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Dismissal of expert testimony appealed

| Sunday, July 28, 2013, 12:01 a.m.

Plaintiffs in a federal lawsuit have appealed a magistrate judge's recommendation to throw out their primary expert testimony that alleges that radioactive emissions in Apollo caused cancer in the more than 75 claimants.

The recommendation by Robert C. Mitchell, a U.S. magistrate judge, filed on July 13, indicated that the case is at an end when such expert testimony cannot be presented.

On Friday, plaintiffs appealed those recommendations of Judge Mitchell, who ruled against the plaintiffs in seven out of eight pre-trial motions on health expert testimony.

“Plaintiffs believe that the Magistrate Judge ‘crossed the boundary between gatekeeper and trier of fact,'” according to Friday's appeal.

Earlier, Jonathan Orent with Motley Rice's Rhode Island office, the lead plaintiff attorney, said the federal judge for the case, Judge David Cercone, will make the ultimate ruling on the issue.

The appeal is the latest action in the 2010 lawsuit in U.S. District Court in Pittsburgh 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.

Calls to the defendants were not immediately returned on Saturday evening.

One of the sticking points in the pre-trial proceedings is calculating the dose of radioactivity each claimant received who lived near the Apollo plant.

Mitchell earlier wrote: “At the hearing, Dr. (James) 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.”

According to the plaintiff's appeal: “… The true extent of unmonitored and accidental (radioactive) releases can never be known because of Defendants' deliberate decisions not to monitor their emissions. According to Defendants' own records, the decision not to monitor was driven by cost without regard to the human toll that would result.”

Two of the plaintiffs' experts believed that such a dose analysis would “significantly understate any individual's exposure.” The experts say that there are scientifically sound principles for their conclusions that dose reconstruction was not warranted.

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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