On badging and the Law

[RONALD GOODWIN <RONALD_GOODWIN@health.ohio.gov>]

     The recent thread on minimization of badging brings me to refer all to
     the January/February 1996 "Radiation Protection Management" article on 
     Whiting v. Boston Edison, Co., Radiation Litigation Update - An 
     important legal development in controlling expert testimony based on 
     "Junk Science".  While the bulk of the article deals with two 
     so-called Radiation Experts who felt that they could "reconstruct" 
     radiation exposure to prove the radiation exposure received by Gary 
     Whiting who worked at the Pilgrim Nuclear Power Plant from August 1977 
     to May 1980.  He developed Acute Lymphocytic Leukemia (ALL) and died 
     in 1983.  All is a rare form of leukemia.
     
     The article itself is well written and is worth reading just for the 
     impact of the disqualification criteria established by a federal court 
     in Boston, however, the part that interested me the most, and should 
     be of interest to all who wonder "to badge or not to badge, that is 
     the question?" is contained as follows:
     
     *    A dose reconstruction is appropriate only when primary data from 
     TLDs and SRPDs are not available.  The court stated:
     
     Only in the absence of primary of secondary data is dose 
     reconstruction performed...Plaintiff has not brought to the court's 
     attention "any peer support for Dr. &&&&'s departure from the accepted 
     methodology of dose reconstruction" or any evidence of a convincing 
     nature justifying a lack of confidence in the relevant dose records.*
     
     Thus a court that chooses to follow the decision in Whiting may hold 
     that if a plaintiff's dose was actually measured, a plaintiff MAY NOT 
     SUBSTITUTE A DOSE "RECONSTRUCTION" for the actual measured dose.  
     [emphasis is mine, not the article].
     
     This underscores the importance of both implementing an effective 
     dosimetry program that accurately measures dose and maintaining dose 
     records in retrievable, legible form.  If a plaintiff's dose was not 
     accurately measured or if the pertinent dose records are missing or 
     illegible, then plaintiff will be entitled to introduce his expert's 
     own dose reconstruction which will undoubtedly artificially inflate 
     the dose.  Moreover if utilities are attempting to save money now by 
     eliminating or reducing the cost of badging employees whose doses are 
     expected to be below ten percent of the annual limits (10CFR20.1502) 
     and one of those workers sues, it is likely that the worker would be 
     allowed to introduce his own dose reconstruction since his dose was 
     not measured by the utility.
     
     There is more, but hopefully this will whet the appetite of radsafers 
     to find and read the entire article.  Besides watching the "psuedo 
     HPs" get their come-uppance and how the court decided this is great 
     reading.
     
     Regards, and peace
     
     Ron Goodwin
     Ohio Department of Health
     Bureau of Radiation Protection