Re: Landmark Defense Verdict in Favor of SCE in Wrongful Death Nuclear Radiat...

[BLHamrick@aol.com]

In a message dated 08/02/2000 3:03:57 PM Pacific Daylight Time, 
sandyfl@earthlink.net writes:

<< 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 Ninth Circuit opinion is available at 
 http://www.ce9.uscourts.gov/web/newopinions.nsf.  >>

The following is from the appellate record:

<<Cal Edison and Combustion Engineering correctly note that their experts 
provided uncontradicted testimony that, even if Mrs. Kennedy was
exposed to radiation from SONGS, there was only a one in
one hundred thousand chance that this radiation caused her
CML...It would not be unreasonable for a juror to conclude that a
one in one hundred thousand chance of developing a fatal
cancer was more than a mere theoretical possibility. Presented
perhaps more concretely, if the entire U.S. population were
exposed to the amount of radiation in appellee's hypothetical
upon which its expert based his statistical opinion, then
approximately 2,500 people would contract CML. While this
number is relatively small, it is more than "negligible.">>

It seems to me that either the judges, or the Cal Ed lawyers, or a 
combination of both, got something grossly wrong, because, in fact, the 
"natural" incidence of CML at age 40 is one in one hundred thousand, so one 
would expect to actually see 2,500 people at age 40 with CML in a population 
of 100,000 40 years olds, irrespective of their radiation exposure.  Or, am I 
grossly mis-interpreting what's being said?

Also, the court's footnotes state:

<<While our decision does not rely on such factors, we note that studies have 
shown that the public maintains a generalized fear of nuclear accidents and 
that rational individuals may be more likely to overestimate, even in the 
face of concrete statistics, the likelihood of harm from a nuclear facility. 
See Cass Sunstein, Social Norms, Social Meaning, and the Economic Analysis of 
Law, 27 J. Legal Stud. 799, 803 (1998) (citing studies (1) showing that the 
public ranks radiation from a nuclear accident as the fourth most serious 
risk it faces, while experts do not consider such an event likely enough to 
rank it; and (2) suggesting that low-probability, high-danger risks, such as 
those from nuclear power plants, might be treated as worse than their 
"actuarial value"). Because such over-estimation, as the literature suggests, 
is not necessarily irrational (even though it may be mathematically 
incorrect), rational jurors could have reasonably concluded that the 
seemingly low probability of Mrs. Kennedy contracting CML was still 
"substantial" under California law.>>

It seems to me what the court is actually saying here is that an irrational 
judgment (by scientific standards) by the jury is effectively rational (due 
to their emotional investment in the issue) in the California courts.  
Frankly, this is just pathetic, IMHO...If that's the best the courts can do, 
we need to seriously re-think our judicial system.

The crux of the matter concerned the failure of the district court to allow a 
jury instruction that reflected a recent CA Supreme Court decision.  The 
appellate court frames the instruction's effect as:

"all the jury need have concluded, if given a Rutherford instruction, was
that it was more probable than not that there was more than
a negligible probability that Mrs. Kennedy's cancer was
caused by radiation from SONGS. We believe the jury could
have reasonably so found."

So, if a jury decides, based NOT on scientific evidence, but on their own 
emotional FEELINGS about radiation that there was a MORE THAN A NEGLIBIBLE 
chance (would an "inkling" be enough?) that Ms. Kennedy's cancer was the 
result of a hypothetical "hot particle" that traveled home with her husband 
and somehow delivered her a dose of...some amount, presumably significantly 
exceeding background, then the family should get a whole lot of money?  Does 
this seem just a little nuts to anyone besides me?

Finally, let me share one more thing from the opinion of the appellate court:

<<Appellees argue that Kennedy failed to establish that any
type of radiation -- and not just radiation from SONGS --
actually caused Mrs. Kennedy's CML. This argument is based
on the contention that the testimony of Kennedy's expert --
that more than 90% of CML cases are caused by radiation --
was a personal belief that was unsupportable and contrary to
the consensus view of the scientific community.

[11] Cal Edison and Combustion Engineering, however,
did not contest the admission of this testimony under the Fed-
eral Rules of Evidence, nor did they present a challenge to the
testimony under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). >>

Why in the WORLD didn't they challenge this?  I mean even if it was 
overruled, at least it would be in the record!  WHAT were they THINKING?!!

So, those are my comments.  I am still interested in hearing from anyone who 
knows what the alleged dose was to Mrs. Kennedy, and the alleged route of 
exposure...And, I'm interested in any other comments on the case as well.

Barbara L. Hamrick
BLHamrick@aol.com



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