In re Hanford Nuclear Reservation Litigation

534 F.3d 986

In re HANFORD NUCLEAR RESERVATION LITIGATION,

Barbara Jean Phillips, Plaintiff, and Wanda Buckner; Shirley Carlisle, Plaintiffs-Appellants, v. E.I. DuPont de Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation; UNC Nuclear Industries, Inc., a Delaware corporation, Defendants-Appellees.

In re Hanford Nuclear Reservation Litigation,

Barbara Jean Phillips, Plaintiff, and Gloria Hope; Clara Reiss; Glenda Winslow; Kathryn J. Goldbloom, aka Kathryn Janelle Goldbloom, Plaintiffs-Appellants, v. E.I. DuPont de Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation; UNC Nuclear Industries, Inc., a Delaware corporation, Defendants-Appellees.

In re Hanford Nuclear Reservation Litigation,

Barbara Jean Phillips, Plaintiff, and Gloria Hope; Clara Reiss; Glenda Winslow; Wanda Buckner; Kathryn J. VanCampen, aka Kathryn Janelle Goldbloom; Shirley Carlisle, Plaintiffs-Appellees, v. E.I. DuPont de Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation, Defendants-Appellants, and UNC Nuclear Industries, Inc., a Delaware corporation, Defendant.

Barbara Jean Phillips, Plaintiff, and Steven Stanton; Gloria Wise, Plaintiffs-Appellees, v. E.I. DuPont de Nemours & Co.; General Electric Co., Defendants-Appellants.

Pamela Durfey; Paulene Echo Hawk; Dorothy George, on their own behalf and on behalf of a class of similarly situated persons, Plaintiffs-Appellants, v. E.I. DuPont de Nemours & Co., a Delaware Corporation; General Electric Co., a New York Corporation, UNC Nuclear Industries, Inc., a Delaware Corporation, Atlantic Richfield Company, Atlantic Richfield-Hanford Co., a Washington Corporation; Rockwell International Corp., a Delaware Corporation; Westinghouse Hanford Corp., a Delaware Corporation; Westinghouse Electric Corp., a Pennsylvania Corporation, Defendants-Appellees.

In re Hanford Nuclear Reservation Litigation,

Pamela Durfey; Pauline Echo Hawk; Dorothy George, on their own behalf and on behalf of a class of similarly situated persons, Plaintiffs-Appellants, v. E.I. DuPont de Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation; UNC Nuclear Industries, Inc., a Delaware corporation; Atlantic Richfield Company; Atlantic Richfield-Hanford Co., a Washington corporation; Rockwell International Corp., a Delaware corporation; Westinghouse Hanford Corporation, a Delaware corporation; Westinghouse Electric Corp., a Pennsylvania corporation, Defendants-Appellees.

In re Hanford Nuclear Reservation Litigation,

Shannon C. Rhodes, Plaintiff-Appellant, v. E.I. DuPont de Nemours & Co., a Delaware corporation; General Electric Co., a New York corporation, Defendants-Appellees.

No. 05-35648.

No. 05-35651.

No. 05-35678.

No. 05-35866.

No. 05-35892.

No. 05-35895.

No. 06-35165.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2007.

Filed August 14, 2007.

Amended April 4, 2008.

Second Amendment July 29, 2008.

Peter Nordberg, Berger & Montague, P.C., Philadelphia, PA; Roy S. Haber, Roy S. Haber, P.C., Eugene, OR; Daniel Johnson and David Breskin, Short Cressman & Burgess, PLLC, Seattle, WA, for the plaintiffs-appellants-appellees.

Christopher Landau, Kirkland & Ellis, LLP, Washington, DC, for the defendants-appellees-appellants.

Appeal from the United States District Court for the Eastern District of Washington; Wm. Fremming Nielsen, Senior Judge, Presiding. D.C. Nos. CV-91-03015-WFN, CV-93-03087-WFN.

Before: MARY M. SCHROEDER, ALFRED T. GOODWIN and HAWKINS, Circuit Judges.

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The mandate of this court, issued on April 14, 2008, is recalled. Our earlier order amending the opinion contained an inadvertent error. The opinion in this matter, filed August 14, 2007, amended on April 4, 2008, and published at In re Hanford Nuclear Reservation Litigation, 521 F.3d 1028 (9th Cir.2008), is amended as follows: Delete the paragraph beginning on slip op. p. 3624 and concluding on p. 3625.

No subsequent petition for rehearing or rehearing en banc may be filed. The mandate shall issue in due course.

OPINION

SCHROEDER, Circuit Judge:

I. Introduction.

The origins of this case trace back more than sixty years to the height of World War II when the federal government solicited Appellants E.I. DuPont de Nemours & Co., General Electric, Inc., UNC Nuclear Industries, Inc., Atlantic Richfield Co., and Rockwell International Corp., (collectively "Defendants") to operate the Hanford Nuclear Weapons Reservation ("Hanford") in southeastern Washington. The Hanford Reservation was a plutonium-production facility that helped make the atomic bomb that dropped on Nagasaki, Japan in World War II.

A regrettable Hanford byproduct was the radioiodine emitted into the surrounding area. The plaintiffs in this litigation are over two thousand residents who now claim that these emissions, known as I-131, caused various cancers and other life-threatening diseases. The first group of plaintiffs filed a complaint in 1990 under the federal statute governing nuclear accidents, the Price-Anderson Act ("PAA"), claiming they were entitled to damages for injuries arising from a nuclear incident pursuant to 42 U.S.C. § 2210. The history is discussed in our earlier opinions in In re Hanford Nuclear Reservation Litigation, 292 F.3d 1124 (9th Cir.2002) ("In re Hanford"); and Berg v. E.I. DuPont de Nemours & Co., 293 F.3d 1127 (9th Cir.2002) ("Berg"). After almost two decades of litigation, which already has included two appeals to this court, the parties in 2005 agreed to a bellwether trial. The trial was designed to produce a verdict that would highlight the strengths and weaknesses of the parties' respective cases and thus focused on six plaintiffs ("Plaintiffs") who were representative of the larger group. The purpose of the trial was to promote settlement and bring long-overdue resolution to this litigation.

Before us on appeal is a litany of issues stemming from the bellwether trial. A threshhold issue is whether Defendants may seek complete immunity under the common law government contractor defense, because they were operating Hanford at the request of the federal government. We hold that the defense is inapplicable as a matter of law, because Congress enacted the PAA before the courts recognized the government contractor defense, and the PAA provides a comprehensive liability scheme that precludes Defendants' reliance on such a defense.

In the alternative, Defendants argue that even if they are not immune, they are not strictly liable for any I-131 emissions, because the amounts of the emissions were within federally-authorized levels; the plutonium-production process was not an abnormally dangerous activity that would create strict liability; and even if it were, Defendants qualify for the "public duty" exception to strict liability. The district court held that none of Defendants' contentions were sufficient to relieve them of strict liability for the injuries they caused. We agree.

With respect to the trial itself, the district court with admirable diligence ruled on many issues of first impression. We hold that under Washington law, the district court properly instructed the jury that to impose liability, it had to find Hanford was the "but for" cause of Plaintiffs' diseases and not just a contributing cause under the more lenient "substantial factor" test. The court also made a host of evidentiary rulings that are before us on appeal. We hold that three of these rulings constitute reversible error with respect to three of the Bellwether Plaintiffs.

There are statute of limitations issues as well. We hold that any Hanford Plaintiffs who filed independent suits pending class certification are entitled to class action tolling.

Lastly, we hold that the district court properly dismissed any medical monitoring claims as not cognizable under the PAA. This is consistent with our decision in Berg, 293 F.3d 1127.

II. Background.

The United States government constructed Hanford during World War II to manufacture plutonium for military purposes. The facility was a component of the Army Corps of Engineer's secret Manhattan Project, with the primary objective of developing an atomic bomb. In 1942, the Army Corps began hiring civilian contractors to help build and operate the Hanford facility. It first recruited the University of Chicago Metallurgical Laboratory ("Met Lab") to design the process and equipment to produce plutonium. It then solicited E.I. DuPont de Nemours & Co. ("DuPont") to actually run the facility. It is apparent the government itself did not have the expertise or resources to operate Hanford.

DuPont initially refused. The government, however, persisted and implored DuPont to run the plutonium-production facility, because, as the government provided in DuPont's contract, the project was of the "utmost importance" and was "necessary in facilitating the prosecution of the war." DuPont eventually acquiesced, stating it would run the facility out of patriotic considerations. It accepted only one dollar as payment for its services. Several years later, the Hanford facility successfully produced the plutonium that was used in 1945 to drop the atomic bomb on Nagasaki and effectively end World War II. (The bomb dropped on Hiroshima was uraniumbased, not plutonium-based).

As part of the plutonium-production process, the Hanford facility emitted I-131, a fission byproduct known as radioiodine. I-131 was known at the time to have potential adverse health effects on humans. Accordingly, the Met Lab scientists set tolerance doses for human exposure. For example, the Met Lab determined that the human thyroid should not absorb more than one rad per day for those individuals subject to continuous exposure in the area. A rad is a measurement of the amount of radioiodine absorbed into an organ or tissue. On the basis of these safe exposure limit estimates, the Met...