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FWD>TMI decision---quick su
Mail*Link(r) SMTP FWD>TMI decision---quick summary
Hi RadSafers:
Mike Fox recently sent me this and I believed that it would be of general
interest, especially to the thread participants discussing liability issues
recently. He gave me permission to send it to all on the RAFSAFE listserver.
Enjoy!
Mike Bohan
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Michael J. Bohan, RSO | e-mail: mike.bohan@yale.edu
Yale-New Haven Hospital | Tele: (203) 785-2950
Radiological Physics | FAX: (203) 737-4252
20 York St. - WWW 204 | As usual, everything I say may be plausibly
New Haven, CT 06504 | denied at my employer's convenience ...
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Date: 27/06/96 11:26 AM
From: Michael_R_Fox@rl.gov
Mr. Bohan:
Mr Brich thought you might like to read this.
Mike Fox
Folks:
I've acquired a copy of Judge Sylvia Rambo's (love that last name) decision of
summary judgement against the plaintiffs (for the defense) in the TMI class
action lawsuit. After seventeen years the plaintiff attorneys could not put
together a scientifically valid case (with Gofman, Sternglass, Stewart,
Nussbaum, NRDC, Greenpeace, Sierra Club, Heart of America, HEAL, etc. a phone
call away).
There are some huge implications:
1. Rambo dismissed expert testimony of the plaintiffs because they could not
demonstrate harm at levels below 10 REM!!!
2. The defense team provided an incredible array of documented health studies
related to TMI and other sources of radiation expertise which met the
credibility tests (See #3 Daubert hearings).
3. She held "Daubert" hearings this spring. This is a new and potentially
significant legal process(tool) to test the credibility of witnesses and
submitted testimony. It is an attempt to minimize the amount of "junk science"
in the court rooms. On the basis of failing credibility tests of plaintiffs
experts, it destroyed the plaintiffs case, to repeat, after 17 years.
4. We need to get a much better understanding of the legal "Daubert" tests of
scientific credibility and how they are applied for several reasons.
a. This would be very useful in reassessing the "science" underlying the
Low Level Radiation Theory of Harm (the Linear Theory).
b. I'd like to see the Daubert tests of scientific credibility adopted by
groups such as the Hanford Advisory Board, the ATSDR, any future group of
"stakeholders", appropriate committees in the State Legislatures, appropriate
committees in Congress, etc.
c. Adopted as a matter of professional practice by such groups as the NCRP,
ICRP, NRC, EPA, WADOE,etc.
We also need to get a better understanding of the legal concept "duty of care
owed". What duty in safety and health does an employer owe its employees in
radiation protection issues. If Judge Rambo is throwing out expert testimony
which fails to prove causality below 10 REM, has 10 REM become a radiation
exposure cutoff, below which future radiation litigation cannot proceed.
Wouldn't this seem to suggest the urgent need for a reexamination of all state
and federal radiation limits below 10REM???
The quality of the testimony by the defense witnesses seems to have been a major
factor in helping Judge Rambo establishing this cutoff point. Future radiation
litigation defense lawyers need to go to school on this decision.
If 10 REM (or even 20 REM) becomes a future lower limit below which no harm can
be established in a court room, it begs a whole host of questions:
1. Why does the NRC impose a 100 mrem limit to the public on all nuclear power
plants? Scientific justification?
2. Why does the State of Washington propose a 15 mrem/yr exposure limit to
soils cleaned up at Hanford? Scientific justification?
3. Why does the EPA impose a 200mrem/yr (est.) guideline for indoor radon
exposures? Scientific justification?
4. Why do Hanford ALARA programs impose a 70 mrem/yr exposure limit
radiochemical laboratories? Scientifi justification?
None of the above limits have any relationship to the protection of the public
from radiation harm. Benefits will never be observed at these low levels.
5. Steven Wing, a questionable plaintiff witness with ideological axes to
grind, a favorite witness of antinuclear causes, and for hundreds of dollars /
day, willing to sell his desired "expert" testimony, ran afoul of common sense
and Judge Rambo.
His testimony of harm began with the ASSUMPTION that there were high exposures
to the plaintiffs. Given this starting point he then proceeded to demonstrate
that harm was caused to the plaintiffs (at the Daubert hearings). Fortunately,
Rambo had extracted from Wing in the Daubert hearings his statement that if a
lower exposure dose were assumed, then he could not make, quoting Wing, "a
causal interpretation of the observed association". (notice how squishy that
last statement is---among the intellectually slow,its a short leap from an
"association" to a cause and effect relationship. Among journalists they are
equivalent).
That Wing started with the assumption of high exposures around TMI after all of
the contrary evidence compiled over the past 17 years, does not bode well for
the credibility of the incredible Dr.Wing. Such a leap in logic is vintage
Sternglassian and would make most palm readers blush.
Mike Fox
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Subject: TMI decision---quick summary
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