O'CONNER v. Commonwealth Edison Co.

• Decision Date: 23 July 1992
• Docket Number: No. 88-1272.,88-1272.
• Citation: 807 F. Supp. 1376
• Parties: James R. O'CONNER, Plaintiff, v. COMMONWEALTH EDISON COMPANY and London Nuclear Service, Inc., Defendants.
• Court: U.S. District Court — Central District of Illinois

807 F. Supp. 1376

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

No. 88-1272.

United States District Court, C.D. Illinois.

July 23, 1992.

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

Donald E. Jose, West Chester, PA, Richard Nelson, Chicago, IL, Rex K. Linder, Peoria, IL, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

MIHM, Chief Judge.

Before the court is a motion by defendants to exclude part of the testimony of plaintiff's causation expert, Dr. Karl Scheribel, and defendants' Motion for Summary Judgment based on the evidence then remaining in the case. This court grants both of defendants' motions for the reasons stated herein.

I. INTRODUCTION TO THIS CASE

The plaintiff, James R. O'Conner ("O'Conner"), worked at a nuclear power plant and then later developed a medical condition, including bilateral cataracts, that he claims was caused by the radiation exposure that he received at the plant. He consulted with many physicians in an effort to determine whether or not he had a medical claim. He has consulted with and seen the following doctors regarding his alleged "injuries" caused by radiation: Dr. Karl Scheribel (ophthalmologist); Dr. John Nelson (ophthalmologist); Dr. Robert Reardon (ophthalmologist); Dr. Clarence Ward (ophthalmologist); Dr. William Bond (ophthalmologist); Dr. Michael Rosenberg (ophthalmologist); Dr. Ennio Rossi (internal medicine); Dr. Greg Ichtertz (pulmonary medicine); Dr. James LeGrand (internal and pulmonary medicine); Dr. Bruce McLelland (dermatology); Dr. Mark Bullock (family medicine); Dr. Edward Silberstein (radiology); Dr. Robert Chapman (psychiatry); and Dr. Robert Sadoff (psychiatry). A description of his alleged "injuries" is more fully set forth below. He filed this lawsuit in Illinois State Court on October 1, 1985.

In passing the Price-Anderson Act, Congress recognized that a nuclear incident might be caused by any number of participants in the nuclear industry beyond the actual licensee. Congress did not want quick and fair compensation to be hampered by the complications likely to ensue if multiple defendants, each with its own law firm, were actively and separately defending. In a "significant departure from normal tort law precepts," H.R.Rep. 104, 100th Cong., 1st Sess. pt. 3, at 16 (1987), Congress, through mandatory indemnification provisions, channelled all public liability to licensees, and away from non-licensees, (such as contractors like London Nuclear), who might otherwise have borne such liability under ordinary tort law. See 42 U.S.C. §§ 2014(t), 2014(w), 2210(a). Congress noted that "regardless of whether a commercial power plant accident was caused by actions of the licensee, the plant manufacturer, or any other party, liability would be `channeled' to the licensee and payment would be obtained from the compensation pool funded by utilities." H.R.Rep. 104, pt. 3, at 16. The channelling provisions alter the ordinary congruence in tort law between causing and bearing liability. S.Rep. No. 218, 100th Cong., 2d Sess. 4, reprinted in 1988 U.S.C.C.A.N. 1451, 1476, 1479 ("The Price Anderson System including ... the predetermined sources of funding, provides persons seeking compensation for injuries as a result of a nuclear incident with significant advantages over the procedures and standards for recovery that might otherwise be applicable under State tort law.") Consequently, contractor London Nuclear Services cannot separately be liable to plaintiff in any manner in this case. One law firm has represented both defendants, without conflict, throughout the pendency of this action, since there can only be one liability pursuant to Price-Anderson and that liability is channeled solely through the licensee and through the financial protection provided by Price-Anderson. Any disagreements between defendants as to who might have done what wrong are irrelevant to O'Conner's claim for compensation under Price-Anderson. The only relevant issues are whether the duty owed was breached (O'Conner's exposure), and whether that exposure caused his claimed injury (causation).

A. Procedural History

This case has a long procedural history that includes two published opinions on other issues in this case. The standard of care applicable to a radiation worker receiving an occupational radiation exposure was determined to be the federal permissible dose limits. O'Conner v. Commonwealth Edison Company, 748 F.Supp. 672 (C.D.Ill. 1990). The Price-Anderson Amendments Act, upon which this court's jurisdiction rests, was found to be constitutional. O'Conner v. Commonwealth Edison Company, 770 F.Supp. 448 (C.D.Ill.1991). This present opinion will not revisit the issues in those two prior decisions but they are incorporated as part of the court's rationale for granting summary judgment.

Only those pleadings that are pertinent to the present opinion are set forth here. This case was filed in state court on October 1, 1985. Defendants removed the case to this court pursuant to the provisions of 28 U.S.C. § 1441 and the Price-Anderson Amendments Act of 1988, 42 U.S.C. § 2210(n)(2) on September 13, 1988. On May 25, 1989, defendants filed a Motion for Summary Judgment on the grounds that there was no evidence that plaintiff had received a dose in excess of the Federal Permissible Dose Limits set forth at 10 C.F.R. § 20.101, and that there was no evidence that plaintiff's occupational radiation exposure caused any injuries to the plaintiff. Plaintiff filed his Response on July 25, 1989. Plaintiff included in his response, among other things, the deposition testimony of Dr. Karl Scheribel in which he states that only radiation could have caused plaintiff's cataracts, but did not include any affidavit from him that explained the basis of his causation opinion. At oral argument held on December 7, 1989, the court granted plaintiff's request to file supplemental affidavits and information regarding the basis of Dr. Scheribel's opinion. Plaintiff then filed a Notice of Compliance that included a short affidavit from Dr. Scheribel that simply listed the names of four articles that supposedly provided the scientific basis of his opinion. The articles referred to in this affidavit are discussed in detail infra at Section IV F.

On March 13, 1989, this court denied defendants' Motion for Summary Judgment on the grounds that a genuine issue of material fact existed as to whether plaintiff had received a dose in excess of the federal dose limits. That ruling was based upon what the court believed at the time was a reasonable inference from Dr. Scheribel's testimony that if O'Conner has radiation induced cataracts, he must have received a large dose of radiation in excess of the federal limits. On June 5, 1990, defendants filed a Motion in Limine to Exclude Dr. Scheribel From Testifying on Causation. Defendants also filed a Motion in Limine for a Determination of the Legal Duty Owed in which defendants requested that the court determine that the federal permissible dose limits set forth at 10 C.F.R. § 20.101 constituted the duty of care required of a utility operating a nuclear power plant and that a jury could not properly disregard these federal dose limits and substitute their own standards. The court granted defendants' Motion on September 26, 1990 for the reasons set forth in O'Conner v. Commonwealth Edison Co., 748 F.Supp. 672 (C.D.Ill.1990) and also granted plaintiff's petition for interlocutory appeal which was then denied by the Seventh Circuit Court of Appeals. Misc. No. 90-8103 (7th Cir., Oct. 26, 1990). The court denied defendants' Motion to Exclude Dr. Scheribel on July 20, 1990.

However, on August 29, 1991, after reconsidering the issue of the admissibility of Dr. Scheribel's testimony sua sponte, the court entered an Order requesting "counsel to advise the court of the references in the record which bear on the admissibility of Dr. Scheribel's testimony." Specifically, the court requested plaintiff to provide more information on "exactly how many patients Dr. Scheribel has had with radiation induced cataracts" and "the information which provides the basis for Dr. Scheribel's opinion." Order dated December 22, 1989.

Both parties filed briefs in response to said request. Plaintiff also filed a Motion for Direction and/or Clarification requesting the court to provide plaintiff with specific information about the court's concerns regarding Dr. Scheribel's testimony. At oral argument held on January 17, 1992, the court told plaintiff's counsel that it was concerned with the admissibility of Dr. Scheribel's testimony under Rules 702, 703, and Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Specifically, the court advised plaintiff that Dr. Scheribel seemed to have no verifiable scientific foundation for his opinion that only radiation could have caused plaintiff's cataracts. Tr. of Oral Argument, Jan. 17, 1992 at 10-11. The court further advised that Dr. Scheribel did not appear to be qualified to opine that he could diagnose radiation induced cataracts by simply looking at them, and that such an opinion is not accepted in the scientific community. Id. at 13-14. Finally, the court specifically warned plaintiff that if he did not supplement the record to demonstrate that Dr. Scheribel was qualified and that there was a verifiable scientific basis for Dr. Scheribel's opinion, the court would exclude him from testifying and would grant defendant's Motion for Summary Judgment since the remaining record would be insufficient to go to a jury. Id. at 19. Both parties then filed briefs in response to the court's comments. Plaintiff has had sufficient time and sufficient opportunity to establish the verifiable basis of his expert's opinion, if there is any, or to substitute a new expert. Upon this extensive record the court now rules.

B. The Uncontested Facts of this Case

These uncontested facts are mostly taken from...