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February 18, 1994

IN RE TMI LITIGATION CONSOLIDATED PROCEEDINGS This Document Relates to: All Plaintiffs; IN RE TMI LITIGATION CONSOLIDATED TOURISM CASES This Document Relates to: All Plaintiffs; HYLAND ROGERS, Administratrix of the Estate of James W. Rogers, Plaintiff

The opinion of the court was delivered by: RAMBO

 Before the court is Defendants' motion for summary judgment with respect to Plaintiffs' claims for punitive damages. Briefs have been filed and the motion is ripe for disposition.


 This is not the first time this court has addressed the issue of punitive damages in this case. Early in the history of this litigation, this court concluded that punitive damages were permissible to the extent that funds to pay such damages did not come out of the United States Treasury. In re Three Mile Island Litigation ("TMI I"), 605 F. Supp. 778, 784 (M.D. Pa. 1985), rev'd on other grounds sub nom., Kiick v. Metropolitan Edison Co., 784 F.2d 490 (3d Cir. 1986).

 In TMI I, this court relied heavily on the then-recent decision of the United States Supreme Court in Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 78 L. Ed. 2d 443, 104 S. Ct. 615 (1984). In Silkwood, the Supreme Court permitted recovery of punitive damages in a suit brought by an employee of a plutonium processing plant against her employer for radiation-related injuries. The baseline for the Court's analysis was its observation that "Congress assumed that traditional principles of state tort law would apply with full force unless they were expressly supplanted. Thus, it is [Defendant'] burden to show that Congress intended to preclude such awards." Id. at 255.

 The Supreme Court recognized the "tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability." Id. at 255. Regardless of this tension, however, the Court concluded that, "in enacting the Price Anderson Act, Congress assumed that state-law remedies, in whatever form they might take, were available to those injured by nuclear incidents." Id.

 More important here, the Silkwood court also explicitly rejected an argument by the United States that a punitive damages award would conflict with the federal remedial scheme. Id. at 257. Conflict preemption is found where:

'compliance with both federal and state regulations is a physical impossibility,' Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1963), or where state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67, 85 L. Ed. 581, 61 S. Ct. 399 (1941); Felder v. Casey, 487 U.S. 131, 138, 101 L. Ed. 2d 123, 108 S. Ct. 2302 (1988); Perez v. Campbell, 402 U.S. 637, 649, 29 L. Ed. 2d 233, 91 S. Ct. 1704 (1971).

 Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 112 S. Ct. 2374, 2383, 120 L. Ed. 2d 73 (1992) (parallel citations omitted). Thus, in rejecting the government's conflict preemption argument, the Supreme Court found that "paying both federal fines and state-imposed punitive damages for the same incident would not appear to be physically impossible, Nor does exposure to punitive damages create an obstacle to the accomplishment of Congressional purposes and objectives in enacting the federal nuclear regulatory scheme." Silkwood, 464 U.S. at 257.

 In the instant motion, Defendants argue that the Price-Anderson Amendments Act of 1988 ("Amendments Act"), 42 U.S.C ┬ž 2011 et seq., as interpreted by the Third Circuit in In re TMI Consolidated Cases II ("TMI II"), 940 F.2d 832 (3d Cir. 1991), cert. denied sub nom., Gumby v. General Public Utilities Corp., 503 U.S. 906, 112 S. Ct. 1262, 117 L. Ed. 2d 491 (1992), requires the court to reconsider its conclusion in TMI I, to reject the Supreme Court's analysis in Silkwood and to grant summary judgment in their favor with respect to Plaintiffs' punitive damage claims. Plaintiffs, on the other hand, assert that this court should follow its previous decision and deny the motion.


 Initially, Defendants argue that Silkwood did not dispose of issues relevant to this case because Silkwood was not a Price-Anderson Act case. Defendants are correct that, technically, Silkwood was not within the ambit of the Price-Anderson Act. *fn2" However, in Silkwood, the Supreme Court discussed the Price-Anderson Act at length. During the course of its analysis, the Court clearly considered the provisions of the Act to be part of the relevant "federal remedial scheme" regarding nuclear regulation. For that reason, this court was persuaded in 1985 and still believes that Silkwood is a good barometer of the Court's likely view of the availability of punitive damages in a Price-Anderson Act case. TMI I, 605 F. Supp. 778 at 782.

 More fundamentally, Defendants argue that the Amendments Act requires this court to discard altogether the preemption analysis employed in Silkwood and other pre-Amendments Act cases addressing nuclear power and safety issues. Instead, Defendants argue that this court must "determine whether a specific state rule is or is not 'consistent with' the provisions of the Price-Anderson Act." (Defs.' Punitive Damages Supp. Br. at 8.)

 Regardless of whether this court applies Silkwood's conflict preemption analysis or the "inconsistency" analysis advocated by Defendants, this court believes that Silkwood counsels a finding that punitive damages are available in this case. If Silkwood's analysis is still valid, this court has no reason to reconsider its 1985 ruling. Assuming, arguendo, that Silkwood's approach is no longer proper, ...

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