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Babcock & Wilcox lawsuit reaches mediation stage; settlement may be near

| Sunday, June 16, 2013, 12:09 a.m.

The federal lawsuit over radioactive emissions from a former nuclear fuel plant in Apollo has reached the mediation stage, and an expert in these types of cases said a settlement could be in the offing.

The mediation provides an important opportunity to settle the lawsuit before it reaches trial, said Steven Baicker-McKee, an assistant professor of law at Duquesne University who has 25 years in private practice handling toxic tort, environmental and energy-related litigation.

Attorneys for both the plaintiffs and defendants declined to comment on the mediation and possible settlement discussions.

The 2010 suit, filed in U.S. District Court in Pittsburgh by about 75 Apollo-area residents, claims radioactive emissions from the former nuclear fuel plant in Apollo caused cancer and other illnesses, killing some people.

The defendants are Babcock & Wilcox Power Generation Group and the Atlantic Richfield Co., which operated a uranium fuel-processing plant founded by the Nuclear Materials and Equipment Corp. (NUMEC) in Apollo and a plutonium plant in Parks from about 1957 to 1986.

This is the second round of federal lawsuits filed by local residents for health and property damage against the companies.

For the first half of 2013, attorneys have been arguing about what expert testimony will make it to a jury trail, called a Daubert hearing.

“The judge is a gatekeeper and has to make sure that only legitimate science goes to the jury,” said Baicker-McKee. “The purpose of the (Daubert) hearing, loosely, is to eliminate junk science from going to the jury.”

As such, this is a good time for mediation, according to Baicker-McKee.

There has been no ruling yet on what expert testimony will be accepted.

“The plaintiffs' attorney is facing the risk that if their expert testimony is thrown out, they would lose,” Baicker-McKee said. “On the other hand, the defendants are facing the risk that there's enough there to send to a jury.”

And with no ruling, the sides may be amenable to settling.

“Once the court makes a ruling, then one side will have less incentive to settle,” he said.

Battle of the experts

It's been a battle of the experts as attorneys for the plaintiffs and defendants fight over whether or not radioactive emissions from a now-razed nuclear fuel plant caused death and personal injury in Apollo.

Among other things, the defense argues that the plaintiffs lack evidence concerning the alleged uranium dose received by plaintiffs.

They also contend that the scientific literature doesn't support evidence that the Apollo plant's releases caused certain cancers.

“… Plaintiffs' experts ignore consensus science and fail to apply any recognized scientific methods in offering opinions that uranium is capable of causing cancer in every part of the human body and that exposure to an unquantified or even a miniscule dose of uranium ‘significantly contributed' to the development of each of the 75 plaintiffs' cancers,” states a brief supporting a defendant's motion to exclude the plaintiffs' experts.

The plaintiffs also take jabs at defense experts. They've asked one of the judges involved in the case to exclude the expert testimony on some of the calculations of airborne releases of enriched uranium from the Apollo plant.

In a March memorandum regarding the testimony of defense expert, John E. Till: “Allowing B&W to offer opinion evidence to fill in gaps in the historical record not only rewards defendants for their illegal conduct, but also prejudices plaintiffs by allowing defendants to use lower emissions numbers than occurred historically.”

What does it mean?

In deciding what expert testimony to us, three major issues need to be settled, according to Baicker-McKee.

The defendants are arguing about whether uranium causes cancer.

“Specifically, did the individual plaintiff cancers come from the uranium emitted by the defendant?” Baicker-McKee asks.

Then there's the dose issue.

“The dose makes the poison,” he said. “If you look at almost anything, there are safe amounts of exposure and harmful amounts of exposure.”

The final issue is if the plaintiffs' experts can demonstrate that exposure to the emissions was to blame for a plaintiff's cancer, rather than other factors such as cigarette smoking.

These kinds of exposure and causation scenarios are hard to prove, according to Baicker-McKee and other legal experts.

Mary Ann Thomas is a staff writer for Trib Total Media. She can be reached at 724-226-4691 or

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