Ninth Circuit revives radiation-exposure litigation.

The Ninth Circuit Court of Appeals recently breathed life back into the claims of thousands of plaintiffs who allege they were harmed by years of exposure to high levels of radiation. The lawsuit claims that radioactive particles leaked from the Hanford Nuclear Weapons Reservation, a plutonium-manufacturing facility in southeastern Washington state.

The court reinstated claims by the Hanford "downwinders" (the plaintiffs, so called because many lived downwind of the plant). The claims been dismissed because these people could not show that their radiation exposures doubled their risk of illness. (In re Hanford Nuclear Reservation Litig., 292 F.3d 1124 (9th Cir. 2002).)

The ruling is a victory for all plaintiffs in toxic tort cases, plaintiff attorney Brian Depew said from his office in Los Angeles, because it clarifies and narrows application of the "doubling-dose" standard that the Ninth Circuit first applied in Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert II) (43 F.3d 1311 (9th Cir. 1995).)

That standard "has been a favorite defense in toxic tort cases. Typically, defendants attack these claims on causation, claiming that plaintiffs cannot prove a doubling of the risk. This decision finally clarifies that the doubling-dose standard applies only to fact situations where, one, the only evidence of causation is statistical; and, two, you don't understand what the cause of the illness was to begin with. That was the unique situation in the Daubert II case," Depew said.

The Ninth Circuit's decision reversed a trial court's ruling that granted partial summary judgment in favor of several companies that operated the facility for the U.S. government, including E.I. DuPont de Nemours and General Electric Co. The lower court's error, the Ninth Circuit found, was in applying the "doubling-dose standard" to issues of specific causation.

Early in the decade-old litigation, the trial court ordered the parties to conduct discovery using a three-phase plan. Phase two was divided into two parts: The first focused on issues related to general, or generic, causation (Could the exposure cause the alleged injuries?); the second addressed issues related to individual causation (Did the exposure in each plaintiff's case cause his or her injuries?).

The trial court's ruling came during the first half of phase two. Applying the Daubert II reasoning, the trial court concluded that to establish generic causation, each plaintiff would have to show that he or she had been exposed to a dose of radiation statistically double the general population's risk of harm from radiation exposure.

In Daubert II, the children of women who had taken the antinausea drug Bendectin sued the drug's maker, claiming it had caused them to suffer birth defects. Reviewing causation issues in that case, the Ninth Circuit found that because the plaintiffs could produce no admissible definitive evidence that Bendectin caused the alleged injuries, their case was based entirely on circumstantial evidence.

Consequently, the court said, to meet their burden of proof, the plaintiffs would have to show that Bendectin "more likely than not" caused the children's birth defects. And this could be done only by establishing "not just that their mothers' ingestion of Bendectin increased somewhat the likelihood of birth defects, but that it more than doubled it."

In Hanford, the trial court concluded that similar reasoning should apply: Because the plaintiffs could never directly prove that Hanford's radioactive emissions--and not some other factor--caused their injuries, they would have to rely on statistical evidence. "In cases where statistical proof must be resorted to, such proof meets the `more likely than not' sufficiency standard [for maintaining a cause of action] only if a `doubling of risk' is shown," the trial court found.

Writing for the Ninth Circuit, Chief Judge Mary Schroeder said the trial court erred in applying the Daubert II doubling-dose standard because the issues in that case differed from those in Hanford.

"It is critical to stress that the plaintiffs in Daubert II had no scientific evidence that Bendectin was capable of causing birth defects (generic causation), and therefore were required to produce epidemiological studies to prove that Bendectin more likely than not caused their own particularized injuries (individual causation)....

"The case before us is different. Radiation is capable of causing a broad range of illnesses, even at the lowest doses. This has been recognized by scientific and legal authority.... To show generic causation, plaintiffs [merely] had to establish by scientific evidence that radiation was capable of causing the type of injuries plaintiffs actually suffered," Schroeder wrote.

By requiring the Hanford downwinders to meet the doubling-dose standard during the generic causation phase of discovery rather than during the specific causation phase, the trial court "blurred its own two-step causation inquiry," she concluded.

"The court should, consistent with its own discovery orders, have limited its ruling to whether the evidence showed the defendants' alleged emissions were capable of causing the illnesses from which the plaintiffs suffered," Schroeder wrote.

A motion for reconsideration is pending. The ruling also applies to a companion case brought by a separate group of "down-winders." (In re Berg Litig., 293 F.3d 1127 (9th Cir. 2002).)