McCafferty v. Centerior Service Co.

• Citation: 983 F.Supp. 715
• Decision Date: 09 October 1997
• Docket Number: No. 1:95-CV-1732.,1:95-CV-1732.
• Parties: Owen McCAFFERTY, et al., Plaintiffs, v. CENTERIOR SERVICE COMPANY, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

983 F.Supp. 715

Owen McCAFFERTY, et al., Plaintiffs, v. CENTERIOR SERVICE COMPANY, et al., Defendants.

No. 1:95-CV-1732.

United States District Court, N.D. Ohio, Eastern Division.

October 9, 1997.

COPYRIGHT MATERIAL OMITTED

Steven D. Bell, Ulmer & Berne, Cleveland, OH, for Plaintiffs.

Robin G. Weaver, Paula Beth Christ, Squire, Sanders & Dempsey, Cleveland, OH, Donald E. Jose, David Wiedis, Jose & Wiedis, Westchester, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

NUGENT, District Judge.

This matter comes before the Court upon the Report and Recommendation of a Magistrate Judge of this Court submitted on June 19, 1997 (Document # 49) regarding Plaintiffs' Motion for Partial Summary Judgment (Document # 30) and Defendants' Cross-Motion for Summary Judgment (Document # 35). The named Report is hereby ADOPTED in part and NOT ADOPTED in part.

On August 7, 1995, Plaintiffs, insulating contractors, filed a Complaint in this Court alleging injury from exposure to radiation while removing insulation at the Davis-Besse Nuclear Power Station in October of 1994. Defendants Centerior Service Company ("Centerior") and Toledo Edison Company ("Toledo") are jointly licensed to operate the Plant by the Nuclear Regulatory Commission ("NRC").

Plaintiffs brought this action as a public liability action under the Price-Anderson Act, 42 U.S.C. § 2210, as amended, asserting state tort theories of negligence, strict liability, intentional infliction of emotional distress, reckless and wanton misconduct, negligent infliction of emotional distress, and negligent infliction of severe and debilitating emotional distress. Plaintiffs also included a claim for medical monitoring.

In March 1997, the matter was referred to Magistrate Judge David S. Perelman for a Report and Recommendation on the parties' cross-motions for summary judgment. On June 19, 1997, the Magistrate Judge issued a Report and Recommendation. The Magistrate Judge recommended that Plaintiffs' Motion for Partial Summary Judgment be denied and that Defendants' Cross-Motion for Summary Judgment be granted. Relying on the language of 42 U.S.C. § 2014(hh) and relevant case law, the Magistrate Judge concluded that state law causes of action for injuries relating to nuclear incidents are preempted by the Price-Anderson Act, but that the elements of the state law causes of action, to the extent they are consistent with federal law, represent the elements of a public liability action. With respect to the negligence and reckless and wanton misconduct claims, the Magistrate Judge found that the standard of care applicable to Defendants is set by the numerical occupational dose limits contained in 10 C.F.R. § 20.1201, rather than the requirement in 10 C.F.R. § 20.1101 that licensees employ "procedures and engineering controls" designed "to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA)."¹ 10 C.F.R. § 20.1101 (emphasis added). Because the amount of radiation to which Plaintiffs were exposed was less than the numerical occupational dose limits contained in 10 C.F.R. § 20.1201, the Magistrate Judge ruled that Defendants did not breach their duty of care as a matter of law. With respect to the emotional distress claims, the Magistrate Judge found that these claims failed because Plaintiffs did not present sufficient evidence supporting the requisite level of emotional distress. Finally, the Magistrate Judge deemed waived Plaintiffs' strict liability claim, and held that Plaintiffs' claim for medical monitoring failed as it was dependent on the substantive causes of action.

Plaintiffs filed objections to the Report on June 26, 1997, and Defendants filed objections on July 1, 1997. Plaintiffs argue that the Magistrate Judge erred by: (1) failing to consider an alternative standard of care proposed by Plaintiffs; (2) failing to properly apply the elements of the emotional distress claims; and, (3) improperly weighing the evidence presented by both sides as to the Plaintiffs' reasonable fear of contracting cancer. For their part, Defendants challenge the Magistrate Judge's characterization of Defendants' legal argument as "disingenuous" (Report at 12) and argue that the Magistrate Judge's analysis, while reaching the correct result, was incomplete.

The Report and Recommendation of the Magistrate Judge, along with the objections of Plaintiffs and Defendants, are herein reviewed by this Court.

Standard of Review for Magistrate Judge's Report and Recommendation

The applicable district court standard of review for a magistrate judge's report and recommendation depends upon whether objections were made to that report. When objections are made to a report and recommendation of a magistrate judge, the district court reviews the case de novo. FED. R.CIV.P. 72(b) provides this standard of review; it states, in pertinent part, that:

[t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

Accordingly, this Court will review the Report and Recommendation, to which timely objections have been filed, de novo. See Massey v. City of Ferndale, 7 F.3d 506 (6th Cir.1993).

Conclusion

The Court has reviewed the Report and Recommendation of the instant case de novo. See Massey, 7 F.3d 506. The Court has also considered all of the pleadings, motions and filings of the parties. After careful evaluation of the record, the Report and Recommendation, Defendants' Objections, and Plaintiffs' Objections, the Court is not in complete agreement with some of the conclusions reached by the Magistrate Judge.

A public liability action allows recovery for damages resulting from a "nuclear incident."² Section 2014(hh) of the Price-Anderson Act specifically provides that the "substantive rules for decision in such [public liability] action 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, titled "Indemnification and limitation of liability"]." 42 U.S.C. § 2014(hh). The Court finds that Magistrate Judge Perelman correctly determined that the elements of state law, to the extent they are consistent with section 2210, form the public liability cause of action.

The Court's point of departure, however, is with the determination that the occupational dose limits contained in 10 C.F.R. § 20.1201 represent the only relevant standard of care for the negligence claims in this public liability action. The parties and the Magistrate Judge correctly recognized that federal law provides the applicable standard of care for Defendants in this case, since nuclear safety is controlled by federal regulation and a state standard regulating radiation exposure would thus be inconsistent with specific federal regulations. See In re TMI, 67 F.3d 1103, 1106-07 (3rd Cir.1995) ("federal law determines the standard of care and preempts state tort law") (citing O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1105 (7th Cir.), cert. denied, 512 U.S. 1222, 114 S.Ct. 2711, 129 L.Ed.2d 838 (1994)), cert. denied, ___ U.S. ___, 116 S.Ct. 1034, 134 L.Ed.2d 111 (1996).

Relying on ALARA's characterization by the NRC as a flexible operational principle and Congress' intent that federal law govern nuclear safety, the Magistrate Judge concluded that ALARA did not provide the requisite standard of care. This conclusion is not without support. In In re TMI, the Third Circuit recently declined to use the ALARA regulation contained in 10 C.F.R. § 50.34a(a) as a standard of care in public liability actions, primarily because the regulation itself states that the guidelines set forth in an Appendix to Part 50 regarding the ALARA regulations "`are not to be construed as radiation protection standards.'" In re TMI, 67 F.3d at 1114 (quoting 10 C.F.R. § 50.34a(a)). The Third Circuit also relied on comments in the Federal Register made over 20 years ago indicating that the standards in Part 20 continued to provide protection to public health. It also reasoned that "[a]dopting ALARA as part of the standard of care would put juries in charge of deciding the permissible levels of radiation exposure and, more generally, the adequacy of safety procedures at nuclear plants — issues that have explicitly been reserved to the federal government in general and the NRC specifically." 67 F.3d at 1115 (citing Pacific Gas and Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 212, 103 S.Ct. 1713, 1726, 75 L.Ed.2d 752 (1983)).

As the Magistrate Judge recognized, however, the ALARA regulation interpreted in In re TMI was amended in 1991, and the Third Circuit's opinion concerns the pre-1991 regulation. The regulation interpreted by the Third Circuit was (and still is) contained in Part 50, which deals with licensing of production and utilization facilities. The 1991 amendment, however, inserted the ALARA principle into Part 20, which is labeled "Standards for Protection Against Radiation." Part 20 also contains the numerical occupational dose limits relied upon by the Magistrate Judge as setting the applicable standard of care in this case. The ALARA regulation in Part 20 appears in newly created subpart B, labeled "Radiation Protection Programs" and provides that "[t]he licencee shall use, to the extent practicable, procedures and engineering controls based upon sound radiation protection principles to achieve occupational doses and doses to members of the public that are as low as is reasonably achievable (ALARA)." 10 C.F.R. § 20.1101(b) (emphasis added).

Without the 1991 amendment, the Court...