June, et al v. Union Carbide Corporation, et al

Filing 920090821

Opinion

FILED U n i t e d States Court of Appeals T e n t h Circuit P U B L IS H

A u g u s t 21, 2009

E l i s a b e t h A. Shumaker U N I T E D STA T E S C O U R T O F A P P E A L S C l e r k of Court T E N T H C IR C U IT

G A R Y JUNE; SCOTT JUNE, i n d i v i d u a l l y and on behalf of the d e c e a s e d YVONNE JUNE; GENE L Y N N , individually and on behalf of t h e deceased, LUCILLE LYNN; A L V A FORD, on behalf of the d e c e a s e d , PHYLLIS W E Y A N T ; R A N D Y PORTER; BARBARA M E Y E R S , on behalf of the deceased, M I N N I E DALE W O O D S ; ROBERT S N O W ; PHYLLIS W I L M A DAVIS; J O S E P H VIGIL; E. LOUISE W A T T S ; J U N E L L E W E A T H E R L Y ; ISABELLE W O O D E N ; CHERIE ZUSPAN; D A I S Y ARNOLD; BEVERLY B A T E S ; VALERIE BOGDAN; JUNE A R G U E L L O ; BETTY JANE M C B R I D E ; LAURA O'BRIEN; OPAL G A R C I A ; EM M A HANSEN; LA V O N N E O'BRIEN; STEPHEN P L A C E ; M A R Y ANN ROM E R O ; F R A N K SHARP; LESLIE H E N D R I C K S ; CHRIS H O L L I N G S H E A D ; GILDA H O L L I N G S H E A D ; LAURA H U G H E S ; ANNE LEM E L L E ; ROBIN S E E L E Y ; SUSANN STEELE; M I C H E L L E THOM S O N ; PHYLLIS T O R I B I O ; BETTY W H I T E ; LONZO Y A R D L E Y ; CRYSTAL BARELA; G L E N N A M C C L A I N ; LISA BACA; D E B R A BLACK; EM M A C H A M B E R L A I N ; PANSY C I S N E R O S ; ROSE CLEM E N T ; LISA

N o . 07-1532

CORTES; SUSAN DOLLARHYDE; M A R T H A LINDSAY; AUDI LOEHR; J O A N LONG; CASEY LONG; T H O M A S LYNN; NANCY M I N G A S ; R O B I N ABRAM S O N FOREST; L I N D A GARDNER; PAM HASKELL; M A R K SALAZAR; ROBERTA S A L A Z A R ; BEN SANCHEZ; LORI S E L G A D O ; W I L L I A M SHARP; G E O R G E SHARP; JOHN SHARP; K I R K SHARP; BRENDA LU SM I T H ; G W E N D A GONZALEZ; CRAIG L O N G ; CYNTHIA STARKEY; D E A N N A ADDLEM A N ; SHERRY A L B E R T S ; IRIS ALLRED; LESLIE A M E N T ; M A R L E N E BALL; DONNA B E L D E N ; W A L L A C E BELDEN; K E N N E T H BELDEN; KEITH B E L D E N ; BARBARA BERCUM E ; J U D Y BLACK; DOROTHY BLAKE; G U Y E BLOOD; JERRY BLOOD; T H O M A S BLOOD; LORNA B O W E R S O X ; M A D G E BOW E R S O X ; C A R O L E E BURNETT; RICHARD B U R N E T T ; GENE CAM P B E L L ; A N N E M A R I E CHADD; ALEXIS C L A R K ; M A R Y ELIZABETH C L A R K ; TERRY COPE; PHILIP C R E S P I N ; THERESA CURTIS; I R E N E CUTCHINS; CYNTHIA D A V I D ; PAULETTE DAVIS; L Y N D A DW O R N I K ; JUNE E A S T E R L Y ; EVA ELLIOTT; C H R I S T O P H E R FOSTER; COLT F R E E M A N ; GEORGIA FREEM A N ; B R E T T FREEM A N ; VICTOR F R O N K ; SARA GILLILIN; M I C H A E L HALL; M A R I E HALL; I R I S HARVEY; NINA FAYE

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HASKELL; JUDITH HEARN; C O N N I E HECHT; M A R J O R I E H E C H T ; BARBARA HECHT; S H A R O N HOISINGTON; G E R A L D I N E HOLLINGSHEAD; K A R E N HOLM A N ; KENNETH J O H N S O N ; BEVERLY JOSLIN; C H R I S T I N E KEENER; BETTY K I K E R ; ROXANNA KREBS; JONI L E E LEFLER; LINDA LEW I S ; M A R Y ELLEN LOVE; CAROL L O V O I ; M A R Y LOU LYNN; CAROL L Y N N ; DEBBIE M A D D O X ; ILA M A L O N E ; TED M A R T I N ; M A R Y M A R T I N ; JOHN M A R T I N E Z ; S H E R R I E M C D O W E L L ; CLARE M C N E A L ; EDNA M E R Y H E W ; A L I C E M O C K E R M A N ; STEPHANIE M O R R O W ; KATHERINE NYGREN; K E N T NYGREN; JAM E S O ' B R Y A N T ; SALLY ELAINE O L I V E R ; M A R G A R E T ORNDOFF; S H A R O N OSBORN; TREASIA P F I F E R ; BECKY PICTOR; KENNY P R A T T E ; M E L V I N PRATTE; EVA M A Y PRATTE; JUDY PROCTOR; D O R O T H Y REED; W A N D A REED; C A R O L RICE; THERESA R I C H A R D S ; LEAH ROBERTS; B R Y A N SALAZAR; CATHERINE S A L A Z A R ; PATRICK SCHEETZ; S H E R Y L SEELEY; THORTHANE S H A R P ; JODI SKEES; DEBORAH S K I L E S ; FREDDIE SM I T H ; V E R N O N SM I T H ; M A R G A R E T S N Y D E R ; STEPHANIE TATUM ; S H A R O N THOM P S O N ; KARA T O O K E R ; CHAR LEE BELLE U N G E R ; M A R Y JANE VIA; JIM

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W A U G H ; LUCILLIE W A U G H S M I T H ; ALVIN W I L S O N ; JOAN W I L S O N ; JOHN W I L S O N , SR.; N O R M A W R I G H T ; NORM A YATES; C H A R L O T T E ZUFELT, P l a i n t i f f s - Appellants , v. U N I O N CARBIDE CORPORATION, a New York corporation; UM E T C O M I N E R A L S CORPORATION, a D e l a w a r e corporation , D e f e n d a n t s - Appellees .

A P P E A L FR O M T H E U N I T E D ST A T E S D I S T R I C T C O U R T FO R TH E D ISTR IC T O F C O LO R A D O ( D . C . N O . 1:04-C V - 0 0 1 2 3 - M S K - M J W )

J . M a r k Englehart, Beasley, Allen, Crow, M e t h v i n , Portis & M i l e s , P.C., M o n t g o m e r y , Alabama, (Rhon E. Jones, Beasley, Allen, Crow, M e t h v i n , Portis & M i l e s , P.C., and J. Douglas M c C a l l a , The Spence Law Firm, LLC, Jackson, W y o m i n g , with him on the briefs), for Plaintiffs - Appellants. C h r i s t o p h e r Landau, Kirkland & Ellis, LLP, W a s h i n g t o n , DC, (Daniel J. Dunn, A l a n J. Gilbert, Holme Roberts & Owen LLP, Denver, Colorado, and M i c h a e l P. F o r a d a s , P.C., Joel A. Blanchet, John W . Reale, Kirkland & Ellis LLP, Chicago, I L , with him on the brief), for Defendants - Appellees.

B e f o r e H A R T Z , H O L L O W A Y , and A N D E R S O N , Circuit Judges.

H A R T Z , Circuit Judge.

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The lawsuit before us arises out of alleged radiation injuries to residents of U r a v a n , Colorado, a former uranium and vanadium milling town owned and o p e r a t e d by Defendants Union Carbide Corporation and Umetco M i n e r a l s C o r p o r a t i o n . Plaintiffs brought an action in the United States District Court for t h e District of Colorado under the Price-Anderson Act of 1957, Pub. L. N o . 86-256, 71 Stat. 576 (codified as amended in scattered sections of 42 U.S.C.). They assert claims for personal injury based on disease or death allegedly caused b y radiation and claims for medical monitoring to detect the onset of disease in t h o s e Plaintiffs who were asymptomatic. The district court dismissed all the c l a i m s on pretrial motions, and Plaintiffs appealed. Exercising jurisdiction under 2 8 U.S.C. § 1291, we affirm. Plaintiffs' personal-injury claims fail for lack of e v i d e n c e of factual causation. Their medical-monitoring claims fail for lack of e v i d e n c e of a "bodily injury" as required by the Price-Anderson Act. I. BACKGROUND A. Factual B ackground

M i n i n g and milling have been conducted in the Uravan area for many years. The Standard Chemical Company was producing radium in the region as early as 1 9 1 4 . In 1928 Defendants purchased Standard Chemical's holdings, and in 1936 b e g a n milling vanadium and uranium. To accommodate workers, Defendants f o u n d e d the community of Uravan, constructing homes and a number of facilities, -5-

including a medical clinic, elementary school, community center, tennis courts, a n d a swimming pool. D e f e n d a n t s ceased operations in Uravan in 1984, having produced 42 m i l l i o n pounds of uranium oxide. This production did not come without e n v i r o n m e n t a l costs. In 1986 the Environmental Protection Agency placed U r a v a n on the National Priorities List, see 51 Fed. Reg. 21054, 21063 (June 10, 1 9 8 6 ) , which ranks the nation's most environmentally hazardous sites to prioritize r e m e d i a l action, see 42 U.S.C. § 9605(a)(8)(B). About this time, Uravan's r e m a i n i n g residents were evacuated and remedial activities began. The last s t r u c t u r e s standing in Uravan were razed after this lawsuit was filed. P l a i n t i f f s either resided in Uravan during some period between 1936 and 1 9 8 6 , or represent decedents who did. (For ease of exposition, we shall use the t e r m Plaintiffs to refer to those allegedly injured by Defendants, whether they be t h e Plaintiffs personally or the Plaintiffs' decedents.) The thrust of their claims is t h a t Defendants' milling operations exposed Uravan residents to various r a d i o a c t i v e materials, and that such exposure has caused, or increased the risk of, r a d i a t i o n - r e l a t e d illnesses. B. P rocedural H istory

P l a i n t i f f s brought this action under the Price-Anderson Act, which grants f e d e r a l district courts jurisdiction over lawsuits "arising out of or resulting from a

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nuclear incident." 42 U.S.C. § 2210(n)(2). Unless inconsistent with § 2210 of t h e Act, state law supplies the substantive law governing claims under the Act. See id. § 2014(hh). Plaintiffs also pleaded seven causes of action under Colorado t o r t law, but the district court ruled that they were preempted by the PriceA n d e r s o n Act because they arose from an alleged "nuclear incident," and it c o n v e r t e d the claims to federal claims under the Act. Twenty-seven Plaintiffs are pursuing personal-injury claims and 152 are p u r s u i n g only medical-monitoring claims. Of the 27 personal-injury Plaintiffs, 11 h a v e been diagnosed with nonthyroid cancer and 16 have been diagnosed with t h y r o i d disease (including one case of thyroid cancer). Defendants challenged Plaintiffs' claims with two motions for summary j u d g m e n t . One motion argued that the personal-injury claimants had failed to s h o w the but-for causation required by Colorado tort law. The other argued that t h e medical-monitoring claims could not proceed because (1) Colorado does not r e c o g n i z e such a cause of action and (2) the medical-monitoring Plaintiffs had not a l l e g e d a "bodily injury," as required by the Price-Anderson Act. I n opposition to the first motion, Plaintiffs argued that causation in C o l o r a d o is determined not by a but-for test but by a "substantial factor" test r e q u i r i n g only that the defendant's tortious conduct be "a substantial contributing c a u s e of the injury." Aplt. App., Vol. XII at 1986. Plaintiffs contended that their

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experts' opinions created a triable issue of fact "as to whether the Defendants' e m i s s i o n of radiation over the course of decades substantially contributed" to the p e r s o n a l - i n j u r y Plaintiffs' illnesses. Id. at 2000. As for the medical-monitoring c l a i m s , Plaintiffs asserted that they are viable under Colorado law and that the "bodily injury" requirement of the Price-Anderson Act poses no obstacle because e a c h Plaintiff's exposure to radiation resulted in "DNA damage and cell death." Id., Vol. VIII at 1385. T h e district court rejected the substantial-contributing-cause argument in s u p p o r t of Plaintiffs' personal-injury claims. It stated that a tort claimant in C o l o r a d o must demonstrate both of two distinct components of causation: (1) that " b u t for" the defendant's conduct the claimant would not have been injured and ( 2 ) that the defendant's conduct was a "substantial factor in bringing about the i n j u r y . " Id. at 2205 (internal quotation marks omitted). Because Plaintiffs had s u b m i t t e d no evidence of but-for causation, the court granted summary judgment. The court also rejected the medical-monitoring claims. The threshold issue, t h e court explained, was whether such claims constitute claims for "bodily injury" u n d e r the Price-Anderson Act. Construing this issue to be jurisdictional, the court t r e a t e d Defendants' summary-judgment motion on these claims as a motion to d i s m i s s under Federal Rule of Civil Procedure 12(b)(1). It then held that to have a claim for "bodily injury" under the Act, a plaintiff must "manifest[] objective

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symptoms." Id. at 2228. Even if the DNA damage and cell death purportedly s u f f e r e d by Plaintiffs increased the risk of future illness, reasoned the court, that i n j u r y was presently asymptomatic and thus not a "bodily injury." Accordingly, t h e court concluded that it lacked subject-matter jurisdiction over the medicalm o n i t o r i n g claims and dismissed them without prejudice. The court did not a d d r e s s whether medical-monitoring claims are recognized under Colorado law. P l a i n t i f f s challenged these rulings in a postjudgment motion under Federal R u l e of Civil Procedure 59(e), which the district court denied. Plaintiffs then a p p e a l e d to this court, presenting the following questions: (1) whether Plaintiffs w e r e required to show "but for" causation under Colorado law and (2) whether u n m a n i f e s t e d , subclinical injuries resulting from exposure to radiation can s u p p o r t a "bodily injury" claim under the Price-Anderson Act. II. D ISC U SSIO N W e review the grant of summary judgment de novo. See Navair, Inc. v. I F R Americas, Inc., 519 F.3d 1131, 1137 (10th Cir. 2008). Summary judgment s h o u l d be granted when there is no genuine dispute over any material fact and a p a r t y is entitled to prevail as a matter of law. See id.; Fed. R. Civ. P. 56(c). Likewise, "[w]e review a dismissal for lack of subject-matter jurisdiction de n o v o , accepting the district court's findings of jurisdictional facts unless they are c l e a r l y erroneous." M o n t o y a v. Chao, 296 F.3d 952, 954­55 (10th Cir. 2002).

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As previously mentioned, actions brought under the Price-Anderson Act are g o v e r n e d by the "substantive rules for decision" of the state in which the putative n u c l e a r incident occurred. 42 U.S.C. § 2014(hh). Plaintiffs claim that they s u f f e r e d harmful radiation exposure at Defendants' facilities in Uravan, Colorado, a n d the parties agree that Colorado tort law governs Plaintiffs' claims. W e t h e r e f o r e apply Colorado law. See Grynberg v. Total, S.A., 538 F.3d 1336, 1346 ( 1 0 t h Cir. 2008) (adopting parties' assumption of applicable law). A. P erson al-In ju ry C laim s

I n Colorado, as elsewhere, a party seeking recovery in tort must d e m o n s t r a t e that the defendant's conduct caused the alleged injury. See Vigil v. F r a n k l i n , 103 P.3d 322, 325 (Colo. 2004). The general rule for causation is that t h e plaintiff must prove that the alleged "injury would not have occurred but for t h e defendant's negligent conduct." Kaiser Found. Health Plan v. Sharp, 741 P . 2 d 714, 719 (Colo. 1987). Plaintiffs do not dispute that proposition but argue t h a t when there are "potential multiple or concurring causes" for an injury, C o l o r a d o applies a "substantial factor test" for causation, not the more stringent b u t - f o r test. Aplt. Br. at 50. Under the substantial-factor test, Plaintiffs contend, a n actor's conduct can be deemed causal "`where it is of sufficient significance in p r o d u c i n g the harm as to lead reasonable persons to regard it as a cause and to a t t a c h responsibility.'" Id. at 52 (quoting Sharp v. Kaiser Found. Health Plan,

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710 P.2d 1153, 1155 (Colo. Ct. App. 1985), aff'd on other grounds, 741 P.2d 714 ( C o l o . 1987)).1 Because the illnesses at issue in this case (cancer and thyroid d i s e a s e ) can have multiple causes, Plaintiffs conclude that this more permissive s u b s t a n t i a l - f a c t o r test applies. The legal issues regarding causation that arise when a disease has multiple p o s s i b l e causes are subtle. Plaintiffs' statement of the substantial-factor test r e f l e c t s the difficulty of the issues; it relies on certain language from the R e s t a t e m e n t (Second) of Torts but misstates the law by overlooking other l a n g u a g e . To better understand the proper test, it is helpful to review the more p r e c i s e , and clearer, treatment of multiple possible causes in the Proposed Final D r a f t of the Restatement (Third) of Torts: Liability for Physical Harm. 2 W e then c o m p a r e that treatment to the treatment in the Restatement (Second) and see that t h e ultimate legal standards in the two Restatements are essentially identical for o u r purposes. Roughly speaking (we will become more precise as we discuss the

The quoted language can ultimately be traced to Restatement (Second) of Torts § 431 cmt. a ("The word `substantial' is used to denote the fact that the defendant's c o n d u c t has such an effect in producing the harm as to lead reasonable men to regard it a s a cause, using the word in the popular sense, in which there always lurks the idea of r e s p o n s i b i l i t y . . . ." (emphasis added)), although, as we shall see, the court-of-appeals d e c i s i o n in Sharp ignored essential requirements of the substantial-factor test. The proposed final draft has been approved by the American Law Institute, but i t s publication has been delayed until work on other topics covered in the Restatement i s finished. See Press Release, American Law Institute, Agenda Set for the American La w Institute's 86th Annual Meeting in Washington, D.C. (April 16, 2009). -112

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underlying concepts), under the Restatements a Plaintiff could recover from D e f e n d a n t s only if either (1) Uravan radiation was a but-for cause of the P l a i n t i f f ' s ailments or (2) that radiation (either alone or with other factors) would h a v e caused the ailments. Because Colorado law has been consistent with the t r e a t m e n t of causation in the Restatements, we presume that it, too, would impose t h i s requirement for recovery. W e therefore reject Plaintiffs' version of the s u b s t a n t i a l - f a c t o r test. To explain how we have arrived at this conclusion, we turn to an extended d i s c u s s i o n of general principles. Applying those principles to this case, we then a f f i r m the summary judgment. 1. G e n e r a l Principles

T h e term substantial factor appears in the treatment of causation in the R e s t a t e m e n t (Second) of Torts (as well as its predecessor, the original R e s t a t e m e n t of Torts). It has been abandoned, however, in the Restatement ( T h i r d ) of Torts because of the misunderstanding that it has engendered. See id. § 26 cmt. j. Causation under the Restatement (Third) has two components. First, the t o r t i o u s conduct must be the "factual cause" of the physical harm to the plaintiff. See id. §§ 26, 27. Ordinarily, a cause is a "factual cause" only if it is a but-for c a u s e , see id. § 26, although there is a potential exception, which we will discuss

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shortly, when there are multiple causes, see id. § 27. Second, the harm must be a m o n g the "harms that result from the risks that made the actor's conduct t o r t i o u s . " Id. § 29. Traditionally, this second component has been referred to as " p r o x i m a t e cause," a term that has baffled law students (to say nothing of jurors, l a w y e r s , and judges) for generations; but the Restatement (Third) has wisely r e d e s c r i b e d the subject matter as "scope of liability." See id. Ch. 6, Special Note o n Proximate Cause; id. § 29 cmt. b. W e need not dwell on this topic-- t h e focus o f our attention is on factual cause-- b u t an illustration in the Restatement (Third) c o n v e y s what is necessary to show that an injury factually caused by the d e f e n d a n t is within the scope of liability: R i c h a r d , a hunter, finishes his day in the field and stops at a friend's h o u s e while walking home. His friend's nine-year-old daughter, K i m , greets Richard, who hands his loaded shotgun to her as he e n t e r s the house. Kim drops the shotgun, which lands on her toe, b r e a k i n g it. Although Richard was negligent for giving Kim his s h o t g u n , the risk that made Richard negligent was that Kim might s h o o t someone with the gun, not that she would drop it and hurt h e r s e l f (the gun was neither especially heavy nor unwieldy). Kim's b r o k e n toe is outside the scope of Richard's liability, even though R i c h a r d ' s tortious conduct was a factual cause of Kim's harm. I d . cmt. b, illus. 3. R e t u r n i n g to the concept of factual cause, § 26 states that "[c]onduct is a f a c t u a l cause of harm when the harm would not have occurred absent the c o n d u c t . " As comment b to the section states, this standard "is familiarly referred t o as the `but-for' test." That test "requires a counterfactual inquiry" in which the -13-

court considers "what would have occurred if the actor had not engaged in the t o r t i o u s conduct." Id. cmt. e. If the harm complained of would have occurred n o t w i t h s t a n d i n g the actor's conduct, then that conduct is not a but-for cause. See id. Section 27, however, recognizes that it is sometimes appropriate to impose l i a b i l i t y even when the harm would have occurred without the defendant's act. This exceptional circumstance is narrowly defined to impose liability only "when a tortfeasor's conduct, while not necessary for the outcome, would have been a f a c t u a l cause if the other competing cause had not been operating." Id. § 27 c m t . a. The black letter of § 27 states: "If multiple acts exist, each of which a l o n e would have been a factual cause under § 26 of the physical harm at the s a m e time, each act is regarded as a factual cause of the harm." Again, an i l l u s t r a t i o n clarifies the concept: Rosaria and Vincenzo were independently camping in a heavily f o r e s t e d campground. Each one had a campfire, and each negligently f a i l e d to ensure that the fire was extinguished upon retiring for the n i g h t . Due to unusually dry forest conditions and a stiff wind, both c a m p f i r e s escaped their sites and began a forest fire. The two fires, b u r n i n g out of control, joined together and engulfed Centurion C o m p a n y ' s hunting lodge, destroying it. Either fire alone would h a v e destroyed the lodge. Each of Rosaria's and Vincenzo's n e g l i g e n c e is a factual cause of the destruction of Centurion's h u n t i n g lodge. Id. cmt. a, illus. 1. The formulation of the requirements for causation in the Restatement -14-

(Third) employs different nomenclature from that in the Restatement (Second), b u t it does not impose a stricter requirement for factual causation. W e explain. Section 430 of the Restatement (Second) states that a negligent person is l i a b l e for another's harm only if the negligent conduct was a "legal cause" of the h a r m . Section 431 then introduces the notion of "substantial factor," stating that " n e g l i g e n t conduct is a legal cause of harm to another if . . . his conduct is a s u b s t a n t i a l factor in bringing about the harm" and no rule of law exempts him f r o m liability. Section 433 sets forth considerations that are "important in d e t e r m i n i n g whether the actor's conduct is a substantial factor in bringing about h a r m to another." Those considerations are: ( a ) the number of other factors which contribute in producing the h a r m and the extent of the effect which they have in producing it; (b) w h e t h e r the actor's conduct has created a force or series of forces w h i c h are in continuous and active operation up to the time of the h a r m , or has created a situation harmless unless acted upon by other f o r c e s for which the actor is not responsible; (c) lapse of time. R e s t a t e m e n t (Second) of Torts § 433. Reading the black letter of §§ 430, 431, and 433, one could easily conclude t h a t courts and juries have substantial leeway to depart from but-for causation in i m p o s i n g liability. It would appear to be enough if the considerations listed in § 433 suggest that liability is appropriate. This is how Plaintiffs appear to u n d e r s t a n d the doctrine. But this conclusion cannot stand once one reads § 432, w h i c h imposes a requirement for liability that is at least as stringent as the -15-

factual-cause requirement in the Restatement (Third). Section 432(1) sets forth t h e general requirement of but-for causation; and § 432(2) recognizes what has b e c o m e the exception in Restatement (Third) § 27 for "multiple sufficient c a u s e s . " Section 432 states: ( 1 ) Except as stated in Subsection (2), the actor's negligent conduct i s not a substantial factor in bringing about harm to another if the h a r m would have been sustained even if the actor had not been n e g lig e n t. (2) If two forces are actively operating, one because of the actor's n e g l i g e n c e , the other not because of any misconduct on his part, and e a c h of itself is sufficient to bring about the harm to another, the a c t o r ' s negligence may be found to be a substantial factor in bringing i t about. T h u s , as we understand the substantial-factor requirement in the R e s t a t e m e n t (Second), it adopts essentially the same standard for factual cause as t h e Restatement (Third). And that standard is different from what Plaintiffs a d v o c a t e . W h a t Plaintiffs would apparently use to determine whether conduct is a s u b s t a n t i a l factor-- t h e conditions set forth in § 433-- a r e actually limitations on w h a t conduct can qualify as a substantial factor. Once conduct satisfies one of t h e alternative requirements in § 432(1) and (2)-- w h i c h in the Restatement ( T h i r d ) §§ 26, 27 are the alternative grounds for being a factual cause-- i t must s t i l l qualify under § 433 if it is to be considered a substantial factor. (The c o u n t e r p a r t to § 433 in the Restatement (Third) is § 36, which states that "[w]hen a n actor's negligent conduct constitutes only a trivial contribution to a causal set -16-

that is a factual cause of physical harm under § 27, the harm is not within the s c o p e of liability." An actor's trivial contribution thus would still be a factual c a u s e , but the actor would not be liable because the harm was outside the scope of l i a b i l i t y . It should be noted that § 36, unlike Restatement (Second) § 433, applies o n l y to one of multiple sufficient causes, not to a but-for factual cause. 3 ) T h e r e are two further nuances regarding factual cause that need to be e x p l a i n e d : the notion of causal sets and the meaning of the term sufficient cause. The notion of a causal set is a helpful innovation in the Restatement (Third). A n u m b e r of factors (often innocent) generally must coexist for a tortfeasor's c o n d u c t to result in injury to the plaintiff. Even when the defendant drives his car i n t o the plaintiff's car, no injury would have resulted if the plaintiff had not e n t e r e d her car and driven to the accident site. That there are many factors does n o t mean that the defendant's conduct was not a cause. As comment c to § 26 of t h e Restatement (Third) explains: A useful model for understanding factual causation is to c o n c e i v e of a set made up of each of the necessary conditions for p l a i n t i f f ' s harm. Absent any one of the elements of the set, the p l a i n t i f f ' s harm would not have occurred. Thus, there will always be m u l t i p l e (some say, infinite) factual causes of a harm, although most w i l l not be of significance for tort law and many will be unidentified.

Restatement (Third) § 36 comment a implies that § 433 did not apply to but-for c a u s e s . But the Reporters for the Restatement now believe that the comment was e r r o n e o u s in that respect. See Joseph Sanders, William C. Powers, Jr. & Michael D. G r e e n , The Insubstantiality of the "Substantial Factor" Test for Causation, 73 Mo. L. R e v . 399, 421­22 n.90 (2008). -17-

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That there are a large number of causes of an event does not mean t h a t everything is a cause of an event. The vast majority of acts, o m i s s i o n s , and other factors play no role in causing any discrete event. T h i s causal-set model does not imply any chronological r e l a t i o n s h i p among the causal elements involved, although all causes m u s t precede the plaintiff's harm. An actor's tortious conduct may o c c u r well before the other person suffers harm and require a number o f subsequent events to produce the harm. Thus, a gas valve n e g l i g e n t l y constructed may not fail for many years. Toxic s u b s t a n c e s may be sold without adequate warnings but not produce h a r m for decades. Conversely, the tortious conduct may occur after a n u m b e r of other necessary events have already occurred but close in t i m e to the occurrence of harm. Nor does this model imply any r e l a t i o n s h i p among the causal elements; causal elements may operate i n d e p e n d e n t l y , as when a property owner neglects a patch of ice on a s i d e w a l k and a careless pedestrian fails to notice the condition, p r o d u c i n g a fall. W h e n § 27 of the Restatement (Third) speaks of "multiple sufficient c a u s e s , " it could more precisely speak of "multiple sufficient causal sets." See id. § 27 cmt. f. For example, the evidence at trial may show (1) that conditions A, B, C , D, E, and F were present; (2) that if only A, B, and C had been present, the i n j u r y would probably have occurred; and (3) that if only D, E, and F had been p r e s e n t , the injury would probably have occurred. If F is the defendant's m i s c o n d u c t , then F was not a but-for cause of the injury; even without F, the i n j u r y would have occurred (all it took was A, B, and C). But since D, E, and F w o u l d also have caused the injury, F is a component of a second causal set. F m u s t , of course, be a necessary component of the second causal set to be a factual

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cause of the injury. See id. That is, F would not be a factual cause if D and E a l o n e would have been enough to cause the injury; F must be a "but for" c o m p o n e n t of at least one causal set for liability to attach. M o r e o v e r , multiple causal sets may share some components. If A, B, and C w o u l d probably have caused the injury (with each of A, B, and C being necessary) a n d so would have A, B, and D, the tortfeasor who committed D would be liable. The Restatement (Third) provides the following example: Able, Baker, and Charlie, acting independently but simultaneously, e a c h negligently lean on Paul's car, which is parked at a scenic o v e r l o o k at the edge of a mountain. Their combined force results in t h e car rolling over the edge of a diminutive curbstone and p l u m m e t i n g down the mountain to its destruction. The force exerted b y each of Able, Baker, and Charlie would have been insufficient to p r o p e l Paul's car past the curbstone, but the combined force of any t w o of them is sufficient. Able, Baker, and Charlie are each a factual c a u s e of the destruction of Paul's car. I d . § 26 cmt. f, illus. 3. A real-world example would be a typical asbestosis lawsuit. A person s u f f e r i n g from asbestosis may have been exposed to asbestos from a number of s o u r c e s (say, four), and the total exposure may have been more than enough to c a u s e asbestosis. It may well be (1) that asbestosis would probably have arisen e v e n without exposure of the victim to Source A, so Source A is not a but-for c a u s e ; and (2) that Source A by itself would not have caused asbestosis. But S o u r c e A may be a factual cause if it was a necessary component of a causal set

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that included, say, two of the other sources and the three together would probably h a v e caused asbestosis. See, e.g., Spaur v. Owens-Corning Fiberglas Corp., 510 N . W . 2 d 854, 858 (Iowa 1994); Eagle-Picher v. Balbos, 604 A.2d 445, 459 (M d . 1 9 9 2 ) ; Restatement (Third) of Torts § 27 Reporters' Note cmt. g. 4 F i n a l l y , we attempt to dispel some confusion that may arise from use of the w o r d sufficient in the provisions of the Restatement (Second) and the Restatement ( T h i r d ) that provide an alternative to but-for causation in limited circumstances. Restatement (Second) § 432(2) employs the phrase "forces . . . sufficient to bring a b o u t harm to another" and Restatement (Third) § 27 is entitled "M u l t i p l e S u f f i c i e n t Causes." The use of the word sufficient in both Restatements does not m e a n that either of them would impose liability for conduct that is not a but-for c a u s e if only the conduct could have caused the injury. Rather, it is necessary for t h e plaintiff to show that the conduct (or the causal set of which it is a necessary p a r t ) would in fact have caused the injury. As we all know, in the modern world o f many hazardous substances, there may be many possible causes of a particular c a n c e r . Each could be said to be sufficient to cause a specific person's cancer. But one who suffers that cancer does not have a cause of action based on each

Restatement (Third) provides no guidance on whether an actor's contribution c a n be considered as an element of a causal set that contains only a portion of another a c t o r ' s contribution. See id. § 27 cmt. f. For example, could the causal set be c o m p o s e d of the asbestos exposure caused by the defendant plus half of the asbestos e x p o s u r e caused by someone else? We need not take a position on this difficult q u e s t i o n to resolve the issues on appeal. -20-

4

such substance to which he was exposed, regardless of how unlikely it is that the c a n c e r resulted from that exposure. Only a substance that would have actually ( t h a t is, probably) caused the cancer can be a factual cause without being a butf o r cause. This is clear in the black letter of Restatement (Third) § 27, which s t a t e s : "If multiple acts exist, each of which alone would have been a factual c a u s e under § 26 of the physical harm at the same time, each act is regarded as a f a c t u a l cause of the harm." Id. (emphasis added). And the illustrations to the s e c t i o n confirm this reading. W e have already quoted the illustrations involving t w o fires, each of which "alone would have destroyed the lodge," id. cmt. a, illus. 1 , and involving three persons leaning on a car, "the combined force of any two o f [whom] is sufficient [to propel the car]," id. cmt. f, illus. 3. W e leave to a f o o t n o t e a third illustration, the one most pertinent to the case before us, which r e q u i r e s proof that a drug "would have caused" the birth defect that could also h a v e been caused by an unrelated genetic condition. Id. cmt. e, illus. 2. It is not e n o u g h that the drug could have caused the defect, as might be inferred from use o f the term sufficient cause. 5

5

Comment e, Illustration 2 states: T r e n t is the guardian ad litem and father of Lakeesha, an infant b o r n with a birth defect. Trent sues Pharmco, a pharmaceutical c o m p a n y, alleging both that Pharmco's drug caused Lakeesha's b i r t h defect and that Pharmco was negligent for its failure to warn t h a t its drug was teratogenic. Pharmco makes a third-party claim (continued...) -21-

The Restatement (Second) is not as clear as the Restatement (Third) in e x c l u d i n g conduct that merely "could have" caused the injury, but the sole i l l u s t r a t i o n to the point in Restatement (Second) § 432 is essentially the same as t h e concurrent-fires illustration in Restatement (Third) § 27. In any event, the v e r y notion of two (or more) causes (or causal sets), neither of which is a but-for c a u s e , necessarily assumes that each of the causes would have caused the injury. Say there are two such causes, A and B. The reason that A is not a but-for cause

5

(...cont i nued) a g a i n s t Wardman, alleging that it negligently released chemicals t h a t contaminated Trent's ground and drinking water. Trent i n t r o d u c e s sufficient evidence for the factfinder to find that P h a r m c o ' s failure to warn was negligent, that the drug was a cause o f Lakeesha's birth defect, and that an adequate warning would h a v e prevented the birth defect. Pharmco introduces sufficient e v i d e n c e of Wardman's negligence and that its chemical was a c a u s e of Lakeesha's birth defect. Trent then receives permission to a m e n d his complaint to make a claim against Wardman. Pharmco c o n t e n d s that its drug did not cause Lakeesha's birth defect. Rather, P h a r m c o contends, Lakeesha's birth defect was caused by a genetic c o n d i t i o n wholly unrelated to the drug. Pharmco introduces s u f f i c i e n t evidence in support of its claims. The factfinder must d e t e r m i n e if the drug, absent Lakeesha's genetic condition, would h a v e caused the birth defect. The factfinder must also determine if, a b s e n t the drug, Lakeesha's genetic condition would have caused t h e birth defect. If the factfinder determines that either the drug or t h e genetic condition would have, in the absence of the other, c a u s e d Lakeesha's birth defect at the same time then each is a f a c t u a l cause pursuant to this section. If the factfinder determines t h a t either the drug or genetic condition played no role in the birth d e f e c t , then the other's causal status is determined under the but-for s t a n d a r d of § 26.

(Emphases added). -22-

is that the injury would probably have occurred even if A had not been present. But that is merely another way of saying that even in the absence of A, B p r o b a b l y would have caused the injury; it would not be enough (to prevent A from b e i n g a but-for cause) that B may have caused the injury on its own but probably w o u l d not have. 6 T o sum up, as we understand the Restatement (Second) and the Restatement ( T h i r d ) , a defendant cannot be liable to the plaintiff unless its conduct is either ( a ) a but-for cause of the plaintiff's injury or (b) a necessary component of a c a u s a l set that (probably) would have caused the injury in the absence of other c a u s e s . In particular, conduct was not a "substantial factor", within the meaning o f the term in the Restatement (Second), in bringing about a plaintiff's injury u n l e s s it satisfied (a) or (b), and also was a sufficiently significant factor under t h e considerations set forth in Restatement (Second) § 433. Thus, Plaintiffs' s u b s t a n t i a l - f a c t o r argument misconceives the meaning of substantial factor in the R e s t a t e m e n t (Second). To be sure, it is Colorado law that governs here, not the Restatements. The C o l o r a d o Supreme Court may have decided to disagree with the Restatements and a d o p t a different standard for causation. But we see no evidence of this. W e

We recognize that the factfinder could find that there was a 50% probability t h a t B would have caused the injury. We can leave to another day how such a c i r c u m s t a n c e would affect the analysis of factual cause. -23-

6

have reviewed the Colorado opinions relied upon by Plaintiffs for their view of t h e substantial-factor standard. None expressly addresses multiple sufficient c a u s e s . All but one are fully consonant with our above analysis. The sole e x c e p t i o n is the opinion by the Colorado Court of Appeals in Sharp, 710 P.2d at 1 1 5 5 . That decision held that the trial court had erred in requiring evidence of b u t - f o r causation because the plaintiff had been required to show only that the m i s d i a g n o s i s of her heart condition was a "substantial factor" in causing her heart a t t a c k . In language ultimately derived from Restatement (Second) § 431 cmt. a, t h e court said, "A defendant's conduct is a substantial factor where it is of s u f f i c i e n t significance in producing the harm as to lead reasonable persons to r e g a r d it as a cause and to attach responsibility." Sharp, 710 P.2d at 1155; see R e s t a t e m e n t (Second) § 431 cmt. a ("The word `substantial' is used to denote the f a c t that the defendant's conduct has such an effect in producing the harm as to l e a d reasonable men to regard it as a cause, using the word in the popular sense, i n which there always lurks the idea of responsibility . . . ." (emphasis added)). But the court apparently ignored Restatement (Second) § 432, discussed above, w h i c h states that conduct is not a substantial factor unless it is a but-for cause or o n e of multiple sufficient causes. In any event, the state Supreme Court took the c a s e and affirmed on a different theory. See Sharp, 741 P.2d at 718, 720 (finding

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sufficient evidence of but-for causation and affirming court of appeals without r e a c h i n g its "`substantial factor' analysis"). Our role here is to predict what the Colorado Supreme Court would adopt a s the governing law. See TM J Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1180 ( 1 0 t h Cir. 2007) (federal courts applying state law must "predict what the state's h i g h e s t court would do" (internal quotation marks omitted)). Predicting another c o u r t ' s decision is necessarily an uncertain proposition. In our view, however, it w o u l d be too adventurous on our part to assume that Colorado would depart from t h e Restatements. W e therefore hold that Defendants would be liable only upon p r o o f of one of the following: (1) that exposure of a Plaintiff to Uravan radiation w a s a but-for cause of the Plaintiff's medical condition or (2) that such exposure t o Uravan radiation was a necessary component of a causal set that would have c a u s e d the medical condition. W e now examine whether Plaintiffs supplied such evidence. 2. C a u sa tio n E v id en ce

P l a i n t i f f s failed to raise in district court a genuine issue of fact regarding f a c t u a l causation. That is, they failed to present to the court evidence, or even an a r g u m e n t , that Uravan radiation was either a but-for cause of any medical c o n d i t i o n suffered by one of the Plaintiffs or that Uravan radiation was a

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necessary component of a causal set that would probably have caused one of those conditions. Plaintiffs presented five expert witnesses. Dr. Colin K. Hill, who was o f f e r e d only as an expert with respect to the medical-monitoring Plaintiffs, t e s t i f i e d regarding how radiation injures cells and begins the process that can lead t o cancer and other ailments. Dr. A. James Ruttenber addressed only general c a u s a t i o n , that is, whether radiation at Uravan had the capacity to cause the c a n c e r s and thyroid diseases that the Plaintiffs developed. See Neiberger v. Fed E x Ground Package Sys., Inc., 566 F.3d 1184, 1191 (10th Cir. 2009) (discussing g e n e r a l and specific causation); Restatement (Third) of Torts § 28 cmt. c(3), c(4) ( s a m e ) . Dr. F. Owen Hoffman provided the raw data upon which the final two e x p e r t s relied. He estimated the mean dose of radiation received by each Plaintiff f r o m Uravan operations. And for the Plaintiffs claiming thyroid diseases, he e s t i m a t e d their radiation exposure from the detonation of atomic weapons at a t e s t i n g site in Nevada (the Nevada Test Site or NTS) conducted between 1959 and 1 9 7 0 . In addition, for the cancer Plaintiffs (including the one who suffered t h y r o i d cancer) he converted the Uravan dosage into a figure representing the " E x c e s s Risk of Diagnosed Cancer" and an "Assigned Share" figure that can be u s e d to compare the number of cancers expected in a population exposed to that

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level of radiation to the number that would be expected in an unexposed p o p u l a t i o n . Aplt. App., Vol. X at 1869, 1872. T o prove specific causation for each Plaintiff-- t h a t is, to prove that the U r a v a n radiation caused the specific ailment of which the Plaintiff c o m p l a i n e d -- P l a i n t i f f s relied on the remaining two experts: Drs. Inder J. Chopra a n d Robert Peter Gale. Dr. Chopra addressed the Plaintiffs with thyroid disease ( i n c l u d i n g the one case of thyroid cancer) and Dr. Gale addressed the remaining P l a i n t i f f s , all of whom had suffered cancer. Dr. Chopra prepared a report that assessed each thyroid Plaintiff and c o n c l u d e d that the Plaintiff's exposure to radiation from Uravan and NTS fallout w a s a "substantial factor contributing to" the Plaintiff's thyroid disease. See, e.g., i d . , Vol. IX at 1562. A "substantial factor," he explained, "is intended to mean t h a t the exposures were one of the variables that contributed to the observed h e a l t h effect (thyroid disease)." Id. at 1556. He defined "substantial" as "an a m o u n t that is not trivial," id, concluding that if the "contribution of any one s o u r c e to [a Plaintiff's] total exposure to irradiation was 5% of the total," its c o n t r i b u t i o n was "substantial," Id. at 1557. Because at least 5% of the radiation e x p o s u r e for each Plaintiff came from Uravan, the Uravan radiation was a s u b s t a n t i a l contributing factor. Dr. Chopra's report did not, however, state with r e s p e c t to any Plaintiff that Uravan radiation was a but-for cause of the Plaintiff's

-27-

thyroid disease or was a necessary component of a causal set that probably would h a v e caused the Plaintiff to suffer the disease. For the Plaintiffs with cancer (other than thyroid cancer), Dr. Gale's report o p i n e d that "to a reasonable medical probability exposure to ionizing radiations w a s a substantial factor contributing to each plaintiff developing cancer(s)." Id. a t 1642 (emphasis omitted). The report did not define substantial contributing f a c t o r , but it noted that, based on Dr. Hoffman's data, each of the Plaintiffs had a n assigned share exceeding 10% , and he later submitted a declaration that this m e a n t that there is greater than a "10% likelihood [that a] Plaintiff's cancer was c o n t r i b u t e d to by the additional radiation exposure from Defendants' uranium o p e r a t i o n s . " Id. Vol. XII at 2075. As was true of Dr. Chopra, however, Dr. Gale d i d not opine that Uravan radiation was either a but-for cause of any Plaintiff's c a n c e r or was a necessary component of a causal set that would have caused the cancer. Thus, the evidence relied on by Plaintiffs did not show that Uravan r a d i a t i o n was a factual cause of any of their ailments. In reaching this conclusion w e are not being hypertechnical. The problem for Plaintiffs is not that their e x p e r t s failed to utter some magic words, such as "but for." Nor are we relying o n any expertise of this court in analyzing the data and opinions from Plaintiffs' e x p e r t s . W e claim no such expertise. For all we know, the data would support

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but-for claims of some, or even all, Plaintiffs. The problem for Plaintiffs is that t h e y did not make a timely argument that they had produced evidence of but-for c a u s a t i o n , and they have never (not even in this court) contended that they have p r o d u c e d evidence that Uravan radiation was a necessary component of a causal s e t that probably would have caused the Plaintiffs' ailments. Our conclusion in this regard follows from an examination of how the issue w a s joined below. The Defendants' summary-judgment motion on the personali n j u r y claims was premised on the absence of but-for evidence. Defendants s t r e s s e d that agents other than radiation can cause the Plaintiffs' ailments and that n e i t h e r Dr. Chopra nor Dr. Gale had opined that those ailments "would not have o c c u r r e d `but for' [the Plaintiffs'] exposure to the radioactive substances a t t r i b u t a b l e to Defendants' activities." Id. Vol. XI at 1928. In response, P l a i n t i f f s argued that they need not establish but-for causation and that their e x p e r t s -- n a m e l y Drs. Chopra and Gale-- c r e a t e d a triable issue of fact by opining t h a t exposure to radiation at Uravan "substantially contributed" to the d e v e l o p m e n t of each Plaintiff's disease. Id. Vol. XII at 1992, 1997­98. At a h e a r i n g on the matter the district court rejected Plaintiffs' "substantially c o n t r i b u t e d " standard and stated that Defendants were entitled to summary j u d g m e n t because the Plaintiffs' "experts ha[d] not offered the requisite opinion o f `but for' causality." Id. Vol. XIII at 2208. A few seconds after stating that

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conclusion, the court asked whether there was "[a]ny need for clarification or f u r t h e r explanation with regard to the ruling on this motion?" Id. Plaintiffs' c o u n s e l responded "No, your Honor." Id. Ten days later Plaintiffs filed a motion to alter or amend the judgment u n d e r Federal Rule of Civil Procedure 59(e). The motion asserted, for the first t i m e , that their evidence could satisfy the but-for requirement (if one were e r r o n e o u s l y imposed). But even then the specific arguments that Plaintiffs raised a m o u n t e d to no more than the assertion that the substantial-factor test "actually s u b s u m e s the `but for' test." Id. at 2357. They pointed to no evidence that their a i l m e n t s would not have occurred in the absence of Uravan radiation. M o r e o v e r , a R u l e 59(e) motion cannot be used to "advance arguments that could have been r a i s e d in prior briefing." See Grynberg, 538 F.3d at 1354 (internal quotation m a r k s omitted).

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Plaintiffs make better but-for arguments on appeal. 7 But they come too l a t e . Based on the evidence and arguments properly before the district court, s u m m a r y judgment on all personal-injury claims was appropriately granted. See H u t t o n Contracting Co. v. City of Coffeyville, 487 F.3d 772, 782 (10th Cir. 2007) ( " A b s e n t special circumstances, we will not reverse on a ground not raised b elo w ."). B. M edical-M on itorin g C laim s

W e now turn to the claims seeking payment for medical monitoring to d e t e c t the onset of disease. The district court dismissed these claims without p r e j u d i c e because they do not assert a "bodily injury," as required for jurisdiction u n d e r the Price-Anderson Act. W e affirm the dismissal. 8

T h e partial dissent says that two statements by Dr. Chopra would support a f i n d i n g of but-for causation with respect to the thyroid-disease Plaintiffs. But the P l a i n t i f f s did not rely on the two statements in the district-court proceedings, so the D e f e n d a n t s lacked an opportunity to address, and perhaps dispose of, them. For e x a m p l e , Defendants might have challenged whether Dr. Chopra could reasonably c o n c l u d e that the Uravan radiation was a but-for cause of each Plaintiffs' thyroid d i s e a s e given that (1) none of the 16 thyroid-disease Plaintiffs was exposed to more t h a n 105 rads total from Uravan and NTS radiation; (2) the only thyroid disease suffered b y 11 of the 16 was hypothyroidism; and (3) Dr. Chopra's report states that "[little] data a r e available on the occurrence of hypothyroidism in persons exposed to low or m o d e r a t e doses of radiation (<750 rads)," Aplt. App., Vol. II at 1623. Defendants contend that bodily injury is not a prerequisite to subject-matter j u r i s d i c t i o n under the Price-Anderson Act but merely a required element of the cause of a c t i o n . They therefore assert that the dismissal should have been with prejudice rather t h a n without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th C i r . 2006) (our "cases requir[e] that a dismissal for lack of jurisdiction be without p r e j u d i c e " ) . Defendants may be correct on the law. See Phillips v. E.I. DuPont de (continued...) -318

7

The Price-Anderson Act of 1957 protects the public while promoting the g e n e r a t i o n of nuclear power by establishing an insurance and indemnification s c h e m e that caps liability in the event of a nuclear mishap. See Duke Power Co. v . Carolina Envtl. Study Group, Inc., 438 U.S. 59, 64­65 (1978). The Act has b e e n amended on several occasions. In its present form it grants federal district c o u r t s jurisdiction to hear "public liability action[s]." 42 U.S.C. § 2210(n)(2). A " ` p u b l i c liability action'" is "any suit asserting public liability." Id. § 2014(hh). The term public liability encompasses, with a few exceptions, "any legal liability a r i s i n g out of or resulting from a nuclear incident." Id. § 2014(w). 9 A "`nuclear

(...cont i nued) N e m o u r s & Co. (In re Hanford Nuclear Reservation Litig.), 534 F.3d 986, 1009­10 (9th C i r . 2008) (bodily injury is not prerequisite to subject-matter jurisdiction under PriceA n d e r s o n Act). But their failure to cross-appeal on this issue precludes us from r e m a n d i n g for entry of a dismissal with prejudice. Under the cross-appeal rule, "an a p p e l l a t e court may not alter a judgment to benefit a nonappealing party." Greenlaw v. U n i t e d States, 128 S. Ct. 2559, 2564 (2008). "This rule applies to preclude an appellate c o u r t , in the absence of a cross-appeal, from changing a dismissal without prejudice to a d i s m i s s a l with prejudice." Standard Inv. Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, I n c . , 560 F.3d 118, 126 (2d Cir. 2009); see 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3904, at 198 (2d ed. 1991). Also, our standard of appellate review of the bodily-injury issue would be the same in t h i s case whether we treat the issue as a matter of jurisdiction or of the sufficiency of t h e evidence on summary judgment. See Montoya, 296 F.3d at 954­55 (review of legal i s s u e s underlying dismissal for lack of subject-matter jurisdiction is de novo); Navair, 5 1 9 F.3d at 1137 (review of summary judgment is de novo). Therefore, we need not d e c i d e whether bodily injury is a jurisdictional requirement. The term does not encompass (1) workers' compensation claims under state or f e d e r a l law brought by persons "employed at the site of and in connection with the a c t i v i t y where the nuclear incident occurs"; (2) "claims arising out of an act of war"; a n d (3) when used in 42 U.S.C. § 2210(a), (c), and (k), "claims for loss of, or damage (continued...) -329

8

incident,'" in turn, is defined as "any occurrence . . . causing . . . bodily injury, s i c k n e s s , disease, or death, or loss of or damage to property, or loss of use of p r o p e r t y , arising out of or resulting from the radioactive, toxic, explosive, or o t h e r hazardous properties of source, special nuclear, or byproduct material." 42 U.S.C. § 2014(q) (emphasis added). The parties agree that whether the medical-monitoring Plaintiffs (who do n o t claim to have suffered a sickness or disease) can sue under the PriceA n d e r s o n Act depends on whether they have suffered "bodily injury." The m e d i c a l - m o n i t o r i n g Plaintiffs contend that they have suffered bodily injury in the f o r m of "DNA damage and cell death" resulting from their exposure to radiation a t Uravan. Aplt. App., Vol. VIII at 1384­85. Although these injuries are s u b c l i n i c a l -- n o t having been manifested in any diagnosed disease or i n j u r y -- P l a i n t i f f s contend that the alleged injuries have enhanced the risk that t h e y will develop disease in the future. They seek damages to cover the cost of d e t e c t i n g latent radiation-related health problems. I n support of this claim, Plaintiffs rely on reports prepared by Dr. Colin K. H i l l , a radiation biologist. Dr. Hill's reports explain that when radiation hits a h u m a n cell, it can break DNA strands in the cell's nucleus, by direct or indirect

(...cont i nued) t o , or loss of use of property which is located at the site of and used in connection with t h e licensed activity where the nuclear incident occurs." 42 U.S.C. § 2014(w). -33-

9

action. Although the vast majority of such breaks are properly repaired by the b o d y , some mutations in the DNA remain and can lead to the development of a c a n c e r o u s cell. Strand breaks also can result in death of the cell. Such radiationi n d u c e d cell injury, Dr. Hill explained, can lead to thyroid disease. Dr. Hill c o n c l u d e d that although a particular exposure to radiation may not trigger these p r o c e s s e s , there is no dosage threshold; any exposure to radiation can break DNA s t r a n d s and set the train in motion. In our view, "DNA damage and cell death," which creates only a possibility o f clinical disease, does not constitute a "bodily injury" under the Price-Anderson A c t . It is true that a number of courts have recognized medical-monitoring claims ( n o t brought under the Price-Anderson Act) premised on subclinical effects of t o x i c exposure. But, tellingly, these courts have not reasoned that subclinical i n j u r i e s from a toxic agent are bodily or physical injuries. Rather, those that have r e c o g n i z e d medical-monitoring claims absent clinical symptoms have grounded t h e cause of action on the plaintiff's "legally protected interest in avoiding . . . e x p e n s i v e medical evaluations caused by the tortious conduct of others." 1 0 Other

Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 717 (Mo. 2007); see, e . g . , Bower v. Westinghouse Elec. Corp., 522 S.E. 2d 424, 426­27, 430 (W. Va. 1999) ( i n claim for medical-monitoring relief brought by asymptomatic plaintiffs exposed to t o x i c substances, court rejects contention that claim "must rest upon the existence of p r e s e n t physical harm"; "the exposure itself and the concomitant need for medical t e s t i n g constitute the injury" (internal quotation marks omitted)); Bourgeois v. A.P. G r e e n Indus., Inc., 716 So. 2d 355, 356­57, 359 (La. 1988) (although asymptomatic (continued...) -34-

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courts that have permitted medical-monitoring relief have required a present p h y s i c a l injury; and they have generally presumed that the subclinical effects of t o x i c exposure do not constitute physical injury. 1 1 P e r h a p s more significantly, adopting the Plaintiffs' understanding of the t e r m bodily injury would render it superfluous in the statute. See M c C l o y v. U.S.

(...continued) p l a i n t i f f s did not suffer "bodily harm" from exposure to asbestos, their medicalm o n i t o r i n g claim rested on "legally protected interest" of avoiding "costly medical b i l l s " ) , abrogated by statute, La. Civ. Code Ann. art. § 2315(B); Potter v. Firestone T i r e & Rubber Co., 863 P.2d 795, 801­03, 822 (Cal. 1993) (although plaintiffs could n o t trace any physical symptom to their exposure to carcinogens, their need to pay for m e d i c a l monitoring was a "`harm'" even if not a "`physical harm'" within the meaning o f Restatement (Second) of Torts § 7); see also Owens-Illinois, Inc. v. United Ins. Co., 6 5 0 A.2d 974, 985 (N.J. 1987) (New Jersey law allows recovery for medical-monitoring e x p e n s e s "even without evidence of physical injury.") See, e.g, Trimble v. Asarco, Inc., 232 F.3d 946, 950, 963 (8th Cir. 2000) ( r e j e c t i n g medical-monitoring claim by neighbors of refinery that released "lead and o t h e r particulates" into the air because Nebraska law does not recognize such a claim a b s e n t "present physical injury"), abrogated on other grounds by Exxon Mobil Corp. v. A l l a p a t t a h Serv., Inc., 545 U.S. 546 (2005); Ball v. Joy Techs., Inc., 958 F.2d 36, 38­39 ( 4 t h Cir. 1991) (exposure to and absorption of toxic chemicals does not constitute " p h ys i c a l injury" supporting medical-monitoring claim under Virginia or West Virginia l a w ) , overruled in part by Bower, 522 S.E.2d 424 (W. Va.) (recognizing cause of action f o r medical monitoring absent proof of physical injury); Houston County Health Care A u t h . v. Williams, 961 So. 2d 795, 811 (Ala. 2006) (costs of medical monitoring can be r e c o v e r e d only on a claim of "present physical injury," so costs cannot be recovered by p l a i n t i f f s who had not undertaken procedure to remove breast implants or developed " s i gn s of . . . infection or other adverse "bodily injury" (which was defined as "`bodily i n j u r y, sickness, or disease . . . sustained . . . during the policy period"). Id. effects"); Wo o d v. Wyeth-Ayerst Labs., Div. of Am. Home Prods., 82 S.W.3d 849, 850­51, 859 ( K y. 2002) (appellant who ingested diet drugs linked to heart problems could obtain m e d i c a l monitoring as component of damages when "testing demonstrates the presence o f disease"). But see Werlein v. United States, 746 F. Supp. 887, 901, 904­05 (D. M i n n . 1990) (chromosomal injury can constitute "present physical injury" supporting m e d i c a l - m o n i t o r i n g claim), vacated in part by 793 F. Supp. 898 (1992). -3511

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Dept. of Agric., 351 F.3d 447, 451 (10th Cir. 2003) ("Under a long-standing c a n o n of statutory interpretation, one should avoid construing a statute so as to r e n d e r statutory language superfluous."). This superfluity becomes apparent w h e n we review what both Plaintiffs and Defendants agree to be the requirements f o r a Price-Anderson claim. The Price-Anderson Act is limited to claims arising from "nuclear i n c i d e n t [ s ] , " 42 U.S.C. § 2210(n)(2), which are occurrences caused by radioactive s u b s t a n c e s , see id. § 2014(q) (defining nuclear incident as occurrence arising f r o m the "hazardous properties of source, special nuclear or byproduct material"); i d . § 2014(z) (defining source material); id. § 2014(aa) (defining special nuclear m a t e r i a l ) ; id. § (2014)(e) (defining byproduct material). In addition, a plaintiff's c a u s e of action must be recognized by the law of the state where the nuclear i n c i d e n t occurred. See id. § 2014(hh). Further, the cause of action must be a c l a i m for property damage, see id. § 2014(q) (nuclear incident may be occurrence c a u s i n g "loss of or damage to property, or loss of use of property"), or a personali n j u r y claim for "bodily injury, sickness, disease, or death," id. This much, as we u n d e r s t a n d the briefs before us, is not disputed. Given this context, however, w h a t purpose is served by the limitation to "bodily injury, sickness, disease, or d e a t h " if, as Plaintiffs contend (and we do not question their science), every e x p o s u r e to radiation causes intracellular damage and such damage is a "bodily

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injury"? Under Plaintiffs' analysis, every personal-injury claim that satisfied s t a t e law would also meet the requirements of Price-Anderson. The term bodily i n j u r y (as well as the terms sickness and disease) would impose no limit on c l a i m s ; it would be superfluous. See Dumontier v. Schlumberger Tech. Corp., 5 4 3 F.3d 567, 570 (9th Cir. 2008) ("[This] interpretation of bodily injury would r e n d e r the term surplusage, as every exposure to radiation would perforce cause [ b o d i l y ] injury."). Plaintiffs counter that "numerous courts interpreting insurance policies . . . h a v e held that `bodily injury' for purposes of coverage and/or the duty to defend i n c l u d e s " the subclinical injuries that they suffer. Aplt. Br. at 60. The insurance c a s e s that they rely upon fall into two categories. One category includes two c a s e s that concerned the allocation of indemnification responsibilities between i n s u r e r s who provided coverage for different periods during which disease d e v e l o p e d . For example, in Insurance Co. of North America v. Forty-Eight I n s u l a t i o n s , Inc., 633 F.2d 1212 (6th Cir. 1980), the insured manufacturer of a s b e s t o s was being sued by persons who had developed asbestosis. Asbestosis is a disease that develops from exposure over time to asbestos. See id. at 1214. The i n s u r e d had obtained coverage from various companies for different periods of t i m e . See id. at 1215. The issue was whether a policy insuring against claims for " b o d i l y injury" (which was defined as "`bodily injury, sickness, or disease . . .

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sustained . . . during the policy period"), id. at 1216, would provide coverage if t h e policy was not in effect when the asbestosis was diagnosed, but only when the c l a i m a n t was exposed to asbestos, see id. The court held that in this context " b o d i l y injury" encompassed asymptomatic tissue damage from asbestos that was n o t diagnosable, and a policy in effect at the time of exposure therefore provided c o v e r a g e . Id. at 1223; see Sandoz, Inc. v. Employer's Liab. Assurance Corp., 554 F . Supp. 257, 265­66 (D.N.J. 1983) (following Forty-Eight Insulations, in a case i n v o l v i n g a different disease, to reject view that "bodily injury" must be m anifest). The second category of Plaintiffs' cases includes decisions holding that an i n s u r e r providing bodily-injury coverage has a duty to defend against claims when t h e r e was an unmanifested injury during the policy period. See Guar. Nat'l Ins. C o . v. Azrock Indus. Inc., 211 F.3d 239, 244 (5th Cir. 2000) (inhalation of a s b e s t o s fibers during policy period triggers bodily-injury insurer's duty to d e f e n d ) , abrogated on other grounds by Don's Bldg. Supply, Inc. v. OneBeacon I n s . Co., 267 S.W . 3 d 20, 31­32 (Tex. 2008); Zurich Am. Ins. Co. v. Nokia, Inc., 2 6 8 S.W . 3 d 487, 492­93 (Tex. 2008) (allegations of cellular injuries from use of c e l l p h o n e s triggered bodily-injury insurers' duty to defend)). These insurance cases are readily distinguishable. As Forty-Eight I n s u l a t i o n s recognized, the legal meaning of the term bodily injury depends on

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context. See 633 F.2d at 1220­22. It observed that other courts had interpreted " b o d i l y injury" to require a manifest injury when resolving questions re