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Estate of Ware v. Hosp. of The Univ. of Pennsylvania

United States District Court, E.D. Pennsylvania

May 5, 2014

ESTATE OF JEFFREY WARE, et al.
v.
HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA, et al

Order Filed: December 19, 2014

Page 520

For ESTATE OF JEFFREY H. WARE, BY BARBARA BOYER, INDIVIDUALLY, ON BEHALF OF WRONGFUL DEATH BENEFICIARIES AND AS ADMINISTRATRIX OF THE ESTATE OF JEFFREY H. WARE, Plaintiff: AARON J. FREIWALD, LEAD ATTORNEY, LAYSER & FREIWALD PC, PHILADELPHIA, PA.

For HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA, UNIVERSITY OF PENNSYLVANIA, PERELMAN SCHOOL OF MEDICINE UNIVERSITY OF PENNSYLVANIA, TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, ANN R. KENNEDY, D.S.C., GARY KAO, M.D., MICHELLE ALONSO-BASANTA, M.D., Defendants: DANIEL J. SHERRY, LEAD ATTORNEY, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, KING OF PRUSSIA, PA; DONALD E. JOSE, LEAD ATTORNEY, JOSE & ASSOCAITES, MALVERN, PA.

For NATIONAL SPACE BIOMEDICAL RESEARCH INSTITUTE AND CENTER FOR ACUTE RADIATION RESEARCH, Defendant: DEAN F. MURTAGH, LEAD ATTORNEY, KATHRYN A. DUX, GERMAN GALLAGHER & MURTAGH, PHILADELPHIA, PA.

Page 521

ORDER

EDWARD G. SMITH, Judge

AND NOW, this 19th day of December, 2014, after considering the motion to remand filed by the plaintiff (Doc. No. 9), and after also considering the notice of removal (and the documents, including the complaint, attached thereto) filed by the defendants (Doc. No. 1), the parties' submissions relating to the motion to remand (Doc. Nos. 13, 14, 15), the report and recommendations filed by United States Magistrate Judge M. Faith Angell (Doc. No. 20), the objections to the report filed by the plaintiff (Doc. No. 23), and the defendants' responses to the objections (Doc. Nos. 25, and 26); accordingly, it is hereby ORDERED as follows:

1. The plaintiff's objections to the report and recommendations (Doc. No. 23) are OVERRULED; [1] and

2. The Honorable M. Faith Angell's report and recommendations (Doc, No. 20) is APPROVED and ADOPTED; and

3. The motion to remand (Doc. No. 9) is DENIED.

REPORT AND RECOMMENDATION

M. FAITH ANGELL, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION.

The above-captioned matter was referred to me, by the Honorable Thomas N. O'Neill, Jr., for all pretrial proceedings. January 7, 2014 Order [Document 3]. On April 22, 2014, this case was transferred to the docket of the Honorable Edward G. Smith. Currently before me for Report and Recommendation is Plaintiff's motion to remand to the Philadelphia Court of Common Pleas. After holding oral argument and upon consideration of the parties' pleadings, for the reasons which follow, I recommend that Plaintiff's motion to remand be denied.

Page 522

II. BACKGROUND.

On December 3, 2013, Plaintiff Barbara Ware, widow of Dr. Jeffrey H. Ware and administratrix of his estate, filed this action in the Philadelphia Court of Common Pleas. In her complaint Plaintiff alleges that Dr. Ware, a neuroscientist, had been employed as a researcher in the radiation oncology department at the University of Pennsylvania's Perelman School of Medicine from 1995 through the date of his death on October 23, 2011. Plaintiff alleges that Dr. Ware died of gliosarcoma, a rare form of brain cancer that is associated with excessive radiation exposure. Plaintiff summarizes her claims as follows:

" This case involves the tragic death of Jeffrey Ware, a brilliant neuroscientist and senior researcher at the University of Pennsylvania, who died, at age 47. Dr. Ware died of gliosarcoma, an exceedingly rare form of malignant brain cancer that is associated with radiation exposure. For many years, Dr. Ware was unwittingly exposed to excessive levels of radiation while researching the biological effects of radiation on animals as a means to understanding the health risks to humans and developing countermeasures to such risks.
The University of Pennsylvania and its various corporate entities, along with Dr. Ware's supervisors and research coordinators, failed to take appropriate precautions to protect Dr. Ware from various forms of radiation during his many years of research. For example, Defendants failed to monitor his radiation exposure, as was clearly required. It is no exaggeration to say that the University of Pennsylvania took better care of pigs, ferrets and mice that were the subject of the radiation-exposure research than they took of Dr. Ware. These allegations are set out in great detail in the Complaint [ . . . ].
Dr. Ann Kennedy, a Penn radiation biologist, recruited Dr. Ware for his expertise in the use of protease inhibitors to prevent biologic changes that can lead to cancer. Dr. Kennedy's research, with the help of Dr. Ware, evolved into studying the effects of radiation on astronauts during deep-space exploration. Dr. Kennedy directed radiation-related research that attracted millions of research dollars, including a $10 million project funded by Defendant National Space Biomedical Research Institute (NSBRI), a non-profit created by NASA to carry out research goals, specifically research into mitigating the adverse and deadly effects of radiation on astronauts. Yet Dr. Kennedy and her fellow supervisors failed to follow clear regulations requiring individual dose monitoring of all workers, including researchers like Dr. Ware, who were exposed to radiation.
This case also involves claims that Defendants improperly and unlawfully enrolled Dr. Ware in an investigational study, after his diagnosis with brain cancer and shortly after he underwent a major brain surgery to remove a large malignancy in his brain. Enrolling Dr. Ware in a cancer research study involving radiation treatment, when he had devoted his professional career to radiation-related research, was tragic in itself. The fact that Defendants failed to obtain his proper and legally-required consent gives rise to state law informed consent/battery claims."

Plaintiff's Memorandum of Law in Support of Motion to Remand [Document 9-1][1], at 2-3.

Plaintiff's complaint includes twenty counts, seeking compensatory and punitive damages on theories of negligence, fraud, retaliation, corporate negligence, battery

Page 523

and negligent infliction of emotional distress. Original Complaint: attached as exhibit to Plaintiff's Motion to Remand [Document 9-4], at 32-72. Named defendants include: Hospital of the University of Pennsylvania, University of Pennsylvania, Perelman School of Medicine, Trustees of the University of Pennsylvania [the " HUP Defendants" ], the National Space Biomedical Research Institute [" NSBRI" ], Center for Acute Radiation Research [CARR], Ann R. Kennedy, D.S.C., Gary Kao, M.D., and Michelle Alonso-Basanta, M.D. Id., at 4-6.

On January 2, 2014, Defendants collectively filed a Notice of Removal pursuant to the Atomic Energy Act of 1954 (" the Act" ), 42 U.S.C. § 2201, et seq., as amended by the Price- Anderson Act, Pub.L. No. 85-256, 71 Stat. 576 (1957)(codified as amended in various sections of 42 U.S.C.), and the Price-Anderson Amendments Act of 1988, Pub. L. No. 100-408, 102 Stat. 1066 (1988)(codified as amended in various sections of 42 U.S.C.). Notice of Removal [Document 1], at 30. The Defendants also asserted removal pursuant to 28 U.S.C. § 1441(a) due to diversity of citizenship, and as to Defendant NSBRI pursuant to 28 U.S.C. § 1442(a)(1) [federal officer removal statute]. Id., at 30-35.

On January 27, 2014, Plaintiff filed a motion to remand. The Defendants have responded, Plaintiff has filed a reply. I heard oral argument on the motion to remand on April 29, 2014.

It is Plaintiff's position that Defendants' removal to this Court was improper as none of the three claimed bases for removal are valid, and the matter should be remanded to the Philadelphia Court of Common Pleas. Specifically, Plaintiff argues: (1) The Price-Anderson Act provides no basis for removal because Defendants are not operators of a nuclear power facility covered by the Act and the Act was not intended to cover university-based radiation-related research activities; (2) Defendant NSBRI's relationship to NASA does not mean Defendant here was acting as a federal officer and, therefore, the federal officer removal statute does not apply. Defendants cannot show a nexus or " causal relationship" between the conduct at issue and the alleged relationship between Defendant NSBRI and NASA; and (3) Defendants' reliance on diversity jurisdiction is completely unfounded. Plaintiff's Remand Memo, at 1.

The HUP Defendants oppose the motion to remand, arguing that the " the mere allegation that Dr. Ware suffered bodily harm from the radioactive properties of Cesium-137 makes this a Public Liability Action (PLA) pursuant to the Price-Anderson Act since Cesium-137 is 'byproduct material' and, therefore, federal jurisdiction is proper. Dumontier v. Schlumberger Tech., No. CV 04-16-BLG-RFC (September 2005); affirmed, 543 F.3d 567 (9th Cir. 2008), cert. denied, 555 U.S. 1172, 173 L.Ed.2d 587, 129 S.Ct. 1329 (2009). Based upon the fact that the claim that [Dr.] Ware developed cancer from working with Cesium-137 is a federal claim under the Price-Anderson Act, the case was properly removed to federal court. In addition, this case was properly removed because [of] the government contractor defense." HUP Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Remand [Document 13][2], at 10. Defendants NSBRI and CARR join the HUP Defendants in opposing the motion to remand, agreeing that " Plaintiff's allegation that Dr. Ware suffered bodily harm from the radioactive properties of Cesium-137 makes this case a Public Liability Action (PLA) pursuant to the Price-Anderson Act because Cesium-137 is 'by-product

Page 524

material'." NSBRI/CARR Memorandum in Opposition to Plaintiff's Motion to Remand [Document 14][3], at 8. In addition, Defendants NSBRI and CARR argue that removal is proper under the federal officer removal statute because NSBRI satisfies all of the prongs of the test:

" The facts clearly demonstrate that NSBRI's relationship with NASA was a 'special relationship' and that NSBRI was performing a service for NASA that NASA would otherwise have to perform. NSBRI is a 'person' 'acting under' NASA. The alleged acts or failure to act on the part of NSBRI complained of in Plaintiff's Complaint, such as failing to assure proper precautions were taken to protect Dr. Ware, as alleged, should have occurred as part of NSBRI's role under the Cooperative Agreement with NASA, thereby satisfying the 'under color of' requirement."

Id., at 20-21.

III. DISCUSSION.

A defendant may remove from state court any civil action " of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). A removed action must be remanded " if at any time before final judgment it appears that the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). The burden of establishing the propriety of removal and the existence of federal jurisdiction is on the removing party, and the removal statutes are to be strictly construed with all doubts resolved in favor of remand." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991).

While the Defendants originally asserted three grounds for removal, they have conceded that they may not rely on diversity jurisdiction under the forum defendant rule, 28 U.S.C. § 1441(b)(2).[4] HUP Defendants' Opposition to Remand, at 6 ¶ ¶ 18-21; NSBRI/CARR's Opposition to Remand, at 5 ¶ ¶ 18-21.

A. The Price-Anderson Act Confers Federal Jurisdiction.

1. Statutory Framework.

In 1946, Congress passed the Atomic Energy Act, " a broad scheme of federal regulation and licensing," which established a federal monopoly over the development of nuclear power. Congress later permitted private sector involvement with the passage of the Atomic Energy Act of 1954 [" AEA" ]. In 1957, Congress amended the AEA with the Price-Anderson Act " for the purpose of 'protect[ing] the public and . . . encourag[ing] the development of the atomic energy industry.'" See El Paso Natural Gas v. Neztsosie, 526 U.S. 473, 476, 119 S.Ct. 1430, 143 L.Ed.2d 635 (1999), and In re TMI Litigation Cases Consolidated II, 940 F.2d 832, 851-852 (3d. Cir. 1991), cert. denied, 503 U.S. 906, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992).

The Price-Anderson Act [" PAA" ] had three main elements:

" First the Act set a ceiling on the aggregate liability which could be imposed upon those engaged in the use and handling of radioactive material 'either through contract with the Government or under a license issued by the Federal Government for the private development of such activities[.]' [ . . . ]

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