Metropolitan News-Enterprise


Thursday, June 12, 2008


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Court Revives Emotional Distress Claim Over Toxic Sludge Exposure


By SHERRI M. OKAMOTO, Staff Writer


Federal law prevents a plaintiff who was splashed by gallons of toxic liquid from recovering for physical harm and emotional distress based on his exposure to radioactive materials, but not from recovering for emotional distress based on exposure to other, nonradioactive  substances in the sludge, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Partially vacating a grant of summary judgment by U.S. District Judge Lonny R. Suko of the Eastern District of Washington dismissing Daniel R. Golden’s toxic tort suit against his employer, CH2M Hill Hanford Group Inc., the three judge panel held that Golden’s claims based on separately identifiable harm unrelated to the harmful properties of the radioactive materials in the toxic waste were not preempted by federal law.

Golden alleged that up four gallons of a liquid containing nuclear waste and heavy metals splashed him while he was working at the Hanford Nuclear Reservation on the Columbia River in south-central Washington May 20, 2002.

State Law Claim

He filed suit in Washington state court claiming that the exposure to the toxic materials caused him numerous physical injuries, ranging from colitis to sinusitis, and emotional distress. His wife also sued for loss of consortium.

CH2M removed the case to federal court under the Price-Anderson Act, which preempts all state-law claims for injury resulting from nuclear incidents.

Golden’s physician testified that he had assumed Golden’s exposure had caused Golden’s chronic ailments for purposes of treatment. He also opined that Golden’s adverse health effects were caused or exacerbated by Golden’s long-term exposure to toxins at the CH2M facility.

Suko found that Golden’s evidence was insufficient to establish causation between the specific exposure from the accident and Golden’s alleged physical injuries, and granted summary judgment in favor of CH2M.

Physical Injury Required

On appeal, Chief Judge Alex Kozinski explained that claims for exposure in a “‘nuclear incident’” are only compensable under the act if the exposure caused physical injury.

Because Golden could not establish that his exposure had caused his alleged ailments, Kozinski concluded summary judgment in favor of CH2M was proper for Golden’s tort claims based on his physical and psychic harm due to his exposure to the radioactive material.

However, Kozinski noted, the May 20, 2002 accident was more than a “nuclear incident,” because the liquid that Golden had come into contact with contained hazardous heavy metals as well as radioactive material.

“Golden may be able to make out a case that he suffers separate and distinct fears arising from his exposure to nonradioactive heavy metals,” Kozinski wrote. If so, he reasoned, Golden would be entitled to prove his claim under state law because his claim would not be pre-empted by the act.

Loss of Consortium

Likewise, Kozinski concluded, Golden’s wife may also be able to prove her loss of consortium claim under state law, if it was the result of Golden’s emotional distress due to his exposure to the nonradioactive materials in the toxic waste.

Judge Raymond C. Fisher and U.S. District Judge Andrew J. Guilford of the Central District of California, sitting by designation, joined Kozinski in his opinion.

The case is Golden v. CH2M Hill Hanford Group Inc., 05-25832


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