HUTH, et.al. v. BABCOCK & WILCOX POWER GENERATION GROUP, INC. et al.
Filing
359
MEMORANDUM ORDER granting 259 Motion for Judgment ; denying as moot 265 Motion for Summary Judgment; granting 269 Motion for Summary Judgment; granting 273 Motion for Summary Judgment; denying as moot 277 Motion for Summary Judgment; d enying as moot 310 Motion to Strike ; denying as moot 320 Motion ; adopting 348 Report and Recommendations. Judgment is entered in favor of Defendants, Babcock & Wilcox Power Generation Group, Inc., B&W Technical Services, Inc. and Atlantic Richfield Co. and against Plaintiffs. The Clerk shall mark this case closed.Signed by Judge David S. Cercone on 9/15/15. (jmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHELLE MCMUNN, Personal
Representative of the Estate of
EVA MYERS, et al.,
Plaintiffs,
v.
)
)
)
)
)
2:10cv143
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
JESSI ANN CASELLA, et al.,
Plaintiffs,
v.
)
)
)
2:10cv368
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
MICHAEL P. HUTH, et al.,
Plaintiffs,
v.
)
)
)
2:10cv650
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
LINDA W. DILIK,
)
)
v.
)
2:10cv728
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
Plaintiff,
BONNIE AIKENS, et al.,
Plaintiffs,
v.
)
)
)
2:10cv744
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
PATRICIA ALTIMIRE, et al.,
Plaintiffs,
v.
)
)
)
2:10cv908
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
MARCIA BAUSTERT, et al.,
Plaintiffs,
v.
)
)
)
2:11cv898
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
SANDRA L. AMENT, et al.,
Plaintiffs,
v.
)
)
)
2:11cv1381
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
ELIZABETH MITCHESON, et al.,
Plaintiffs,
v.
)
)
)
2:12cv1221
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
2
KAREN L. SKROUPA, as personal
representative of HOWARD D.
SKROUPA, deceased,
Plaintiff,
v.
)
)
)
)
)
2:12cv1459
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
_____________________________________________________________________________
HEATHER LORRAINE BAYNAR, et al., )
Plaintiffs,
)
v.
)
2:10cv1736
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
MARLENE AMENT, et al.,
Plaintiffs,
v.
)
)
)
2:13cv186
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
PATRICIA ALDENE WEST, et al.,
Plaintiffs,
v.
)
)
)
2:13cv704
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
ALYNDA TALMADGE, et al.,
Plaintiffs,
v.
)
)
)
2:13cv1527
)
Electronic Filing
BABCOCK & WILCOX POWER
)
GENERATION GROUP, INC., et al.,
)
Defendants.
)
______________________________________________________________________________
3
MARGARET S. CULP, et al.,
Plaintiffs,
v.
BABCOCK & WILCOX POWER
GENERATION GROUP, INC., et al.,
Defendants.
)
)
)
)
)
)
)
2:14cv639
Electronic Filing
MEMORANDUM ORDER
September 15, 2015
The above captioned cases were referred to United States Magistrate Judge Robert C.
Mitchell for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. §
636(b)(1), and the Local Rules of Court for Magistrate Judges. In these actions, Plaintiffs allege
that Defendants, Babcock & Wilcox Power Generation Group, Inc., B&W Technical Services,
Inc. (“B&W”) and Atlantic Richfield Co. (“ARC”) (together “Defendants”), as successors in
interest to Nuclear Materials Corporation (“NUMEC”), are responsible for the release of
radioactive uranium from a nuclear processing facility located in Apollo, Pennsylvania and
operated from approximately 1953 to 1983. Plaintiffs further allege that inhalation of radioactive
uranium from the facility caused the Plaintiffs to develop cancer. Plaintiffs assert jurisdiction
under the Price-Anderson Act (the “PAA”), 42 U.S.C. § 2210(n)(2), and the Atomic Energy Act
(the “AEA”), 42 U.S.C. § 2011.
The followings motions were filed by the Defendants: (1) motions for judgment on the
pleadings, filed in all fifteen (15) cases, contending that the state law claims in Counts II-V (in
some cases, Counts II-VI and in some cases, Counts II-VII) should be dismissed as preempted by
the Price-Anderson Act claims asserted in Count I; (2) motions for summary judgment, filed in
the first eleven (11) cases, contending that Plaintiffs have failed to raise a genuine issue of
material fact on the element of breach of duty (because average annual radioactive airborne
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releases or uranium never exceeded the amounts set by 10 C.F.R. § 20.106); (3) motions for
summary judgment, filed in the first eleven (11) cases, contending that Plaintiffs have failed to
present evidence regarding exposure and dose, as well as motions (filed with their reply brief) to
have their statements of undisputed fact deemed admitted; (4) motions for summary judgment,
filed in the first eleven (11) cases by Defendant Atlantic Richfield, contending that Plaintiffs
have failed to demonstrate that it can be held liable as a successor in interest to NUMEC, as well
as motions (filed with its reply brief) to have its statements of undisputed fact deemed admitted;
and (5) motions for summary judgment, filed in five of the cases, contending that Plaintiffs failed
to comply with the Court’s order of September 12, 2012, in that some of the Plaintiffs are
continuing to allege exposure other than to inhalation of uranium from the Apollo facility, as
well as motions (filed with their reply brief) to strike the supplemental affidavit of James Melius,
M.D., DR. P.H. that Plaintiffs filed with their opposition to the motions.
The Magistrate Judge’s Report and Recommendation (Document No. 370 at 2:10cv143),
filed on May 7, 2015, recommended as follows: (1) that Defendants’ Motions for Judgment on
the Pleadings Based on Price-Anderson Act Preemption be granted; (2) that Defendants’ Motions
for Summary Judgment Based on Plaintiffs’ Failure to Raise a Genuine Issue for Trial on Breach
of Duty be granted; (3) that Defendants’ Motions for Summary Judgment Based on Plaintiffs’
Lack of Evidence Regarding Exposure and Dose be granted; (4) that Defendants’ Motions to
Deem Admitted Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment
Based on Plaintiffs’ Lack of Evidence Regarding Exposure and Dose be granted; (5) that
Defendant Atlantic Richfield Company’s Motions for Summary Judgment Based on No
Shareholder Liability be denied as moot; (6) that Defendant Atlantic Richfield Company’s
Motions to Deem Admitted Its Local Rule 56.B.1 Statement of Undisputed Facts in Support of
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Summary Judgment Based on No Shareholder Liability be denied as moot; (7) that Defendants’
Motions for Summary Judgment Due to Plaintiffs’ Failure to Comply With the Court’s
September 12, 2012 Order be denied as moot; and (8) that Defendants’ Motions to Strike the
Supplemental Affidavit of James Melius, M.D., DR. P.H. be denied as moot.
Plaintiffs’ filed Objections to the Report and Recommendation in accordance with the
Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72.D.2 of the Local Rules of
Court. After a comprehensive review of the record of these cases, and upon consideration of the
Magistrate Judge’s Report and Recommendation, and the Objections thereto, the Court will
adopt the Report and Recommendation as the Opinion of this Court.
Accordingly
ORDER OF COURT
AND NOW, this 15th day of September, 2015, upon consideration of the motions set
forth above,
IT IS HEREBY ORDERED as follows:
(1)
Defendants’ Motions for Judgment on the Pleadings Based on Price-Anderson
Act Preemption (Document No. 308 at 2:10cv143; Document No. 265 at 2:10cv368; Document
No. 259 at 2:10cv650; Document No. 273 at 2:10cv728; Document No. 276 at 2:10cv744;
Document No. 295 at 2:10cv908; Document No. 266 at 2:10cv1736; Document No. 205 at
2:11cv898; Document No. 187 at 2:11cv1381; Document No. 137 at 2:12cv1221; Document
No. 134 at 2:12cv1459; Document No. 53 at 2:13cv186; Document No. 40 at 2:13cv704;
Document No. 31 at 2:13cv1527; and Document No. 19 at 2:14cv639) are GRANTED;
(2)
Defendants’ Motions for Summary Judgment Based on Plaintiffs’ Failure to Raise
a Genuine Issue for Trial on Breach of Duty (Document No. 314 at 2:10cv143; Document No.
267 at 2:10cv368; Document No. 269 at 2:10cv650; Document No. 275 at 2:10cv728;
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Document No. 282 at 2:10cv744; Document No. 305 at 2:10cv908; Document No. 272 at
2:10cv1736; Document No. 207 at 2:11cv898; Document No. 189 at 2:11cv1381; Document
No. 139 at 2:12cv1221; and Document No. 136 at 2:12cv1459) are GRANTED;
(3)
Defendants’ Motions for Summary Judgment Based on Plaintiffs’ Lack of
Evidence Regarding Exposure and Dose (Document No. 318 at 2:10cv143; Document No. 275
at 2:10cv368; Document No. 273 at 2:10cv650; Document No. 279 at 2:10cv728; Document
No. 286 at 2:10cv744; Document No. 309 at 2:10cv908; Document No. 276 at 2:10cv1736;
Document No. 216 at 2:11cv898; Document No. 193 at 2:11cv1381; Document No. 143 at
2:12cv1221; and Document No. 140 at 2:12cv1459) are GRANTED;
(4)
Defendants’ Motions to Deem Admitted Rule 56.B.1 Statement of Undisputed
Facts in Support of Summary Judgment Based on Plaintiffs’ Lack of Evidence Regarding
Exposure and Dose (Document No. 361 at 2:10cv143; Document No. 320 at 2:10cv368;
Document No. 323 at 2:10cv650; Document No. 324 at 2:10cv728; Document No. 338 at
2:10cv744; Document No. 363 at 2:10cv908; Document No. 325 at 2:10cv1736; Document
No. 268 at 2:11cv898; Document No. 237 at 2:11cv1381; Document No. 178 at 2:12cv1221;
and Document No. 175 at 2:12cv1459) are GRANTED;
(5)
Defendant Atlantic Richfield Company’s Motions for Summary Judgment Based
on No Shareholder Liability (Document No. 310 at 2:10cv143; Document No. 279 at
2:10cv368; Document No. 277 at 2:10cv650; Document No. 283 at 2:10cv728; Document No.
290 at 2:10cv744; Document No. 313 at 2:10cv908; Document No. 280 at 2:10cv1736;
Document No. 220 at 2:11cv898; Document No. 197 at 2:11cv1381; Document No. 147 at
2:12cv1221; and Document No. 144 at 2:12cv1459) are DENIED as moot;
(6)
Defendant Atlantic Richfield Company’s Motions to Deem Admitted Its Local
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Rule 56.B.1 Statement of Undisputed Facts in Support of Summary Judgment Based on No
Shareholder Liability (Document No. 358 at 2:10cv143; Document No. 317 at 2:10cv368;
Document No. 320 at 2:10cv650; Document No. 320 at 2:10cv728; Document No. 333 at
2:10cv744; Document No. 357 at 2:10cv908; Document No. 319 at 2:10cv1736; Document
No. 262 at 2:11cv898; Document No. 231 at 2:11cv1381; Document No. 172 at 2:12cv1221;
and Document No. 169 at 2:12cv1459) are DENIED as moot;
(7)
Defendants’ Motions for Summary Judgment Due to Plaintiffs’ Failure to Comply
With the Court’s September 12, 2012 Order (Document No. 265 at 2:10cv650; Document No.
278 at 2:10cv744; Document No. 301 at 2:10cv908; Document No. 268 at 2:10cv1736; and
Document No. 209 at 2:11cv898) are DENIED as moot; and
(8)
Defendants’ Motions to Strike the Supplemental Affidavit of James Melius, M.D.,
DR. P.H. (Document No. 310 at 2:10cv650; Document No. 325 at 2:10cv744; Document No.
350 at 2:10cv908; Document No. 312 at 2:10cv1736; and Document No. 255 at 2:11cv898) are
DENIED as moot.
IT IS FURTHER ORDERED that Judgment is entered in favor of Defendants, Babcock
& Wilcox Power Generation Group, Inc., B&W Technical Services, Inc. and Atlantic Richfield
Co. and against Plaintiffs in cases 2:10cv143; 2:10cv368; 2:10cv650; 2:10cv728; 2:10cv744;
2:10cv908; 2:10cv1736; 2:11cv898; 2:11cv1381; 2:12cv1221; and 2:12cv1459. The Clerk shall
mark these cases closed.
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IT IS FURTHER ORDERED that the Report and Recommendation (Document No. 370
at 2:10cv143) of Magistrate Judge Robert C. Mitchell, dated May 7, 2015, is hereby ADOPTED
as the Opinion of the Court.
s/ David Stewart Cercone
David Stewart Cercone
United States District Judge
cc:
Robert C. Mitchell
United States Magistrate Judge
Jason T. Shipp, Esquire
David B. Rodes, Esquire
Anne Kearse, Esquire
Bruce E. Mattock, Esquire
Victoria Antion, Esquire
Fidelma Fitzpatrick, Esquire
Jonathan D. Orent, Esquire
Michaela S. McInnis, Esquire
Chris Michael Temple, Esquire
Christopher M. Mooney, Esquire
John P. Phillips, Esquire
Peter C. Meier, Esquire
Matthew H. Meade, Esquire
Nancy G. Milburn, Esquire
Philip H. Curtis, Esquire
Reuben S. Koolyk, Esquire
Caley M. Heekin, Esquire
Elisa M. Pandolfi, Esquire
Jarrod Shaw, Esquire
Edward A. Bayley, Esquire
Joel D. Rohlf, Esquire
Jonathan I. Coronel, Esquire
Sean M. Callagy, Esquire
Simona A. Agnolucci, Esquire
Kevin M. Henley, Esquire
Mary E. Sylvester, Esquire
Matthew D. Grant
Tanya E. Kalivas, Esquire
(Via CM/ECF Electronic Mail)
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