O'CONNER v. Commonwealth Edison Co., 88-1272.

• Decision Date: 26 September 1990
• Docket Number: No. 88-1272.,88-1272.
• Parties: James R. O'CONNER, Plaintiff, v. COMMONWEALTH EDISON COMPANY, and London Nuclear Services, Defendants.
• Court: U.S. District Court — Central District of Illinois

748 F. Supp. 672

James R. O'CONNER, Plaintiff, v. COMMONWEALTH EDISON COMPANY, and London Nuclear Services, Defendants.

No. 88-1272.

United States District Court, C.D. Illinois.

September 26, 1990.

Jay H. Janssen, Peoria, Ill., for plaintiff.

Rex K. Linder, Peoria, Ill., Terrence E. Kiwala, Chicago, Ill., Donald E. Jose, Philadelphia, Pa., for defendants.

ORDER

MIHM, District Judge.

Before the Court are a Motion by the Defendants for a Determination of the legal duty owed to the Plaintiff (# 73) and a Motion by the Plaintiff to certify an interlocutory appeal under 28 U.S.C. § 1292(b) (# 95). The Court grants the Motion to Determine the Defendants' legal duty (# 73) and grants in part and denies in part the Plaintiff's Motion to Certify an interlocutory appeal (# 95).

BACKGROUND

This is a "public liability action" under the Price-Anderson Act¹ filed by a radiation worker against an Illinois public utility and its contractor.² In this case, the Plaintiff was a radiation worker employed by a contractor to the utility who worked during September and October of 1983. The Plaintiff was employed to prepare the recirculation piping in the dry well of the nuclear power plant for repair of the welds on the piping.

The Plaintiff alleges that he received a large dose of radiation (over 400 rem) from a nuclear flush which caused him to develop cataracts at age 44.³ The Defendants claim that Plaintiff received a dose of only 1.465 rem⁴, that the flush was only of a dilute chemical used to dissolve radioactive material, and that his cataracts were simply inherited from his father who had the same type of cataracts at age 39. The Court had scheduled a trial so that a jury might determine the dose of radiation which the Plaintiff actually received. However, several issues arose regarding the legal standards to be applied.

JURISDICTION

The jurisdiction of this Court is based on 42 U.S.C. § 2210(n)(2) which provides in relevant part:

With respect to any public liability action arising out of or resulting from a nuclear incident, the United States District Court and the district where the nuclear incident takes place, or in the case of a nuclear incident taking place outside the United States, the United States District Court for the District of Columbia, shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy. Upon motion of the defendant or of the Commission, or the Secretary, as appropriate, any such action pending in any state court (including any such action pending on August 20, 1988) or the United States District Court shall be removed or transferred to the United States District Court having venue under this subsection....

A "public liability action" is "any suit asserting public liability." See, 42 U.S.C. § 2014(hh). "Public liability" is defined in the Act as "any legal liability arising out of or resulting from a nuclear incident." See, 42 U.S.C. § 2014(w). A "nuclear incident" is defined by the Act as:

Any occurrence, including an extraordinary nuclear occurrence, within the United States causing, within or outside the United States, bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material....

See, 42 U.S.C. § 2014(q). Thus, because the Plaintiff alleges that his injuries resulted from exposure to radiation, he has alleged liability resulting from a nuclear incident, making his case a "public liability action" which is subject to compensation under the procedures created by the Price-Anderson Act.

DOES THE PRICE-ANDERSON ACT WAIVE DEFENSES IN THIS CASE?

The Plaintiff argues that the application of the Price-Anderson Act waives the requirement that he must prove negligence and reduces this case to the sole issue of causation. This Court disagrees.

The Price-Anderson Act provides that public liability actions are to be determined in accordance with the law of the state in which the nuclear incident occurred, unless such laws are inconsistent with the provisions of the Price-Anderson Act. 42 U.S.C. § 2014(hh). The question is whether the incident involved in this case was a "nuclear incident"⁵ or an "extraordinary nuclear occurrence."⁶ Essentially, a nuclear incident can be any allegation of personal harm or property damage from exposure to radiation at a commercial nuclear power plant. In contrast, an extraordinary nuclear occurrence is determined by the Nuclear Regulatory Commission or the Secretary of Energy upon a finding that a significant amount of "source, special nuclear, or by-product" radioactive materials have been discharged off-site and "has resulted or will probably result in substantial damages to persons off-site or property off-site." See, 42 U.S.C. § 2014(j). Neither the Nuclear Regulatory Commission nor the Secretary of Energy has made a determination that an extraordinary nuclear occurrence occurred in this case, and the Plaintiff does not even allege that there has been any large release of these radioactive materials off-site. The Plaintiff claims to have been injured on-site while working inside the reactor building. Consequently, this case does not involve an "extraordinary nuclear occurrence" under the Price-Anderson Act.

The waiver of defenses which the Plaintiff claims applies to this case is found in 42 U.S.C. § 2210(n). By the very statutory language, that waiver is only applicable to a situation where the Nuclear Regulatory Commission or the Secretary of Energy has already found that an "extraordinary nuclear occurrence" has taken place. In relevant part, the beginning of this section states, "With respect to any extraordinary nuclear occurrence to which an insurance policy or contract furnished as proof of financial protection or an indemnity agreement applies...."

Further, although Congress has recently amended the Price-Anderson Act to allow removal to federal district courts in cases involving both "nuclear incidents" and "extraordinary nuclear occurrences," Congress did not expand the waiver of defenses to apply to "nuclear incidents." 42 U.S.C. § 2210(n)(2). Thus, this Court rejects the assertion that the waiver of defenses should apply to this case.

Given the clarity of the statutory language, this Court does not believe that there is a substantial ground for difference of opinion regarding the question of whether or not the waiver of defenses under the Price-Anderson Act should apply to this case; therefore, the Court denies the Plaintiff's request for certification of this issue. See, 28 U.S.C. § 1292(b); Von Bulow v. Von Bulow, 634 F.Supp. 1284, 1312 (S.D.N. Y.1986); In re A.H. Robins Company, Inc., 107 F.R.D. 2, 16 (D.Kan.1985).

DO THE FEDERAL PERMISSIBLE DOSE LIMITS CONSTITUTE THE APPLICABLE STANDARD OF CARE?

As stated earlier, public liability actions are to be determined in accordance with the law of the state in which the nuclear incident occurred, unless such laws are inconsistent with the provisions of the Price-Anderson Act. See, 42 U.S.C. § 2014(hh).

Under Illinois law, the Plaintiff claims that the Defendants owe to the Plaintiff a duty not to expose him to "excessive" radiation. The Plaintiff never defines how much radiation is excessive as he asserts that evidence of the Defendants' compliance and/or non-compliance with standards, regulations, statutes, and custom are merely evidence of negligence or lack thereof. See, Darling v. Charleston Hospital, 33 Ill.2d 326, 332, 211 N.E.2d 253 (1965). The Plaintiff asserts that such evidence aids the jury in deciding what was feasible and what the Defendants knew or should have known, but it does not conclusively determine what standard of care should be applied. Id.

The Defendants maintain that the duty owed to a radiation worker is to keep his exposure below the maximum permissible dose set by the Federal Safety Standards which are binding on nuclear power plants. The Defendants argue that the Plaintiff cannot allow a jury of laymen to establish their own permissible dose limits by allowing them to set exposure standards and apply them retroactively to these Defendants. The Defendants contend that, while it is proper for the jury to weigh the evidence in determining as a matter of fact what dose of radiation the Plaintiff actually received, it is not proper to allow the jury to disregard the federal permissible dose limits and effectively set their own. The Defendants assert that the federal permissible dose limits set forth in 10 C.F.R. § 20.101 constitute the applicable standard of care. Even further, if the federal permissible dose limits would not constitute the applicable standard of care under Illinois law, the Defendants assert that it must be applied as the standard of care because application of any other standard of care would be inconsistent with the provisions of the Price-Anderson Act. See, 42 U.S.C. § 2014(hh). This Court agrees with the Defendants.

In Darling, the court stated:

Custom is relevant in determining the standard of care because it illustrates what is feasible, it suggests a body of knowledge of which the defendant should be aware, and it warns of the possibility of far-reaching consequences if a higher standard is required ...

In the present case the regulations, standards, and by-laws which the plaintiff introduced into evidence, performed much the same function as did evidence of custom. This evidence aided the jury in deciding what was feasible and what the defendant knew or should have known. It did not conclusively determine the standard of care and the jury was not instructed that it did.

Darling, 33 Ill.2d at 332, 211 N.E.2d 253.

Although the court did not find that the applicable regulations conclusively determined the standard of care in Darling, the Court believes that the regulation in this case can provide...