Tish Blake v. Florida Power

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 2, 2008
• Docket: 06-11133
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ___________________ ELEVENTH CIRCUIT April 2, 2008 No. 06-11132 THOMAS K. KAHN ___________________ CLERK

D.C. Docket No. 03-14040-CV-JIC

SCOTT FINESTONE, individually, as parent, guardian and friend of Zachary Finestone, REBECCA FINESTONE, individually, as parent, guardian and friend of Zachary Finestone,

Plaintiffs-Appellants, versus

FLORIDA POWER AND LIGHT COMPANY, a Florida public utility corporation,

Defendant-Appellee.

___________________

No. 06-11133 ___________________

D.C. Docket No. 03-14128-CV-JIC

TISH BLAKE, as personal representative of the Estate of Ashton Lowe, on behalf of the Estate of Ashton Lowe as the surviving parent, JOHN LOWE, as personal representative of the Estate of Ashton Lowe, on behalf of the Estate of Ashton Lowe as surviving parent, Plaintiffs-Appellants, versus

FLORIDA POWER AND LIGHT COMPANY, a Florida public utility corporation,

__________________

Appeals from the United States District Court for the Southern District of Florida __________________

(April 2, 2008)

Before DUBINA and KRAVITCH, Circuit Judges, and COOGLER,* District Judge.

PER CURIAM:

Appellants, the parents of minor children Ashton Lowe and Zachary Finestone,

filed separate “public liability actions” against Florida Power & Light (“FPL”) in the

United States District Court for the Southern District of Florida, alleging that their

children developed cancer as a result of radiation released from FPL’s St. Lucie

nuclear power plant. The actions were consolidated, and the district court granted

FPL’s motions for summary judgment. For the reasons that follow, we affirm.

* Honorable L. Scott Coogler, United States District Judge for the Northern District of Alabama, sitting by designation.

2 I. BACKGROUND.

A. Radiation Releases.

FPL began operations at its St. Lucie nuclear power plant (“the Plant”) near

Port St. Lucie, Florida, in 1976. During construction of the Plant in 1975, a wash

trough, or “sink,” was incorrectly plumbed in the radiation control area.

Unbeknownst to FPL, the sink diverted its wastewater directly into the standard

sanitary sewage system. In 1978, the Plant began using the incorrectly-plumbed sink

to rinse items such as respirators and mops, which had been exposed to radiation.

From 1978 to 1979, the Plant’s standard sewage was deposited into a septic tank that

was emptied daily and shipped by truck to the Fort Pierce Sewage Treatment Plant.

In December 1979, the Plant started an on-site sewage treatment facility. On

January 8, 1982, and June 22, 1982, sludge from the on-site sewage treatment facility

was transported to unoccupied farmland located near “Glades Cutoff” road (“the

Glades Cutoff site”). The sludge was dispersed onto a field at the Glades Cutoff site,

which was licensed and regulated, but only for the disposal of non-radioactive sewage

sludge.

On September 10, 1982, the incorrectly-plumbed sink clogged, and FPL

subsequently discovered the original plumbing error. FPL notified the Nuclear

Regulatory Commission (“NRC”), the Florida Office of Radiation Control, and the

3 Florida Department of Health and Rehabilitative Services (“FDHRS”) about the error

and unmonitored disposals. FDHRS took soil and grass samples from various

locations at the Glades Cutoff site. The presence of Cobalt-60, a radionuclide, was

measured and recorded. NRC also took samples, and an aerial survey was performed

by helicopter. FPL then removed contaminated soil from the Glades Cutoff site.

Over the next two weeks, more samples were taken and additional contaminated soil

was removed. In October 1982, FDHRS concluded:

Based on the decontamination limit of five (5) picocuries per gram [pCi/g] averaged over one square meter . . . Florida Power and Light Company has achieved adequate decontamination. Post clean up maximum activities’ levels were no greater than one-half the decontamination limit. These data were from samples taken at the sites of greatest gamma exposure levels remaining after the decontamination.

NRC opined: “it is unlikely that anyone received a measurable radiation dose.”

B. Children’s Cancer.

Ashton Lowe was born on May 3, 1988. At the age of seven, Ashton was

diagnosed with medulloblastoma. From his birth until the time of his diagnosis,

Ashton lived in Port St. Lucie, Florida. Ashton died of his cancer on May 21, 2001.

Zachary Finestone was born on March 1, 1994. Prior to his birth, his parents

lived near the Plant. Zachary lived in Port St. Lucie, Florida, from August 1995

4 through August 1998. He was diagnosed with stage IV neuroblastoma, which had

spread to his bone marrow, at the age of six. Zachary continues battling his cancer

today.

Plaintiff’s expert, Dr. Hari Sharma, presented evidence in this case that the

baby teeth of both Ashton Lowe and Zachary Finestone contained elevated levels of

Strontium-90 (“SR-90”). SR-90 is a radioactive isotope created by nuclear fission

reactions. Common sources of SR-90 include nuclear power plants and nuclear

weapons testing fallout. However, routine testing of Florida’s citrus fruit shows that

SR-90 has been detected in citrus fruit in St. Lucie County since before the Plant

began its operations.

C. Proceedings Below.

Appellants brought their claims against FPL in the United States District Court

for the Southern District of Florida under the Price-Anderson Act, which provides for

federal lawsuits asserting public liability due to exposure to nuclear radiation. See

42 U.S.C. §§ 2210(n)(2), 2014(hh). FPL filed a motion for determination of duty

owed, and the district court subsequently issued an order holding that the standard of

care in Appellants’ action “is set forth by the Radiation Dose Limits for Individual

Members of the Public [outlined in 10 C.F.R. § 20.1301] applicable for the time of

the releases in question” (“the Dose Limits”). Finestone v. Fla. Power & Light Co.,

5 319 F. Supp. 2d 1347, 1350 (S.D. Fla. 2004). The district court rejected Appellants’

contention that the standard of care should also include a requirement that licensee

companies “achieve . . . doses to members of the public that are as low as is

reasonably achievable (ALARA)1.” Id. at 1349-50; see also 10 C.F.R. § 20.1101(b).

Extensive discovery was conducted, and Appellants contend that FPL

consistently refused to provide documents crucial to their case. FPL concedes that

it “inadvertently” omitted from production a single report on radiation releases in the

Glades Cutoff site (“the Bailey Report”), which Appellants uncovered later in the

litigation. As a result of FPL’s failure to timely disclose the Bailey Report,

Appellants were granted an adverse jury instruction noting the belated production,

and discovery was extended six weeks.

FPL subsequently filed motions for summary judgment, and Appellants moved

for partial summary judgment. The parties filed motions to strike the testimony of

various experts. After four days of Daubert hearings on the parties’ motions to strike,

the district court entered an Omnibus Order on January 6, 2006. The Omnibus Order

1 “ALARA . . . means making every reasonable effort to maintain exposures to radiation as far below the dose limits in this part as is practical consistent with the purpose for which the licensed activity is undertaken, taking into account the state of technology, the economics of improvements in relation to state of technology, the economics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in relation to utilization of nuclear energy and licensed materials in the public interest.” 10 C.F.R. § 20.1003.

6 excluded the testimony of four of Appellants’ expert witnesses and granted FPL’s

motions for final summary judgment based on Appellants’ inability to proffer

admissible evidence to support their claim that FPL released radiation in excess of the

Dose Limits. This appeal followed.

II. DISCUSSION.

Two broad issues are presented to this Court. First, Appellants attack the

district court’s conclusion regarding the applicable standard of care in public liability

actions under the Price-Anderson Act. They contend that this Court should

reconsider and revise its holding in Roberts v. Florida Power & Light Co., 146 F.3d

1305 (11th Cir. 1998), and incorporate state law standards of care. In the alternative,

they request that we apply ALARA as a requisite standard of care under Roberts.

Second, Appellants argue that the district court erred in granting summary judgment

in favor of FPL. They contend that the district court misapplied Daubert standards

when it excluded Appellants’ expert witnesses’ testimony regarding radiation and the

Dose Limits, and ignored the “prejudice” caused by FPL’s late production of the

Bailey Report.

A. Standard of Care.

“We review de novo the district court’s grant of summary judgment.”

Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007)

7 (citing Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1276-77 (11th Cir. 2001)).

Moreover, a court’s determination of the applicable standard of care in a case like the

one at hand is a question of law, also reviewed de novo. See, e.g., Jones v. United

Space Alliance, L.L.C., 494 F.3d 1306, 1309 (11th Cir. 2007).

In Roberts, this Court held that “federal safety regulations conclusively

establish the duty of care owed in a public liability action.” 146 F.3d at 1308. While

Appellants have requested that we reconsider this holding, “it is the firmly established

rule of this Circuit that each succeeding panel is bound by the holding of the first

panel to address an issue of law, unless and until that holding is overruled en banc,

or by the Supreme Court.” United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir.

1993). Therefore, we are bound by Roberts.

However, Roberts does not preclude a holding that ALARA is a standard of

care in public liability actions—if, in fact, ALARA is mandated by federal safety

regulations. The opinion of the district court for the Northern District of Ohio in

McCafferty v. Centerior Serv. Co., 983 F. Supp. 715 (N.D. Ohio 1997), may be

persuasive on the question whether ALARA is a current standard of care in public

liability actions, as set forth by federal regulation. See also Jason Bjorn Aamodt,

Comment, Regulating the Standard of Care Owed to the Public During an

Emergency at a Nuclear Power Plant, 16 ENERGY L.J. 181, 184-89 (1995)

8 (discussing, in part, how NRC guidance provides a measurable and precise ALARA

standard); 58 Fed. Reg. 67657 (Jan. 1, 1994) (noting that “[t]he revised standards for

protection against radiation incorporated scientific information and reflected changes

in the basic philosophy of radiation protection that had occurred since the

promulgation of the original regulations”). In McCafferty, the court reasoned that a

1991 amendment adding mandatory ALARA language to a newly created subpart

under the federal regulation labeled “Standards for Protection Against Radiation,”

which also contains the Dose Limits relied upon by the district court below,

“demonstrates an intention to have the ALARA principle . . . act as a standard for

radiation protection.” 983 F. Supp. at 719.

While this Court finds the McCafferty rationale reasonable, we are not called

upon to decide whether ALARA is mandated by current regulation. Rather, it is

undisputed that the radiation releases at issue in this case occurred prior to the 1991

amendment discussed in McCafferty. In fact, Appellants conceded at oral argument

that in order for this Court to conclude ALARA applies to their claims, we must hold

that ALARA was the requisite standard of care “all along”; that cannot be done.

As correctly held by the Third Circuit Court of Appeals in In re TMI, 67 F.3d

1103 (3d Cir. 1995), an ALARA standard of care did not exist in the federal

regulations prior to the 1991 amendment. Before the amendment, ALARA language,

9 as it pertains to public radiation exposure, was located in a portion of the regulations

dealing with licensing, which also included a clarification that the guidelines outlined

therein were “not to be construed as radiation protection standards.” 10 C.F.R. §

50.34a(a). ALARA was also included in a different portion of the “Standards for

Protection Against Radiation” section referenced above. This particular pre-

amendment language, which was officially removed in 1994 as superseded by the

revised radiation protection standards initiated in 1991, see 58 Fed. Reg. 67657 (Jan.

1, 1994), stated only that licensees “should, in addition to complying with the

requirements set forth in this part, make every reasonable effort to maintain radiation

exposures, and releases of radioactive materials in effluents to unrestricted areas, as

low as is reasonably achievable,” 10 C.F.R. § 20.1 (1991) (emphasis added). This

language does not establish the pre-amendment ALARA requirement for public

liability that Appellants want this Court to adopt, and we affirm the district court’s

use of the Dose Limits as the applicable standard of care in this case.

B. Evidentiary Burden.

Appellants nevertheless maintain that they presented sufficient evidence, in the

form of expert testimony, that FPL breached the Dose Limits. In its Omnibus Order,

the district court excluded the testimony of Arnold Gundersen, Martin Resnikoff,

Stanley Waligora, Christopher Busby, and Robert Peter Gale under the principles of

10 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Appellants

focus their appellate argument on the exclusion of their “dose calculation” experts:

Gundersen, Resnikoff, and Waligora. Aside from a single footnote in their initial

brief, Appellants do not discuss Gale and Busby, two of their “causation” experts.

Because we do not reach the issue of causation unless Appellants can show they have

sufficient evidence of a breach of the Dose Limits, this Court will focus its initial

inquiry on the dose calculation experts. To that end, Appellants argue that although

the district court couched its ruling in terms of their “reliability,” it is clear from the

Omnibus Order that the dose calculation experts’ testimony was excluded only

because their conclusions conflicted with those of the NRC.

A district court’s decision to exclude expert testimony is reviewed for an abuse

of discretion. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). “That

standard applies as much to the trial court’s decisions about how to determine

reliability as to its ultimate conclusion.” Id. Therefore, “we defer to the district

court’s ruling unless it is ‘manifestly erroneous,’” and “we give the district court

‘considerable leeway’ in the execution of its duty.” Rink v. Cheminova, Inc., 400

F.3d 1286, 1291 (11th Cir. 2005) (citations omitted).

Pursuant to Federal Rule of Evidence 702, as well as Daubert and its progeny,

“district courts must act as ‘gatekeepers[,’ admitting] expert testimony only if it is

11 both reliable and relevant.” Id. “To fulfil their obligation under Daubert, district

courts must engage in a rigorous inquiry to determine whether: ‘(1) the expert is

qualified to testify competently regarding the matters he intends to address; (2) the

methodology by which the expert reaches his conclusions is sufficiently reliable as

determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists

the trier of fact, through the application of scientific, technical, or specialized

expertise, to understand the evidence or to determine a fact in issue.’” Id. at 1291-92

(quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir.

1998)). “The party offering the expert has the burden of satisfying each of these three

elements by a preponderance of the evidence.” Id. at 1292 (citing Allison v. McGhan

Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999)).

“In ascertaining the reliability of a particular scientific expert opinion, we

consider, to the extent possible: (1) whether the expert’s theory can be and has been

tested; (2) whether the theory has been subjected to peer review and publication; (3)

the known or potential rate of error of the particular scientific technique; and (4)

whether the technique is generally accepted in the scientific community.” Quiet Tech.

DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (citing

McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253, 1256 (11th Cir. 2002)).

“Notably, however, these factors do not exhaust the universe of considerations that

12 may bear on the reliability of a given expert opinion, and a federal court should

consider any additional factors that may advance its Rule 702 analysis.” Id. (citing

Kumho Tire Co., 526 U.S. at 150).

Yet, a “district court’s gatekeeper role under Daubert ‘is not intended to

supplant the adversary system or the role of the jury.’” Maiz v. Virani, 253 F.3d 641,

666 (11th Cir. 2001) (quoting Allison, 184 F.3d at 1311). “[V]igorous

cross-examination, presentation of contrary evidence, and careful instruction on the

burden of proof are the traditional and appropriate means of attacking shaky but

admissible evidence.” Allison, 184 F.3d at 1311 (quoting Daubert, 509 U.S. at 596).

“The judge’s role is to keep unreliable and irrelevant information from the jury

because of its inability to assist in factual determinations, its potential to create

confusion, and its lack of probative value.” Id. at 1311-12. After a thorough review

of the dose calculation experts’ reports and testimony, it is evident that the district

court did not abuse its discretion; exclusion of these experts under Daubert was

appropriate.

This Court does question the district court’s focus on radiation samples taken

by government agencies as a “real world test” of the conclusions of Gundersen,

Waligora, and Resnikoff. While reliability of an expert’s opinion can be gauged by

“whether the expert’s theory can be and has been tested,” Quiet Tech. DC-8, Inc., 326

13 F.3d at 1341, the sample results by government agencies are not actual tests of these

experts’ theories. In fact, there are plausible explanations that could account for the

differences between these experts’ conclusions, if correct, and the sample results.

However, in this case, the district court also faulted the assumptions underlying

Gundersen, Waligora, and Resnikoff’s methodologies. For instance, Gundersen

bases his expert conclusions on hypotheticals that begin with the assumption that a

truckload of radioactive sewage plant solids shipped from the Plant for disposal in

Barnwell, South Carolina, in 1991 is the material that was dug up from the Glades

Cutoff site nearly a decade earlier in 1982. There is, however, no evidence to support

this assumption that the 828 cubic feet of material, which weighs approximately

100,000 pounds, was from the Glades Cutoff, nor any explanation why the Plant

would hold on to such a large amount of material for almost ten years. Yet,

Gundersen takes the radiation concentration of the sewage solids in the 1991

shipment and extrapolates backward using decay calculations for radioactive

isotopes—effectively multiplying the radiation measurement for the 1991

shipment—to conclude that the material dumped in 1982 had an excessive radiation

concentration. Simply put, this is “the kind of scientifically unsupported ‘leap of

faith’ which is condemned by Daubert.” Rink, 400 F.3d at 1292 (citing Rider v.

Sandoz Pharms. Corp., 295 F.3d 1194, 1202 (11th Cir. 2002)).

14 Waligora and Resnikoff, authors of a joint report, also made unsupported

“leaps of faith.” For example, these experts extrapolated a dose exposure calculation

by using an isotope ratio that FPL submitted to the NRC in its Final Safety Analysis

Report (“FSAR”) as part of its original license application. This FSAR ratio was

derived from the contents of a spent fuel pool in a separate building from the source

of the Glades Cutoff site sewage sludge. Using the FSAR isotope ratio, Waligora and

Resnikoff concluded that other radionuclides were present in the sewage sludge and

calculated a total radiation concentration in excess of the Dose Limits. However, no

expert was able to provide support for the assumption that the isotope ratios in the

spent fuel pool would equate to those in the sewage sludge. When questioned at his

Daubert hearing, Waligora would not say that use of the FSAR ratio was appropriate

or scientifically acceptable. Waligora could only testify that “it was the best thing we

could go with.”

The choices made and utilized by these experts differ from a situation in which

an expert inputs “hard data arrived at by unassailable methods.” Rink, 400 F.3d at

1293. This is not a case where the trial court rejected experts only because their final

conclusions were inconsistent with the findings of other experts or agencies. “Here,

the data [these three excluded experts] produced was driven by the methodology

[they] used, and thus the district court’s inquiry into how [they] arrived at the data is

15 not inappropriate.” Id. Therefore, we cannot say the district court erred when it

examined and rejected unsupported assumptions underlying these three experts’

methodologies. And, without their dose calculation experts, Appellants have not

presented the sufficient admissible evidence of a breach of the Dose Limits needed

to survive summary judgment on their Price-Anderson Act public liability actions.

Appellants nevertheless maintain that summary judgment is inappropriate

because the district court found that they had been prejudiced by the failure to

produce the Bailey Report. The court rejected the ultimate sanction and, instead,

granted Appellants “the lesser sanction of an adverse inference in the form of a jury

instruction that Defendant did not timely produce the Bailey Report.” Appellants

now contend that summary judgment “rewards” FPL for its sanctionable conduct.

However, there is no legal support for Appellants’ proposition that summary

judgment cannot be granted in this case because the district court previously

sanctioned the moving party for belated production. Moreover, discovery was

extended six weeks to allow Appellants time to follow up on information garnered

in the Bailey Report. It appears from the record that no additional discovery

extension was sought. Apparently, this was because Appellants were eager to keep

their January 2006 trial date due to concerns related to Zachary’s serious illness. We

cannot find fault, therefore, with the district court’s decision to enter judgment based

16 on the evidence presented.

III. CONCLUSION.

These are truly tragic cases. We extend our deepest sympathies to the families

involved, and we sincerely hope that Zachary prevails in his fight against cancer.

However, for the reasons stated above, the district court’s order granting summary

judgment must be, and hereby is, AFFIRMED.