Corcoran v. NY Power Authority
| Decision Date | 01 August 1998 |
| Docket Number | Docket No. 98-7945 |
| Citation | 202 F.3d 530 |
| Parties | (2nd Cir. 1999) CARRIE CORCORAN, as Executrix of the Estate of EUGENE CORCORAN, deceased, and CARRIE CORCORAN, individually, Plaintiffs-Appellants, v. NEW YORK POWER AUTHORITY, WEDCO CORP., and WESTINGHOUSE ELECTRIC CORPORATION, Defendants-Appellees |
| Court | U.S. Court of Appeals — Second Circuit |
CARRIE CORCORAN, pro se, Macungie, Pa., for Plaintiffs-Appellants.
DONALD E. JOSE, Jose & Wiedis, West Chester, Pa. (Sheila L. Birnbaum, Peter J. McKenna, Wendy Fleishman, Skadden, Arps, Slate, Meagher & Flom LLP, New York, N.Y., of counsel), for Defendants-Appellees.
Before: KEARSE, McLAUGHLIN, AND CALABRESI, Circuit Judges.
BACKGROUND
Because this case arises on appeal from a grant of summary judgment for defendants, we must view the evidence in the light most favorable to the plaintiffs, the nonmoving parties. With that in mind, we set forth the facts as follows.
Eugene Corcoran repaired machinery as a millwright for Westinghouse Electric Corporation ("Westinghouse"). Between June and August 1985, Mr. Corcoran was assigned to work temporarily at the Indian Point 3 Nuclear Power Plant ("IP3"). IP3 is a federally licensed plant with an operating license held by the New York Power Authority ("NYPA"), a state agency. Mr. Corcoran performed maintenance work on the steam turbine, including the "stop valve." In 1985, the steam generator tubes that carried radioactive water leaked radioactive particles and substances into the stop valve. Westinghouse and NYPA neither alerted Mr. Corcoran to the presence of radiation nor provided him with protective clothing or radiation monitoring equipment.
Mr. Corcoran was exposed to radiation in excess of the permissible occupational dose limits for workers in restricted areas of nuclear power plants. Westinghouse and NYPA failed to notify Mr. Corcoran that he had been exposed to radiation or administer medical tests to assess the level of radiation exposure.
Sometime in June 1985 - the very first month of his assignment to IP3 - Mr. Corcoran experienced radiation sickness. At the time, however, his symptoms were not diagnosed as resulting from radiation exposure; neither did Mr. Corcoran associate the illness with radiation. For several years following this episode, Mr. Corcoran continued to suffer from an illness of unexplained etiology.
About seven years later, on March 16, 1992, Mr. Corcoran was told by his oncologist, Dr. Romeo Balagot, that he had chronic myeloid leukemia ("CML"), a fatal disease of the blood and immune systems. While exploring Mr. Corcoran's occupational history, Dr. Balagot informed Mr Corcoran that exposure to radiation was a possible cause of leukemia. Four days later, Mr. Corcoran went to a second oncologist, Dr. Nirmala Shevde, who confirmed the fatal diagnosis.
In the following two or three months, Mr. Corcoran and his ex-wife, Carol Ellis, discussed filing a radiation claim. Ellis believed that Mr. Corcoran's leukemia may have been caused by radiation exposure. On two or three occasions she urged him to consult a lawyer.
Sometime in the summer of 1992, Mr. Corcoran called Stephen Coli, a co-worker at IP3, asking Coli to investigate whether Corcoran had been exposed to radiation at IP3. Hugh Gilmartin, a NYPA employee, told Coli not to "drag things up." Coli reported to Mr. Corcoran that his investigation had led to a "dead end" and discouraged Mr. Corcoran from pursuing a claim.
In an effort to cure the disease, Mr. Corcoran had a bone marrow transplant in March 1993. The transplant failed to arrest the spread of leukemia. Mr. Corcoran died on September 25, 1993.
In January 1994, Mr. Corcoran's daughter, Carrie Corcoran ("Ms. Corcoran") and Ellis consulted several lawyers about bringing a lawsuit. Lawyers from Kreindler & Kreindler posted a notice in the millwright's union hall, seeking information from anyone who knew about radiation leaks at IP3 in 1985. On April 5, 1994, Ms. Corcoran filed a notice of claim with NYPA, claiming damages for Mr. Corcoran's injuries and wrongful death.
Nine months later, Coli called the lawyers in response to the union hall notice. On March 15, 1995, based on what Coli told them, Kreindler & Kreindler sued on behalf of Ms. Corcoran, individually and as executrix of Mr. Corcoran's estate. The defendants were NYPA and WEDCO Corporation (a Westinghouse subsidiary). The suit was in a New York state court (the "NYPA action"). Kreindler & Kreindler later withdrew and Ms. Corcoran proceeded pro se.
NYPA and WEDCO removed the action to the United States District Court for the Southern District of New York (Cote, J.), in July 1995. One month later, NYPA and WEDCO moved to dismiss the action pursuant to Fed. R. Civ. P. 12. In response, Ms. Corcoran filed a motion "to estop defendant, New York Power Authority, from asserting an affirmative defense regarding the statute of limitations on the plaintiffs' notice of claim or plaintiffs' action" (the "Estoppel motion"). Ms. Corcoran filed an Amended Complaint in the NYPA action and commenced a separate, new action against Westinghouse (the "Westinghouse action").
In response to the Estoppel motion, NYPA cross moved for summary judgment, arguing that plaintiffs' claims against NYPA were barred by Mr. Corcoran's failure to file a timely notice of claim. Ms. Corcoran responded to the Rule 12 motions and also sought leave of Court to substitute Westinghouse for WEDCO or, in the alternative, an order consolidating the NYPA and Westinghouse actions.
The two actions were consolidated as Corcoran v. New York Power Auth., Nos. 95 Civ. 5357, 95 Civ. 8102 (DLC). One month later, NYPA, WEDCO, and Westinghouse moved to dismiss the Amended Complaint against NYPA and the Complaint against Westinghouse pursuant to Fed. R. Civ. P. 12. In December 1995, Ms. Corcoran filed an Amended Complaint against Westinghouse. She filed a Second Amended Complaint against NYPA three weeks later.
The amended complaints against NYPA and Westinghouse contained five groups of allegations:
* First, Ms. Corcoran alleged that NYPA wrongfully caused Mr. Corcoran's death by negligently "owning, operating, controlling, supervising, surveying, monitoring, maintaining and managing the possession and use of nuclear material" at IP3, and by negligently misrepresenting and failing to warn Mr. Corcoran about the safety of IP3.
* Second, NYPA and Westinghouse engaged in a barrage of intentional tortious conduct when they failed to monitor Mr. Corcoran's exposure to radiation, knowingly failed to correct industrial practices which led to Mr. Corcoran's exposure, failed to conduct radiation surveys in Mr. Corcoran's work area, "intentionally assigned [Mr. Corcoran] to work in and around the dangerously radioactive area without the benefit of equipment that would warn and/or protect him from the dangers present," and failed to notify Mr. Corcoran that he had been exposed to excessive levels of radiation.
* Third, NYPA and Westinghouse violated federal regulations and statutes governing the handling of radioactive materials and the protection of employees working with these materials.
* Fourth, NYPA and Westinghouse conspired to defraud Mr. Corcoran by concealing that he had been exposed to excessive radiation.
* Fifth, Ms. Corcoran asserted a survival action on behalf of her father, seeking to recover damages for the injuries he suffered prior to his death.
Defendants moved to dismiss both the Second Amended Complaint and the Amended Westinghouse Complaint under Rule 12(b). Judge Cote converted the motion to one for summary judgment and granted the motion in part, and denied it in part. See Corcoran v. New York Power Auth., 935 F. Supp. 376 (S.D.N.Y. 1996) ("Corcoran I"). She held that because Mr. Corcoran's claims arose out of a nuclear incident, plaintiffs' exclusive right to recover was in a "public liability action" under 42 U.S.C. § 2210(n)(2) of the Price Anderson Amendments Act of 1988 ("Price-Anderson"). See Corcoran I, 935 F. Supp. at 383-85.
Price-Anderson expressly mandates that state law provide the substantive law to govern a public liability action. See 42 U.S.C. § 2014(hh). Accordingly, Judge Cote focused on Ms. Corcoran's allegations to determine whether any of them had a state law counterpart and thus stated a claim upon which relief could be granted under Price-Anderson. (Judge Cote dismissed Ms. Corcoran's claims asserting violations of various federal regulations and statutes, ruling that these claims did not state a cause of action under Price-Anderson). See Corcoran I, 935 F. Supp. at 388-89. Continuing her analysis of New York law, Judge Cote held that: (1) the negligence allegations were cognizable under New York's law of negligence; (2) the claims alleging intentional exposure to radiation were analogous to New York state law governing claims for battery (the "battery claim"); (3) the conspiracy to defraud allegation sufficed to state a cause of action for fraud under New York law (the "fraud claim"); and (4) the survival action was cognizable under New York law. See id. at 387-390. Judge Cote then allowed the parties limited discovery to determine whether the claims based on state tort law were barred by the applicable statutes of limitations.
Following completion of this limited discovery, Judge Cote granted defendants' motion for summary judgment. See Corcoran v. New York Power Auth., Nos. 95 Civ. 5357, 95 Civ. 8102, 1997 WL 603739, at *9 (S.D.N.Y. Sept. 29, 1997) ("Corcoran II"). Judge Cote found that plaintiffs had failed to file a timely notice of claim against NYPA, as required by N.Y. Gen. Mun. Law §...
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