Babcock & Wilcox lawsuit reaches mediation stage; settlement may be near
By Mary Ann Thomas
Published: Sunday, June 16, 2013, 12:01 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 email@example.com.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Coxcomb Hill Road reopened; Kerr Road still closed in Plum
- 4-year-old’s death from brain cancer won’t stop fight in her name
- New Kensington police decline to identify stabbing victims amid investigation
- Avonmore parents enter child with genetic disorder in contest for wheelchair-accessible van
- Allegheny Township supervisors agree to rezone land for farming
- Kiski Valley native in wheelchair persists to save life, forge bond
- Fire destroys Frazer home; family was out at the time
- Butler County Commissioners OK display of ‘In God We Trust’ in meeting room
- Peregrine falcons hang around Tarentum Bridge
- New Kensington-Arnold lays groundwork for consolidation
- Lower Burrell restaurant’s noise subject of Liquor Control Board hearing