June v. Union Carbide Corp.
| Decision Date | 21 August 2009 |
| Docket Number | No. 07-1532.,07-1532. |
| Parties | Gary JUNE; Scott June, individually and on behalf of the deceased Yvonne June; Gene Lynn, individually and on behalf of the deceased, Lucille Lynn; Alva Ford, on behalf of the deceased, Phyllis Weyant; Randy Porter; Barbara Meyers, on behalf of the deceased, Minnie Dale Woods; Robert Snow; Phyllis Wilma Davis; Joseph Vigil; E. Louise Watts; Junelle Weatherly; Isabelle Wooden; Cherie Zuspan; Daisy Arnold; Beverly Bates; Valerie Bogdan; June Arguello; Betty Jane McBride; Laura O'Brien; Opal Garcia; Emma Hansen; La Vonne O'Brien; Stephen Place; Mary Ann Romero; Frank Sharp; Leslie Hendricks; Chris Hollingshead; Gilda Hollingshead; Laura Hughes; Anne Lemelle; Robin Seeley; Susann Steele; Michelle Thomson; Phyllis Toribio; Betty White; Lonzo Yardley; Crystal Barela; Glenna McClain; Lisa Baca; Debra Black; Emma Chamberlain; Pansy Cisneros; Rose Clement; Lisa Cortes; Susan Dollarhyde; Martha Lindsay; Audi Loehr; Joan Long; Casey Long; Thomas Lynn; Nancy Mingas; Robin Abramson Forest; Linda Gardner; Pam Haskell; Mark Salazar; Roberta Salazar; Ben Sanchez; Lori Selgado; William Sharp; George Sharp; John Sharp; Kirk Sharp; Brenda Lu Smith; Gwenda Gonzalez; Craig Long; Cynthia Starkey; Deanna Addleman; Sherry Alberts; Iris Allred; Leslie Ament; Marlene Ball; Donna Belden; Wallace Belden; Kenneth Belden; Keith Belden; Barbara Bercume; Judy Black; Dorothy Blake; Guye Blood; Jerry Blood; Thomas Blood; Lorna Bowersox; Madge Bowersox; Carolee Burnett; Richard Burnett; Gene Campbell; Anne Marie Chadd; Alexis Clark; Mary Elizabeth Clark; Terry Cope; Philip Crespin; Theresa Curtis; Irene Cutchins; Cynthia David; Paulette Davis; Lynda Dwornik; June Easterly; Eva Elliott; Christopher Foster; Colt Freeman; Georgia Freeman; Brett Freeman; Victor Fronk; Sara Gillilin; Michael Hall; Marie Hall; Iris Harvey; Nina Faye Haskell; Judith Hearn; Connie Hecht; Marjorie Hecht; Barbara Hecht; Sharon Hoisington; Geraldine Hollingshead; Karen Holman; Kenneth Johnson; Beverly Joslin; Christine Keener; Betty Kiker; Roxanna Krebs; Joni Lee Lefler; Linda Lewis; Mary Ellen Love; Carol Lovoi; Mary Lou Lynn; Carol Lynn; Debbie Maddox; Ila Malone; Ted Martin; Mary Martin; John Martinez; Sherrie McDowell; Clare McNeal; Edna Meryhew; Alice Mockerman; Stephanie Morrow; Katherine Nygren; Kent Nygren; James O'Bryant; Sally Elaine Oliver; Margaret Orndoff; Sharon Osborn; Treasia Pfifer; Becky Pictor; Kenny Pratte; Melvin Pratte; Eva May Pratte; Judy Proctor; Dorothy Reed; Wanda Reed; Carol Rice; Theresa Richards; Leah Roberts; Bryan Salazar; Catherine Salazar; Patrick Scheetz; Sheryl Seeley; Thorthane Sharp; Jodi Skees; Deborah Skiles; Freddie Smith; Vernon Smith; Margaret Snyder; Stephanie Tatum; Sharon Thompson; Kara Tooker; Char Lee Belle Unger; Mary Jane Via; Jim Waugh; Lucillie Waughsmith; Alvin Wilson; Joan Wilson; John Wilson, Sr.; Norma Wright; Norma Yates; Charlotte Zufelt, Plaintiffs-Appellants, v. UNION CARBIDE CORPORATION, a New York corporation; Umetco Minerals Corporation, a Delaware corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
J. Mark Englehart, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, AL, (Rhon E. Jones, Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., and J. Douglas McCalla, The Spence Law Firm, LLC, Jackson, WY, with him on the briefs), for Plaintiffs-Appellants.
Christopher Landau, Kirkland & Ellis, LLP, Washington, DC, (Daniel J. Dunn, Alan J. Gilbert, Holme Roberts & Owen LLP, Denver, CO, and Michael P. Foradas, P.C., Joel A. Blanchet, John W. Reale, Kirkland & Ellis LLP, Chicago, IL, with him on the brief), for Defendants-Appellees.
Before HARTZ, HOLLOWAY, and ANDERSON, Circuit Judges.
The lawsuit before us arises out of alleged radiation injuries to residents of Uravan, Colorado, a former uranium and vanadium milling town owned and operated by Defendants Union Carbide Corporation and Umetco Minerals Corporation. Plaintiffs brought an action in the United States District Court for the District of Colorado under the Price-Anderson Act of 1957, Pub.L. No. 86-256, 71 Stat. 576 (). They assert claims for personal injury based on disease or death allegedly caused by radiation and claims for medical monitoring to detect the onset of disease in those Plaintiffs who were asymptomatic. The district court dismissed all the claims on pretrial motions, and Plaintiffs appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. Plaintiffs' personal-injury claims fail for lack of evidence of factual causation. Their medical-monitoring claims fail for lack of evidence of a "bodily injury" as required by the Price-Anderson Act.
Mining and milling have been conducted in the Uravan area for many years. The Standard Chemical Company was producing radium in the region as early as 1914. In 1928 Defendants purchased Standard Chemical's holdings, and in 1936 began milling vanadium and uranium. To accommodate workers, Defendants founded the community of Uravan, constructing homes and a number of facilities, including a medical clinic, elementary school, community center, tennis courts, and a swimming pool.
Defendants ceased operations in Uravan in 1984, having produced 42 million pounds of uranium oxide. This production did not come without environmental costs. In 1986 the Environmental Protection Agency placed Uravan on the National Priorities List, see 51 Fed.Reg. 21054, 21063 (June 10, 1986), which ranks the nation's most environmentally hazardous sites to prioritize remedial action, see 42 U.S.C. § 9605(a)(8)(B). About this time, Uravan's remaining residents were evacuated and remedial activities began. The last structures standing in Uravan were razed after this lawsuit was filed.
Plaintiffs either resided in Uravan during some period between 1936 and 1986, or represent decedents who did. (For ease of exposition, we shall use the term Plaintiffs to refer to those allegedly injured by Defendants, whether they be the Plaintiffs personally or the Plaintiffs' decedents.) The thrust of their claims is that Defendants' milling operations exposed Uravan residents to various radioactive materials, and that such exposure has caused, or increased the risk of, radiation-related illnesses.
Plaintiffs brought this action under the Price-Anderson Act, which grants federal district courts jurisdiction over lawsuits "arising out of or resulting from a nuclear incident." 42 U.S.C. § 2210(n)(2). Unless inconsistent with § 2210 of the Act, state law supplies the substantive law governing claims under the Act. See id. § 2014(hh). Plaintiffs also pleaded seven causes of action under Colorado tort law, but the district court ruled that they were preempted by the Price-Anderson Act because they arose from an alleged "nuclear incident," and it converted the claims to federal claims under the Act.
Twenty-seven Plaintiffs are pursuing personal-injury claims and 152 are pursuing only medical-monitoring claims. Of the 27 personal-injury Plaintiffs, 11 have been diagnosed with nonthyroid cancer and 16 have been diagnosed with thyroid disease (including one case of thyroid cancer).
Defendants challenged Plaintiffs' claims with two motions for summary judgment. One motion argued that the personal-injury claimants had failed to show the but-for causation required by Colorado tort law. The other argued that the medical-monitoring claims could not proceed because (1) Colorado does not recognize such a cause of action and (2) the medical-monitoring Plaintiffs had not alleged a "bodily injury," as required by the Price-Anderson Act.
In opposition to the first motion, Plaintiffs argued that causation in Colorado is determined not by a but-for test but by a "substantial factor" test requiring only that the defendant's tortious conduct be "a substantial contributing cause of the injury." Aplt.App., Vol. XII at 1986. Plaintiffs contended that their experts' opinions created a triable issue of fact "as to whether the Defendants' emission of radiation over the course of decades substantially contributed" to the personal-injury Plaintiffs' illnesses. Id. at 2000. As for the medical-monitoring claims, Plaintiffs asserted that they are viable under Colorado law and that the "bodily injury" requirement of the Price-Anderson Act poses no obstacle because each Plaintiff's exposure to radiation resulted in "DNA damage and cell death." Id., Vol. VIII at 1385.
The district court rejected the substantial-contributing-cause argument in support of Plaintiffs' personal-injury claims. It stated that a tort claimant in Colorado must demonstrate both of two distinct components of causation: (1) that "but for" the defendant's conduct the claimant would not have been injured and (2) that the defendant's conduct was a "substantial factor in bringing about the injury." Id. at 2205 (internal quotation marks omitted). Because Plaintiffs had submitted no evidence of but-for causation, the court granted summary judgment.
The court also rejected the medical-monitoring claims. The threshold issue, the court explained, was whether such claims constitute claims for "bodily injury" under the Price-Anderson Act. Construing this issue to be jurisdictional, the court treated Defendants' summary-judgment motion on these claims as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1). It then held that to have a claim for "bodily injury" under the Act, a plaintiff must "manifest[] objective symptoms." Id. at 2228. Even if the DNA damage and cell death purportedly suffered by Plaintiffs increased the risk of future illness, reasoned the court, that injury was presently asymptomatic and thus not a "bodily injury." Accordingly, the court concluded that it lacked subject-matter jurisdiction over the medical-monitoring claims and dismissed them...
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