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Silkwood v. Kerr-McGee Corp.

Citation: 12 ELR 20367
No. No. 79-1894, 667 F.2d 908/(10th Cir., 12/11/1981) Rev'd in part, aff'd in part

The court, holding that workers' compensation is the exclusive remedy for jobrelated exposure to plutonium contamination, disallows major portions of the trial court's $10.5 million damage award to a nuclear fuel plant employee as inconsistent with the Oklahoma Workers' Compensation Act (WCA) and the Atomic Energy Act (AEA). Appellee Silkwood, an employee at appellant Kerr-McGee plant, experienced contamination of her person and household property by undetermined means. Initially, the court disallows a $500,000 personal injury award on grounds that any accidental injury incurred on the job would be covered by the WCA, OKLA. STAT. ANN. tit. 85, and thus may not be the subject of a common law action for damages. Next, the court upholds an award of $5,000 for damage to personal property that had to be destroyed because of contamination. The court rejects appellants' argument that substantial compliance with Atomic Energy Commission (AEC) regulations for the handling of nuclear materials precludes imposition of a strict liability standard for damage caused by materials which escaped the plant site. It holds that AEA § 170(n), ELR STAT. & REG. 41235, which pertains to insurance and limits of liability for "extraordinary nuclear occurrences," does not displace the application of state tort law to lesser nuclear incidents. Since plutonium is a highly toxic and dangerous substance, its handling is subject to strict liability. Finally, the court disallows an award of $10 million in punitive damages on grounds that the AEA, ELR STAT. & REG. 41201, preempts state regulation of radiation hazards resulting from atomic energy development. The court concludes that a judicial award of punitive damages under state law to punish a nuclear plant for past practices or deter future practices involving exposure to radiation is equivalent to regulation of the plant's practices by the state. It further holds that even violations of AEC regulations by the plant will not support an award of punitive damages, since the Nuclear Regulatory Commission has comprehensive powers to punish and prohibit practices it regards as improper.

One judge dissents from the majority's disallowance of damage awards made by the trial court. In his view, there is no basis for concluding that punitive damages are preempted by the AEA.

The full text of the opinion is available from ELR (48 pp. $6.50, ELR Order No. C-1274).

Counsel for Appellants
William G. Paul, L. E. Stringer, Richard C. Ford, John J. Griffin Jr.
Crowe, Dunleavy, Thweatt, Swinford, Johnson & Burdick
17th Floor, Liberty Tower, 100 Broadway, Oklahoma City OK 73102
(405) 235-7700

Glenn W. McGee, C. Lee Cook Jr., William Van Hagey, Stephen A. Gorman, Pamela J. Kempin
Chadwell, Kayser, Ruggles, McGee & Hastings
8500 Sears Tower, 233 S. Wacker Dr., Chicago IL 60606
(312) 876-2100

Counsel for Appellee
Arthur R. Angel, Jim Ikard
Courbois, Chew & Ikard
1215 Classen Blvd., Oklahoma City OK 73106
(405) 525-0213

Daniel R. Sheehan
Durrall, Meadows, Sheehan & Walters
United Founders Life Tower, Oklahoma City OK 73112
(405) 843-9605

Counsel for Amicus Curiae Atomic Industrial Forum, Inc.
Harvey S. Price, General Counsel
7101 Wisconsin Ave., Bethesda MD 20814
(301) 654-9260

Logan, J.