In re Hanford Nuclear Reservation Litigation

Decision Date18 June 2002
Docket NumberNo. 98-36142.,No. 98-36147.,No. 98-36143.,No. 98-36149.,No. 98-36173.,No. 98-36144.,98-36142.,98-36143.,98-36144.,98-36147.,98-36149.,98-36173.
Citation292 F.3d 1124
PartiesIn re HANFORD NUCLEAR RESERVATION LITIGATION, Jeanne Jaros, et al., on their own behalf and as representatives of classes of similarly situated persons, Plaintiffs-Appellants, v. E.I. DuPont, Defendant-Appellee. In re Hanford Nuclear Reservation Litigation, E.S. Criswell, Arel Quessenberry, Luther Stacy, Jr., Raymond L. Swaim, Betty L. Swaim, James R. Swaim and John S. Swaim, on their own behalf and as representatives of classes of similarly situated persons, Plaintiffs-Appellants, v. E.I. DuPont de Nemours and General Electric Company, Defendants-Appellees. In re Hanford Nuclear Reservation Litigation, Chuck Seaman, as personal representative for Frieda Theresa Seaman, Deceased; Mark Seaman, Jr.; Chuck Seaman, Plaintiffs-Appellants, v. E.I. DuPont de Nemours and Company, a Delaware corporation; General Electric Company, a New York Corporation, Defendants-Appellees. In re Hanford Nuclear Reservation Litigation, Andra L. Evenson, et al., Plaintiffs-Appellants, v. E.I. DuPont de Nemours and Company, Defendant-Appellee, and U.S. Environmental Protection Agency, et al., Defendants. In re Hanford Nuclear Reservation Litigation, Kathryn Hamilton, Diana Cottam, James and Janet Boyd and Connie Soper, on their own behalf and as representatives of classes of similarly situated persons, Plaintiffs-Appellants, v. E.I. DuPont de Nemours and Company; General Electric Co.; UNC, Inc., Atlantic Richfield Company, Rockwell International Corporation, Westinghouse Electric Corporation and Westinghouse Hanford Company, Defendants-Appellees. In re Hanford Nuclear Reservation Litigation, Rosemary Miller, Plaintiff-Appellant, v. E.I. DuPont de Nemours; General Electric, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Merrill G. Davidoff and Peter Nordberg, Berger & Montague, Philadelphia, PA, Tom H. Foulds, Seattle, WA, Roy S. Haber, Eugene, OR, Michael Bloom and Michael Axline, Eugene, OR, Stanley M. Chesley, Waite, Schneider, Bayless & Chesley, Co, Cincinnati, OH, John S. Moore, Velikanje, Moore & Shore, P.C. Yakima, WA, for the plaintiffs-appellants.

William R. Jentes and Kevin T. Van Wart, Kirkland & Ellis, Chicago, IL, William R. Squires III, Summit Law Group, Seattle, WA and Lee Radford, Moffatt, Thomas, Barrett, Rock & Fields, Idaho Falls, ID, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington; Alan A. McDonald, District Judge, Presiding. D.C. Nos. CV-90-03017-AAM, CV-90-03069-AAM, CV-90-03106, CV-91-03015-AAM and CV-91-03080-AAM.

Before: SCHROEDER, Chief Judge, GOODWIN and HAWKINS, Circuit Judges.

SCHROEDER, Chief Judge.

These appeals raise fundamental questions concerning how courts should grapple with causation issues in mass tort cases. The appellants are among thousands of plaintiffs who filed suit for damages allegedly arising out of their exposure to harmful levels of radioactive emissions from the Hanford Nuclear Reservation over a period of many years. They filed these actions under the Price-Anderson Act, 42 U.S.C. § 2011 et seq., against E.I. DuPont and other entities who operated the nuclear facility under license agreements with the federal government during the relevant period. Appellants appeal the district court's summary judgment dismissal of their claims at the end of the second of three scheduled phases of discovery, when the court determined that appellants had not demonstrated individual exposure to a threshold level of radiation the court deemed capable of causing harm. The court established that threshold harmful level by determining the radiation exposure level for each of various categories of plaintiffs, grouped by age and gender, that would double the risk of illness when compared to the risk faced by the general population. That level is sometimes referred to as the "doubling dose."

Appellants here contend that the district court prematurely ruled on the merits of their individual claims because the second phase of discovery was to deal with issues of generic rather than individual causation, issues that were reserved for a later phase. They also contend that the district court erred as a matter of law in requiring plaintiffs to establish exposure to a threshold, "doubling dose" level of radiation as an element of generic causation. In addition, they challenge evidentiary rulings that disallowed the opinions of several experts on causation issues.

After a review of the record in this case and of the evolving case law in the area of toxic exposure, we conclude that the district court should not have dismissed the appellants' claims at this stage of the litigation. This is principally because the district court inappropriately relied upon cases that deal with the test to apply in order to determine whether a substance has the capacity to cause harm. See Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311 (9th Cir.1995) (considering expert testimony regarding the morning sickness drug Bendectin's capacity to cause limb defects). More relevant guidance for this case is found in cases dealing with whether a known toxic substance, like radiation, was in fact responsible for plaintiffs' illnesses. See In re TMI Litig., 193 F.3d 613 (3d Cir.1999), amended by 199 F.3d 158 (3d Cir.2000). Such guidance will also be helpful to the district court in reexamining the proffered opinions of plaintiffs' experts. We therefore reverse and remand for further proceedings, with a suggestion that the district court rule promptly upon the pending requests for class certification.

BACKGROUND

The Hanford Nuclear Weapons Reservation ("Hanford"), was constructed during World War II and was the first large-scale plutonium manufacturing facility in the world. It occupies a 560-square mile area of southeastern Washington and abuts the Columbia River. Hanford's operations began in 1944 and soon grew to produce the majority of the plutonium used in the nation's nuclear weapons program, including the plutonium for the atomic bomb dropped on Nagasaki. In addition to plutonium (Pu-239), other radionuclides, including radioactive iodine (I-131), were created in the plutonium manufacturing process. Each of the five defendants in this case serially operated Hanford under contract with the United States for differing time periods between 1943 and 1987. The defendants are E.I. Du Pont de Nemours & Company, General Electric Company, UNC Nuclear Industries, Incorporated, Atlantic Richfield Company, and Rockwell International Corporation, (collectively, "defendants").

In 1987, the United States Department of Energy ("DOE") created the Hanford Environmental Dose Reconstruction Project ("HEDR"), overseen by the Centers for Disease Control. The underlying purpose of the HEDR was to estimate and reconstruct all radionuclide emissions from Hanford from 1944 to 1972, in order to ascertain whether neighboring individuals and animals had been exposed to harmful doses of radiation. Analyzing Hanford emissions over a 75,000 square mile area, the HEDR created a series of computer models and algorithms to estimate the timing of radionuclide releases into the air and the water of the Columbia River. The HEDR also examined the environmental and atmospheric transport of the releases, i.e. how radiation traveled through the air, settled into the soil, and dispersed into ground and surface water, and the resulting exposure to individuals who lived in the surrounding urban and suburban areas. Of particular concern to the HEDR were the estimated doses of I-131 received by the thyroid glands of humans, principally through consumption of milk from cows that ingested contaminated vegetation on neighboring farms and pastures. The HEDR concluded that I-131 emissions peaked during the period from 1944 to 1946, when an estimated 88% (685,000 curies) of Hanford's total iodine emissions occurred. HEDR explained that in later years, emissions declined because of technological advances.

In 1990, the Technical Steering Panel of HEDR released a report entitled Initial Hanford Radiation Dose Estimates which publicly disclosed for the first time that large quantities of radioactive and non-radioactive substances had been released from Hanford, beginning in the 1940s. This disclosure sparked a blaze of litigation. Thousands of individual plaintiffs filed complaints in the District Court for the Eastern District of Washington, alleging varying illnesses caused by exposure to Hanford's toxic emissions. Plaintiffs alleged that defendants acted intentionally or negligently, and that the radioactive and other toxic emissions reached numerous off-site residents through ingestion of contaminated vegetables, meat, fish, drinking water and milk, swimming in the irradiated Columbia River, and inhalation of toxic air. Many plaintiffs also claimed loss of real property value. In the district court's words:

[P]laintiffs, who conceivably could number into the hundreds of thousands, consist of all those persons who, at some time during the last 50 years, resided and/or had some property interest in an area which covers most of southeastern Washington, a portion of northeastern Oregon, and a small portion of western Idaho.... Given the scope of the plaintiffs' claims, particularly with regard to the number and differing types of emissions and the differing harms alleged to have resulted from each, the potential enormity of this litigation, as well as the dollar amount of any recovery, is almost staggering.

In 1991, the district court consolidated all of the Hanford-related actions and directed preparation of one consolidated complaint, designating specific lead and liaison counsel for all parties. The joint consolidated complaint was filed as a class...

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