Garcia v. Conoco Inc

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________________

No. 98-51073
_________________________________

CRECENSIO ACUNA; LEONARDO ACUNA, Individually and as next
friend of Pedro Acuna, Leonardo Acuna, Jr. & Genaro Acuna,
Minors; HELEN LEAL ALANIZ, Individually and as next friend
of Abel Alaniz, Jr., Justin Alaniz & Nicole Alaniz, Minors;
CONSUELO R. AGUERO, Individually and as next friend of Mark
Anthony Aguero & Anna Marie Aguero, Minors; JOSE LUIS
AGUERO, JR., Individually and as next friend of Patrick T.
Aguero, a Minor; ET AL

Plaintiffs-Appellants,

v.

BROWN & ROOT INC.; ET AL,
Defendants

BROWN & ROOT INC.; CHEVRON USA INC., Individually, as
parent, and successor in interest to Chevron Resources
Company, a division of Chevron Industries, Inc.; CONOCO,
INC.; CONTINENTAL OIL COMPANY; EXXON CORPORATION; RIO GRANDE
RESOURCES CORPORATION; GENERAL ATOMICS, doing business as
General Atomics Corp.; ATLANTIC RICHFIELD COMPANY, as
successor in interest to Anaconda Company; INTERCONTINENTAL
ENERGY CORPORATION, doing business as IEC Corporation

Defendants-Appellees.

* * *
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No. 98-51133
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REBECCA GARCIA, Individually and as next friend of Stephanie
Renee Garcia, a minor; ROGELIO GARCIA; ROMONA GARCIA; SYLVIA M.
GARCIA; YOLANDA GARCIA, Individually and as next friend of
Roxanne Garcia, Rafael Garcia, Minors, ET AL

Plaintiffs - Apellants

v.

CONOCO INC; ET AL
 Defendants

CONOCO INC; CONQUISTA PROJECT CORPORATION; CONTINENTAL OIL CO;
CHEVRON CORPORATION; CHEVRON RESOURCES; EXXON CORPORATION;
GENERAL ATOMICS, doing business as General Atomics Corp; TOTALE
INC; CHEMICAL WASTE MANAGEMENT INC; CHEMICAL WASTE MANAGEMENT OF
TEXAS, INC; TOTALE CORPORATION; TOTAL AMERICAN MINING, INC;
MALAPAI RESOURCES COMPANY; EVEREST MINERALS CORPORATION; PIONEER
CORPORATION; PIONEER NUCLEAR INC; ATLANTIC RICHFIELD COMPANY;
SUSQUEHANNA-WESTERN INC; RIO GRANDE RESOURCES CORPORATION;
INTERCONTINENTAL ENERGY CORPORATION; URANIUM RESOURCES INC;
GILBERT CONSTRUCTION COMPANY OF TEXAS, INC; GILBERT CONSTRUCTION
COMPANY II; GILBERT CONSTRUCTION COMPANY; OXY MINERALS
CORPORATION; MO-VAC INCORPORATED; E G GONZALES TRUCKING & PAVING;
BUDDY SMITH DRILLING COMPANY; GARCIA CONSTRUCTION; BAY INC, doing
business as Bay Materials; DAHLSTROM CONSTRUCTION CO; DAHLSTROM
INTERNATIONAL INC; DAHLSTROM ENTERPRISES INC; DAHLSTROM HOLDING
CORPORATION; DAHLSTROM TRUCKING COMPANY, INC; HAVANNA INC, doing
business as Havanna Materials; HELDENFELS BROTHERS INC;
INTERNATIONAL ENGINEERING CO; SCOTT DAVIDSON TRUCKING; DAVIDSON
CONSTRUCTION & TRUCKING; MARCUS GARCIA; G P MATERIALS INC;
MCKENZIE CONTRACTORS INC; MCKENZIE MATERIALS INC; BROWN & ROOT
INC; LONE STAR DRILLING COMPANY INC; LONE STAR DRILLING
CORPORATION; LONE STAR STATE DRILLING CORPORATION; LONE STAR
FOUNDATION DRILLING INC; LONE STAR DRILLING COMPANY; BEACKLEY
DRILLING; TEPCORE DRILLING INC; CHEM-WASTE MANAGEMENT; REDGY
SUYLLIVANT DRILLING; CENTURY GEOPHYSICAL CORP; CENTURY
GEOPHYSICAL MOBILE SERVICE; ANACONDA COMPANY; PAWALEX SUPPLY;
DSI; WESTINGHOUSE ELECTRIC CORPORATION; REX LILLY SANDBLASTING;
WYOMING MINERALS; GREYBACK CONSOLIDATED INC; BUCKALOO INC;
ANALOG; HERBIE MCNITCH WATERWELL SERVICES; JOHN DOE COMPANIES

Defendants - Appellees

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Appeals from the United States District Court
for the Western District of Texas
---------------------------------
January 11, 2000
Before GARWOOD, SMITH and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

The above-captioned cases were consolidated on appeal. They

present the common issue of whether jurisdiction in the federal

courts is appropriate under the Price Anderson Act, 42 U.S.C. §

2210(n)(2), where plaintiffs have alleged tortious injury arising

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from uranium mining activity. Plaintiffs-appellants also appeal

the imposition of certain pre-discovery orders and argue, in the

alternative, that they satisfied any burdens placed upon them and

that their cases should not have been dismissed. As discussed

below, we find that jurisdiction was proper under 42 U.S.C. §

2210(n)(2) and that dismissal of the cases was proper.

I. Facts and Procedural History

Crecension Acuna and other plaintiffs, in total numbering

over one thousand, brought suit in Texas state court against

defendant companies for alleged personal injuries and property

damage arising from defendants’ uranium mining and processing

activities. Rebecca Garcia and approximately 600 other

plaintiffs brought suit alleging similar claims against a

partially overlapping set of defendants, most of whom were also

engaged in uranium mining activities in another area of Texas.

In both cases, plaintiffs alleged that they were exposed to

and injured by the defendants’ mining and processing activities.

Some plaintiffs worked in uranium mines or processing plants,

while others alleged exposure to radiation or uranium dust or

tailings through contact with family members who worked in the

mines or through environmental factors such as wind and

groundwater. Plaintiffs alleged a range of injuries as well as

durations and intensities of exposure.1

1
Plaintiffs also originally alleged property damage, but the
latter claim appears to have been dropped at the district court and
does not form part of this appeal.

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 Both suits were filed in Texas courts, alleging causes of

action under state law. Defendants removed the cases to the

federal district court for the Western District of Texas, where

they were treated as related cases. Over plaintiffs’ objections,

that court asserted jurisdiction under the Price Anderson Act, 42

U.S.C. § 2210(n)(2). First in Acuna and then in Garcia, the

court issued pre-discovery scheduling orders that required

plaintiffs to establish certain elements of their claims through

expert affidavits. Those affidavits had to specify, for each

plaintiff, the injuries or illnesses suffered by the plaintiff

that were caused by the alleged uranium exposure, the materials

or substances causing the injury and the facility thought to be

their source, the dates or circumstances and means of exposure to

the injurious materials, and the scientific and medical bases for

the expert’s opinions.

In response to the order issued in Acuna, plaintiffs

submitted just over one thousand form affidavits from a single

expert, Dr. Smith. Those affidavits identified a series of

illnesses and effects that can occur as a result of uranium

exposure and stated that the relevant plaintiff suffered from

some or all of them. The affidavits stated that Dr. Smith had

reviewed the plaintiff’s medical data and had come to the

conclusion that exposure to uranium and its byproducts had

reached clinically significant doses. The affidavits went on to

list all of the mining facilities covered in the lawsuit as

responsible for each plaintiff’s exposure and routes of exposure

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as including inhalation, ingestion, and direct skin contact. The

affidavits also included a list of scientific studies and

materials.

The magistrate judge found that the affidavits did not

comply with the scheduling order, reiterated some of the

requirements of the order, and gave plaintiffs an additional

month to comply. Plaintiffs then submitted additional affidavits

by Dr. Smith and two other experts. Some individuals were

identified in these affidavits as suffering from particular

diseases but the other required information was not provided

regarding their claims. The supplemental affidavits did not

provide any new information regarding the specific claims of the

vast majority of plaintiffs. The magistrate judge found that

these additional affidavits still failed to meet the specificity

requirements of the order and recommended that the case be

dismissed. The district court issued a memorandum and order

dismissing the case.

An identical pre-discovery order was issued some months

later in Garcia. Plaintiffs in that case submitted only one

affidavit by Dr. Smith, designed to cover all plaintiffs’ claims.

Following the magistrate judge’s recommendation, the district

court dismissed the case for failure to comply with the order.

Plaintiffs in both cases appeal.

II. Analysis

A. Federal Jurisdiction

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 Plaintiffs in both cases contend that removal was improper

under the Price Anderson Act. They argue that neither the

statutory language nor Congressional intent confers federal

jurisdiction over claims arising from uranium mining and related

activities. Defendants counter that the Act was meant to create

federal jurisdiction over all claims connected to the nuclear

power and weapons industries, including the mining and processing

of uranium.

The district court’s exercise of jurisdiction is reviewed de

novo, see Vasquez v. Alto Bonito Gravel Plant Corp., 56 F.3d 689,

692 (5th Cir. 1995), and doubts regarding whether removal

jurisdiction is proper should be resolved against federal

jurisdiction. See Willy v. Coastal Corp., 855 F.2d 1160, 1164

(5th Cir. 1988). We find that the Price Anderson Act does confer

exclusive federal jurisdiction over the claims in this case.

The Price Anderson Act sets up an indemnification and

limitation of liability scheme for public liability arising out

of the conduct of the nuclear energy and weapons industries. The

jurisdictional provision in question here, 42 U.S.C. §

2210(n)(2), was amended in 1988 to expand jurisdiction.

Previously, only those claims arising out of an “extraordinary

nuclear occurrence” were subject to automatic federal

jurisdiction. The section now reads, in relevant part:

(2) With respect to any public liability action arising
out of or resulting from a nuclear incident, the United
States district court in the district where the
incident takes place . . . shall have original
jurisdiction without regard to the citizenship of any
party or the amount in controversy. Upon motion of the

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 defendant . . . any such action pending in any State
court . . . shall be removed or transferred to the
United States district court having venue under this
subsection.

42 U.S.C. § 2210(n)(2). 42 U.S.C. § 2014 defines “nuclear

incident” as encompassing any occurrence causing personal or

property damage arising out of the toxic, radioactive, explosive,

or other hazardous properties of atomic or byproduct materials.

Plaintiffs seek to limit Price Anderson’s jurisdictional

grant, relying on a lengthy exposition of the history of the Act

and an intricate series of interpolations from definitions

elsewhere in the legislation. Taken together, their arguments

would posit the following: the jurisdictional grant contained in

§ 2210(n)(2) is meant only to apply to singular, accidental

events at a contract location subject to the indemnification

portion of the Act that is not located in a state which regulates

its own uranium industry pursuant to an agreement with the

Nuclear Regulatory Commission [NRC]. Such a tortured

interpretation is unnecessary and runs counter to the plain

language of the statute as well as the Congressional intent

behind the 1988 amendment of § 2210(n)(2).

There is nothing in the definition of “nuclear incident”

which suggests it should be contingent on whether the occurrence

took place in a state which regulates its own uranium industry

under NRC guidelines or whether the facility is covered under the

separate indemnification portions of the Act. “Nuclear incident”

is not limited to a single, catastrophic accident: indeed, one

purpose behind the 1988 amendments was to expand the scope of

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federal jurisdiction beyond actions arising from “extraordinary

nuclear occurrences” only. See Kerr-McGee Corp. v. Farley, 115

F.3d 1498, 1502 (10th Cir. 1997). Plaintiffs’ attempts to

reintroduce the limitations of “extraordinary nuclear occurrence”

into the 1988 amendments’ substitution of “nuclear incident” rely

on faulty statutory interpretation and are contrary to

Congressional intent. See Carey v. Kerr-McGee Chem. Corp., 60

F.Supp.2d 800, 803-07 (N.D. Ill. 1999) (analyzing history and

impact of § 2210(n)(2) and refuting the same arguments made by

plaintiffs in the instant case contained in Gilberg v. Stepan

Co., 24 F.Supp.2d 325 (D.N.J. 1998)).

Courts that have considered the general question of the

scope of jurisdiction under the 1988 amendments have found that

Congress intended to create an exclusive federal cause of action

for torts arising out of nuclear incidents. See, e.g., Roberts

v. Florida Power & Light Co., 146 F.3d 1305 (11th Cir. 1998); In

re Three Mile Island II, 940 F.2d 832 (3d Cir. 1991).

Uranium extraction and processing are part of the nuclear

weapons and power industries, and therefore come within the ambit

of § 2210(n)(2). See Nieman v. NLO, Inc., 108 F.3d 1546 (6th

Cir. 1997) (Act creates federal cause of action for continuing

trespass from a uranium processing plant); Kerr-McGee Corp. v.

Farley, 115 F.3d 1498 (10th Cir. 1997) (Act would preempt state

suit for injuries arising from uranium mining and processing).

Cf. In re Cincinnati Radiation Lit., 874 F.Supp. 796, 832 (S.D.

Ohio 1995) (injuries resulting from medical experimentation with

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radiation not intended to come under § 2210(n)(2)). The district

court’s exercise of removal jurisdiction under 42 U.S.C. §

2210(n)(2) was proper.

B. Pre-trial Procedure in the District Court

Plaintiffs contend that the pre-discovery orders requiring

expert support for the details of each plaintiff’s claim imposed

too high a burden for that stage of litigation. In the

alternative, they argue that they in fact complied with the

orders and that their cases should be remanded for discovery and

trial. The district court’s dismissal of plaintiffs’ claims in

Garcia is reviewed for plain error, because plaintiffs did not

make a timely objection to the magistrate judge’s recommendation

of dismissal. See Douglass v. United States Automobile Ass’n, 79

F.3d 1415, 1424 (5th Cir. 1996) (en banc); see also Crawford v.

Falcon Drilling Co., Inc., 131 F.3d 1120, 1123-24 (5th Cir.

1997). Plaintiffs did file an objection in Acuna, and the

district court therefore conducted a de novo review of the

recommendation to dismiss. We review the district court’s

dismissal order under Fed.R.Civ.P. 16(f) for abuse of discretion.

See National Hockey League v. Metropolitan Hockey Club, Inc., 427

U.S. 639, 642 (1976); FDIC v. Conner, 20 F.3d 1376, 1380 (5th

Cir. 1994).

The pre-discovery orders in issue are of a type known as

Lone Pine orders, named for Lore v. Lone Pine Corp., No. L-33606-

85 (N.J. Super. Ct. 1986). Lone Pine orders are designed to

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handle the complex issues and potential burdens on defendants and

the court in mass tort litigation. In the federal courts, such

orders are issued under the wide discretion afforded district

judges over the management of discovery under Fed.R.Civ.P. 16.

In these two cases, treated as related in the district

court, there are approximately one thousand six hundred

plaintiffs suing over one hundred defendants for a range of

injuries occurring over a span of up to forty years. Neither the

defendants nor the court was on notice from plaintiffs’ pleadings

as to how many instances of which diseases were being claimed as

injuries or which facilities were alleged to have caused those

injuries. It was within the court’s discretion to take steps to

manage the complex and potentially very burdensome discovery that

the cases would require. See Landry v. Air Line Pilots Ass’n

Int’l AFL-CIO, 901 F.2d 404, 436 (5th Cir. 1990); Fournier v.

Textron, Inc., 776 F.2d 532, 534 (5th Cir. 1985) (noting district

court’s authority to manage and develop complex litigation

discovery).

The scheduling orders issued below essentially required that

information which plaintiffs should have had before filing their

claims pursuant to Fed.R.Civ.P. 11(b)(3). Each plaintiff should

have had at least some information regarding the nature of his

injuries, the circumstances under which he could have been

exposed to harmful substances, and the basis for believing that

the named defendants were responsible for his injuries. See

Beanal v. Freeport-McMoran, Inc., –- F.3d –-, 1999 WL 1072274 *4

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(5th Cir.) (plaintiff’s complaint is insufficient where it is

devoid of “names, dates, locations, times, or any facts that

would put [defendant] on notice as to what conduct supports . . .

his claims”). The affidavits supplied by plaintiffs did not

provide this information. The district court did not commit

clear error or an abuse of discretion in refusing to allow

discovery to proceed without better definition of plaintiffs’

claims.

III. Conclusion

We find that the Price Anderson Act, 42 U.S.C. § 2210(n)(2),

conferred federal jurisdiction over the cases before us and that

removal was therefore proper. We also find that the district

court’s pre-discovery orders and orders of dismissal were not

abuses of its discretion. We therefore AFFIRM the judgments of

the district court.

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