Landmark Defense Verdict in Favor of SCE in Wrongful Death Nuclear Radiation Case Reversed

["Sandy Perle" <sandyfl@earthlink.net>]

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
************************************************************************
The RADSAFE Frequently Asked Questions list, archives and subscription
information can be accessed at http://www.ehs.uiuc.edu/~rad/radsafe.html