RE: David Lochbaum (again) and TMI case

["Weiner, Ruth" <rfweine@sandia.gov>]

Thank you, Steve.  The whole "blowout" theory contains a fundamental
fallacy:  any plume will disperse from a stack like any other plume.
Dispersion is a function of the ambient weather conditions and the wind, not
the plume.  The heat content of the plume determines largely how high the
plume goes BEFORE it disperses downwind (the  "effective stack height").  I
spoke at a meeting at Whitman College in the early 80s, on the same platform
as one of our current more prominent anti-nukes, who came out with this same
sort of thing -- that a plume can travel hundreds of miles undispersed.  I
corrected him.  It turned out that an EPA expert on air dispersion was in
the audience and complimented me.  I always wondered where the idea of the
non-dispersing plume had come from.

Clearly only my own opinion.

Ruth F. Weiner, Ph. D.
Sandia National Laboratories 
MS 0718, POB 5800
Albuquerque, NM 87185-0718
505-844-4791; fax 505-844-0244
rfweine@sandia.gov

-----Original Message-----
From: Steven Dapra [mailto:sjd@iolnm.net]
Sent: Friday, November 05, 1999 10:31 PM
To: Multiple recipients of list
Subject: David Lochbaum (again) and TMI case


Nov. 5

	In October (1999) a number of messages were posted about David
Lochbaum.
They began with Bernard L. Cohen's objection to a news item on NPR about
the recent Japanese nuclear plant accident, and became more vigorous when
it was revealed that Lochbaum was connected with the Union of Concerned
Scientists.  Finally the discussion died out.

	Then, on Nov. 3, a posting ("Three Mile Island Suits Reinstated")
included
a link to the decision by the appellate court that overturned Judge Sylvia
Rambo's decision in favor of the defendants.  The appellate court's
decision is found at <http://pacer.ca3.uscourts.gov/>.

	I read portions of the decision, and whose name should appear - on
behalf
of the plaintiffs - but David Lochbaum's.  Below are two portions of the
appellate court's decision that refer to Lochbaum.  (He is mentioned in
other places as well.)  I have inserted some paragraphs, deleted the
citations to other decisions, and deleted legal abbreviations such as "id"
to make this easier to read.  

	This quote begins near the bottom of page 76 and is continued on
page 77.

	"To support their contention that they were each exposed to
significantly
higher doses of ionizing radiation than the governmental studies
calculated, and the defendants admit to, the Trial Plaintiffs developed a
"blowout" theory.  Under that theory, one or more unfiltered hydrogen
blowouts occurred on the afternoon of the first day of the accident,
whereby large quantities of radioactive noble gases and other radioactive
nuclides, such as iodine and cesium, were expelled into the environment.
They assert that, after the blowout, an extremely dense, yet narrow, plume
of radioactive effluents traveled through the atmosphere evading all of the
radiation monitors in place in the areas surrounding the plant and the
communities.  The "blowout" theory was first developed by Trial Plaintiffs'
expert, Richard Webb, who opined in a report that a total of 106 million
curies of noble gases were released during the accident, more than half of
which escaped during a two and one-half hour "blowout" on the afternoon of
the first day of the accident. Webb did not testify at the in limine
Daubert hearing. After the first round of hearings ended, Webb left a
voice-mail message for defendants' counsel recanting his proposed
testimony. The District Court concluded that Webb's recantation only
confirmed its intention to exclude Webb's proffered testimony as unreliable.

	"However, because of the significance of the "blowout" theory to
plaintiffs' case, the District Court did permit the Trial Plaintiffs to use
another witness -- a nuclear engineer named David Lochbaum -- to replace
Webb's testimony about a blowout. Lochbaum testified at an in limine
hearing that significantly more than 10 million curies of noble gases
reached the environment as a result of the accident. He opined that these
gases were released from steam generator B in the early hours of the
accident. However, somewhat contradictorily, he also testified that he "did
not believe that there was evidence of a blowout."  He testified, however,
that if a blowout did occur, it was of limited length -- on the order of
minutes and not over the two or three hours Webb believed.  Nonetheless, he
testified that the blowout did release significant amounts of noble gases
even though it lasted only a short time.

	"The District Court concluded that Lochbaum's testimony was
dependent upon
other of the Trial Plaintiffs' experts being able to demonstrate that
significant amounts of radionuclides were emitted. The court reasoned that
if other experts were able to competently testify about significant amounts
of noble gases being emitted, then Lochbaum's testimony was admissible on
the issue of the source of the emissions. Thus, the court concluded that if
no other expert could competently testify about significant releases of
radionuclides, Lochbaum's proffered testimony about a blowout must be
excluded.  Consequently, the trial plaintiffs proffered several witnesses
whose testimony was relevant to the existence of a blowout."

------------------------------------------
 
	This quote is found on page 179.  

	"Because the Trial Plaintiffs elected to try their cases on the
theory
that they were exposed to equivalent doses of at least 10 rems each, they
had to produce evidence of that degree of exposure. The District Court
reasoned that the crucial causation issue was the Trial Plaintiffs' ability
to produce admissible source term evidence.  However, at the time of the
summary judgment motions, the Trial Plaintiffs had no admissible source
term evidence.  The only possible source term evidence was Lochbaum's
equivocal "blowout" testimony, which the District Court had earlier
determined would be admissible only if the Trial Plaintiffs' other experts
could demonstrate that significant amounts of radionuclides were released
as a result of the accident.  However, because of earlier exclusionary
rulings there was no other admissible source term evidence, and,
consequently, the District Court found that "there is insufficient dose
evidence . . . to make Lochbaum's testimony helpful to the trier of fact." 

	"The District Court also found that Lochbaum's blowout testimony was
so
equivocal that it "lacked the certainty of a professional judgment" and
was, therefore, insufficient to defeat a motion for summary judgment." 173
[footnote - see below] Consequently, the District Court found that the
Trial Plaintiffs did not demonstrate that the reactor accident released
high concentrations of radioactive materials to the environment.  In brief,
the Trial Plaintiffs had no evidence that they were exposed to 10 rems of
ionizing radiation and, therefore, there was no material factual dispute in
regard to causation."

"173.    The Trial Plaintiffs' do not challenge the District Court's
exclusion of Lochbaum's testimony or its finding that his testimony would
not be sufficient to defeat the defendants' summary judgment motion. In
fact, his name is only mentioned in passing."

------------------------------------

Summary and comments -

	The plaintiff's first expert witness abruptly quit and they found
another
witness in the person of David Lochbaum whose testimony was "equivocal" (p.
179), and eventually the Court did not accept it.  It is interesting (or
perhaps revealing) that the Plaintiffs did not object to Lochbaum's
testimony being excluded.  (The "Daubert hearing" (p. 76) had to do with
determing if certain witnesses were qualified to serve as expert witnesses.
 This explanation may be a little over-simplified, but that is the
substance of the hearing.  I'm not a lawyer, but gleaned that from reading
the part of the decision about the hearing.)

	It's interesting, isn't it, how certain people's names keep cropping
up
the the same general places - Caldicott, Gofman, Lochbaum, Sternglass,
Wing; and there are others too.  It's almost like the anti-nukers and the
popular press maintain a list of those who can be counted on to deliver an
anti-nuclear message, or take up the anti-nuclear cause.

Steven Dapra
Albuquerque, NM

sjd@iolnm.net



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