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.