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Landmark Defense Verdict in Favor of SCE in Wrongful Death Nuclear Radiation Case Reversed
Landmark Defense Verdict in Favor of Southern California Edison in
Wrongful Death Nuclear Radiation Case Reversed
LOS ANGELES--(BUSINESS WIRE)--July 31, 2000--In a 20-page
opinion issued July 20, 2000, by Judge Michael Daly Hawkins, the
Ninth Circuit Court of Appeals reversed a judgment entered by U.S.
District Court Judge Napoleon A. Jones and ordered a new trial in
Joe Kennedy vs. Southern California Edison (C.C. No. 98-56157
and D.C. No. CV-95-03769-NAJ/RBB).
Kennedy and his four children filed a wrongful death suit against
Southern California Edison (SCE) and Combustion Engineering Inc.
(CE) in 1996, alleging that wife and mother, Ellen Kennedy's,
exposure to nuclear radiation from the San Onofre Nuclear
Generating Station (San Onofre) was the cause of her terminal
cancer at age 43. The Kennedy family is represented by Don
Howarth and Suzelle M. Smith with the Los Angeles law firm of
Howarth & Smith.
During the time Joe Kennedy worked at San Onofre, SCE operated
the plant with more than 100 defective fuel rods for more than two
years. From approximately 1984 to 1987, the defective fuel rods
produced contamination leaks and releases of contamination both
in the plant and off site. The Nuclear Regulatory Commission fined
SCE $100,000 for its violation of safety regulations.
"The Ninth Circuit found that the trial court improperly instructed
the jury on the key element of causation, which was prejudicial
error," explained Smith.
"The law in California recognizes that with cancer, no expert can
sort out which particular ray of radiation initiated the lethal process.
This is especially true since cancer takes 7-10 years to develop
after exposure. When the court refused to explain to the jury the
particular law of causation in a cancer case, it gave SCE an
unlawful defense and plaintiffs an impossible burden to prove.
"The law as set forth by the judge would never permit a plaintiffs'
verdict in a toxic tort cancer case, and this is not just."
"The Ninth Circuit's ruling is correct and fair," said Howarth. "Ellen
Kennedy's children will prove again that their mother was exposed
to the contamination from San Onofre, and this time SCE will not
be able to hide behind the limits of scientific knowledge to escape
responsibility for their wrongful conduct."
Ellen Kennedy died in 1996 of chronic myelogenous leukemia
(CML), a rare cancer linked almost exclusively to radiation
exposure. She was survived by her husband, Joe, and four children,
Shawn, Eric, Shannon and Chad. Joe Kennedy worked as a
machinist at San Onofre from 1982 to 1990.
The defective rods were manufactured by defendant CE. The Ninth
Circuit also reversed a summary judgment for CE. The trial court
ruled that CE could not reasonably foresee that the defective rods
might lead to exposure to workers or their families. This issue will
now go to the jury.
"The family looks forward to retrial," said Smith, "and presenting
their case on a level playing field. The first trial slanted the law
unfairly in favor of SCE. Its attorneys focused almost their entire
lengthy presentation on the fact that plaintiffs could not prove the
particular ray which caused the cancer.
"This case once again raises the question as to how many people
were really exposed to radioactive emissions from the San Onofre
plant that manifest 1-15 years later in deadly CML."
"We are particularly pleased with this opinion because it will affect
cases across the country," stated Howarth. "Power plants
operating negligently have been able to avoid their obligations by
using laws which were not designed for the complexities of cancer
in the toxic tort content. We cannot go back and correct the
wrongs done to the widows and orphaned children of the past, but
at least future cases will have a just standard."
"When the new trial begins," said Smith, "we hope that it will serve
to raise public awareness that while the production of nuclear
energy is beneficial, it is also dangerous, and that strict controls
must be exercised to prevent harmful emissions. The ultimate cost
in human suffering and life is just too high a price to pay for SCE's
increased profits."
Howarth & Smith represented R.C. Tang in Tang vs. SCE, the first
San Onofre case to be tried against SCE involving these defective
fuel rods. Tang worked for the Nuclear Regulatory Commission at
San Onofre for two years. Her trial before federal Judge Rudi
Brewster, which received national attention, resulted in a hung jury,
and the same legal standard, which has now been reversed, was
applied.
A confidential settlement was reached in Tang case close to the
date of retrial. All together, Howarth & Smith has filed seven
lawsuits against SCE with similar allegations.
The Ninth Circuit opinion is available at
http://www.ce9.uscourts.gov/web/newopinions.nsf.
----------------------------------------------------------------------------------
Sandy Perle Tel:(714) 545-0100 / (800) 548-5100
Director, Technical Extension 2306
ICN Worldwide Dosimetry Division Fax:(714) 668-3149
ICN Biomedicals, Inc. E-Mail: sandyfl@earthlink.net
ICN Plaza, 3300 Hyland Avenue E-Mail: sperle@icnpharm.com
Costa Mesa, CA 92626
Personal Website: http://www.geocities.com/capecanaveral/1205
ICN Worldwide Dosimetry Website: http://www.dosimetry.com
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