Apollo area residents involved in failed NUMEC nuke suit hope federal judges reconsider
Plaintiffs are asking a federal court to reconsider its recent ruling to throw out the lawsuits alleging that a former Apollo nuclear fuels plant caused cancer among residents.
An environmental activist who shepherded two series of lawsuits on behalf of Apollo residents with cancer is blaming the lack of success in the courts on ineffective counsel.
Motley Rice law firm's Providence, R.I., office, the lead attorneys for more than 70 Apollo-area residents, filed a request Sept. 6 for re-examination of the federal Third Circuit Court of Appeals' ruling on Aug. 23 to dismiss their lawsuits that claim radioactive emissions caused cancers in the Apollo area.
The defendants are Babcock & Wilcox Power Generation Groups Inc. 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 Township.
The plants operated from about 1957 to the mid-1980s.
BWX Technologies declined to comment, said Jud Simmons, a spokesman for the company.
In its latest legal action, the attorneys argue that since the Third Circuit ruling, if correct, “would deprive all persons injured by radiation from nuclear fuel processing facilities of any remedy whatsoever.”
Among other issues, Motley Rice attorneys argued that the Third Circuit panel did not “seriously consider” a recent Pennsylvania Supreme Court ruling where the standard of the proof of causation, “proof such as Plaintiffs offered here” is more than sufficient to bring to a jury trial.
A long shot?
The chances of a reconsideration is “always a heavy lift,” said Steven Baicker-McKee, an assistant professor at Duquesne University School of Law.
“Courts don't generally give do-overs, so the disappointed party can't simply reassert the same arguments that lost the first time,” he said.
Typically, there has to be a blatant factual error to prompt the court's reconsideration, he said.
The local environmental activist who brought in Motley Rice to represent the plaintiffs is also pessimistic.
“I don't feel confident at this juncture,” said Patty Ameno of Hyde Park, who grew up across the street from NUMEC's Apollo plant.
She was a plaintiff and the instigator of the first series of lawsuits litigated by the late Fred Baron, a deep-pocketed Texas attorney who was a pioneer in asbestos litigation.
Baron's suits representing about several hundred area residents made it to trial but were settled out of court for more than $80 million.
Ameno is claiming ineffective counsel by Motley Rice.
She was looking for a replay of the Baron cases, which she said were “argued effectively, including the information that there were numerous violations of federal and state laws (by NUMEC).”
She also cited Baron's presentation of meteorological conditions in the Apollo area valley that caused emissions from the plant's 124 stacks to blow “stuff all over the place.”
Jonathan Orent of Motley Rice said, “We share the frustration of everyone in the community that these cases were not allowed to proceed to trial. Justice has so far failed the people of this community.”
Orent pointed out that the same factual arguments were argued early in the Baron and Motley Rice series of lawsuits.
For example, it was known that “NUMEC has been the worst offender of AEC regulations over the years,” according to the same damning government document presented in both series of cases.
Yet, the recent court deliberations made note that the government entities responsible for regulating nuclear fuel companies “never shut down NUMEC and approved NUMEC's continued operations in spite of these findings,” Orent said.
“It is important to remember that the trial verdict (in the first cases) was overturned, and the cases were never heard on these issues at the appellate level,” he said.
“This is the first and only time these important issues have been decided by a court of appeals,” he added.
A plaintiff in the lawsuit, Mary Ann Peace, 68, of North Apollo, wants the case re-examined.
“I think the judges need to take a second look,” she said.
Peace spent her entire life in the Apollo area. She was diagnosed in 2010 with Waldenstrom macroglobulinemia, a rare cancer according to the Lymphoma Research Foundation.
“This has been a living nightmare,” Peace said of her and other plaintiffs' cancers.
She alleges that the Third Circuit judges are holding the plaintiffs to a standard of reporting their exposures to radioactive emissions that are “incalculable.”
“I remember being outside watching those mustard-colored clouds come from the plant. Can they tell me what was in those mustard clouds?” she asked.
Proving that radioactive emissions caused illness in Apollo was one of the main areas of contention in the Third Circuit decision and the plaintiffs request for re-consideration.
Plaintiff attorneys agree with the Third Circuit Court in its ruling: “… plaintiffs will rarely, if ever, recover in these types of actions, and this will continue unless states (or Congress) recognize the unique problems endemic in proving that a plaintiff's illness was proximately caused by exposure to radiation from a given facility or event.”
Orent said, “Ultimately, this litigation reinforces the need for laws that actually protect people and allow them justice when they are clearly harmed by corporate wrongdoing.”