READINGS
THREE MILE ISLAND:  THE JUDGE'S RULING

On March 28, 1979 Reactor 2 at the Three Mile Island nuclear power plant suffered a partial meltdown. Within weeks attorneys filed a class action suit against Metropolitan Edison Company (a subsidiary of General Public Utilities) on behalf of all businesses and residents within 25 miles of the plant.

Over 2,000 personal injury claims were filed, with plaintiffs claiming a variety of health injuries caused by gamma radiation exposure. The Pennsylvania district court quickly consolidated the claims into ten test cases.

Over the next 15 years, the case went to the Supreme Court and back, and through various district and appeals courts. Finally, in June 1996 district court judge Sylvia Rambo dismissed the lawsuit granting summary judgment in favor of the defendants.

What follows is an excerpt from the official court summary covering Judge Rambo's decisions on the key questions:

1) "Were Plaintiffs Exposed to Radiation Released From TMI during the TMI Accident?"

2) "Was Radiation the Cause of Plaintiffs Injuries? "


C. Factual Background

The accident at TMI-2 began . . . at 4 a.m. on March 28, [1979]. A minor malfunction, or transient, in the nonnuclear part of the system would evolve a series of automated responses in the reactor's coolant system, and during all of this, the relief valve on top of a piece of equipment called "the pressurizer" would become stuck open. owing to continued misreading of the symptoms by the operators over a 2 1/4-hour period before the relief valve was closed and the turning off of an automatic emergency cooling system, the reactor core would become partially uncovered and severely damaged. It would be another 12 hours before the plant crew and the engineers from GPU Service Company would concur in effective corrective action.

Rogovin Report at 3-4. During the incident, radiation was emitted from the Unit-2 reactor. The actual amount emitted, and whether Plaintiffs were exposed to the emissions, are central issues in this case. According to the Rogovin Report, "approximately 2.5 million curies of radioactive noble gases and-15 curies of radioiodines were released These releases resulted in an average dose of 1.4 mrem to the approximately two million people in the site area." Rogovin Report at 153. Plaintiffs, to the contrary, contend that area residents were exposed to in excess of loo rems of radiation. Defendants have conceded that releases at the plant boundaries exceeded normal levels of background radiation, In re TMI Cases Consolidated II, 67 F.3d 1103, 1118 (3d Cir. 1995). However, Defendants deny that appreciable or dangerous levels of radiation reached populated areas.

Plaintiffs' theory of the case is that a narrow yet highly concentrated plume of radioactive noble gases (primarily iodine and xenon-133) was carried away from the TMI plant during one or all of three hypothesized "blowout" periods." 22 Plaintiffs' argue that prevailing weather conditions permitted the plume to drift through the atmosphere, moving between the thermoluminescent dosimeters ("TLDs") 23 which composed the TMI Radiation

Environmental Monitoring Program ("REMP"), and caused the plume to remain highly concentrated for a significant distance. Plaintiffs contend that the plume made contact with higher land elevations within the TMI area, and that persons residing in areas of plume touchdown were exposed to harmful levels of ionizing radiation.24

Plaintiffs claim that they have developed radiation induced neoplasms" as a result of their exposure to ionizing radiation during the TMI incident. The parties agree that the following test Plaintiffs have been diagnosed with the illnesses listed:

Paula Obercash: acute lymphocytic leukemia

Gary Villella: chronic myelogenous leukemia

Leo Beam: chronic myelogenous leukemia

Joseph Gaughan: thyroid cancer

Lori Dolan: Hurthle cell carcinoma

Jolene Peterson: thyroid adenoma

Ronald Ward: osteogenic sarcoma (right leg)

Pearl Hickernell: breast cancer

Ethelda Hilt: adenocarcinoma of the ovaries

Kenneth Putt: bladder cancer, acoustic neuroma.

Defendants contend that Plaintiffs have failed to establish that any of the test Plaintiffs' neoplasms are causally related to radiation exposure during the TMI incident.

D. Application of the Law to the Facts of this Case

1.Were Plaintiffs Exposed to Radiation Released From TMI during the TMI Accident?

As the court interprets the Third Circuit's guidance, this element relates to any exposure, not to an exposure sufficient to induce a subsequent health effect. To determine whether each Plaintiff was exposed to radiation, one must know what radionuclides were released from TMI during the accident, and the quantities of each radionuclide released, i.e. the source term. Plaintiffs' expert David Lochbaum does not, however, offer specific source term testimony. Rather, Plaintiffs offer Lochbaum to testify regarding a potential blowout, and to express his opinion regarding the quantity of radioactive noble gases released during the accident. As the court will discuss infra because Lochbaum's opinions are too speculative to stand alone, and because Plaintiffs, other admissible evidence does not bolster his opinion, the court finds that Lochbaum's testimony regarding releases from the plant does not create a material factual dispute as to the TMI source term.

Nevertheless, the court finds that the record evidence submitted by Defendants supports the inference that Plaintiffs were exposed to radiation during the TMI accident. As part of their case, Defendants have presented a plethora of state and federal government reports. These reports are in agreement that, during the accident, populated areas within a 20 mile radius of

TMI were likely exposed to minimal levels of ionizing radiation (under 100 mrems). Indeed, Defendants have conceded that readings at the plant boundaries exceeded the 0.5 rem regulatory threshold during the accident. In re TMI, 67 F.3d at 1119. The court liberally construes factor 2 of the TMI analysis to mean exposure to any amount of radiation released during the TMI accident. As a result, the court finds that there is nonmaterial factual dispute as to factor 2 of the TMI analysis. Plaintiffs were legally "exposed" to radiation. The court must, however, stress that its liberal interpretation of this factor would permit a legal finding of "exposure" even at levels which are hundreds of times lower than natural background levels of radiation. As the court's discussion below will illustrate, a legal finding of "exposure," standing alone in the instant case, would be of little significance in establishing a genuine issue of fact as to the causation prong (factor 4) of the TMI analysis.

2. Was Radiation the Cause of Plaintiffs Injuries?

To create a material factual dispute as to this element of their case, Plaintiffs must produce evidence demonstrating that it is more likely than not that each of the test Plaintiffs, neoplasms were the result of their exposure to ionizing radiation during the TMI accident. Plaintiffs may carry this burden through the production of direct or indirect evidence of an exposure to a dose of radiation capable of inducing their neoplasms (i.e. in excess of 10 rems). To establish that each Plaintiff received a cancer inducing dose of radiation, Plaintiffs must first establish that quantities of radionuclides sufficient to deliver that dose were released from TMI during the accident. In essence, Plaintiffs need source term evidence demonstrating that releases were higher than those calculated by Defendants. See In re TMI, 911 F. Supp. at 829 n.55 ("[d]espite its strong reservations, the court permitted [Lochbaum to make] this additional filing base upon the importance of this theory to Plaintiffs', case"). 56

As alluded to in the preceding discussion, Plaintiffs have no admissible source term evidence. Lochbaum's expert opinions, while methodologically sound, amount to little more than speculation regarding what might have happened in the plant during the accident. Because of the equivocal and arguably contradictory nature of Lochbaum's testimony, the court in its Daubert ruling questioned whether the testimony "fit" within the action. See In re TMI, 1996 WL 166713 at *12 That is, if Lochbaum's review of the relevant TMI data revealed no conclusive evidence of a

blowout, how could his theories regarding how a blowout might have occurred assist a jury? In fact, during the Daubert hearings, Lochbaum went further than stating their was no "conclusive" evidence of a blowout -- he testified that "I did not see any supporting indications that would lead me to believe that there was a blowout . . . . I do not believe that there was evidence of a blowout." (3/5/96 Tr.. at 1455.) Plaintiffs are not required to conclusively prove that a blowout occurred. Rather, they must demonstrate that it is more likely than not that such an event occurred. Thus, insofar as other evidence, taken with the Lochbaum testimony, would make the probability of a blowout more likely than not, the court found that the proffered Lochbaum testimony would be helpful.

Viewing all record evidence in a light most favorable to Plaintiffs, and making all reasonable inferences in favor of Plaintiffs, the court finds that there is insufficient dose evidence, discussed infra, to make Lochbaum's testimony helpful to the trier of fact.57 While the law does not require Lochbaum to state his expert opinion with unwavering certainty, it does require him to state his expert opinion with a reasonable degree of professional certainty. The Third Circuit articulated this standard in Paoli II:

When a party, must prove causation through expert testimony the expert must testify with reasonable certainty that in his professional opinion, the result in question did come from the cause alleged . . ..[I]f the plaintiff's . . expert cannot form an opinion with sufficient certainty so as to make a [professional] judgment, there is nothing on the record with which a [factfinderl can make a decision with sufficient certainty so as to, make a legal judgment.

Id. at 751 (quoting Cohen v. Albert Einstein Medical Ctr., 592 A.2d 720 (Pa. Super. 1991), appeal denied, 602 A.2d 855 (Pa. 1992)); cf. Ambrosini, 1995 WL 637650 at *3 (acknowledging that as "gatekeeper" a "judge is attempting to evaluate an expert's opinion to determine whether it is the 'hunch' of a knowledgeable scientist or if it is-scientific knowledge based upon valid scientific principles and methodologies," and finding former insufficient to carry plaintiff's burden of proof at summary judgment). The court finds Lochbaum's opinions regarding the hypothesized hydrogen blowout to lack the certainty of a professional judgment. Id. Accordingly, despite being admissible and scientifically reliable for Daubert purposes, the evidence is insufficient to defeat a motion for summary judgment. See Daubert 113 S. Ct. at 2798 (noting that granting summary judgment is an "appropriate safegaurd (Ill where evidence is admissible under Daubert but where the "scintilla of evidence presented . . . is insufficient to allow'a reasonable juror to conclude that the position more likely than not is true,)); see also Ambrosini, 1995 WL 637650 at *5 (finding that, although expert testimony was not per se inadmissible under Daubert, testimony did not "fit" plaintiff's burden of proof in the absence of other evidence of causation,)); see also Ruiz v. Whirlpool, Inc., 12 F.3d 510, 513 (5th Cir. 1994) (noting that testimony based upon conjecture or speculation is insufficient to defeat summary judgment). Without a blowout, Plaintiffs are unable to demonstrate that release levels were significantly higher than originally presumed based upon the findings of the official studies of the TMI accident.

The balance of Plaintiffs' admissible evidence includes Dr. Wing's cancer incidence study, Professor Shevchenko's tree study and cytogenetic analysis, and Dr. Vergeiner's testimony regarding how prevailing weather conditions effected plume dispersion and travel. Taken together, this evidence does not bolster Lochbaum's testimony, create a material factual dispute, or carry Plaintiffs, burden of proof on the issue of causation.

Dr. Wing performed a reanalysis. of the Hatch cancer incidence study. In conducting his reanalysis, Dr. Wing presumed that TMI area residents were exposed to levels (doses) of radiation significantly higher than those reported in the government reports discussed previously in this memorandum and the doses assumed by the Hatch study. See supra at 45-54 (discussing the reports and study). Based upon the assumption that residents were exposed to high levels of radiation, Dr. Wing appears t6 have attributed the increases in cancer association found in his study to exposure to high levels of radiation. The following colloquy from the Daubert hearings is illustrative:

Q. Turning to the cancer incidence study, your reanalysis of the Susser/Hatch data, if you assume that the real level of exposures, not the relative units, but the real level of exposures was small or was low as postulated in the Susser/Hatch report, that would affect your interpretation of the data; correct?

A. Let me put it this way: If I assumed that it was not possible that the doses were higher, than assumed by the authors of the Columbia (Susser/Hatch) paper, then it would prohibit making a causal interpretation of the observed association.

(11/21/95 Tr. at 981-82 (testimony of Dr. Wing).) In this same vein, Dr. Wing states in his report "[u]nlike the original reports based on these data, our re-analyses (sic) assumed that absolute accident doses could have been large enough to produce measurable impacts on cancer incidence. . . ." (2/25/95 Wing Report at 9.) The record presently before the court does not support the fundamental assumption made by Dr. Wing -- that doses were significantly higher than originally estimated. In the absence of this assumption, Dr. Wing himself admits that he would be unable to make a causal interpretation based upon his findings. Because Plaintiffs have presented no evidence in support of this assumption, the court finds the Wing cancer incidence study does nothing to assist Plaintiffs in creating a material factual dispute or meeting their burden of proof. Cf. Kearney v. Philip Morris, Inc., 916 F. Supp. 61 (D. Ma. 1996) (finding that premise upon which experts founded their opinions "involves an inferential leap for which no reasoned basis is proffered, and thus does not survive reasoned scrutiny" at summary judgment).

Because the Wing study offers no support to Plaintiffs' case, Plaintiffs are left with the Shevchenko cytogenetic analysis and tree study as their sole evidence that high doses of radiation reached populated areas and caused Plaintiffs, neoplasms. The cytogenetic analysis demonstrates that some of the 29 blood samples, taken more than fifteen years af ter the accident, show elevated levels of digentric chromosomes. However, the number of dicentric chromosomes will decrease substantially in the first year following exposure; and thus, cytogenetic analyses become less accurate over time. Plaintiffs have presented no scientific evidence that would support a finding that the Shevchenko cytogenetic analysis, performed more than fifteen years after the TMI accident, is more than a minimally accurate means of proving prior exposure to radiation." Were there other, stronger evidence of exposure to greater than 10 rems of radiation on the record, the cytogenetic analysis would bolster that evidence. Absent such evidence, the cytogenetic analysis results alone do not create a material factual dispute on the issue of dose.

Finally, Plaintiffs offer the Shevchenko tree study in support of their assertion that high levels of radiation reached populate d areas during the accident. Professor Shevchenko likely has more personal experience making first hand observations of radiation exposed areas than any other expert involved in this litigation. His credentials are impressive. Plaintiffs offer Professor Shevchenko to testify that the trees he observed in the TMI area similar in appearance to the radiation exposed trees that he has observed in the former Soviet Union at sights such as Semipalatinsk, Chernobyl and Kyshtym. His testimony is extremely powerful insofar as it appears to place the TMI accident in the same realm with the Chernobyl accident.

Plaintiffs argue that based upon the many studies he has conducted in the former Soviet Union over his career, Professor Shevchenko can visually identify trees@that have been damaged byradiation exposure. Moreover, Plaintiffs claim that he can distinguish by observation alone damage to trees caused by pathogens, insects or lightening and damage caused by radiation. The record reveals that Professor Shevchenkols experience in identifying radiation damage in trees in the former Soviet Union derives from his studies of the cellular and subcellular effects of the exposure. Indeed, his observations of tree damage in the former Soviet Union were made in conjunction with subcellular analyses of tree tissue. (See 11/22/95 Tr. at 1195.) However, Professor Shevchenko has not performed similar studies on the trees he observed in the TMI area. (Id. ("No. I have not conducted such investigation (sic). It would demand a lot of time.

I did not have such an opportunity.").) When asked whether he had an opinion as to what caused the flat top on a TMI pine tree, Professor Shevchenko indicated "Yes. I believe this is the effect of radiation, because we have observed these things in Semipalatinsk, Kyshtym and Chernobyl." (11/21/95 Tr. at 1088.) In qualifying his answer, Professor Shevchenko explained that one of the reasons he chose to include pine trees in his study was because "[i]n our lab as well as in other labs, investigation has been conducted on radiation genetics on pine trees." (Id. at 1089.)

Both the damaged in tree tops observed by Professor Shevchenko and the chromosome dicentrics are nonspecific effects of radiation exposure. They are classified as nonspecific because the same effects can be caused by things other than radiation. Professor Shevchenko will testify that based solely upon his observation of TMI trees, it is his professional opinion that the trees I were damaged as a result of radiation exposure during the TMI accident. Effectively, Professor Shevchenko is asserting that his expertise is so great that he simply knows radiation damage when he sees it. To the extent that Professor Shevchenkols confidence in his abilities is warranted, the record nevertheless reflects that his observations were cursory. Professor Shevchenko testified that he did.not examine the tops of trees from a bucket truck or by having sections cut out and brought down to him for investigation, and that he does not have sufficient expertise to evaluate non-radiation induced diseases in trees. (11/22/95 Tr. at 1184-85.) Without disputing his acumen in this area, the court finds that Professor Shevchenko's testimony that selected trees in the TMI area look like trees exposed to radiation at 94 Semipalatinsk, Kyshtym and Chernobyl is simply insufficient to carry the weight of Plaintiffs', entire case. Combining the cytogenetic evidence and the tree evidence likewise fails to carry Plaintiffs' burden. Two nonspecific effects of radiation exposure cannot meld to equal proof of specific exposure to radiation.

Finally, Dr. Vergeiner's testimony was admitted by the court subject to the condition that Plaintiffs could explain how the testimony was still relevant in light of the court's exclusion of the bulk of Dr. Vergeiner's proffered expert testimony. Had Plaintiffs presented admissible evidence demonstrating that significant quantities of noble gases were released from TMI during the accident, Dr. Vergeiner's testimony would assist the jury in understanding how prevailing weather c onditions effected the plume's path and the rate at which it dispersed." However, on the current state of the record, Plaintiffs have no high release evidence. Without high releases, there is no dense yet narrow plume, and there is no need for Dr. Vergeiner to explain how such a plume might have evaded the TLDs set up to monitor airborne radiation.

Viewing all evidence before the court in a light most favorable to Plaintiffs, the court finds the

evidence insufficient to create any material factual dispute and insufficient to carry Plaintiff

burden of proof at trial. Plaintiffs have neither presented direct evidence that they were exposed

to doses of radiation greater than 10 rems, nor have they presented indirect evidence capable of

supporting the inference that they were exposed to cancer inducing levels of radiation. Accordingly, the court will grant Defendants, motion for summary judgment in its entirety.

IV. Conclusion

The parties to the instant action have had nearly two decades to muster evidence in support of their respective cases. As is clear from the preceding discussion, the discrepancies between Defendants, proffer of evidence and that put forth by Plaintiffs in both volume and complexity are vast. The paucity of proof alleged in support of Plaintiffs, case is manifest. The court has searched the record for any and all evidence which construed in a light most favorable to Plaintiffs creates a genuine issue of material fact warranting submission of their claims to a jury. This effort has been in vain. The grave consequence of the court's decision to grant summary judgment in favor of Defendants is obvious -- thousands of individuals who believe that they have suffered adverse medical effects as a result of the TMI accident will not have an opportunity to have their claims heard by a jury of their peers. In addressing the merits of Defendants' motion for summary judgment, however, this case is like all otheks that come before he court in that the well articulate standards governing the award of summary judgment guide the court's evaluation of the evidence before it. Those standards combined with the scarcity of evidence of record to support Plaintiffs, claims mandate the result reached by the court today.

SIGNATURE
SYLVIA H. RAMBO, Chief Judge
Middle District of Pennsylvania
Dated: June 7 1996.



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