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McMunn v. Babcock & Wilcox Power Generation Group, Inc.

United States Court of Appeals, Third Circuit

August 23, 2017

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
v.
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

          Argued November 10, 2016

         On 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

          Louis 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 Judges

          OPINION OF THE COURT

          SMITH, CHIEF JUDGE

         Plaintiffs assert that they developed cancer[1] 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[2] 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.

         The 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.

         Accordingly, we will affirm the judgment of the District Court.

         BACKGROUND

         I. THE PARTIES AND EMISSIONS

         A. The Parties

         Plaintiffs are more than seventy individuals[3] 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 cancers.

         Almost 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.[4] The similarities among the Plaintiffs end there. By our count, Plaintiffs alleged that they suffered from more than a dozen different types of cancer.[5] 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

         The 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.

         The 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).

         The 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 Cir. 1995).

         The 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.

         C. Evidence of Excessive Emissions

         Much of 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.

         As 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 permissible concentration.

         Plaintiffs 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.

         In 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).[6]

         Plaintiffs 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 quadrant." JA5163.
• 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." See JA4439-40.
• 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." Id.
• 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." See JA4427.

         However, 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.

         Finally, 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).

         II. THE SCIENCE OF CANCER

         This 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.

         As the 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[7]:

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 cancer.

Id. at 642-43 (citations omitted).

         Even 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.[8] 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.

         III. THE DISTRICT COURT'S RELEVANT RULINGS

         We are 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.

         Two 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, [9] 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).

         A. Lone Pine

         On 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.

         On 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.

         B. Daubert

         On July 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.

         Melius's 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.[10]

         The 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.

         On 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.[11] 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.

         Second, 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 analysis." Id.

         The 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)).

         At 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).

         C. Summary Judgment

         On May 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 recommendation).[12]

         The 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.[13] 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).

         Section 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).

         The 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.

         With 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.

         Further, 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.

         On 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.

         Certain 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.

         Timely notices of appeal followed in each case before us.[14] Additionally, Defendants cross-appealed many-but not all-of the cases before us, requesting that we reverse the District Court's Daubert order.

         JURISDICTION

         The 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. § 1291.

         Plaintiffs 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 appeal.").

         We need 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

         The 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)).

         DISCUSSION

         We will 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' cancers.

         I. DUTY

         The District Court[15] 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.

         In 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.

         A. The Roof Was a Restricted Area

         Under § 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[16] 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).

         Plaintiffs 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."

         With 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 standpoint." JA5314.

         Plaintiffs 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.

         Plaintiffs' 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 technician.").[17]

         Plaintiffs 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.

         Ultimately, 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.

         Under 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.

         Even if 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 radiation.

         B. The License Did Not Create a Duty

         As 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 the stacks.

         In a 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.

         In the 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.

         The 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 ...


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