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Judge nixes health testimony in nuke plant suit

| Saturday, July 13, 2013, 1:36 a.m.

The magistrate judge in the federal lawsuit alleging death and injury from radioactive emissions in Apollo has recommended throwing out the primary expert testimony from the plaintiffs' health experts.

The recommendation by Robert C. Mitchell, a U.S. magistrate judge, filed on Friday, indicated that the case is at an end when such expert testimony cannot be presented.

The plaintiffs plan to appeal.

Mitchell's recommendation is the latest action in the 2010 lawsuit in U.S. District Court in Pittsburgh filed by more than 75 Apollo-area residents, claiming that 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., or NUMEC, in Apollo and a plutonium plant in Parks from about 1957 to 1986.

“We're very disappointed with the recommendation made by the magistrate,” said Jonathan Orent with Motley Rice's Rhode Island office, the lead plaintiff attorney.

“However, we intend to object to it and are committed to continue the fight for our clients,” he said.

“A magistrate had made recommendations to the federal judge for these cases, which is Judge David Cercone, who we will ask to make the ultimate ruling on these issues,” Orent said.

Calls to the defendants were not immediately returned Friday evening.

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

It's been a battle of the experts as attorneys for the plaintiffs and defendants fought over whether radioactive emissions from a now-razed nuclear fuel plant caused death and personal injury in Apollo.

In Friday's recommendation, Judge Mitchell ruled against the plaintiffs in seven out of eight motions filed.

Among the expert testimony that Mitchell recommends throwing out was that of James Melius, a physician and doctor of public health. Melius serves as chairman of the federal Advisory Board on Radiation and Worker Health, which provides oversight on the federal program to compensate former Department of Energy nuclear facility workers who have developed cancer. He also is chair of the steering committee of the World Trade Center Responder Medical Programs.

Judge Mitchell wrote: “At the hearing, Dr. Melius (called by Defendants as a hostile witness) testified that, although all Americans are exposed to hundreds of millirems of ionizing radiation every day, adding up to thousands of millirems over the years, he believes Plaintiffs received ‘substantially' more than background radiation, yet he could not quantify this amount.”

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

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