Wednesday Writs: Silkwood Showers and Plutonium Flowers Edition
L1: In the opening credits of The Simpsons, nuclear plant employee Homer carelessly tosses a glowing plutonium rod down the back of his shirt, which he later throws out the window of his car. This is a cartoon, of course. But in Oklahoma in 1974, an employee at the Kerr-McGee plutonium processing plant did, somehow, become contaminated by plutonium. Whether this was a workplace accident, a byproduct of shoddy safety standards, or something more nefarious would be debated for years. The incident became the subject of a Hollywood production, and a 1984 Supreme Court decision.
Karen Silkwood was 28 years old in 1974, a divorced mother of two from Texas. Karen was an outspoken advocate of the union for workers at the plant, and had complained about the working conditions and what she believed were lax safety practices. She had testified about her concerns before the Atomic Energy Commission just that prior summer. When the first indication of her contamination occurred, the plutonium was detected inside her gloves. More was found in her home, in samples of her body waste, and again on her skin despite the decontamination process she underwent – a process renamed the “Silkwood shower”, a much less pleasant experience than simply the long, very hot shower many believe it to be. Many of her personal belongings had to be destroyed due to the contamination as well.
On November 13, she returned to work. That night, on her way to meet with a reporter to discuss the issues at the plant, she was killed in a single car accident when her vehicle left the road and crashed into a culvert.
Silkwood’s father, Bill Silkwood, filed suit on behalf of his daughter’s against Kerr-McGee over the contamination. The company conceded the plutonium came from the plant, but argued that Karen Silkwood herself had removed the plutonium from the plant and deliberately contaminated herself. The jury “expressly rejected” their contention, but other evidence presented at trial showed a mixed picture of safety conditions at the plant. There was some evidence that the company did violate some safety rules of the Nuclear Regulatory Commission, but the report showed the plant was largely in compliance.
The case went to the jury with instructions that the jury could make a finding of either strict liability or negligence. Furthermore, instructed the court, the plaintiffs did not need to show actual or presumed malice, fraud, or gross negligence in order to award punitive damages. The jury was permitted to make such a finding if it felt an example should be set.
The jury found in favor of Karen Silkwood’s estate, awarding $550,000 in actual damages to person and property, and another $10 million in punitives, the largest award of its kind at that point in time. The court entered an order accordingly.
Kerr-McGee immediately appealed, first asking for a new trial on grounds that their compliance with federal regulations should shield them from punitive damages. The motion was denied. On review by the Tenth Circuit Court of Appeals, Kerr-McGee was largely victorious. That court held that Oklahoma’s workers’ compensation fund was liable for the biggest chunk of real damages- the $500,000 attributable to bodily injury – but not for the $50,000 in property damage, which was upheld. The award of punitive damages was reversed entirely, with the court adopting Kerr-McGee’s argument that the federal regulations pre-empted the award.
Mr. Silkwood appealed to the Supreme Court, who heard arguments in our case of the week, Silkwood v. Kerr-McGee Corp., on October 4, 1983. The company argued that compliance with federal regulation preempted any state tort claims, relying on Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, which held that state law is pre-empted when federal regulation “evidences an intent to occupy a given field” entirely, or when state law conflicts with federal law in an area in which the latter does not occupy the entirety of the field. Kerr-McGee argued that they should prevail under either analysis.
While the Court held that federal regulations extended over the handling of radioactive materials such as plutonium, it did not agree that the federal regulations precluded actions arising out of state law claims, as Silkwood’s did. In its majority opinion, authored by Justice White, the Court noted that the Atomic Energy Act of 1954, amended in 1959, provided no remedy or cause of action for individuals harmed by violations of the Act, which they found indicative of the legislative intention not to preclude state law claims. In fact, the Court noted, the Price-Anderson Act of 1957 provided some limitations to the liability of nuclear plants, which would be superfluous if they intended to preclude any cause of actions arising under violations of nuclear energy regulations. While Price-Anderson related to meltdowns and was not applicable to plutonium processing plants like Kerr-McGee, the Joint Committee Report related to its passage was relevant to the analysis of state law applicability:
Since the rights of third parties who are injured are established by State law, there is no interference with the State law until there is a likelihood that the damages exceed the amount of financial responsibility required, together with the amount of the indemnity. At that point, the Federal interference is limited to the prohibition of making payments through the State courts and to prorating the proceeds available.
Kerr-McGee responded that any state tort actions contemplated by federal legislation were of the compensatory variety – that is, compensation for actual damages incurred, such as medical bills, loss of property, etc. – not punitive or exemplary damages not tied to any actual economic loss. But the Court found that no such distinction was intended, expressly or otherwise, under federal law.
The majority opinion recognized the apparent contradiction in allowing state tort claims to arise despite compliance with federal regulation, but shrugged:
No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever tension there was between them. We can do no less. It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept.
The Court went on to reject Kerr-McGee’s contention that allowing recoveries under state tort law frustrated the purpose of the Atomic Energy Act, which was to promote the use of nuclear energy:
In Pacific Gas & Electric, we observed that “[t]here is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power.” 461 U.S. at 461 U. S. 221. However, we also observed that “the promotion of nuclear power is not to be accomplished at all costs.'” …Indeed, the provision cited by Kerr-McGee goes on to state that atomic energy should be developed and utilized only to the extent it is consistent “with the health and safety of the public.” 42 U.S.C. § 2013(d). Congress therefore disclaimed any interest in promoting the development and utilization of atomic energy by means that fail to provide adequate remedies for those who are injured by exposure to hazardous nuclear materials. Thus, the award of punitive damages in this case does not hinder the accomplishment of the purpose stated in § 2013(d).
The decision was a 5-4 split. The dissenting justices believed the Silkwood decision could not be squared with the earlier Pacific Gas and Electric decision, despite the majority’s efforts to reconcile the two:
The Court’s decision, in effect, authorizes lay juries and judges in each of the States to make regulatory judgments as to whether a federally licensed nuclear facility is being operated safely. Such judgments then become the predicate to imposing heavy punitive damages. This authority is approved in this case even though the Nuclear Regulatory Commission (NRC) (then the Atomic Energy Commission) (AEC) — the agency authorized by Congress to assure the safety of nuclear facilities — found no relevant violation of its stringent safety requirements worthy of punishment. The decision today also comes less than a year after we explicitly held that federal law has “preempted” all “state safety regulation” except certain limited powers “expressly ceded to the States.”
Further, asserted the dissent, Karen Silkwood suffered no actual injuries, “other than mental distress”, as a result of her exposure to plutonium- at least none that had been identified at the time of her death a week later. Justice Powell’s dissent concedes that, had there been such injury proven, compensatory damages would be proper. But exemplary damages meant to punish crossed into the purview of federal regulations, in Powell’s view, joined by Justices Burger, Marshall, and Blackmun. Justice Blackmun also wrote separately in dissent, joined by Justice Marshall, to contribute his own thoughts to those of Justice Powell.
Following remand back to the Court of Appeals, Mr. Silkwood eventually settled with Kerr-McGee for $1.3 million. The plant had shuttered in 1975, and was declared decontaminated in 1994.
“Silkwood” starring Meryl Streep and Cher was released in 1983. Both actresses were nominated for Oscars for their performances, and Cher won a Golden Globe.
Conspiracy theories and suspicions surround the death of Karen Silkwood, with many believing her car crash was not accidental but deliberately caused in retaliation for her whistle blowing activities. The reporter she was going to see that night says a thick folder of information she was to bring to him was missing from the scene of the crash. Authorities say Silkwood fell asleep at the wheel, citing the presence of Quaaludes in her toxicology screening. She would have turned 74 years old today.
L2: Is the conservative contingent of the Supreme Court seems poised to dismantle decades old precedent- penned by the patron saint of conservative jurisprudence?
L3: A new Missouri law seeks to curb the illegitimate use of service and emotional support animals. The bill targets non-disabled people who falsely label their pets. The law faces obstacles, however; federal law prohibits inquiry into the nature of a person’s disability or proof of the qualifications of a service animal.
L4: The Attorney General for the state of Indiana faces a 60 day suspension of his law license over allegations that he inappropriately touched several women at a party.
L5: A bill introduced to the Alabama legislature would require men over the age of 50 or who have fathered three children to undergo a vasectomy at their own expense. The bill is purportedly not intended for passage but to make a point, one some may find rather specious.
L7: Harvey Weinstein’s rape case goes to the jury’s hands this week.
L8: The beleagured Boy Scouts of America files bankruptcy as hundreds file sex abuse claims dating back decades.