Bennett v. Mallinckrodt, Inc.

• Decision Date: 16 July 1985
• Docket Number: No. 47771,47771
• Citation: 698 S.W.2d 854
• Parties: , 16 Envtl. L. Rep. 20,480 Samuel F. BENNETT, et al., Plaintiffs-Appellants, v. MALLINCKRODT, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 854

698 S.W.2d 854

73 A.L.R.4th 553, 16 Envtl. L. Rep. 20,480

Samuel F. BENNETT, et al., Plaintiffs-Appellants, v. MALLINCKRODT, INC., Defendant-Respondent.

No. 47771.

Missouri Court of Appeals,

Eastern District,

Division One.

July 16, 1985.

Motion for Rehearing and/or Transfer

Denied Sept. 26, 1985.

Application to Transfer Denied

Nov. 21, 1985.

Donald H. Whaley, Donald L. James, James E. Whaley and Kevin C. Roberts, St. Louis, for plaintiffs-appellants.

William A. Richter, Lewis R. Mills, P. Terence Crebs, St. Louis, Peter J. Nickles, Richard A. Meserve, William F. Greaney, Washington, D.C., Raymond Asher and Roger A. Keller, St. Louis, for defendant-respondent.

SATZ, Judge.

Plaintiffs appeal from the trial court's dismissal of their petition. We reverse and remand.

In their petition, plaintiffs allege they are representatives of a class who have worked or will work on property adjacent to a radiopharmaceutical processing plant operated by defendant, Mallinckrodt, Inc. (Mallinckrodt). Alleging injuries to their physical and mental health from exposure to radioactive emissions released by the plant, plaintiffs seek damages from Mallinckrodt based on three theories of common law tort: negligence, assault and battery and strict liability for "ultrahazardous activities." In the trial court, Mallinckrodt filed a motion to dismiss, arguing that plaintiffs' action was barred (1) by the federal preemption doctrine, (2) by the political question doctrine and (3) by the action being based upon mere speculative possibilities of future harm. The trial court dismissed plaintiffs' petition on two grounds: the court lacked subject matter jurisdiction and the petition failed to state a claim upon which relief could be granted.

We disagree with the trial court. The court does have subject matter jurisdiction, and plaintiffs' petition, although not artfully drawn, does state a claim upon which relief can be granted.

The issues before us are the same three issues which were before the trial court. We address them in order.

FEDERAL PREEMPTION

The doctrine of federal preemption springs from the Supremacy Clause of the United States Constitution, U.S. Const., Art. VI, cl. 2. E.g., Fidelity Fed. Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982). The question of whether federal law preempts state action is " 'largely one of statutory construction' " and, therefore, cannot be resolved by general formulas. Cipollone v. Liggett Group, Inc., 593 F.Supp. 1146, 1150 (D.N.J.1984). ¹ Certain principles, however, have been clearly established. First, federal law may expressly preempt state law, Northern States Power Co. v. Minnesota, 447 F.2d 1143, 1145-46 (8th Cir.1971), aff'd, 405 U.S. 1035, 92 S.Ct. 1307, 31 L.Ed.2d 576 (1972), or, state law in a given area may be preempted by Congress' implied intent to occupy that area. E.g., Fidelity Fed., 458 U.S. at 153, 102 S.Ct. at 3022; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Even if Congress has not entirely displaced state regulation in a given area, state law may still be preempted to the "extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law ..., or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress...." Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984).

Congressional intent pertaining to nuclear energy surfaces in the Atomic Energy Act and its amendments. Until 1954, the development of nuclear energy was a federal monopoly. See Atomic Energy Act of 1946, Pub.L. No. 79-585, 60 Stat. 755. With the enactment of the Atomic Energy Act of 1954, ch. 1073, 68 Stat. 919, codified as amended, 42 U.S.C. §§ 2011-2284 (1982), private industry was encouraged to take part in the development and utilization of nuclear energy for peaceful purposes. The federal government, however, retained extensive control over this development by means of a licensing scheme administered by the Atomic Energy Commission, AEC, the predecessor of the present Nuclear Regulatory Commission, NRC.

In 1959, Congress amended the Atomic Energy Act and authorized the NRC to turn over some regulatory authority to those states that adopted a suitable regulatory program, see 42 U.S.C. § 2021, but states were still precluded from regulating the safety aspects of nuclear development, see 42 U.S.C. § 2021(k). See also Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm., 461 U.S. 190, 205, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983); Northern States Power Co., 447 F.2d at 1153-54; State ex rel. Utility Consumers Council v. Public Service Comm., 562 S.W.2d 688, 698 (Mo.App.), cert. denied, 439 U.S. 866, 99 S.Ct. 192, 58 L.Ed.2d 177 (1978).

Congress also amended the Atomic Energy Act in 1957 by passing the Price-Anderson Act, Pub.L. No. 85-256, 71 Stat. 576 (1957), to encourage private enterprise to participate in the nuclear industry. Companies contemplating entry into the field had expressed considerable concern over the possibility of a nuclear accident with concomitant bankrupting liability. See Silkwood v. Kerr-McGee Corp., 104 S.Ct. at 623; S.Rep. No. 296, reprinted in 1957 U.S.Code Cong. & Ad.News 1803, 1816. Through financial protection and indemnification provisions, the Price-Anderson Act attempted to alleviate this concern by shielding the nuclear industry while safe guarding the public financially. As a result, the Act requires certain licensees to purchase private insurance to cover liability claims, 42 U.S.C. § 2210(a), (b), provides government indemnity for those licensees, 42 U.S.C. § 2210(c), (d), and establishes maximum limits on liability for nuclear incidents, ² 42 U.S.C. § 2210(e). See also Silkwood v. Kerr-McGee Corp., 667 F.2d 908, 921 (10th Cir.1981). Then, in response to a concern that many states would not apply strict liability to radiation injuries, Congress again amended the Act in 1966 and required all indemnified nuclear facilities to waive certain legal defenses such as contributory negligence and governmental immunity in the event of an extraordinary nuclear occurrence. ³ See 42 U.S.C. § 2210(n). ⁴

The enactment of the Price-Anderson Act and its subsequent amendments triggered an extensive legislative history concerning the relationship between federal statutes pertaining to the nuclear industry and state tort law. No less an authority than the United States Supreme Court has interpreted this history and defined this relationship for us. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984); Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm'n, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983).

The Supreme Court has declared, in essence, that states are precluded from regulating the safety aspects of nuclear development and of hazardous nuclear materials. Pacific Gas & Electric Co., 461 U.S. at 205, 103 S.Ct. at 1722; Silkwood, 104 S.Ct. at 622. This prohibition is premised on Congress' belief that the NRC is more qualified than the individual states to determine what type of safety standards should be enacted in this complex area. Silkwood, 104 S.Ct. at 622. Acknowledging Congress' concern over the state's inability to formulate effective safety standards, the Court in Silkwood, nonetheless, found "ample evidence" in the legislative history that Congress had no intention of forbidding states from providing tort remedies for injuries caused by nuclear radiation. Id. at 623. For example, the Court quoted from Senate Report No. 296 which explains the Price-Anderson Act does not interfere with state tort law until there is a likelihood that damages would exceed the amount of financial responsibility required together with the amount of federal indemnity. Up to this threshold point, the rights of injured parties are established and defined by state law. Id. at 623. See also S.Rep. No. 296, 1957 U.S.Code Cong. & Ad.News 1803, 1810. ⁵

As a result, "[s]tate law remedies, in whatever form they might take, [are] available to those injured by nuclear incidents." Silkwood, 104 S.Ct. at 625. Consequently, the mere fact the federal government has occupied the field of safety does not foreclose state remedies for radiation injuries. Rather, the test for determining preemption in the nuclear energy field is:

" whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law." Silkwood, 104 S.Ct. at 626.

THE RECORD

Mallinckrodt contends plaintiffs' action irreconcilably conflicts with federal standards and also frustrates federal objectives. A fact essential to this contention is Mallinckrodt's compliance with federal statutes and regulations. This fact, however, has neither been pleaded nor proved.

Plaintiffs' have not alleged Mallinckrodt's compliance with federal statutes or regulations, nor is this fact implicit in any of plaintiffs' claims. Moreover, Mallinckrodt has not filed an answer to plaintiffs' petition, nor has it filed a motion for summary judgment based upon facts established by affidavit or discovery. Mallinckrodt has simply filed a motion to dismiss plaintiffs' petition.

Mallinckrodt, in effect, is seeking an advisory opinion before pleading or proving compliance. Plaintiffs, nevertheless, address Mallinckrodt's arguments as if Mallinckrodt's compliance existed. We address the arguments as presented, rather than avoiding the preemption issues on a procedural defect. ⁶

IRRECONCILABLE CONFLICT

Permitting plaintiffs' petition to state a claim for relief under Missouri law, Mallinckrodt argues, would create an irreconcilable conflict between Missouri and federal standards....