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In re In re Hanford Nuclear Reservation Litig.

Citation: 32 ELR 20747
No. Nos. 98-36142 et al., 292 F.3d 1124/(9th Cir., 06/18/2002) summary judgment reversed

The court holds that a district court erred in granting summary judgment to a nuclear facility operator sued by individuals for injuries allegedly arising out of their exposure to radioactive emissions from the facility. The district court's prior discovery order led the individuals reasonably to believe that to survive summary judgment on generic causation, they needed only to prove that they were exposed to the type of radioactive and nonradioactive emissions released from the facility that were capable of causing the alleged illnesses. The court first holds that by adopting the facility's "doubling of the risk" standard in the second of three stages of discovery, the court deviated from its own discovery orders and prematurely decided issues of individual causation. The relevant case law and the record here reflect that the individuals' expectations about the parameters of generic causation described in the district court's discovery orders were justified. Generic causation has been defined by courts to mean whether the substance at issue had the capacity to cause the harm alleged, while individual causation refers to whether a particular individual suffers from a particular ailment as a result of exposure to a substance. Thus, the appropriate understanding of generic causation is the one asserted by the individuals: whether exposure to a substance for which a defendant is responsible, such as radiation at the level of exposure alleged by the individuals, is capable of causing a particular injury or condition in the general public. The district court's order requiring specific threshold exposure levels were not clear, and, therefore, the individuals could not have reasonably anticipated that most of their case would be dismissed on the ground that they had failed to prove individualized exposure to threshold doses. The court next holds that the threshold level that the district court required the individuals to meet, a level that doubled the risk of suffering the alleged injuries, is not relevant to a case in which there is scientific evidence that the substance is capable of causing the complained of injuries. Radiation is capable of causing a broad range of illnesses, even at the lowest doses. To show generic causation, the individuals had to establish by scientific evidence that radiation was capable of causing the type of injuries the individuals actually suffered. And the individuals offered expert testimony to show the generic capacity of levels of radiation emitted from the facility to cause illnesses experienced by the individuals.

[Prior decisions in this litigation are published at 22 ELR 20703 and 25 ELR 21272.]

Counsel for Plaintiffs
Merrill G. Davidoff
Berger & Montague
1622 Locust St., Philadelphia PA 19103
(215) 875-3000

Counsel for Defendant
William R. Jente
Kirkland & Ellis
200 E. Randolph Dr., Chicago IL 60601
(312) 861-2000

Schroeder, J. Before Goodwin and Hawkins, JJ.