Federal Court Reaffirms Summary Judgment in NORM Case

A federal court recently reaffirmed its prior ruling that a plaintiff's expert failed to establish causation in a suit alleging increased risk of cancer from radioactive scale deposited inside pipes.  See Hill v. Exxon Mobil Corp., No. 11-2786 (E.D. La. 4/30/13).

Plaintiff worked at Tuboscope Vetco International. He alleged he was exposed to radioactive scale
(naturally occuring radioactive materials or "NORM") when he cleaned pipes at work. Hill sued Shell Oil
Co. and Chevron U.S.A. Inc. alleging that these companies sent used pipes containing radioactive scale to Tuboscope to be processed and that he was exposed to the radioactive scale in these pipes.

Earlier this year, the court granted defendants' motion for summary judgment on the grounds that Hill could not prove that he was exposed to radiation attributable to Shell or Chevron.  A fundamental cause in fact issue. His evidence only supported general inferences about radiation at Tuboscope but nothing that showed (1) he actually cleaned used pipe containing scale with NORM or (2) that these pipes were attributable to Shell or Chevron. Hill's evidence required an impermissible chain of speculation to find that he was exposed to radiation in these defendants' pipes.

Plaintiff then moved to alter and amend the summary judgment arguing that the court should amend or reconsider its judgment because of new evidence. The court concluded that the new evidence, largely depositions taken after the motion was pending but before it was ruled on, was not grounds for altering the court's judgment. 
 
Defendants argued that these depositions were not the proper basis for a Rule 59(e) motion to amend because the evidence was available before the judgment issued. See Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-864 (5th Cir. 2003).  Hill deposed these witnesses before the court issued its judgment, and he apparently made no attempt to supplement the record. Accordingly, this evidence was not "newly discovered." See Russ v. Int'l Paper Co., 943 F.2d 589, 593 (5th Cir. 1991).

Even if this evidence was considered, however, the court noted that plaintiff's motion still would fail.  For example, one expert testimony did not establish that Hill was exposed to radioactive scale attributable to Shell and Chevron. No party disputed that new pipe does not have scale, and not all used pipe has scale. Further, not all used pipe with scale contains NORM.  The later expert's calculation of the average radiation dose of pipes that do have scale containing NORM does not provide any proof that Hill was actually exposed to (1) used pipes that have scale containing NORM or (2) that these pipes were attributable to defendants. Accordingly, this kind of "new" testimony was irrelevant to proving Hill's exposure to NORM attributable to Shell and Chevron. The evidence did not show that Hill handled defendants' NORM-containing pipes and did not create an issue of material fact. Motion denied.


 

Local Product Warning Ordinance Violates First Amendment

When we touch on Constitutional issues, most often we are posting about due process concerns raised by procedural shortcuts, proposed for administrative or efficiency reasons, at the potential expense of a defendant's rights.  Today we get to actually write about a First Amendment issue, as the Ninth Circuit recently blocked San Francisco’s attempt to implement its local cellphone radiation warning ordinance because it violates the First Amendment. See CTIA – The Wireless Association v. City and County of San Francisco, Calif., No. 11-17773 (9th Cir.).  It is a wonderful reminder about this freedom, which separates our nation from much of the world. 

San Fransisco passed an ordinance imposing warning language standards on cell phone retailers, specifically requiring cell phone sellers to make certain disclosures to consumers about radio-frequency energy emissions from cell phones. S.F. Ordinance 156-11 was originally set to take effect in October 2011, but CTIA – The Wireless Association filed suit challenging the constitutionality of the law. CTIA contended the San Francisco law conflicted with the FCC's safety standards and violated rights of free speech by forcing retailers to communicate alarmist messages about cellphone radiation. 

The district court enjoined enforcement of part of the ordinance, and both sides appealed.  The Ninth Circuit panel affirmed the injunction and noted two problems with the ordinance. First, under the standard established in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1986), any governmentally compelled disclosures to consumers must be “purely factual and uncontroversial.” Id. at 651. The law here required cellphone retailers to provide every customer with an informational "fact sheet" about the possible health risks of radio-frequency energy emissions from cellphones.  That fact sheet contained more than just facts. It also contained San Francisco’s recommendations as to what consumers should do if they want to reduce exposure to radio-frequency energy emissions. This language could be interpreted by consumers as expressing San Francisco’s opinion that using cell phones is dangerous. The FCC, however, has established limits of radio-frequency energy exposure, within which it has concluded using cell phones is safe. See, e.g., Guidelines for Evaluating the Envt’l Effects of Radio-frequency Radiation, 11 F.C.C.R. 15123, 15184 (1996).  Even the findings made by the San Francisco Board of Supervisors on which the challenged ordinance was predicated acknowledged that there "is a debate in the scientific community about the health effects of cell phones,” and the district court observed that “San Francisco concedes that there is no evidence of cancer caused by cell phones.” The court of appeals could not say on the basis of this record that the fact sheet was both “purely factual and uncontroversial.” Zauderer, 471 U.S. at 651.

The ordinance also required retailers to prominently display an informational poster in their stores, and to paste an informational sticker on all display literature for cellphones warning about the possible health risks of radio-frequency energy emissions from cellphones. The district court enjoined the original ordinance compelling distribution of these broader materials.  Since the ordinance sought to compel statements that are even more misleading and controversial than the  fact sheet, the original injunction must be affirmed, said the appeals court.

Medical Monitoring Complaint Held Insufficient

A federal trial court last week dismissed a medical monitoring claim by an employee of a pipe cleaning company pursuant to Twombly. Royal v. Exxon Mobil Corp., No. 12-00081 (E.D. La.,  2/6/12).

Junius Royal sued several oil companies for damages in connection with oil pipe cleaning services that he allegedly performed. Plaintiff asserted that the oil pipes he cleaned contained carcinogenic radioactive materials commonly referred to as naturally occurring radioactive material, or "NORMS.'" Plaintiff claimed that the defendants knew about the radioactive material in
the pipes, but failed to warn.  He thus became exposed to dangerously high levels of radiation during his work, and he now has a substantially increased risk of developing cancer. He sought medical monitoring. Defendants moved to dismiss plaintiff's medical monitoring claim for failure to state a claim on which relief could be granted.

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is plausible on its face. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 569 (2007)). Factual allegations must be
enough to raise a right to relief above the speculative level.  In deciding whether dismissal is warranted, the court will not accept conclusory allegations in the complaint as true. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

To prove common law medical monitoring claim under Louisiana law (there is a separate statutory claim), a plaintiff must show: (1) Significant exposure to a proven hazardous substance, (2) As a
proximate result of this exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease, (3) Plaintiff's risk of contracting a serious latent disease is greater than (a) the risk of contracting the same disease had he or she not been exposed and (b) the chances of
members of the public at large of developing the disease, (4) A monitoring procedure exists that makes the early detection of the disease possible, (5) The monitoring procedure has been
prescribed by a qualified physician and is reasonably necessary according to contemporary scientific principles, (6) The prescribed monitoring regime is different from that normally
recommended in the absence of exposure, and (7) There is some demonstrated clinical value in the early detection and diagnosis of the disease. Bourgeois v. A.P. Green Indus., 716 So. 2d 355,
360-61 (La. 1998).

Here, plaintiff failed to allege or urge that he had a manifest physical injury or mental injury or disease, as required by the statute. The fact that he may have been exposed to radiation was not, in and of itself, sufficient. Further, the plaintiff failed to plead facts which bear directly on several of the common law factors. For example, plaintiff made no mention of what type of monitoring he was
looking for, who prescribed him the monitoring, or what the efficacy of the monitoring might be.

 

Plutonium Class Action in Supreme Court

The U.S. Supreme Court last week invited the Solicitor General to weigh in on the issues in a significant class action, in which the plaintiffs allege plutonium contamination. Merilyn Cook, et al. v. Rockwell International Corporation, et al., No. 10-1377 (U.S.).

The plaintiffs were more than 15,000 property owners near the former Rocky Flats Nuclear Weapons Plant in Colorado.  In 2006, a jury found against defendants Dow and Rockwell.  In 2008, the federal trial court ordered the companies to pay a total of $926 million in damages. The 10th Circuit reversed.

At issue now is whether state substantive law controls the standard of compensable harm in suits under the Price-Anderson Act, or whether the Act instead imposes a federal standard; and, secondly, whether, if a federal standard applies, a property owner whose land has been contaminated by plutonium must show some physical injury to the property beyond the contamination itself in order to recover.

The court of appeals had concluded that plutonium contamination by itself was not adequate under the Act. In particular, property owners’ fears that the plutonium might damage their health was not a sufficient basis to award damages.

The case raises the all-too-familiar scenario of trial courts dispensing with traditional elements of a cause of action in order to proceed with class litigation. Plaintiffs alleged that defendants were  responsible for plutonium emissions that diminished their property values. But they did not prove any present physical injury to person or property, or loss of use of property, on a class-wide basis. Rather, they vigorously --and successfully-- urged the district court to dispense with any such injury requirement. The district court allowed petitioners to recover based solely on a risk of injury to person or property, even if unverifiable or scientifically unfounded.

 

Federal Appeals Court Vacates Class Action Verdict In Radiation Case

Last week, a federal appeals court vacated a $926 million judgment against Rockwell International  and Dow Chemical over alleged plutonium contamination. See Cook v. Rockwell International Corp., No. 08-1224 (10th Cir., 9/3/10).

The owners of properties near the former Rocky Flats Nuclear Weapons Plant (“Rocky Flats”) filed a proposed class action against the facility’s operators under the Price-Anderson Act, alleging trespass and nuisance claims arising from the alleged release of plutonium particles onto their properties. Rocky Flats, located near Denver, Colorado, was established by the US in the 1950s to produce nuclear weapon components. The government contracted with Dow to operate the facility from 1952 to 1975, and then with Rockwell from 1975 to 1989.

Some radiation cases seem to last longer than the half-life of uranium.  The complaint here was filed in 1990.  A class was certified in 1993. After over fifteen years of litigation, the district court conducted a jury trial between October, 2005 and January, 2006, resulting in a jury verdict in favor of the plaintiff class, which numbered about 15,000.

This appeal ensued, and a main issue was the jury instructions (we leave for another day the preemption and PAA statutory issues). In accordance with the district court’s construction of Colorado law, the jury instructions did not require plaintiffs to establish either an actual injury to their properties or a loss of use of their properties. With respect to the nuisance claims, the district court instructed the jury that plaintiffs could establish defendants’ conduct interfered with the use and enjoyment of the class properties by proving defendants’ conduct exposed plaintiffs to “some increased risk of health problems” or caused conditions “that pose a demonstrable risk of future harm" to their property area.  As to plaintiffs’ trespass claims, the district court instructed the jury that plaintiffs were not required to show that plutonium is present on the class members' properties at any particular level or concentration, that they suffered any bodily harm because of the plutonium, or that the presence of plutonium damaged these properties in some other way.

First, the nuisance theory. Under Colorado law, a plaintiff asserting a nuisance claim must establish an interference with the use and enjoyment of his property that is both “substantial” and “unreasonable.”  A jury may find the presence of radioactive contamination creates an actual risk to health and thereby interferes with a plaintiff’s use or enjoyment of his land if the contamination disturbs the plaintiff’s comfort and convenience, including his peace of mind, with respect to his continued use of the land.  But, said the court,  a scientifically unfounded risk cannot rise to the level of an unreasonable and substantial interference. To the extent plaintiffs here relied on anxiety from an increased risk to their health as an interference with the use and enjoyment of their properties, that anxiety must arise from scientifically verifiable evidence regarding the risk and cannot be wholly irrational. No reasonable jury could find that irrational anxiety about a risk that cannot be scientifically verified tips this balance so as to render the interference "unreasonable."  So the charge was wrong to the extent it permitted any subjective anxiety to suffice for an unreasonable interference.

The court of appeals then turned to the trespass theory.  And here, the issue turned on whether the plaintiffs' claim was a traditional trespass theory or a so-called "intangible trespass."  The parties agreed that to prevail under a traditional trespass claim, a plaintiff must establish only a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession. A plaintiff need not establish any injury to his legally protected interest in the land or damage to the land itself.  Unlike a traditional trespass claim, however, the court made clear that an intangible trespass claim requires an aggrieved party to prove physical damage to the property  caused by such intangible intrusion. 

So is the invasion of plutonium particles onto real property a traditional or intangible trespass claim?  The cases suggest that “intangible” is something that is impalpable, or incapable of being felt by touch. Noise intrusion and electromagnetic fields emitted by power lines are examples of the intangible. Neither can be perceived by any of the senses.   Here,  plaintiffs had to concede that the plutonium particles allegedly present on their properties are impalpable and imperceptible by the senses. Although the particles in question have mass and are "physically present" on the land, because the particles are impalpable, the trespass alleged here must be tried as an intangible trespass.

Consequently, the instructions on this point were also in error, and on remand, plaintiffs will be required to prove the plutonium contamination caused “physical damage to the property” in order to prevail on their trespass claims.

Interestingly, because the district court’s class certification analysis failed to consider whether
plaintiffs could establish various elements of their claims, properly defined, the 10th Circuit also reversed the district court’s class certification ruling. Upon remand, the district court will have to  revisit the class certification question to determine whether plaintiffs can establish the proper elements of their claims on a class-wide basis.  Obviously, the need to show unreasonable interference and physical damage may each create predominating individual issues.

 

Science vs. Politics on Cell Phones Safety

The contrast is striking.  Recently, the San Francisco Board of Supervisors voted 10-1 vote in favor of an ordinance requiring cell phone retailers in that city disclose cell phones' specific absorption rate, or SAR, to customers.

The same day, a study was published that further substantiates the safety of cell phone use.  Mobile phone base stations and early childhood cancers: case-control study, BMJ 2010;340:c3077.  The study, in the British Medical Journal, showed no link between proximity to cell phone towers and increased cancer risk to children whose mothers were pregnant while living near such towers.

The study looked at almost 7,000 children and incidence of early childhood cancers across Great Britain.  This was compared with data from Britain's four national mobile phone operators -- Vodafone, O2, France Telecom's Orange, and Deutsche Telekom's T-Mobile -- on more than 80,000 mobile phone towers used from 1996 to 2001.   The researchers found that those who developed cancer before the age of five were not more likely to have been born close to a tower than their peers. The scientists found no association between risk of cancer in young children and estimated exposures to radiofrequency from mobile phone base stations during pregnancy.

MassTortDefense notes some strengths in the study: its size and national coverage, avoiding selection and reporting bias in the choice of cases and areas for study. Also, because it focused on early childhood cancers, it avoided issues of long latency that can affect interpretation of some mobile phone studies in adults.

The study adds to a growing body of scientific research which has found no links between cell phones and cancer. Use of mobile phones has increased markedly in recent years. In the United Kingdom, the number of mobile connections has risen from just under nine million in 1997 to almost 74 million in 2007.

In light of the real science, we wonder if the ordinance will actually mislead consumers with point of sale requirements implicitly suggesting that some phones are "safer" than others based on radiofrequency (RF) emissions. In fact, all phones sold in the U.S. must comply with the Federal Communications Commission's safety standards for RF emissions.  

FDA To Revise Guidance on Medical Imaging: What Does That Say About Medical Monitoring?

The U.S. Food and Drug Administration announced this week that it will set new safeguards for medical imaging to reduce the amount of radiation to which patients may be exposed through increasingly common radiation-based diagnostic procedures.

Like all medical procedures, computed tomography (CT), fluoroscopy, and nuclear medicine imaging exams present both benefits and risks. These types of imaging procedures have led to improvements in the diagnosis and treatment of numerous medical conditions. At the same time, these types of exams expose patients to ionizing radiation, which may elevate a person’s lifetime risk of developing cancer.

Through the Initiative to Reduce Unnecessary Radiation Exposure from Medical Imaging, FDA is advocating the universal adoption of two principles of radiation protection: appropriate justification for ordering each procedure, and careful optimization of the radiation dose used during each procedure. In other words, each patient should get the right imaging exam, at the right time, with the right radiation dose.

According to a March 2009 report by the National Council on Radiation Protection and Measurements (NCRP), the U.S. population’s total exposure to ionizing radiation has nearly doubled over the past two decades. This rise is largely attributable to increased exposure from CT, nuclear medicine, and interventional fluoroscopy. NCRP estimates that 67 million CT scans, 18 million nuclear medicine procedures, and 17 million interventional fluoroscopy procedures, and 18 million nuclear medicine procedures were performed in the U.S. in 2006.

Concerns have been raised about the risks associated with patients’ exposure to radiation from medical imaging. Because ionizing radiation can cause damage to DNA, exposure can increase a person’s lifetime risk of developing cancer. Although the risk to an individual from a single exam may not itself be large, millions of exams are performed each year, making radiation exposure from medical imaging an important public health issue. Some experts have estimated recently that t approximately 29,000 future cancers could be related to CT scans performed in the U.S. in 2007. While estimates vary, most responsible public health officials agree that care should be taken to weigh the medical necessity of a given level of radiation exposure against the risks.

Against this backdrop, plaintiff lawyers continue to seek medical monitoring in the form of CT and other scans for millions of proposed class members around the country.  Plaintiffs' theory is that exposure to an alleged toxic substance has put the class at an increased risk of developing disease in the future, and thus they need medical monitoring to early detect the disease.  Most jurisdictions have not recognized this claim, but in those that do, defendants will want to pay close attention to the elements of the claim that require a plaintiff to prove that the testing is reasonably medically necessary or part of the standard of care.  The reason that treating physicians and public health agencies do NOT recommend monitoring in the form of CT scans for healthy, asymptomatic folks may increasingly include this issue of potential over-exposure.  While jurors may come to the court room with the pre-load that monitoring is great because early detection saves lives, the reality is that in many contexts, monitoring may do more harm than good.

Because CT, fluoroscopy, and nuclear medicine require the use of radiation, some level of radiation exposure is inherent in these types of procedures. Only when these procedures are conducted appropriately do the medical benefits they can provide generally outweigh the risks.  In the medical monitoring context, patients may be exposed to radiation without sufficient clinical need or benefit. Unnecessary radiation exposure, and thus cancer risk, results from the performance of a particular medical imaging procedure when it is not medically justified given a patient’s signs and symptoms, or when an alternative might be preferable given a patient’s lifetime history of radiation exposure.  That kind of needed individual assessment is one of the reasons why class-wide determination of medical monitoring is a bad idea. While plaintiffs trumpet the new technology, reports suggest that the radiation dose associated with one CT abdomen scan is the same as the dose from about 400 chest X-rays.

Ninth Circuit Rejects Claim for Subcellular Damage Under Radiation Exposure Law

Mere damage to cells or DNA does not constitute a "bodily injury" under the federal law governing nuclear radiation exposure, according to the Ninth Circuit. Dumontier v. Schlumberger Technology Corp., 2008 WL 4166406 (9th Cir. September 11, 2008).

The issue of subcellular damage is one aspect of how advances in medical science, particularly our understanding of the mechanism of disease, can impact and even potentially render obsolete long-standing legal notions. The idea that subcellular damage can be detected and may constitute a legally cognizable injury can impact triggering of the statute of limitations, the two-injury rule, medical monitoring and other inchoate torts.

The issue was whether subcellular damage amounts to bodily injury under the Price-Anderson Act. Plaintiffs were allegedly exposed to cesium-137 on a drilling rig. Though less well known than uranium or plutonium, cesium isn't a substance to be toyed with. Plaintiffs have not developed cancer or any other illness. Nevertheless they sued Schlumberger, claiming that the radiation caused subcellular damage, including to their DNA. The Ninth Circuit disagreed with the Sixth, which relies on state law to interpret bodily injury under this Act. The Act doesn't call for the federal court to apply state law in its interpretation; only for “the substantive rules for decision” -i.e., the available causes of action, according to the Ninth. The Act prohibits recovery when plaintiffs haven't suffered “bodily injury, sickness, disease, or death” -even when the state cause of action doesn't have that limitation.

Plaintiffs argued that the slightest exposure to radiation damages cells by denaturing proteins and modifying DNA. But, said the court, not every alteration of the body is an injury. The process of thinking causes synapses to fire and the brain to experience tiny electric shocks; fear stimulates the production of chemicals associated with the fight-or-flight response. All life is about change, but all change is not injurious. Adopting plaintiffs' interpretation of bodily injury would render the term surplusage, as every exposure to radiation would perforce cause injury.

Plaintiffs also argued that exposure to radiation surely causes bodily injury if it exceeds the federal dose limit for members of the public. But the various limits in NRC regulations have been set at a level which is conservatively arrived at by incorporating a significant safety factor. Thus, a discharge or dispersal which exceeds the limits in NRC regulations, although possible cause for concern, is not one which would be expected to automatically cause substantial injury or damage unless it exceeds by some significant multiple the appropriate regulatory limit. X-ray technicians, for example, are routinely exposed to more radiation than the public dose limit allows.

The Ninth Circuit also pointed out the difficulty in assessing damages for mere subcellular impact. Plaintiffs’ “reading would make exceeding the federal dose limit a strict liability offense, with damages determined by the extent of emotional distress. The Act would cease to be a liability limit and become an unlocked cash register.” Id. at *2.