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BUBASH v. PHILADELPHIA ELEC. CO.

August 17, 1989

KENNETH J. BUBASH, and LORETTA BUBASH, his wife, Plaintiffs
v.
PHILADELPHIA ELECTRIC COMPANY, and BARTLETT NUCLEAR CORPORATION, Defendants



The opinion of the court was delivered by: CALDWELL

 WILLIAM W. CALDWELL, UNITED STATES DISTRICT JUDGE

 I. Introduction.

 Defendants, Philadelphia Electric Company (PECO) and Bartlett Nuclear Corporation (Bartlett), have moved for summary judgment pursuant to Fed. R. Civ. P. 56. The issue presented is whether plaintiffs, husband and wife, can recover damages for emotional distress as a result of the exposure of plaintiff, Kenneth J. Bubash, to radiation at the Peach Bottom nuclear power plant in York County, Pennsylvania. Kenneth Bubash seeks to recover for emotional distress resulting from the exposure and his fear of contracting cancer. Loretta Bubash seeks compensation for her emotional distress arising from her decision to have an abortion out of fear that her fetus, conceived some months after her husband's exposure, had genetic defects as a result of that exposure. This action is controlled by Pennsylvania law. Defendants removed the action from state court, predicating our jurisdiction upon 42 U.S.C. § 2210(n)(2). Defendants' motion argues that Kenneth Bubash's exposure to radiation was trivial and well within the limits of safe exposure set by the Nuclear Regulatory Commission. See 10 C.F.R. §§ 10.101 and 20.103. Hence, it cannot constitute the physical injury necessary for either one of the plaintiffs to recover here. We will examine the motion under the well established standard. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

 II. Background.

 We glean the following undisputed facts from the pleadings, and the depositions and affidavits filed in connection with the summary judgment motion. Kenneth Bubash is a weld coordinator employed by a third party to this litigation. On February 10, 1985, he was working at PECO's Peach Bottom Plant where defendant Bartlett was performing some contractual duties which plaintiffs allege involved welding replacement pipe. To inspect a weld for a possible defect Kenneth Bubash put his head and upper torso into a valve at the plant for about a minute. After the inspection, as part of a routine check of his person, he detected radiation on one elbow. The health personnel at the plant were unable to wipe the radiation off the elbow and Bubash was showered and scrubbed. He was informed that this effort was successful and he returned to work. At the end of his shift, however, he set off alarms in a doorway type radiation detector all employees were required to pass through before leaving the plant. At the time the alarm went off, Bubash was still fifteen to twenty feet away from the detector. Nasal smears were taken and tested for radiation. Bubash was returned to the showers where even more vigorous scrubbing was done and he was monitored for radiation by means of whole body counting, a method of determining radiation levels both inside and outside the body. This test was repeated several times in the immediately following days. Bioassay measurements were also taken of the nasal smears as well as of urine and fecal samples supplied by Bubash. The plaintiff had been contaminated with cobalt-60.

 The defendants have submitted the report of an expert, Carol D. Berger, who examined the readings which were taken. She has stated:

 
His external (whole body) radiation dose during the month of February, 1985, was calculated by the Licensee to be 193 millirem. . . . When this is added to the dose contribution from intake of 60Co, the a (sic) total effective dose equivalent attributed to this incident is approximately 198 millirem. The dose to his lungs from internal and external exposure as a result of this incident was approximately 24 millirem, and the dose to his gonads, which were shielded somewhat from the primary source of external radiation, was less than 50 millirem. These values are well within the regulatory dose standards for occupational exposure of radiation workers.
 
Because Mr. Bubash chose a career as a radiation worker for the nuclear power industry prior to the 1985 incident, he had already received an average of 2,400 millirem occupational dose per year every year from January of 1982 to January of 1985. In addition, he received approximately 300 millirem per year every year as a result of normal background radiation exposure. Compared to his previous occupational exposure history, and to the doses he receives every year from natural background radiation, the total radiation dose received by Mr. Bubash as a result of the 1985 incident is trivial, and that (sic) there is no significant increase in his risk of long-term radiation-related health effect.

 (defendants' motion for summary judgment, Exhibit E, Report of Carol Berger, pps. 21-22).

 Another defense expert, Paul B. Selby, addressed the reasonableness of the husband plaintiff's fear of contracting cancer and of the plaintiffs' concern about having a genetically damaged infant. After discussing statistical studies, Dr. Selby concluded as follows:

 
I shall first apply the genetic risk estimates in the BEIR III report to Mr. Bubash's situation, again assuming a gonadal exposure of 50 mrem. If both parents were exposed to 1000 mrem, the probability of having a child with a serious genetic handicap would range from 5-75 per million. For the Bubashes, I calculate that the chance that Mr. Bubash's gonadal exposure, from the incident in question, would cause a serious handicap in any one child would be at most 2.5 per million. This is equivalent to a risk of 0.00025%. The normal chance that any one child of the Bubashes would have a serious genetic handicap would be at least 10.7% even if neither parent had been irradiated.

 (defendants' motion, Exhibit F, para. 14).

 Using a different statistical report, the chances of a genetically defective child was one in 2.3 million. (Id. P 15). Dr. ...


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