Silkwood v. Kerr-McGee Corp.

Citation485 F. Supp. 566
Decision Date18 August 1979
Docket NumberCiv. A. No. 76-0888-Theis.
PartiesBill M. SILKWOOD, Administrator of the Estate of Karen G. Silkwood, deceased, Plaintiff, v. KERR-McGEE CORPORATION et al., Defendants.
CourtU.S. District Court — Western District of Oklahoma




Daniel P. Sheehan, Arthur R. Angel, Jim Ikard, Oklahoma City, Okl., G. L. Spence, Spence, Moriarity & Schuster, Jackson Hole, Wyo., for plaintiff.

William G. Paul, L. E. Stringer, John J. Griffin, Jr., Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., and Elliott C. Fenton, Larry D. Ottaway, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., Glenn W. McGee, C. Lee Cook, Jr., Chadwell, Kayser, Ruggles, McGee & Hastings, Chicago, Ill., for defendants.


THEIS, Chief Judge.

This is a personal injury action for damages caused through exposure to radiation suffered by plaintiff's decedent as a consequence of plutonium escaping a nuclear fuel processing plant operated by defendants. A lengthy jury trial culminated May 18, 1979, in a jury's answers to interrogatories finding actual damages of $505,000.00 and punitive damages of $10,000,000.00. The jury's answers also indicated liability of both defendants on strict liability and also on the basis of defendants' negligence. The Court accepted the verdict and on June 21, 1979, entered judgment in accordance therewith.

This matter now comes before the Court on defendants' alternative motions for judgment notwithstanding the verdict or for a new trial. Twenty-two separate grounds are alleged to support these motions. For the reasons stated herein, the Court finds these motions without merit and denies defendants their requested relief.

From the date this lawsuit was filed a dramatic divergence of perspective has existed regarding what the issues in this case are, how those issues arise in this suit, and the applicable legal standards that control their resolution. This manifest, often emotionally-charged disagreement has survived the pretrial and trial stages of the litigation, causing numerous heated objections over otherwise elementary rulings on discovery questions, admission of evidence, content of jury instructions, and the propriety of any determination of defendants' liability for damages, especially in the instant amounts. This disagreement has once again made itself apparent in the post-trial motions of defendants.

Because defendants' misconception of the legal issues presented in this case permeates many aspects of the post-trial motions before the Court, the Court must make certain prefatory remarks, even though this litigation is in its most advanced stages. These remarks may put in better perspective the true import of this Court's many evidentiary rulings and the instructions given the jury, and may help illuminate several aspects of defendants' arguments otherwise not readily apparent. It is of singular importance for this Court to emphasize clearly what defendants argue and the legal theories upon which these arguments are premised.

From the outset of this litigation, defendants' perception of the basis upon which this lawsuit was brought has differed from the narrow issues presented in the pleadings. This was a personal injury action for damages caused through escape of plutonium from defendants' facility. This was not an intentional tort case. In defendants' strenuous and lucid arguments on these motions, counsel repeatedly stated that the trial of this action utterly failed to address "what this case was supposed to be all about" — to establish how plutonium came to be in Karen Silkwood's apartment. This Court simply does not agree.

In this case plaintiff sought to establish that culpable conduct of defendants permitted plutonium to escape from the Cimarron nuclear fuel reprocessing facility operated by defendants, and that this plutonium caused injury to Silkwood. How plutonium, once outside the plant, came into Silkwood's apartment is an issue quite distinct from how it escaped the facility.

Implicit in virtually all defendants' arguments in these motions is the suggestion that plaintiff ought not to recover unless he can demonstrate that an agent of Kerr-McGee actually deposited plutonium in Silkwood's apartment. The Court is well aware of the public speculation that has surrounded the facts of this case and the various theories of covert conspiracies advanced to explain intentional conduct that brought plutonium into Silkwood's apartment. Neither public speculation nor charges of conspiracy or intentional contamination, however, formed any part of plaintiff's claim in this trial. The sole issue before this jury was whether defendants were responsible or liable for the plutonium's escape and whether Silkwood was injured as a result of that escape. This Court ruled that defendants would be held strictly liable for any injury caused through escape of defendants' plutonium, unless, of course, defendants prevailed on their defense of assumption of the risk.

Defendants' resistance to this analysis of the case is predicated upon their contention that no liability may attach solely for the escape of plutonium from their facility and for injury caused thereby. This freedom from responsibility for negligent or non-negligent acts that permit plutonium to escape into the public domain is premised upon the purported import of the appropriate federal regulations governing the facility's operation. Defendants also premise this argument upon a narrow theory of proximate causation, under which no liability exists unless a party caused the plutonium's movement physically into Silkwood's apartment.

Defendants have here claimed that they have no common law duty to contain plutonium within the walls of their facility and thus cannot be held liable merely for permitting plutonium to escape. Defendants contend that Congress has occupied the field of nuclear regulation through its legislation in the area. Unless defendants' conduct violates appropriate federal standards, or unless defendants may be held liable under federal law, they may not be held accountable in this Court. Imposition of liability on state common law principles represents the imposition of state standards where the federal government has not deemed them necessary. Federal preemption allegedly bars application of state law liability principles. Thus, defendants claim immunity from liability for any conduct for which the federal government does not impose liability.

Alternatively, defendants argue that they are subject to strict liability on state common law grounds only where they have failed to comply with federal regulations or with their AEC license requirements. Thus, if defendants have complied with all federal regulations, they cannot be held liable for any damages caused by the operation of their facility. Plaintiff has the burden of proving defendants' license noncompliance and in cases where no specific act or regulatory violation can be affirmatively established as the cause of injury, liability would not attach, unless the doctrine of res ipsa loquitur were applicable. This argument, of course, would essentially render nugatory the application of strict liability principles.

Both arguments presume much about the nature of the federal regulation of nuclear facilities. The primary issue in this case is whether defendants may be held liable for the escape of plutonium into the public domain on state strict liability grounds or on ordinary principles of negligence. Although defendants contend that they may not be legally held accountable under state law for the instant damages, defendants have failed to note any federal law which creates a private cause of action for violations of federal regulations. Defendants do not address any statutory or regulatory provisions, or the history to the federal legislation, to support their view.

Indeed, even cursory analysis of federal law clearly establishes that Congress specifically intended that state common law principles control nuclear accident litigation. Common law duties to act with all due care exist both in the absence of specific regulatory provisions and in conjunction with the federal guidelines for operation of nuclear facilities. It is also abundantly clear that Congress specifically intended that states apply strict liability principles, if available under state law, to liability determinations. Defendants' theory of preemption is simply unsupported by law.


Defendants argue in their brief and oral argument three or four basic propositions regarding federal preemption and the role of federal regulations. First, federal preemption allegedly prohibits imposition of liability except in accordance with federal law. Thus, strict liability may not be imposed unless federal law — the Price-Anderson Act — requires it. Defendants have orally argued and suggested in their brief that no liability may attach at all unless defendants have failed to comply with federal law and regulations that control their conduct. Secondly, defendants maintain that they cannot be held liable for any damages whenever a plaintiff's exposure is within the maximum permissible exposure limits set by the Atomic Energy Commission ("AEC") or the Nuclear Regulatory Commission ("NRC"). Third, defendants contend that substantial compliance with federal regulations bars any award of punitive damages and that the Court erred by failing to so instruct. These arguments all rest on the significance and effect of the federal Atomic Energy Act of 1954, the Price-Anderson Act, and the regulations issued pursuant thereto. A brief background is warranted.

The federal government originally reserved to itself an absolute monopoly on the development of atomic power in the Atomic Energy Act of 1946. Act...

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