Silkwood v. Kerr-McGee Corp.

• Citation: 769 F.2d 1451
• Decision Date: 31 July 1985
• Docket Number: KERR-M,No. 79-1894,79-1894
• Parties: Bill M. SILKWOOD, Administrator of the Estate of Karen G. Silkwood, Deceased, Plaintiff-Appellee, v.cGEE CORPORATION, a Delaware corporation, and Kerr-McGee Nuclear Corporation, a Delaware corporation, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1451

769 F.2d 1451

23 ERC 1166

Bill M. SILKWOOD, Administrator of the Estate of Karen G.

Silkwood, Deceased, Plaintiff-Appellee, v. KERR-McGEE CORPORATION, a Delaware corporation, and Kerr-McGee Nuclear Corporation, a Delaware

corporation, Defendants-Appellants.

No. 79-1894.

United States Court of Appeals,

Tenth Circuit.

July 31, 1985.

William G. Paul, L.E. Stringer, John J. Griffin, Jr. and Harvey D. Ellis, Jr., of Crowe & Dunlevy, Oklahoma City, Okl., C. Lee Cook, Jr., William Van Hagey, and William T. McGrath of Chadwell & Kayser, Chicago, Ill.; and Elliott C. Fenton and Larry D. Ottaway of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., for defendants-appellants on remand.

James A. Ikard, Oklahoma City, Okl., Arthur R. Angel, Oklahoma City, Okl., Daniel P. Sheehan, Washington, D.C., and G.L. Spence, Jackson Hole, Wyo., for plaintiff-appellee on remand.

Before McKAY, DOYLE and LOGAN, Circuit Judges.

McKAY, Circuit Judge.

This case is before our court on remand from the Supreme Court of the United States. Defendants Kerr-McGee Corporation and Kerr-McGee Nuclear Corporation (hereinafter collectively referred to as Kerr-McGee) appeal from judgments awarded against them in a suit brought by plaintiff Bill M. Silkwood as administrator of the estate of Karen Silkwood, deceased. The action, a diversity suit tried before a jury, was based upon common-law tort principles ¹ under Oklahoma law. Plaintiff sought recovery for personal injury (primarily fear and anxiety) and property damage suffered by Ms. Silkwood as a result of plutonium contamination. The contamination occurred November 5, 6, and 7, 1974. Ms. Silkwood's death in an unrelated automobile accident on November 13, 1974 marked the end of any damages she did suffer and precluded any damages she might have suffered had she lived beyond that date. The jury awarded $500,000 on plaintiff's personal injury claim and $5,000 on his property claim. It also awarded $10,000,000 in punitive damages. ²

In our initial opinion ³ we reversed the personal injury judgment, holding that recovery for those injuries was controlled exclusively by the Oklahoma Workers' Compensation Act, Okla.Stat.Ann. tit. 85 (West 1971 & Supp.1980). We affirmed the property damage judgment, holding that the Oklahoma Act applied only to personal injuries. Finally, we reversed the punitive damages judgment, holding that the award of such damages constituted state action that competed substantially with the federal statutory regulation of the Kerr-McGee plant.

Neither our affirmance of the property damages judgment nor our reversal of the personal injury judgment was appealed. Plaintiff did, however, appeal our reversal of the punitive damages judgment. Our decision in that regard was reversed by the Supreme Court, which concluded that the award of punitive damages in this case is not preempted by federal law. ⁴ The Court remanded, with instructions that Kerr-McGee be free to assert any claims they made before our court that had yet to be addressed. Kerr-McGee now argues that they are entitled to judgment on the punitive damages claim because: (1) there is no evidence that malicious or wanton conduct on their part resulted in the plutonium contamination of Ms. Silkwood's apartment; and (2) they substantially complied with the federal regulatory scheme governing their conduct.

Kerr-McGee further contends that if they are not entitled to judgment on the record, the case should be remanded for a new trial on the punitive damages claim for the following reasons: (1) the evidence and the instructions relating to the personal injury

claim thoroughly and prejudicially tainted the trial proceedings because any award of punitive damages must be based solely on evidence supporting the claim for property damage; (2) the trial court's jury instructions were fatally defective because the jury was not properly instructed on the effect of compliance with federal regulations; (3) the punitive damages award is outrageously excessive, bearing no relationship to the nature and extent of the injury or to the cause thereof; and (4) the prejudicial publicity surrounding the trial, the misconduct of plaintiff's counsel, and the prejudicial rulings of the trial court combined to deny a fair trial to Kerr-McGee

Karen Silkwood was a laboratory analyst at an Oklahoma Kerr-McGee plant that fabricated fuel pins, containing plutonium, that were used for reactor fuel. ⁵ Ms. Silkwood worked the afternoon of November 5, 1974. Over the course of that afternoon, she monitored herself for plutonium contamination five times. The first four times she detected no contamination. The fifth time, after withdrawing her hands from one of the glove boxes ⁶ in which she had been polishing and cleaning plutonium, she found contamination. Further checks were made in the laboratory and other contaminations were found, particularly inside the gloves in the glove box in which Ms. Silkwood had been working. Ms. Silkwood was decontaminated, placed on a five-day voiding collection program, and furnished urine and fecal kits to take home for the purpose of obtaining samples that would be sent to the United States testing laboratory for analysis.

On the morning of the next day, November 6, 1974, Ms. Silkwood arrived at work and did some paperwork for one hour. Upon leaving, she tested herself and again found herself to be contaminated. She was decontaminated and, at her request, her locker and auto were tested and found to be free of contamination.

The next day, November 7, 1974, Ms. Silkwood went directly to the plant's health physics office upon reporting to work. She was again found to be contaminated. The parties stipulated that the urine samples brought to the plant had been spiked with plutonium; that is, they contained insoluble--not naturally excreted--plutonium. Ms. Silkwood's apartment was also found to have been contaminated. Ms. Silkwood's roommate, who had returned to the apartment from the plant sometime after 8:00 a.m. on November 7th, was contaminated as well. When she had left work, she had been found not to be contaminated. Ms. Silkwood's boyfriend, who spent the night of November 6th in her apartment and left at 7:00 a.m. on the 7th, was not contaminated.

Ms. Silkwood's possessions were destroyed and she was sent to the Los Alamos Scientific Laboratory in New Mexico to undergo further tests concerning her contamination. On November 13th, after having reported back to work and being reassigned, she was killed in an automobile accident. A subsequent autopsy revealed that the amount of plutonium within her body at the time of her death was between 25 percent and 50 percent of the permissible lifetime body burden allowed by the Atomic Energy Commission ⁷ for plutonium workers.

We first address Kerr-McGee's contention that they are entitled to a judgment notwithstanding the verdict on plaintiff's punitive damages claim because there is no evidence that the contamination of Ms. Silkwood's apartment was caused by any malicious or wanton conduct on their part.

This circuit has previously held that the question of the sufficiency of the evidence needed to go to the jury in a diversity case

is a matter of federal law. Oldenburg v. Clark, 489 F.2d 839, 841 (10th Cir.1974)

We have previously explicated the federal standard as follows:

It is proper for a court to withdraw a case from the jury and direct a verdict only in limited circumstances. A directed verdict is proper only where the evidence and all the inferences to be drawn therefrom are so patent that minds of reasonable men could not differ as to the conclusions to be drawn therefrom.

Taylor v. National Trailer Convoy, Inc., 433 F.2d 569, 571-72 (10th Cir.1970). ⁸

The Oklahoma punitive damages statute, 23 O.S.1981, section 9, provides that:

[i]n any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant.

The requisite malice may be inferred from gross negligence that indicates a conscious indifference to the consequences of one's acts, Wootan v. Shaw, 205 Okl. 283, 237 P.2d 442 (1951), or a reckless disregard for the safety of others. Thiry v. Armstrong World Industries, 661 P.2d 515, 517 (Okla.1983).

In support of his punitive damages claim, plaintiff presented evidence relating to plant security, worker training, management, radiation detection, medical evaluation, and contamination incidents. Dr. Karl Morgan, who for 29 years directed the government's health physics program at Oak Ridge, Tennessee, described defendant's operations as one of the worst, from the standpoint of safety, that he had ever reviewed. He testified that he "could not imagine such a lackadaisical attitude could be developed in an organization in reference to the health and safety of the people," and concluded that defendants' practices reflected a "callous" and "wanton" disregard for the health and safety of employees.

In addition to this and other expert testimony, plaintiff introduced substantial testimony of individuals who worked at defendants' plant that related to defendants' disregard for employee safety and to their endangerment of the public.

Plaintiff offered considerable documentary and statistical evidence on this issue as well, the most notable of which was evidence indicating that during the period from 1972-1976 Kerr-McGee was unable to account for as much as 10.4 kilograms of plutonium.

Defendants, of course, presented substantial evidence in rebuttal of plaintiff's claim of gross negligence. We need not

recite that evidence here, however. In determining whether a judgment notwithstanding the verdict should be entered, whether it be under the Oklahoma standard or the federal standard, our function as an appellate court is not to...