Kennedy v. S. CA. Edison Co.
| Decision Date | 26 September 2001 |
| Docket Number | DEFENDANTS-APPELLEES,PLAINTIFFS-APPELLANTS,No. 98-56157,98-56157 |
| Citation | 268 F.3d 763 |
| Parties | (9th Cir. 2001) JOE KENNEDY, AS SUCCESSOR IN INTEREST AND A PERSONAL REPRESENTATIVE OF THE ESTATE OF ELLEN MARIE KENNEDY; SHAWN KENNEDY; ERIC KENNEDY; SHANNON KENNEDY, BY AND THROUGH HER PARENT AND GUARDIAN JOE KENNEDY; AND CHAD KENNEDY, BY AND THROUGH HIS PARENT AND GUARDIAN JOE KENNEDY,, v. SOUTHERN CALIFORNIA EDISON COMPANY; COMBUSTION ENGINEERING, INC., |
| Court | U.S. Court of Appeals — Ninth Circuit |
Suzelle M. Smith (argued) and Don Howarth, Howarth & Smith, Los Angeles, California, for the plaintiffs-appellants.
John A. Reding (argued) and Ned N. Isokawa, Paul, Hastings, Janofsky & Walker, San Francisco, California, for the defendants-appellees.
Alfred R. Mollin (argued), U.S. Department of Justice, Washington, D.C., for amicus United States in support of the defendants-appellees.
Robert W. Loewen, Gibson, Dunn & Crutcher, Irvine, California, for amici Lockheed Martin Corporation, The California Chamber of Commerce, The American Chemistry Council, The National Association of Manufacturers, Philips Petroleum and Pfizer, Inc., in support of the defendants-appellees.
Charles F. Rysavy, McCarter & English, Neward, New Jersey, for amici American Public Power Association, Edison Electric Institute, National Rural Electric Cooperative Association, and Nuclear Energy Institute, in support of the defendants-appellees.
Martin S. Kaufman, Atlantic Legal Foundation, New York, New York, for amici Robert K. Adair, Bruce N. Ames, D. Allan Bromley, Patricia A. Buffler, Bernard Cohen, Bernard Gittelman, Sheldon Lee Glashow, Michael Gough, Ronald Hart, Dudley Herschbach, Lawrence Litt, A. Alan Moghissi, Rodney W. Nichols, Robert V. Pound, Norman Ramsey, Joseph P. Ring, Frederick Seitz, Edward Thorndike, Lynn H. Verhey and James D. Watson, in support of the defendants-appellees.
Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding. D.C. No. CV-95-03769NAJ/RBB
This appeal requires us to examine California tort and products liability law as made expressly applicable to actions in federal court for claims of injury arising out of nuclear power plant incidents. Specifically, we must decide whether the district court erred in (1) refusing to give a jury instruction under Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997), in a case involving a single defendant who raises alternative possible sources of injury as a defense; and (2) dismissing claims under California product liability law. For the reasons set forth below, we affirm the district court's result.
Ellen Kennedy died in 1996 of chronic myelogenous leukemia ("CML").1 She was forty-three years old. The plaintiffs/ appellants are her husband, Joe, and their four children (collectively referred to as "Kennedy"). From 1982 to 1990, Mr. Kennedy worked as a machinist for Southern California Edison Company ("Cal Edison") at the company's San Onofre Nuclear Generating Station ("SONGS").
Plaintiffs sued Cal Edison in federal court, asserting jurisdiction pursuant to the Price-Anderson Act, 42 U.S.C. § § 2011-2297, and seeking damages for Ellen Kennedy's wrongful death, alleging negligence on the part of Cal Edison that resulted in her exposure to radiation from SONGS. Additionally, Kennedy brought a products liability claim against Combustion Engineering, Inc. for the alleged faulty production of nuclear fuel rods. The theory of both claims was that Joe Kennedy inadvertently brought home microscopic particles of radioactive material, known as "fuel fleas," from the power plant on his clothing, hair, tools, etc. These fuel fleas, which according to Kennedy contained dosages in excess of the maximum allowable by federal regulations, allegedly came in contact with Mrs. Kennedy and caused her fatal cancer.
The district court granted Combustion Engineering's motion to dismiss all the products liability claims against it. The court reasoned that, inasmuch as Mrs. Kennedy was not a user or consumer of the nuclear fuel rods Combustion Engineering produced, Combustion Engineering could not have reasonably foreseen that Mrs. Kennedy would be injured by its product.
Kennedy initially sought a burden-shifting order stating that once Kennedy made an initial showing of Mrs. Kennedy's exposure to radiation from SONGS, Cal Edison and Combustion Engineering would then bear the burden of proving their conduct was not a substantial factor in causing Mrs. Kennedy's death. The district court denied this request.
In August 1997, the California Supreme Court issued its opinion in Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203 (Cal. 1997), a products liability case brought by the estate of a worker who had been exposed to asbestos-containing products and subsequently died of lung cancer. Rutherford dealt in large part with the proper jury instructions on causation to be given when multiple potential causes of harm exist. In light of the decision, Kennedy requested a causation instruction "consistent with Rutherford." The district court denied Kennedy's request. Kennedy again requested a Rutherford instruction and submitted a proposal twice more before trial. Both requests were again denied.
After a fact-intensive, five-week trial, the jury returned a unanimous verdict in favor of Cal Edison and Combustion Engineering. The district court denied Kennedy's motion for a new trial. The appeal was argued and submitted on February 10, 2000. The initial panel opinion was filed on July 20, 2000. After Cal Edison filed a petition for rehearing, with numerous amici in support, we granted rehearing and held a second round of oral argument. Jurisdiction lies pursuant to 28 U.S.C. § 1291.
Jury instructions challenged as a misstatement of law are reviewed de novo. City of Long Beach v. Standard Oil Co., 46 F.3d 929, 933 (9th Cir. 1995). We review de novo both a dismissal without leave to amend and a dismissal with leave to amend. San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998); Sameena, Inc. v. United States Air Force, 147 F.3d 1148, 1151 (9th Cir. 1998).
Under the Price-Anderson Act ("Price-Anderson" or "the Act"), our decision is guided by the substantive law of California. Price-Anderson provides federal jurisdiction over lawsuits for injuries arising out of a "nuclear incident."2 Under such "public liability actions,"3 the "substantive rules for decision . . . shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of [section 2210]." 42 U.S.C. § 2014(hh).
Enacted in 1957 during the fledgling days of the nuclear power industry, Price-Anderson has a dual purpose:"to protect the public and to encourage the development of the atomic energy industry." 42 U.S.C. § 2012(i); Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 64 (1978). The Act accomplishes this by providing certain licensees with a system of private insurance, government indemnification, and limited liability for certain nuclear tort claims. See El Paso Natural Gas Co. v. Neztsosie , 136 F.3d 610, 616 (9th Cir. 1998), rev'd on other grounds , 526 U.S. 473 (1999); see also S.Rep. No. 218, 100th Cong., 1st Sess. 2 (1987), reprinted in 1988 U.S.C.C.A.N. 1424, 1476, 1477.
Before its amendment in 1988, Price-Anderson provided the federal courts with original and removal jurisdiction only when the accident at issue was "an extraordinary nuclear occurrence" as defined by the Act at 42 U.S.C.§ 2014(j). Responding to a flurry of lawsuits in federal and state courts generated by the 1979 nuclear accident at Three Mile Island, which was not considered "an extraordinary nuclear occurrence," Congress added section 2014(hh) to the Act, thereby providing the federal courts with original and removal jurisdiction for the broader category of "nuclear incidents." Neztsosie, 526 U.S. at 477.
The basic contours of California tort law, in the context of medical injuries with multiple possible causes, are outlined in Jones v. Ortho Pharm. Corp., 209 Cal. Rptr. 456 (Ct. App. 1985). Jones involved cancer alleged to have resulted from a contraceptive pill. The California Court of Appeal stated:
The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case . . . . A possible cause only becomes "probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.
The Book of Approved Jury Instructions for California ("BAJI") provides two general instructions on causation for cases involving injuries with multiple potential causes. It was these two instructions -BAJI 3.76 and 3.77 -that the district court provided to the jury, neither of which was objected to by any of the parties. BAJI 3.76 provides a definition for "cause:" The other standard jury instruction, BAJI 3.77, pertains to multiple causation. It states:
There may be more than one cause of an injury. When conduct of two or more persons or conduct and a defective product contributes...
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