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Kennedy v. Southern Cal. Edison Co.

ELR Citation: 30 ELR 20761
Nos. No. 98-56157, 219 F.3d 988/(9th Cir., 07/20/2000)

The court reverses and remands a district court decision dismissing a wrongful death action brought by the deceased's family and holds that a special jury instruction should have been given allowing for the possibility that exposure to nuclear fuel rods caused the deceased's death. The family of the deceased woman claimed that her husband, who worked at a nuclear plant, inadvertently brought home microscopic particles of radioactive material containing radiation dosages in excess of the maximum allowable by federal regulations that came in contact with the deceased and caused her fatal cancer. The district court dismissed all products liability claims against the nuclear fuel rods manufacturer and rejected the family's request to give a special jury instruction regarding causation under Rutherford v. Owens-Illinois, Inc., 914 P.2d 1203 (Cal. 1997).

The court first holds that Rutherford, a California case that deals with the proper jury instruction to be given on causation when multiple potential causes of the injury exist, applies to single-defendant hazardous substances cases where, as here, the defense of alternative possible causes is raised. Rutherford usually has been applied in cases with multiple defendants, however, there is little distinction between a Rutherford case with multiple defendants, each of whose products may have been a cause of the plaintiff's injury, and a case in which a single defendant argues that the plaintiff cannot show causation because there exist other potential sources that may have been the legal cause of the harm. The court next holds that the jury instruction proposed by the family was not a proper Rutherford instruction. Nevertheless, the court further holds that when a district court is presented with an applicable instruction that raises an important issue of law or directs the court's attention to a point on which an instruction to the jury would be important, it is not relieved from the responsibility of giving a proper instruction simply because the party making the request has proposed an instruction that does not completely comply with the relevant law. Thus, that the family's proposed instruction was not entirely correct under Rutherford is insufficient to affirm the district court's refusal to instruct the jury properly. The court then holds that the district court's failure to give a proper Rutherford instruction was not harmless error. Whether the nuclear plant's product poses a foreseeable risk to family members of workers who are exposed to them is at least a question of fact on which reasonable people may differ and, thus, should have been presented to the jury.

Counsel for Plaintiffs
Donald Howarth, Suzelle M. Smith
Howarth & Smith
800 Wilshire Blvd., Ste. 750, Los Angeles CA 90017
(213) 955-9400

Counsel for Defendants
Ned N. Isokawa, John A. Reding
Paul, Hastings, Janofsky & Walker
345 California St., San Francisco CA 94104
(415) 835-1600

Before Boochever and Thomas, JJ.