MICHELLE MCMUNN, personal representative of the Estate of Eva Myers; CARA D. STEELE; YVONNE SUE ROBINSON; EDWARD J. MYERS; LEVI DANIEL STEELE; HAROLD ROBINSON, et al
BABCOCK & WILCOX POWER GENERATION GROUP, INC.; B&W TECHNICAL SERVICES, INC., FKA B&W Nuclear Environmental Services, Inc.; ATLANTIC RICHFIELD COMPANY, predecessors-in-interest, successors-in-interest, subdivisions and subsidiaries; BABCOCK & WILCOX TECHNICAL SERVICES GROUP, INC. Apollo Facility Plaintiffs, Appellants in Nos. 15-3506, 15-3507, 15-3508, 15-3509, 15-3510, 15-3511, 15-3512, 15-3513, 15-3514, 15-3515, 15-3564, 15-4075, 15-4076, 15-4077, 15-4078, 16-1964 and 16-1965 Babcock & Wilcox Power Generation Group, Inc. and Babcock & Wilcox Technical Services Group, Inc., Appellants in Nos. 15-3640, 15-3642, 15-3644, 15-3646, 15-3648, 15-3650, 15-3652, 15-3654, 15-3656, 15-3658 and 15-3660 Atlantic Richfield Company, Appellant in Nos. 15-3639, 15-3641, 15-3643, 15-3645, 15-3647, 15-3649, 15-3651, 15-3653, 15-3655, 15-3657 and 15-3659
November 10, 2016
Appeal from the United States District Court for the Western
District of Pennsylvania District Court Nos. 2-10-cv-00143,
2-10-cv-00368, 2-10-cv-00650, 2-10-cv-00728, 2-10-cv-00744,
2-10-cv-00908, 2-10-cv-01736, 2-11-cv-00898, 2-11-cv-01381,
2-12-cv-01221, 2-12-cv-01459, 2-13-cv-00186, 2-13-cv-00704,
2-13-cv-01527, 2-14-cv-00639, 2-15-cv-00844, 2-15-cv-01423
District Judge: The Honorable David S. Cercone
M. Bograd [ARGUED] Motley Rice, Jonathan D. Orent, Motley
Rice, Anne McGinness Kearse David B. Rodes Goldberg Persky
& White P.C. Counsel for Appellants
Stephen B. Kinnaird Paul Hastings LLP Peter C. Meier, John P.
Phillips [ARGUED] Sean D. Unger Paul, Hastings LLP Nancy G.
Milburn [ARGUED] Philip H. Curtis, Reuben S. Koolyk, Arnold
& Porter LLP Geoffrey J. Michael Arnold & Porter LLP
Counsel for Appellees
Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit
OPINION OF THE COURT
assert that they developed cancer after being exposed to
excessive radiation emissions from the Nuclear Material and
Equipment Company ("NUMEC") facility in Apollo,
Pennsylvania (the "Apollo facility"). Plaintiffs do
not challenge the District Court's conclusions that their
common-law claims against Defendants were preempted by the
Price-Anderson Act and that only their Price-Anderson
"public liability" claims are at issue in this
appeal. Although the Price-Anderson Act preempted
Plaintiffs' common-law negligence claims, Plaintiffs'
Price-Anderson public liability claims require Plaintiffs to
prove versions of the traditional negligence elements-(1)
duty, (2) breach, (3) causation, and (4) damages.
District Court held that Defendants were entitled to summary
judgment as a matter of law on the Price-Anderson claims
because Plaintiffs failed to show that there was a genuine
dispute of material fact as to elements of duty, breach, and
damages. Plaintiffs appealed. We agree with the District
Court: Plaintiffs are missing critical elements, and
therefore their claims fail.
we will affirm the judgment of the District Court.
THE PARTIES AND EMISSIONS
are more than seventy individuals in a group of consolidated
cases who claim that excessive radiation emitted by
Defendants-more specifically, radiation from uranium effluent
from the Apollo facility-caused them to develop various
all of the Plaintiffs lived near Apollo, Pennsylvania, for
many years, including the 1960s, and almost all of
the Plaintiffs were diagnosed with at least one form of
cancer between 2007 and 2011. The similarities among the
Plaintiffs end there. By our count, Plaintiffs alleged that
they suffered from more than a dozen different types of
cancer. Plaintiffs were of widely varying ages at
the times of their diagnoses-with at least one individual
under 30 and at least five individuals over 80. See
JA3460 (81); JA3478 (82); JA3479 (88); JA3482 (81); JA3485
(29); JA3491 (82). Many of the Plaintiffs had extensive
smoking histories, and some had multiple cancer diagnoses
over their lifetimes. See, e.g., JA3474
("smoked about half a pack per day for 40 years");
JA3463 ("diagnosed with breast cancer in 1986 and then
again in 2008 at the age of 67").
B. The Facility
Apollo facility was a "warehouse style building that was
not specifically constructed to house the complex
manufacturing operation involving radioactive
materials." JA1427. As Plaintiffs emphasize, the Apollo
facility was adjacent to a steel mill and "in the
immediate neighborhood of residential areas." JA1576.
Apollo facility operated from approximately 1953 to 1983 with
uranium fuel manufacture beginning in 1958 and
decommissioning beginning in 1978. See JA1467;
McMunn v. Babcock & Wilcox Power Generation
Grp., 131 F.Supp.3d 352');">131 F.Supp.3d 352, 356 (W.D. Pa. 2015).
Atomic Energy Commission ("AEC") was the federal
regulatory body in charge of overseeing the Apollo facility.
During the time that the Apollo facility operated, the
Nuclear Regulatory Commission ("NRC") became
"the statutory successor to the Atomic Energy
Commission." In re TMI, 67 F.3d 1103, 1112 (3d
Apollo facility emitted radiation as a necessary byproduct of
manufacturing uranium fuel. Plaintiffs argue that that
radiation was in excess of regulatory limits. The focus in
this dispute is on radiation emitted from the stacks, vents,
and fans on the Apollo facility's roof.
Evidence of Excessive Emissions
Plaintiffs' evidence of excessive emissions indicates
that emissions from the stacks or vents on the roof exceeded
the maximum permissible concentration ("MPC") for
the facility. Plaintiffs do not contest that the relevant
maximum permissible concentration is 8.8 disintegrations per
minute per cubic meter (dpm/m3). See McMunn, 131
F.Supp.3d at 373 n.24; Pls.' Br. 10; cf. JA3642.
discussed below, under the applicable regulations, the
maximum permissible concentration is determined at the
boundary of the "unrestricted area." Defendants
argue that the boundary of the unrestricted area is the
boundary of the roof, while Plaintiffs argue that any
emissions from any part of the roof-including emission from
any stack, vent, or fan-should be less than the maximum
point to evidence that they believe supports their position.
In a June 5, 1964 letter, the Director of the Division of
State and Licensee Relations of the AEC implied that the
NUMEC had not shown that the roof was a restricted area:
"[T]he roof area of the NUMEC facility is an
unrestricted area unless access to this area is controlled
from the radiation safety standpoint." JA5314.
Consistent with the 1964 letter implying that the entire roof
may be unrestricted, Plaintiffs argue that NUMEC and
AEC's course of conduct shows that they both thought that
stack emissions were a regulatory concern because NUMEC and
AEC compared stack emissions to the maximum permissible
concentration. For instance, in a 1967 report, a NUMEC
employee wrote, "[T]he measured stack concentration
frequently exceeds permissible levels." JA5201. The AEC
similarly expressed concern about releases from stacks, as
though the regulations created limitations on the stacks. In
a February 5, 1969 letter, the Director of the Division of
Compliance of the AEC warned, "Based on your recorded
data, the concentrations of radioactive material released
from the facility through exhaust stacks to unrestricted
areas exceed the limits specified in Appendix B, Table II of
10 CFR 20, contrary to 10 CFR 20.105(a), 'Concentrations
in effluents to unrestricted areas.'" JA4700.
addition to the evidence about emissions from the stacks or
vents, Plaintiffs' evidence of excessive emissions fits
into one or more of the following three categories: (1)
evidence that the monitoring of emissions was not completely
comprehensive; (2) data that there was excessive radiation in
the area surrounding the facility; and (3) data showing
excessive radiation being released but seemingly only for
specific, and short, periods of time (such as when the
facility's incinerator was being used).
marshaled a large number of documents that they alleged
created a genuine issue of material fact. The highlights of
Plaintiffs' documents are below:
• In an April 20, 1964 letter, NUMEC Manager E.V. Barry
wrote to Eber R. Price at the AEC that "average yearly
concentrations at our property line" were being exceeded
"when the winds are from the south quadrant" or in
sections "when the winds are from the east
• Data for part of the year 1966 shows a high of 41.5
dpm/m3 and an average of 13.0 dpm/m3. See JA5188.
But, as Plaintiffs admit, the "high" refers to only
one day. See Pls.' Br. 47-48 (referring to
"the same day" that the sampler gave its
"highest reading"). Additionally, this data comes
from a nearby building and not the roof of the Apollo
facility. Compare JA5188, with JA5189.
• An August 18, 1967 internal memorandum about the
Apollo facility's incinerator states, "Ever since
the incinerator has been in operation it has been a
consistent source of airborne contamination causing an over
exposure [sic] to the operators and air levels above the
M.P.C. in and out of the plant." JA4428.
• In a February 5, 1969 letter, the Director of the
Division of Compliance of the AEC wrote, among other things,
"Based on your recorded data, the concentrations of
radioactive material released from the facility through
exhaust stacks to unrestricted areas exceed the limits
specified in Appendix B, Table II of 10 CFR 20, contrary to
10 CFR 20.105(a), 'Concentrations in effluents to
unrestricted areas.'" JA4700.
• A November 30, 1972 internal memorandum memorializing
a phone call from the AEC states that the AEC commented that
"NUMEC has been the worst offender of AEC regulations
over the years, " that "[t]he AEC is strongly
considering imposing civil penalties, " and mentions
NUMEC was implementing corrective actions in, among other
things, its "Liquid Waste Management Program, " and
"Building Ventilation and Surveillance Program."
• In a February 12, 1974 letter, a NUMEC employee
criticized the Apollo facility for releasing too much
radiation. See JA4422 ("It is . . . apparent
from review of the data that said operations at the Apollo
Site are not conducted so as to provide a minimal
radiological impact on the environment . . . ."). The
same letter further states that there was heightened
radioactivity in the area near the Apollo facility, many
times in multiple of the background radiation because of
"radiologically contaminated gaseous effluents."
• A July 9, 1974 internal memorandum complains about
"stack and liquid discards of SNM [special nuclear
material] from the Apollo Plant" and tremendous losses
of uranium through "gross irresponsibility."
AEC/NRC approved NUMEC's operations at least three times.
First, in a report timestamped July 29, 1966, the AEC wrote,
"No item of noncompliance with respect to [NUMEC's]
concentrations of radioactive effluents released to
unrestricted areas was noted as a result of this
investigation." JA5051. Second, in 1968, the AEC
concluded that NUMEC's roof edge samples were below the
maximum permissible concentrations. JA5057 ("As can be
seen, these average sample results are below 8.8
[dpm/m3]."). On May 26, 1969, the AEC granted an
amendment to NUMEC's license, "authoriz[ing] the
discharge of radioactive material from any stack effluent . .
. in concentrations up to one-hundred . . . times the
applicable limits . . . in accordance with the statements,
representations and conditions specified in your application
dated March 5, 1969." JA5112.
in 1995, the NRC issued a report investigating another NUMEC
facility in Parks, Pennsylvania. See 60 Fed. Reg.
35, 571, 35, 573 (1995). In that report, the NRC stated that,
despite the 1969 license amendment setting limits for stack
emissions, the regulatory limits were set at the boundary of
the roof: "Accordingly, even though NUMEC was authorized
to discharge at the stack up to 100 times the value specified
in Appendix B, Table II, [under the 1969 license amendment, ]
NUMEC was still required to meet the limits at the site
boundary (see footnote 8)." 60 Fed. Reg. 35, 571, 35,
573 (1995). Footnote 8, in turn, states, "The values set
forth in 10 CFR Part 20, Appendix B, Table II, are the
regulatory limits applicable at the site boundary, not at the
stack." 60 Fed. Reg. 35, 571, 35, 573 n.8 (1995).
THE SCIENCE OF CANCER
Court's previous opinion, In re TMI Litigation,
193 F.3d 613 (3d Cir. 1999), set forth the basic scientific
principles regarding the relationship between radiation and
cancer. See 193 F.3d at 629-55. No party disputes
those background principles. Because we rely on these
principles here, we consider it helpful to summarize them.
Ionizing radiation can damage human cells. Id. at
639-40. "If cellular damage is not repaired, [the
damage] may prevent the cell from surviving or reproducing,
or it may result in a viable but modified cell."
Id. at 640. When an irradiated cell is only
"modified rather than killed, " stochastic (or
probabilistic) effects result. Id. at 642.
word "probabilistic" indicates, what happens next
to the modified cell is uncertain. In some cases,
"cancer induction" occurs. Id. As we
explained in In re TMI Litigation, any increase in
radiation exposure above zero is believed to increase the
probability of carcinogenesis:
The probability that cancer will result from radiation
increases proportionally with dose. However, it is currently
believed that there is no threshold dose below which the
probability of cancer induction is zero. . . . The linear
risk model posits that each time energy is deposited in a
cell or tissue, there is a probability of the induction of
Id. at 642-43 (citations omitted).
with state-of-the-art data, it is impossible to determine
with certainty that radiation is the cause of a given
incidence of cancer for three reasons. First, numerous
factors other than radiation may cause cancer. That is,
"a given percentage of a defined population will
contract cancer even absent any exposure to ionizing
radiation." Id. a 643-44. Second, there is
no clear difference between cancers caused by radiation or by
other factors. No characteristic of a given cancer (such as
its type or severity) are known to suggest that
"manmade" radiation or even any radiation was the
cancer's cause. See id. at 643 ("[M]edical
evaluation, by itself, can neither prove nor disprove that a
specific malignancy was caused by a specific radiation
exposure."). Third, because the relevant changes occur
on the cellular level, they are not detected or detectable at
the time they occur. It can take many years-seemingly a
variable number of years-between an exposure to radiation and
the "possible detection of a resulting cancer."
Id. (defining the "latency period" as
"[t]he period between exposure to radiation and possible
detection"). Thus, in a case like this one, the
factfinder will always have to use ex-post data to ascertain
whether any radiation-let alone any particular radioactive
exposure-disrupted the cell in the past.
THE DISTRICT COURT'S RELEVANT RULINGS
reviewing the orders granting Defendants' motion for
summary judgment. In its summary judgment orders, the
District Court adopted the reasoning of the Magistrate Judge
to whom all pretrial motions had been referred. See
Order, McMunn v. Babcock & Wilcox Power Generation
Grp., No. 2:10-cv-00143-DSC-RCM (W.D. Pa. Aug. 24,
2011), ECF No. 79.
earlier rulings set the stage for the summary judgment
motion. Those two rulings are (1) a September 12, 2012 order
following a "Lone Pine" case management
order,  and (2) a February 27, 2014 order adopting
in part and rejecting in part the Magistrate Judge's
recommendations with regard to excluding the parties'
experts under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993).
January 25, 2012, the Magistrate Judge issued the Lone
Pine order, requiring Plaintiffs to provide prima facie
evidence of, among other things, the "name of the
specific radionuclide(s) released from Defendants'
facilities in excess of the applicable federal permissible
limits" and "an identification of each exposure
pathway(s) through which each Plaintiff was exposed to each
specific radionuclide." Order at 1, McMunn v.
Babcock & Wilcox Power Generation Grp., No.
2:10-cv-0143-DSC-RCM (W.D. Pa. Jan. 25, 2012), ECF No. 109.
September 12, 2012, following the parties' responses to
the Lone Pine order, the Magistrate Judge issued an
order limiting Plaintiffs' theories of recovery. See
McMunn v. Babcock & Wilcox Power Generation Grp.,
896 F.Supp.2d 347 (W.D. Pa. 2012). In that order, the
Magistrate Judge held that the Plaintiffs would be allowed
only "to pursue, offer or rely upon evidence referring
or relating to any claim based upon exposure through . . .
airborne exposure to uranium . . . from . . . the Apollo
facility during its years of operation." Id. at
358-61; see also id. at 364. Plaintiffs do not
challenge this Lone Pine order on appeal.
12, 2013, the Magistrate Judge recommended that the District
Court (1) grant some of Defendants' Daubert
motions; (2) deny the remainder of Defendants'
Daubert motions; and (3) deny all of Plaintiffs'
Daubert motions. See McMunn v. Babcock &
Wilcox Power Generation Grp., Nos. 10-143 et al., 2013
WL 3487560 (W.D. Pa. July 12, 2013). Specifically, the
Magistrate Judge recommended excluding the testimony of
Plaintiffs' three general causation experts-Dr. Howard
Hu, Dr. Joseph Ring, and Mr. Bernd Franke- and
Plaintiffs' specific causation expert, Dr. James Melius.
Only the rulings with regard to Melius's testimony bear
directly on this appeal.
expert report used the methodology of differential diagnosis.
Melius provided a roughly one-page summary of each
Plaintiff's background and alleged exposure and then
concluded for each Plaintiff: "[I]t is my professional
medical opinion that [Plaintiff's] exposures to uranium
and other radioactive materials released from the Apollo
nuclear facility made a significant contribution to the
development of" his or her cancer. E.g.,
JA3448, 3465, 3490. For most of the Plaintiffs, Melius added
language substantially like the following: "This is
reinforced by the lack of other risk factors in [her or his]
history that would account for the development of this
illness." E.g., JA3448.
Magistrate Judge recommended excluding Melius's testimony
because Melius failed to rule out other confounding factors
and did not have information about doses of radiation to
which each Plaintiff was exposed. With regard to confounding
factors, the Magistrate Judge criticized Melius's
"differential diagnosis" because Melius
"fail[ed] to explain why he did not rule out smoking,
obesity, genetic factors, benzene exposure, radon and many
other possible and obvious alternative causes in order to
conclude in each instance that uranium is the cause of the
individual's cancer." McMunn, 2013 WL
3487560, at *28. With regard to dose, the Magistrate Judge
criticized Melius for failing to make or use any estimate of
any Plaintiff's dose "or the maximum or minimum
amount to which the person was exposed." Id. at
*29. Instead, to determine that Plaintiffs' exposures
were sufficient to serve as a "significant
contribution" to their cancers, Melius relied on general
testimony about radiation-Dr. Hu's testimony that
radiation from uranium could cause cancer-and the assumption
that Plaintiffs were exposed to dangerous levels of radiation
because "the Plaintiffs lived or worked within 1.5 miles
of the Apollo facility." Id. at *28. The
Magistrate Judge's two criticisms dovetailed with a
particular flaw in Melius's testimony: Melius
"rule[d] out oral contraceptive use if the dose was
small and smoking if the person quit 10-15 years ago, thereby
taking dose into account." Id. at *29. The
Magistrate Judge concluded that Melius's methodology
"has not been generally accepted in the medical and
scientific communities" and was "untestable."
Id. at *29.
February 27, 2014, the District Court rejected the Magistrate
Judge's report and recommendation to the extent that the
Magistrate Judge recommended granting Defendants'
Daubert motions with regard to Melius and
Plaintiffs' general causation experts. With regard
to Melius specifically, the District Court placed great
weight on (1) this Court's past discussion of
differential diagnosis methodology and (2) the fact that
Melius did not have access to perfect information. First, the
District Court held that Melius "adequately addressed
other possible causes of Plaintiffs' cancers, both known
and unknown" because Melius reviewed information about
the Plaintiffs. McMunn v. Babcock & Wilcox Power
Generation Grp., Nos. 2:10cv143 et al., 2014 WL 814878,
at *14 (W.D. Pa. Feb. 27, 2014). The District Court also
cited and quoted In re Paoli Railroad Yard PCB
Litigation, 35 F.3d 717 (3d Cir. 1994), and Heller
v. Shaw Industries, Inc., 167 F.3d 146 (3d Cir. 1999),
for the propositions that a medical expert performing a
differential diagnosis does not need to rule out every
alternative factor and that medical experts are permitted to
exercise their judgments when conducting a differential
diagnosis. See McMunn, 2014 WL 814878, at *15.
with regard to dose, the District Court held that there was
"enough support in the record for the contention that
the Plaintiffs' exposure levels exceeded the normal
background level" for Melius to use a "qualitative
analysis" rather than a "quantitative dose
analysis." Id. at *14. In particular, Melius
could rely on "NUMEC's failure to monitor
emissions." Id. Because Melius's analysis
relied on the absence of data, the District Court agreed with
Melius that a "quantitative dose calculation . . . may
in fact be far more speculative than a qualitative
District Court further held that a dose analysis was not
necessary for Plaintiffs' claims to succeed. The District
Court stated that In re TMI Litigation, 193 F.3d 613
(3d Cir. 1999), "did not require a plaintiff prove a
quantified dose in order to prove personal injuries caused by
the release of radiation." McMunn, 2014 WL
814878, at *13. Then, the District Court cited to other cases
that did not require a dose. Id. at *13-14 (quoting
and citing Kannankeril v. Terminix Int'l, 128
F.3d 802, 808-09 (3d Cir. 1997), Bonner v. ISP Techs.,
Inc., 259 F.3d 924 (8th Cir. 2001), and Westberry v.
Gislaved Gummi AB, 178 F.3d 257 (4th Cir. 1999)).
Defendants' request, the District Court certified the
Daubert order for interlocutory appeal. See
McMunn v. Babcock & Wilcox Power Generation Grp.,
Nos. 2:10cv143 et al., 2014 WL 12530940 (W.D. Pa. May 7,
2014). We denied Defendants' petition for interlocutory
appeal. See McMunn v. Babcock & Wilcox Power
Generation Grp., No. 14-8074 (3d Cir. June 16, 2014).
7, 2015, the Magistrate Judge filed a very thorough report
recommending that the District Court grant Defendants'
motion for summary judgment on Plaintiffs' Price-Anderson
public liability claims and Defendants' motion for a
judgment on the pleadings on all of Plaintiffs'
common-law claims. See McMunn v. Babcock & Wilcox
Power Generation Grp., 131 F.Supp.3d 352');">131 F.Supp.3d 352, 359-404 (W.D.
Pa. Sept. 15, 2015) (republishing the report and
Magistrate Judge recommended that the District Court grant
summary judgment because Plaintiffs (1) failed "to raise
a genuine issue for trial on breach of duty" and (2)
failed "to proffer evidence of exposure and dose."
Id. at 389, 404. First, with regard to the
breach of duty, the Magistrate Judge held that "[t]he
regulatory standard applicable to the emission of
radionuclides in airborne effluent to off-site areas . . .
when the Apollo facility operated . . . was 10 C.F.R. §
20.106"-"not some other regulation, license
requirement or other issue." Id. at 368-69,
388; see also In re TMI, 67 F.3d 1103, 1108 n.10 (3d
Cir. 1995) (applying "the relevant federal regulations .
. . in place at the time" of the radioactive release
caused by Three Mile Island accident at issue).
20.106 prohibited a licensee from "releas[ing] to an
unrestricted area radioactive material in concentrations
which exceed the limits specified in Appendix 'B',
Table II of this part." 10 C.F.R. § 20.106(a)
(1980). The regulation further states that "the
concentration limits in Appendix 'B', Table II of
this part shall apply at the boundary of the restricted
area." 10 C.F.R. § 20.106(d).
Magistrate Judge rejected Plaintiffs' argument that the
Table II maximum permissible concentration applied directly
to the uranium effluent released from the stacks on the roof.
First, the Magistrate Judge determined that the roof of the
Apollo facility was a restricted area. McMunn, 131
F.Supp.3d at 386-87. Second, the Magistrate Judge held that
the measurements of uranium effluent to be compared to the
maximum permissible concentration should be those taken
"at the roof boundary." Id. at 387-88.
Because Plaintiffs' only expert testimony about breach
applied the concentration limits at the stacks and not at the
roof boundaries, the Magistrate Judge held that Plaintiffs
failed to proffer expert evidence of a breach that raised a
genuine issue of material fact. See id. at 389.
regard to exposure and dose, the Magistrate Judge held that
Plaintiffs' causation case failed because Plaintiffs
failed to show that each Plaintiff was exposed to enough
radiation to cause his or her cancer. First, the Magistrate
Judge granted Defendants' motion to deem certain facts
admitted. See id. at 394; Plaintiffs' Local Rule
56.C.1 Response, No. 2:10-cv-001343-DSC-RCM (W.D. Pa. filed
Dec. 5, 2014), ECF No. 342. Then, the Magistrate Judge
explained that, under In re TMI Litigation, 193 F.3d
613 (3d Cir. 1999), each Plaintiff had to show that he or she
was exposed to "inhaled uranium from the Apollo plant in
excess of normal background radiation amounts."
McMunn, 131 F.Supp.3d at 396-97, 399. Thus, the
Magistrate Judge held that "Plaintiffs must provide . .
. an estimate of the dose they received which caused their
cancers." Id. at 399. As discussed above,
Melius relied on Plaintiffs' other experts for exposure,
but none of Plaintiffs' other experts calculated exposure
or dose for any of the Plaintiffs. See id.
the Magistrate Judge rejected Plaintiffs' argument that
Defendants were "estopped from contesting
[Plaintiffs'] lack of evidence of exposure and dose"
because Defendants failed to keep accurate records.
Id. at 402-04. The Magistrate Judge also rejected
Plaintiffs' argument that law of the case required the
Magistrate Judge to deny summary judgment on causation
because the District Court had ruled that Melius's
testimony was admissible in its Daubert ruling.
See id. at 399-402.
September 15, 2015, the District Court adopted the Magistrate
Judge's report and recommendation over Plaintiffs'
objections. See id. at 357. The District Court
stated that it "review[ed] . . . the record of these
cases, . . . the Magistrate Judge's Report and
Recommendation, and the Objections thereto, " but
offered no further explanation for its decision. Id.
related cases were not consolidated with the main case when
the District Court issued its September 15, 2015 Memorandum
Order. The District Court ultimately entered orders adopting
the reasoning of the September 15, 2015 Memorandum Order in
those cases. See JA281-92; SJa3-SJa8.
notices of appeal followed in each case before
us. Additionally, Defendants cross-appealed
many-but not all-of the cases before us, requesting that we
reverse the District Court's Daubert order.
District Court had subject-matter jurisdiction over these
actions under 42 U.S.C. § 2210(n)(2) because this is a
public liability action arising out of a nuclear incident in
the Western District of Pennsylvania. This Court has
jurisdiction over Plaintiffs' appeals under 28 U.S.C.
argue that we did not have jurisdiction over Defendants'
cross-appeal relating to the District Court's denial of
their Daubert motion regarding Melius because
Defendants are not aggrieved by that denial. As the Supreme
Court observed in Deposit Guaranty National Bank v.
Roper, "Ordinarily, only a party aggrieved by a
judgment or order of a district court may exercise the
statutory right to appeal therefrom. A party who receives all
that he has sought generally is not aggrieved by the judgment
affording the relief and cannot appeal from it." 445
U.S. 326, 333 (1980); see also Nanavati v. Burdette
Tomlin Mem'l Hosp., 857 F.2d 96, 102 (3d Cir. 1988)
("Because they are completely satisfied with the final
judgment and object only to interlocutory rulings of the
district court, we lack jurisdiction over their
not determine whether we have jurisdiction. We simply follow
Third Circuit practice and dismiss Defendants'
cross-appeals as "superfluous." Smith v.
Johnson & Johnson, 593 F.3d 280, 283 n.2 (3d Cir.
2010) ("Yet a party, without taking a cross-appeal, may
urge in support of an order from which an appeal has been
taken any matter appearing in the record, at least if the
party relied on it in the district court."). As such, we
consider the parties' Daubert arguments to
concern causation only as an "alternate ground for
affirmance." Nanavati, 857 F.2d at 102.
Accordingly, we have disregarded Defendants' reply brief
in support of their cross-appeal.
standard of review on summary judgment is well known:
"Because we are reviewing a grant of summary judgment,
our standard of review is plenary. Summary judgment is
appropriate 'if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.'" Constitution
Party of Pa. v. Cortes, 824 F.3d 386, 393 (3d Cir. 2016)
(citations omitted) (quoting Fed.R.Civ.P. 56(a)).
affirm the judgment of the District Court because Plaintiffs
failed to raise an issue of fact that would allow a
reasonable jury to find that Defendants breached their duty
and because Melius's conclusory expert report would not
allow a reasonable jury to find that Defendants'
radiation was a substantial factor in causing Plaintiffs'
District Court held that Plaintiff failed to establish
a genuine issue of material fact as to whether Defendants
breached their duty to Plaintiffs. We agree with the District
Court that Defendants' duty was defined by § 20.106.
three different ways, Plaintiffs try to show that Defendants
owed a duty other than to prevent the release of uranium
effluent that exceeds the maximum permissible concentrations
at the boundary of the roof, when the effluent is averaged
over a full year. First, Plaintiffs argue that any emission
from the roof counts under § 20.106. Second, Plaintiffs
argue that more onerous maximum permissible concentrations
for roof emissions were created by the 1969 amendment to
NUMEC's license. And, third, Plaintiffs argue that they
had the option to decline annual averaging, allowing them to
find breaches of duty where emissions exceeded the maximum
permissible concentration over short periods of time. As
discussed below, these attempts to redefine the duty fail
because they all conflict with § 20.106 and because we
owe Auer deference to the NRC's interpretation
of § 20.106.
The Roof Was a Restricted Area
§ 20.106(d), the maximum permissible concentrations are
assessed "at the boundary of the restricted area."
10 C.F.R. § 20.106(d). A "restricted area" is
any area where "access . . . is controlled by the
licensee for purposes of protection of individuals from
exposure to radiation and radioactive materials." 10
C.F.R. § 20.3(a)(14). Plaintiffs argue that the entire
roof was unrestricted such that emissions from anywhere on
the roof-including the stacks and fans-should count directly
against the limits. Plaintiffs' argument is undermined by
a 1995 NRC report that states that the "regulatory
limits [are] applicable at the site boundary, not at the
stack." 60 Fed. Reg. 35, 571, 35, 573 n.8 (1995).
present two arguments as to why the roof is unrestricted: (1)
an historical argument based on a series of letters between
the AEC and NUMEC and (2) a functional argument that
questions whether access to the roof was "controlled by
the licensee for purposes of protection of individuals from
exposure to radiation and radioactive materials."
regard to the historical argument, Plaintiffs' strongest
support is a June 5, 1964 letter, in which the Director of
the Division of State and Licensee Relations of the AEC
stated that the roof would be "unrestricted" if
access were not controlled: "[T]he roof area of the
NUMEC facility is an unrestricted area unless access to this
area is controlled from the radiation safety
also rely on other correspondence in which NUMEC and AEC
compared stack emissions to the applicable maximum
permissible concentration. For instance, in a 1967 report, a
NUMEC employee wrote, "[T]he measured stack
concentration frequently exceeds permissible levels."
JA5201. The AEC similarly expressed concern about releases
from stacks, as though the regulations created limitations on
the stacks. In a February 5, 1969 letter, the Director of the
Division of Compliance of the AEC warned, "Based on your
recorded data, the concentrations of radioactive material
released from the facility through exhaust stacks to
unrestricted areas exceed the limits specified in Appendix B,
Table II of 10 CFR 20, contrary to 10 CFR 20.105(a),
'Concentrations in effluents to unrestricted
areas.'" JA4700. Additionally, the fact that NUMEC
sought- and the AEC granted in 1969-approval to exceed the
maximum permissible concentration by one-hundred times at the
stack, see JA5112, suggests that there was a
pre-existing regulatory limit at the stack.
functional argument focuses on the definition of a restricted
area in the regulation. The regulation states that a
"restricted area" is any area where "access .
. . is controlled by the licensee for purposes of protection
of individuals from exposure to radiation and radioactive
materials." 10 C.F.R. § 20.3(a)(14). It is
uncontested that the roof could only be accessed by locked
hatches from ladders located inside the building.
See JA5035-36 ("There are no outside ladders on
NUMEC's property. We have two inside ladders with
normally closed and locked hatches at the top."); JA5317
("The roof hatch is kept locked with keys in the
possession of the health and safety
argue that these hatches do not show that the roof was
"controlled . . . for purposes of protection . . . from
exposure to radiation." Relying on a 1965 NUMEC letter,
they argue that certain safety measures-e.g., alpha
survey instruments-are required to show why the access is
controlled. See Pls.' Br. 40- 41.
we defer to the expertise of the NRC as to where the
restricted area of the Apollo facility ended. In 1995, the
NRC issued a report investigating another NUMEC facility in
Parks, Pennsylvania. 60 Fed. Reg. 35, 571, 35, 573 (1995).
Even though the report was about the Parks facility, the NRC
referred to the 1969 letter that allowed NUMEC to exceed
regulatory limits at the Apollo facility's stacks. The
NRC stated that, despite a 1969 license amendment setting
limits for stack emissions, the regulatory limits were set at
the boundary of the roof. "Accordingly, even though
NUMEC was authorized to discharge at the stack up to 100
times the value specified in Appendix B, Table II, [under a
1969 license amendment, ] NUMEC was still required to meet
the limits at the site boundary (see footnote 8)."
Id. Footnote 8, in turn, stated, "The values
set forth in 10 CFR Part 20, Appendix B, Table II, are the
regulatory limits applicable at the site boundary, not at the
stack." Id. at 35, 573 n.8.
Auer v. Robbins, 519 U.S. 452, 461-62 (1997), we
defer to the NRC's "fair and considered
judgment" of its interpretation of its regulation. One
could argue that the NRC should receive less deference to the
extent that the NRC's 1995 position conflicts with
Plaintiffs' historical evidence. In this case, we believe
we still owe full deference. The Supreme Court's main
concern with an agency switching positions has been with
circumstances in which the new position could cause
"unfair surprise." Long Island Care at Home,
Ltd. v. Coke, 551 U.S. 158, 170-71 (2007) ("[A]s
long as interpretive changes create no unfair surprise[, ] .
. . the change in interpretation alone presents no separate
ground for disregarding the Department's present
interpretation."). Here, our Auer deference
would not harm any reliance interests.
we did not defer to the NRC, Defendants' interpretation
of a "restricted area" is more consistent with our
precedent than is Plaintiffs' functional argument. In
1995, we held that "[t]he definitions of
'restricted' and 'unrestricted areas'
demonstrate that the C.F.R. sections governing persons in
'unrestricted areas' were intended to cover persons
outside a nuclear plant's boundaries, i.e., the general
public." In re TMI, 67 F.3d at 1114 (footnote
omitted). Although denial of access to the "general
public" alone does not turn a space into a restricted
area, our understanding has been focused more on whether a
licensee exercises control rather than on the precise safety
measures chosen by the licensee. Other than the isolated
statements by NUMEC, Plaintiffs give us no reason to believe
that more than locked hatches were needed to control access
to the roof for purposes of protecting individuals from
The License Did Not Create a Duty
noted above, in 1969, the AEC approved NUMEC's request to
amend its license to allow "the discharge of radioactive
material from any stack . . . in concentrations up to
one-hundred (100) times the applicable limits specified in
Appendix B, Table II, " contingent on satisfactory
sampling "at the plant roof perimeter" and "in
the neighboring unrestricted areas of [the] plant."
JA5112. Plaintiffs argue that this 1969 license amendment now
creates a tort duty that Defendants violated by discharging
more than 100 times the maximum permissible concentration at
Price-Anderson public liability claim, "federal law
preempts state tort law on the standard of care." In
re TMI, 67 F.3d at 1107. Our 1995 opinion in In re
TMI instructs that the duty that survives preemption
must be a regulatory requirement meant to protect people like
Plaintiffs. Following In re TMI, we look to the
principles of negligence per se (by analogy) and to other
courts' interpretation of duty under the Price-Anderson
Act. Because this license requirement was only meant to make
it easier to assess whether NUMEC violated 10 C.F.R. §
20.106 at the boundary of the restricted area-not to create
an independent obligation-we hold this license requirement
does not supply a tort duty.
1995 TMI case, plaintiffs argued that the "as
low as is reasonably achievable" principle
("ALARA") established the tort duty. This Court
held instead that 10 C.F.R. §§ 20.105, 106
established the relevant duty. Two of our major
considerations were that (1) §§ 20.105 and 20.106
indicated they should apply to effluent emissions to the
public, In re TMI, 67 F.3d at 1114, and (2) the
ALARA regulation states that it was not "to be construed
as radiation protection standards" but was rather meant
to be a discretionary tool for regulatory agencies,
id. at 1114-15 (internal quotation mark omitted).
Thus, we see that our concerns in 1995 reflected (1) whether
the regulation was meant to cover the persons allegedly
affected and (2) whether the regulation was meant to
establish actual standards or operating principles for the
agency. These same considerations are not present here. The
limitations on the stacks were meant to show levels below
which there could not be a violation at the boundary. Thus,
they were not directly protective of persons in unrestricted
areas and were a discretionary choice by the AEC to make
policing NUMEC easier.
1995 TMI case also instructs us to consider
principles from negligence per se. In that case, we explained
that the duty analysis under the Price-Anderson Act "is
analogous to the practice followed by many jurisdictions with
negligence per se cases. In such cases, where defendants
violated the relevant statute or regulation, courts have held
as a matter of law that plaintiffs have satisfied the ...