Lawyers to appeal federal judge's tossing out $10 billion suit
By Bill Bartleman firstname.lastname@example.org
The suit, filed in U.S. District Court in Paducah on Sept. 3, 1999, sought damages for as many as 10,000 people who have worked at the plant since it opened 50 years ago.
The suit is separate from a whistleblower suit filed in June 1998 by workers who claim former plant operator Lockheed Martin Corp. filed false documents to cover up contamination at the plant. The U.S. Department of Justice has joined in that suit, which seeks to recover more than $100 million the federal government paid to Lockheed based on claims that the reports filed were false.
The 6th Circuit Court of Appeals in Cincinnati will be asked to review McKinley's action in dismissing the other suit. "We've done a lot of work and research in the case and think the workers and their families have a claim," said Mark Bryant, a Paducah attorney for the workers. "We aren't ready to give up."
Bryant, who was out of town Wednesday, said he hadn't read McKinley's ruling, which was a summary judgment based on motions by former plant operators Union Carbide Corp. and Lockheed Martin and by General Electric Co., which are accused of having shipped contaminated uranium feedstock to the plant from 1954 until 1998.
William McMurry of Louisville, the lead attorney for the plaintiffs, was traveling and won't be back in his office until next week.
Gail Rymer — spokeswoman for Lockheed, which operated the plant from 1982 until 1997 — said the company was gratified that the suit has been dismissed. "It is consistent with our belief that the plaintiffs' claims had no basis," she said. "Lockheed Martin operations have never had any adverse impact on the community."
In a 16-page ruling, McKinley concluded that the plant operators were covered under the Price-Anderson Act, approved by Congress in 1957, that limits the liability of private operators of nuclear facilities "in the event of a nuclear incident." The law was enacted to encourage private companies to enter the nuclear industry.
McKinley also based his dismissal on recent rulings by the Kentucky Supreme Court that said a company may not be held liable for emotional distress from exposure to toxic substances even if the exposure was a result of negligence. To recover damages "requires a plaintiff to show some present physical injury," the judge wrote in his ruling.
The suit claimed that some workers suffered "chromosomal damage" from the exposure, but the judge quoted previous court rulings that said "chromosomal damage ... does not constitute a present physical injury."
McKinley delayed his ruling while waiting for the Kentucky Supreme Court to decide a case in which a woman had filed a suit against the maker of a diet supplement that was removed from the market when it was linked to cancer.
The woman had no illnesses or diseases linked to the supplement but was seeking damages for emotional distress and claims that she had a significantly increased risk of cancer or some other disease because of her use of the drug.
The Supreme Court said that without a present physical injury or illness, she wasn't entitled to file a liability claim. Her suit was dismissed.
Bryant said that thousands of pages of proof had been submitted in the case and that thousands of dollars were spent on research to substantiate the workers' claims.
"We've exhumed bodies of workers who died and taken trips to Europe to have tests done," Bryant said. "It is difficult to get a scientist in the United States to conduct testing because most have done work for the federal government," which operated the plant until 1998.