison, Hale & Dorr, Boston, MA, for General Electric Corp., Boston Edison Company.

Memorandum and Order on a Motion for Judgment on the Pleadings

STEARNS, District Judge.

This case was brought on behalf of Thomas Smith, an electrician who worked at the Pilgrim Station nuclear power plant between 1972 and 1988. Smith died in 1993 after contracting chronic myelocytic leukemia. The Complaint, as originally filed, alleged various state law causes of action against defendant Boston Edison Company, the owner of the plant, and a second defendant, the General Electric Company, the supplier of Pilgrim Station's fuel rods. Before the court is a motion by General Electric (GE) seeking judgment on the pleadings, or more precisely, its dismissal from the case.

PROCEDURAL BACKGROUND

The First Amended Complaint, filed on November 12, 1991, contained eight counts: I-negligence (Boston Edison); II-negligence (GE); III-implied warranty (GE); IV-strict liability (GE); V-abnormally dangerous activity (Boston Edison and GE); VI-loss of consortium by the Smith children (both defendants); VII-loss of consortium by Smith's wife (both defendants); and VIII-violation of the consumer protection statute, M.G.L. c. 93A (GE). On April 23, 1993, the plaintiff filed a suggestion of death, along with a motion to add a wrongful death claim against both defendants. That motion was unopposed.

In a September 14, 1993 Memorandum and Order, Judge Mazzone allowed the defendants' motions for summary judgment on counts I, II, III, and V of the First Amended Complaint on statute of limitations grounds (count IV was also dismissed after the plaintiff conceded there was no basis in Massachusetts law on which to found a theory of strict liability). On September 16, 1993, Judge Mazzone allowed the plaintiff's earlier filed motion to file a supplemental Complaint, which added the wrongful death action as Count IX.¹ Although the surviving counts are framed under Massachusetts law, they constitute a federal cause of action (a "public liability action") under the rubric of the Price-Anderson Act, 42 U.S.C. §§ 2014(w), 2210(n)(2), which as will be explained, is a plaintiff's exclusive remedy for the recovery of damages sustained in a "nuclear incident."²

FACTS

When considering a motion for a judgment on the pleadings, the court accepts the facts alleged in the Complaint as true and views any reasonable inference implicit in the pleadings in the light most congenial to the nonmoving party. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: § 1368, at 518-519. The material facts in the pleadings are these. Thomas Smith contracted chronic myelocytic leukemia in 1988 as a result of his exposure to excessive levels of ionizing radiation while working at Pilgrim Station. The radiation emanated in part from defective fuel rods in the plant's reactor. The fuel rods were manufactured by GE. More specifically, the Complaint in its amended form alleges that Boston Edison failed to warn Smith of the dangers of excessive exposure to radiation, and that it failed to protect him against such exposure. GE is alleged to have failed to warn Smith that the fuel rods it supplied to Boston Edison were hazardous to workers at the plant, and that GE breached various implied warranties by manufacturing and selling fuel rods that it knew were unreasonably dangerous and unfit for their intended purpose. The acts and omissions of the defendants are variously alleged to have been negligent, grossly negligent, willful, wanton and malicious.

DISCOVERY STATUS

The parties originally agreed to a phased discovery plan deferring the question of GE's potential liability until Smith's cumulative radiation dose had been at least tentatively established.³ Step 1 of the discovery plan obligated Boston Edison to locate and produce certain related categories of documents identified by the plaintiff. Step 2 allowed Boston Edison to depose members of Smith's family. Step 3 authorized the plaintiff to depose Boston Edison witnesses on three specific subjects: (a) Smith's occupational radiation exposure; (b) health physics and ALARA⁴ practices at Pilgrim Station during the relevant periods; and (c) the nature and extent of Boston Edison's document search. Step 4 provided that after the initial depositions, the plaintiffs could move to compel further discovery, including information related to fuel issues (that is, GE's potential liability). The final step of the discovery plan provided for the deposition of expert witnesses.

Steps 1 and 2 of the discovery plan are complete. Boston Edison has produced over 35,000 documents, including gate sheets, work orders issued to Smith's employers, lists of radiation work permits issued during the years that Smith was employed at Pilgrim Station, and Smith's dosimetry records. Boston Edison in turn has deposed Smith's family members.

Instead of proceeding to Step 3 of the discovery plan as contemplated, on February 13, 1995, the plaintiff sought extensive discovery from GE, specifying thirty-two topics concerning the design, quality, testing, and alleged defects of GE's nuclear fuel rods. In a lengthy status report submitted by the defendants in advance of a May 25, 1995 conference, the defendants asserted that the fuel issues are irrelevant to any determination of liability or damages. The parties agreed to postpone the GE discovery in light of GE's claim that it should be dismissed as a party. The parties also agreed that discovery not affected by the fuel rod issue would proceed in the ordinary course, while the issue of GE's participation in the lawsuit was resolved.

THE PRICE-ANDERSON ACT

Adopted in 1957 to foster the commercial development of nuclear energy, the Price-Anderson Act established a public/private insurance pool covering potential victims of peace-time nuclear accidents. See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 63-65, 98 S.Ct. 2620, 2625-2626, 57 L.Ed.2d 595 (1978). The Act required private nuclear power operators to obtain the "amount of liability insurance available from private sources," an amount totalling $60 million in 1957, 42 U.S.C. § 2210(b), Duke Power, 438 U.S. at 64-65, 98 S.Ct. at 2625-2626, and provided a supplementary federal indemnity guarantee of $500 million. See 42 U.S.C. § 2210(c). The Act capped liability for any single nuclear "incident" at $560 million, 42 U.S.C. § 2210(e)(1)(C), and mandated that "any legal liability ... of any person who may be liable for public liability" (over and above the private insurance requirement) be channeled to the federal insurance pool. 42 U.S.C. §§ 2014(t)(w); see also 42 U.S.C. § 2210(d). The Act was designed to serve as "the means by which persons suffering damage from a nuclear incident may obtain rapid and adequate financial compensation." S.Rep. No. 650, 89th Cong., 1st Sess. (1965), reprinted in 1965 U.S.C.C.A.N. 3209, 3220-3221.

Despite Congressional assurances, critics complained that the Price-Anderson damages cap and liability channeling mechanism unfairly shielded the nuclear industry from full responsibility for a nuclear catastrophe. In Carolina Environmental Study Group, Inc. v. U.S. Atomic Energy Commission, 431 F.Supp. 203, 222-223 (W.D.N.C.1977), the district court echoed the arguments of these critics, holding the Act unconstitutional because "the amount of recovery it provides is not rationally related to the potential losses ..., its channeling provision tends to encourage irresponsibility in matters of safety and environmental protection ..., and because there is no quid pro quo" for the liability cap. The Supreme Court reversed, explaining that the Act created no disincentive for safety because no nuclear utility could financially survive the calamity of a serious nuclear accident whatever the dollar ceiling imposed by the Act. Duke Power, 438 U.S. at 85, 98 S.Ct. at 2636. The Court described the $560 million damages cap as simply a "starting point" or a "working hypothesis," and noted that Congress had stated its intention to make additional funds available if needed. Id., at 85 and n. 29, 98 S.Ct. at 2637 and n. 29. See also 42 U.S.C. § 2210(e)(2):

In the event of a nuclear incident involving damages in excess of the amount of aggregate public liability under paragraph (1), the Congress will thoroughly review the particular incident in accordance with the procedures set forth in subsection (i) of this section and will in accordance with such procedures, take whatever action is determined to be necessary (including approval of appropriate compensation plans and appropriate of funds) to provide full and prompt compensation to the public for all public liability claims resulting from a disaster of such magnitude.

Finally, the Court expressed confidence that the Act offered a fair quid pro quo to the public. While the Act abrogated certain common law rights, it gave claimants a faster, more efficient route to recovery, and "guaranteed a level of net compensation generally exceeding that recoverable in private litigation against individually culpable entities." Duke Power, 438 U.S. at 93, 98 S.Ct. at 2640.

The Duke Power decision did not examine the right of a plaintiff to sue a federally licensed nuclear operator in state court under state theories of law. In Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984), a diversity action brought under Oklahoma law, the estate of Karen Silkwood was awarded ten...