Hennessy v. Commonwealth Edison Co.

• Decision Date: 26 April 1991
• Docket Number: No. 89 C 05928.,89 C 05928.
• Citation: 764 F. Supp. 495
• Parties: Michael J. HENNESSY, Plaintiff, v. COMMONWEALTH EDISON COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

764 F. Supp. 495

Michael J. HENNESSY, Plaintiff, v. COMMONWEALTH EDISON COMPANY, Defendant.

No. 89 C 05928.

United States District Court, N.D. Illinois, E.D.

April 26, 1991.

Tom Leahy, Stephen Snow Phalen, and Franklin Ulyses Valderrama, Leahy & Donovan, Chicago, Ill., for plaintiff.

Frank C. Rowland, Rooks, Pitts & Poust, Chicago, Ill., Donald E. Jose, Kristine Y. Schmidt, and David Wiedis, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

The plaintiff, Michael J. Hennessy, has brought this three-count personal injury diversity action against the defendant, Commonwealth Edison Company ("ComEd"), for negligent infliction of emotional distress, strict liability and battery. Hennessy's claims arise as a result of receiving an internal contamination by radiation while he was working in ComEd's Dresden nuclear power station. ComEd has moved for summary judgment on all three counts of Hennessy's complaint. Hennessy in turn has moved for partial summary judgment on the question whether the doctrine of strict liability may be applied to the nuclear power industry. For the following reasons, we grant ComEd's motion for summary judgment on all three counts, and dismiss Hennessy's motion as moot.

I. Background

At the outset, we observe that Hennessy has failed to comply with Local Rule 12(n) (formerly Rule 12(m)) of the General Rules of the Northern District of Illinois. Rule 12(n) requires a party opposing a motion for summary judgment to file a statement that responds to each numbered paragraph of the statement of material facts as to which the movant contends there is no genuine issue. Thus, in accordance with Rule 12(n), we will deem all material facts set forth in ComEd's statement to be admitted.

Rule 12(n) also requires that the opposing party file a statement, consisting of short numbered paragraphs, of any additional facts which require the denial of summary judgment. Although Hennessy has not technically complied with this requirement by filing a separate statement, he has provided a summary in his memorandum that contains additional facts with specific references to parts of the record. Therefore, we will excuse this technical requirement and will consider any additional material facts from Hennessy's summary that bear upon the propriety of summary judgment. Consideration of both parties' statements reveals the following, largely undisputed, facts.

Hennessy is a pipefitter and welder who worked for various contractors at two of ComEd's nuclear power plants from 1978-1985. Upon completing a job at ComEd's Dresden plant in 1981, Hennessy received what is known as an "exit whole body count" and several repeat counts, and was subsequently informed by a technician that he had an internal contamination of Cobalt-60. There appears to be a question, however, as to the precise date that Hennessy learned of this internal contamination. In his deposition Hennessy recalls Friday, April 3, 1981 as the date that a ComEd health physicist told him about the internal contamination. Yet Hennessy describes that day as the same day he received the exit whole body count and repeat counts on his last day of work at Dresden, which would have been in March. For the purposes of ruling on ComEd's motion for summary judgment, we will accept Hennessy's recollection of April 3, 1981, as the correct date.

According to his deposition testimony, Hennessy asked questions of Dresden workers and of Nuclear Regulatory Commission officials regarding the effects of the internal contamination. He specifically spoke with the NRC on-site inspector, Tom Tongue, who told him not to worry about the internal contamination and indicated that the level was not dangerous or potentially harmful. In a phone conversation, an NRC official in Washington told Hennessy the same thing. None of these individuals, or anyone else, ever told him that he would have any ill effects physically as a result of the contamination. ComEd's health physicists told him that the contamination would ultimately leave his body through bodily secretions.

According to Hennessy, the training course he took before working at Dresden did not inform him of the possibility of internal exposure. Hennessy claims that he subsequently began to worry about the effects of the contamination based on having "read articles and things about cobalt, what it does to you." Hennessy Dep. I at 75. Hennessy has not identified any of the articles he claims to have read that gave rise to his worry. He also became concerned about the potential for contaminating his wife. He asked the various technicians and NRC officials whether he could contaminate his wife through sexual intercourse, but they did not know the answer. He claims that as a result of this, he developed a drinking problem and for a period of up to one year and a half he stopped having intercourse with his wife.

The first time that Hennessy saw a doctor after the incident was on January 18, 1982, nine months after he learned of the internal contamination. On that date, Hennessy visited his family doctor, Dr. John Siebert, complaining of upper abdominal and lower chest discomfort. Hennessy also expressed general concerns to the doctor about his radiation exposure at work, but did not specifically discuss the incident of internal exposure. During the examination, Dr. Siebert diagnosed Hennessy as having a duodenal ulcer and treated Hennessy with medication.

Over one year later, in early 1983, Hennessy next saw Dr. Alvin Tarlov on the advise of his counsel. Dr. Tarlov examined Hennessy and conducted several tests which included a chest x-ray, electrocardiogram and pulmonary function test. Hennessy claims he never learned of the results from those tests and never saw Dr. Tarlov again. All of the test results were normal.

Four years later, on April 6, 1987, Hennessy returned to Dr. Siebert. Hennessy again complained of abdominal pain. Dr. Siebert recommended a gastroscopy due to the persistence of the ulcer in spite of the medication. A gastrologist, Dr. James Vandermeer, conducted the gastroscopy and confirmed the presence of a duodenal ulcer. At his deposition on June 6, 1990, Dr. Siebert opined that the ulcer discovered in 1987 was a recurrence of the ulcer he found in 1982. Siebert Dep. at 55, 57. He concluded, within a reasonable degree of medical certainty, that Hennessy's ulcer was caused by stress. Id. at 55. Based on the one instance of Hennessy complaining generally about radiation exposure eight years earlier in 1982, Dr. Siebert concluded that the source of Hennessy's stress was his concern about radiation exposure at work. Dr. Siebert explained the basis for that conclusion as follows: "I think radiation exposure is a real threat to somebody. It would be to me because probably, I don't think people know a lot about radiation exposure and a fear about the unknown is a real life thing. I think it was grinding on him is what I am trying to say." Id. at 55-56. Dr. Siebert acknowledged that he did not know either the magnitude or the type of radiation to which Hennessy was exposed. He recommended that Hennessy obtain further data regarding his exposure. The record on summary judgment discloses no further action by Hennessy in this regard.

Under the Code of Federal Regulations, it is permissible for a worker to inhale specified quantities of radionuclides during a given quarter of the year. The permissible quantity of Cobalt 60 (known as the "Section 103 Quantity") is 5,670 nanocuries per quarter. 10 C.F.R. § 20.103. Frazier Aff. at ¶ 50. That figure represents the quantity which would result from inhalation for 40 hours per week for 13 weeks, or a total of 520 hours per quarter, at uniform concentrations of radioactive material in the air as specified in the regulation. Id. On March 11, 1981, the amount of Hennessy's internal contamination was measured at 109 nanocuries. Frazier Aff. at ¶ 39.

Section 103(b)(2) provides for a "40 hour control measure" to check the rate of accumulation of the quarterly dose limit so that it can be adjusted before the Section 103 Quantity limit is exceeded:

Whenever the intake of radioactive material by any individual exceeds this 40 hour control measure, the licensee shall make such evaluations and take such actions as are necessary to assure against recurrence. The licensee shall maintain records of such occurrences, evaluations and actions taken in a clear and readily identifiable form suitable for summary review and evaluation.

This control measure is not a dose limit, but rather serves as an interim measure to assure that the quarterly dose limit is not exceeded. Taking into account a worst case scenario of an acute exposure, an "Internal Deposition Evaluation" prepared by ComEd concluded that Mr. Hennessy's exposure did exceed the 40 hour control measure. There is no evidence that Hennessy ultimately exceeded the permissible quantity for the quarter.

According to the uncontested opinion of Dr. John R. Frazier, a ComEd witness, an internal contamination of 109 nanocuries of Cobalt-60 will give Hennessy a "50-year committed dose" of 24 millirem. That means that over the next 50 years Hennessy will receive as a result of the internal contamination, a total radiation dose to the whole body from Cobalt-60 of 24 millirems. Frazier Aff. at ¶ 9. The term "dose" is a general term denoting a quantity of radiation or energy absorbed either into matter or persons. "Dose equivalent" is the quantity used to express the amount of effective absorbed dose resulting from radiation exposure of persons. The common unit for dose equivalent is the "rem." The term "millirem" is one one-thousandth of one rem. See Frazier Aff. at ¶¶ 11-16.

By contrast to the 24 millirem dose resulting from the internal contamination, a review of Hennessy's film badge records indicates that during the years 1979 through 1985, Hennessy received the following...