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Bennett v. Mallinckrodt

ELR Citation: 16 ELR 20480
Nos. No. 47771, 698 S.W.2d 854/(Mo. Ct. App., 07/16/1985)

The court holds that tort claims arising from alleged exposure to low levels of radioactivity are not preempted by the Atomic Energy Act (AEA), or barred by the political question doctrine, and that Missouri law may allow claims in strict liability for abnormally dangerous activities involving radiation. Plaintiffs, who work on property adjacent to defendant's radiopharmaceutical processing plant, appeal the dismissal of their tort suit. The court notes that the Supreme Court held in Silkwood v. Kerr-McGee, 14 ELR 20077, that while the AEC preempts state regulation of safety aspects of nuclear development, it does not preempt state tort remedies for injuries caused by nuclear radiation. The court rules that there is no irreconcilable conflict between state and federal standards since it is possible for the defendant to comply with both. Merely making it more expensive or less convenient for defendant to operate is not the equivalent of a state safety standard. Both Congress and the Supreme Court have accepted this possible de facto regulatory effect. In addition, states are not always required to tolerate actions permissible under federal law and may subject operations to liabilities that fall short of regulation. The state's action is also consistent with the federal aim of achieving radiation emissions as low as reasonably possible. Finally, the court rules that the state tort remedies are not preempted by the AEC regardless of whether the injuries arise from nuclear "accidents"; tort remedies may be sought for injuries arising from any emission of harmful radiation.

The court next holds that the tort claims are not barred by the political question doctrine. The action seeks compensation for injuries, not to oppose nuclear power. Turning to defendant's allegation that plaintiffs have failed to state a claim under Missouri law, the court holds that plaintiffs' general allegations of injury withstand summary judgment, although they would be subject to a motion to make more definite. On the other hand, the court rules that plaintiffs' claim for increased likelihood of cancer is a claim for future injury that cannot be maintained on the basis of statements of the mathematical probabilities injuries will occur. The court further holds that plaintiffs' emotional distress claim is valid, but that plaintiffs must replead and allege that defendant knew or should have known that its activities were likely to cause this distress.

The court rules that the nuclear industry may be an ultrahazardous activity and strict liability may be appropriate in claims of injury due to radioactive emissions. The court directs the trial court to apply the Restatement (Second) of Torts tests for determining when strict liability applies. The court also denies plaintiffs' motion for a preliminary injunction, ruling that injunctive relief would be the equivalent of state standards more stringent than those of the federal government and thus is preempted by the AEC.

Counsel for Plaintiffs-Appellants
James E. Whaley, Donald L. James
Brown, James & Rabbitt
11th Fl., 705 Olive St., St. Louis MO 63101
(314) 421-3400

Counsel for Defendant-Respondent
William A. Ritcher, Lewis R. Mills, P. Terence Crebs
Peper, Martin, Jensen, Maichel and Hetlage
24th Fl., 720 Olive St., St. Louis MO 63101
(314) 421-3850

Richard A. Meserve, William F. Greaney
Covington & Burling
1201 Pennsylvania Avenue NW P.O. Box 7566, Washington DC 20044
(202) 662-6000

SNYDER, P.J., and PUDLOWSKI, J., concur.