O'Conner v. Commonwealth Edison Co.

• Decision Date: 07 January 1994
• Docket Number: No. 92-2989,92-2989
• Citation: 13 F.3d 1090
• Parties: , 62 USLW 2515, 24 Envtl. L. Rep. 20,689, 38 Fed. R. Evid. Serv. 945 James R. O'CONNER, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY and London Nuclear Services, Inc., Defendants-Appellees, and United States of America, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1090

13 F.3d 1090

62 USLW 2514, 62 USLW 2515, 24 Envtl.

L. Rep. 20,689,

38 Fed. R. Evid. Serv. 945

James R. O'CONNER, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY and London Nuclear Services, Inc., Defendants-Appellees, and United States of America, Intervenor-Appellee.

No. 92-2989.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 17, 1993.

Decided Jan. 7, 1994.

Jerelyn D. Maher (argued), Jay H. Janssen, Janssen, Becker, Maher & Wertz, Peoria, IL, USA for James R. O'Conner.

Rex K. Linder, Heyl, Royster, Voelker & Allen, Peoria, IL, USA Richard F. Nelson, Rooks, Pitts & Poust, Chicago, IL, Donald E. Jose (argued), David Wiedis, Jose & Wiedis, West Chester, PA, for Commonwealth Edison Co.

William P. Barr, Office of U.S. Atty. Gen., Michael J. Singer, Patricia Ann Millett (argued), Dept. of Justice, Civ. Div., Appellate

Section, Washington, DC, J. William Roberts, U.S. Atty., Springfield, IL, for U.S.

Before RIPPLE and MANION, Circuit Judges, and SHADUR, District Judge. ^*

RIPPLE, Circuit Judge.

James O'Conner originally brought this suit in Illinois state court. He sought damages for personal injuries allegedly caused by unsafe dosages of radiation. Shortly before trial, the action was removed to federal district court under the Price-Anderson Amendments Act, 42 U.S.C. Secs. 2014, 2210 (the "Amendments Act"). Defendants Commonwealth Edison Co. ("Commonwealth Edison") and London Nuclear Services ("London Nuclear") then moved for summary judgment. The district court granted the defendants' motion. Mr. O'Conner appealed. We now affirm.

I BACKGROUND

A. Facts

Mr. O'Conner was a pipefitter who performed work in September and October of 1983 at a nuclear facility operated by Commonwealth Edison. During this period, Mr. O'Conner was employed by Morrison Construction Company, a subcontractor at the plant. At the time of his alleged overexposure, he was performing services for London Nuclear, a contractor of the plant. His actions while at the plant were controlled extensively by Commonwealth Edison because his particular pipefitting work was performed in areas containing radioactive materials. These areas were designated as radiation controlled areas and access was limited to only those radiation workers who had been trained specially to work in such an area. Mr. O'Conner had received training as a radiation worker. Even after this training, however, he was required to read and sign a Radiation Work Permit before he could enter a radiation controlled area. The work permit reported the actual levels of radiation in the area and specified how the worker must dress and what radiation measuring devices the worker must wear while doing work in the area. Mr. O'Conner adhered to these requirements at all times while in the area.

At the time Mr. O'Conner allegedly was overexposed to radiation, he was wearing three different types of dosimeters, scientific instruments that measure radiation dosage. According to the dosimeters, Mr. O'Conner received a dose of 45 millirems on the night of the alleged excessive dose. Federal regulations allow a worker to receive 12,000 millirems (or 12 rems) of radiation per year. Mr. O'Conner never defines what he considers to be an "excessive dose" but claims that he was overexposed because he felt warm while working. About ten months later, Mr. O'Conner was diagnosed with early posterior subcapsular cataracts by Dr. Karl Scheribel. It is Dr. Scheribel's opinion that the cataracts were caused by radiation because radiation-induced cataracts are so unique that they can be identified merely by observation. However, all experts agree that the minimum dose necessary to cause cataracts is 200 rems, well above the .045 rem dose that Mr. O'Conner received on the night of October 3, 1983.

In 1985, Mr. O'Conner brought this action in the Circuit Court of the Tenth Judicial Circuit of Illinois, Tazewell County. In a two-count complaint, Mr. O'Conner alleged that he had been exposed negligently to radiation as a result of the pipe-flushing procedure being conducted by London Nuclear for Commonwealth Edison. Just prior to trial, however, Congress enacted the Price-Anderson Amendments Act of 1988. The Amendments Act expanded federal jurisdiction for public liability actions to encompass "any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation." 42 U.S.C. Sec. 2014(w). The Amendments Act also allowed for removal of public liability actions currently pending in state courts. Pursuant to this second provision, the defendants filed a Petition for Removal.

The petition was granted over Mr. O'Conner's objection.

B. District Court Proceedings

In the district court, the defendants moved for a determination of the legal duty owed to Mr. O'Conner under the Amendments Act. The district court determined that the maximum permissible radiation dose levels set by federal safety standards provide the applicable standard of care. Furthermore, the district court opined, even if Illinois would not use federal safety standards as the standard of care in this situation, a different state standard would be preempted by federal law. O'Conner v. Commonwealth Edison Co., 748 F.Supp. 672, 678 (C.D.Ill.1990).

Mr. O'Conner then filed a motion asking the district court to remand the case to state court. He argued that the Amendments Act unconstitutionally conferred jurisdiction on the federal courts. He further argued that the retroactive application of these provisions violated due process. The district court disagreed. It held that Congress had created the public liability cause of action as a federal cause of action with a state law basis, similar to what Congress had done in the Outer Continental Shelf Lands Act, 43 U.S.C. Sec. 1331 [OCSLA]. Furthermore, the district court believed that the other federal ingredients of the statutory scheme provided a sufficient basis for federal jurisdiction under the broad tests of Osborn v. Bank of United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824), and Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983). The district court also held that removal did not violate due process. Because the Amendments Act is essentially economic legislation, the district court determined that "[t]he validity of ... the removal mechanism ... depends on whether such retroactive application is a rational means of achieving a legitimate congressional purpose." O'Conner v. Commonwealth Edison Co., 770 F.Supp. 448, 456 (C.D.Ill.1991). The district court determined that retroactive application of the removal provisions was a rational means to accomplish congressional purposes.

Prior to these motions, the defendants had moved for summary judgment on the ground that there was no evidence that the plaintiff had received a dose in excess of the federal permissible dose limits, and on the ground that there was no evidence that the plaintiff's occupational radiation exposure caused any injuries to the plaintiff. The plaintiff filed his response, which included the deposition testimony of Dr. Karl Scheribel. Dr. Scheribel testified that only radiation could have caused the plaintiff's cataracts. However, Dr. Scheribel did not include an affidavit that explained the basis of his opinion with respect to causation. The plaintiff was allowed to file supplemental affidavits and information regarding the basis of Dr. Scheribel's opinion. Mr. O'Conner filed a short affidavit from Dr. Scheribel which listed the names of four articles that formed the scientific basis of his opinion. Based on these representations, the district court first denied the defendants' motion for summary judgment on the ground that a genuine issue of material fact existed regarding whether the plaintiff had received a dose in excess of the federal dose limits. However, on August 29, 1991, after reconsidering the issue of admissibility of Dr. Scheribel's testimony sua sponte, the district court determined that Dr. Scheribel's testimony was inadmissible and entered judgment in favor of the defendants.

Mr. O'Conner appeals from the entry of summary judgment. 807 F.Supp. 1376. He renews on appeal the arguments made to the district court. Specifically, he alleges that the district court erred in not remanding the case to the state court and in applying the Amendments Act retroactively. He also maintains that the district court improperly determined the applicable standard of care for a public liability action. Finally, Mr. O'Conner reasserts the admissibility of Dr. Scheribel's testimony to establish causation. We address each of these in turn.

II ANALYSIS

A. Jurisdiction

The plaintiff first maintains that the district court should have remanded the case to the state court. Mr. O'Conner argues that 42 U.S.C. Sec. 2210(n)(2), which allows for removal of public liability actions, does not create a federal cause of action and is therefore a hollow grant of federal jurisdiction. Specifically, Mr. O'Conner maintains that, because the governing law for public liability actions is derived from state law rather than from a newly-created body of federal law, the cause of action does not arise under a law of the United States; instead, the public liability action arises under state law. Consequently, the removal provisions do not satisfy the requirement of Article III that causes of action "arise under" the Constitution or laws of the United States.

1.

In order to evaluate properly its constitutionality, we must look at the Amendments Act in the context of the entire federal statutory scheme on nuclear power. The Amendments Act is simply the last addition to the federal law of nuclear energy that has been evolving since 1946 when Congress enacted the Atomic Energy Act. The Atomic Energy Act initially gave the federal government a monopoly with respect to the development of nuclear power. Later, however, Congress determined that the national...