Cotroneo v. Shaw Environment & Infra-Structure, Inc.

Case: 07-20939 Document: 00511446395 Page: 1 Date Filed: 04/14/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
April 14, 2011

No. 07-20939 Lyle W. Cayce
Clerk

DOMINIC COTRONEO; ARTHUR ANILLO; ALAN DANFORD; JACK
BRODAY; VANESSA DOUGHERTY; TANYA FRENCH; JOSEPH GARCIA;
DUANE GILLS; ALEX L. LUNA; JOHN MCBRYDE; AARON MERKEL;
STEVEN NORRIS; TIM PETRIE; ANGELIA RENEE TOOLE; DUSTIN
GILLS; MICHAEL WRIGHT,

Plaintiffs-Appellees, Cross-Appellants,
v.

SHAW ENVIRONMENT & INFRASTRUCTURE, INC.; GERALD J. JOY;
BARBARA REIDER; PETER CHIN; BUTCH DANIELS; JOHN MCGOWAN;
SERAFIN C. MUNOZ, Jr; RENEE GARO; DAVID DUNCAN; JAMES
LANGSTED; SHAW ENVIRONMENTAL, INC,

Defendants-Appellants, Cross-Appellees.

Appeals from the United States District Court
for the Southern District of Texas

Before KING, DENNIS, and ELROD, Circuit Judges.
DENNIS, Circuit Judge:
The plaintiffs in this case, workers who were employed in cleaning up
radioactive materials, alleged that they were harmed by excessive exposure to
radiation at a Texas work site and brought a tort claim suit in a New York state
court against their employer and supervisors under the Price-Anderson Act, 42
U.S.C. § 2011 et seq. (“the PAA”), and Texas state law. Under the explicit
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removal provision of the PAA, 42 U.S.C. § 2210 (n)(2), the defendants removed
this case to the United States District for the Southern District of Texas, where
the alleged injuries occurred. That district court granted the defendants’ motion
for summary judgment as to the plaintiffs’ claims that were predicated on bodily
injuries and illnesses, holding that the plaintiffs had failed to show a genuine
issue of material fact as to whether their physical harms had been caused by
overexposure to radiation. At the same time, the district court denied the
defendants’ motion for summary judgment with respect to the plaintiffs’ claims
for damages based on “offensive contact” battery by radiation. The district court
held that, whereas the bodily injury and illness claims arose under federal law
by operation of the PAA, 42 U.S.C. § 2014(hh), the plaintiffs’ “offensive contact”
claims arose solely under Texas law. The district court declined to exercise
supplemental jurisdiction over what it saw as purely state-law claims and
dismissed them without prejudice.
This panel unanimously affirms the district court’s summary judgment
dismissing the plaintiffs’ physical injury and illness claims. But we
unanimously conclude that the district court erred in treating the plaintiffs’
“offensive contact”claims as if they arose solely under Texas law. Although all
of the plaintiffs’ claims are derived from Texas law, they are deemed to arise
under federal law by the PAA, because they are part of a “suit asserting public
liability” as defined by the PAA. See id. This panel is divided, however, upon
what further action the district court must take in respect to the “offensive
contact” battery claims. A majority of the panel, Judges KING and ELROD,
concludes that the “offensive contact” claims fail under the PAA and must be
dismissed with prejudice because the plaintiffs have not shown that these claims

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arose from a nuclear incident, and therefore cannot establish public liability. In
a separate dissenting opinion, infra at 22-36, I explain why I disagree with that
result and would remand the plaintiffs’ “offensive contact” battery claims to the
district court for further adjudication.
I.
Pursuant to a government contract, Shaw Environmental, Inc. cleaned up
radioactive material at a former nuclear source fabrication facility in Webster,
Texas. The plaintiffs, who were employed by Shaw’s subcontractors at the Texas
work site for the project, contend that Shaw and its supervisors exposed them
to excessive levels of radiation during their employment. Such exposure,
especially to americium-241 and cesium-137, allegedly caused them to suffer
certain bodily injuries and illnesses.1 According to the plaintiffs, defendants
failed to take appropriate precautions that could have prevented this excessive
exposure. They claim, for instance, that “inappropriate radiation waste bags
were purchased from the Dollar Store to save money.”
They sued the defendants in a New York state court, asserting Texas
state-law claims for negligence, gross negligence, negligence per se, and assault
and battery. The plaintiffs’ complaint alleges not only that the defendants’
intentional or negligent conduct caused their bodily injuries and illnesses (bodily
injury claims), but also that the defendants intentionally or knowingly caused

1
The plaintiffs allege the following illnesses and injuries: “throat irritation,
dizziness/vertigo, liver ammonia, skin infection/rashes/exposure, high blood pressure, hair loss,
enlarged prostate, ear infections, sinus infections/problems, gallstones, polyps in throat,
nodules on vocal cords, aggravated allergies/asthma, joint or bone pain/problems, vomiting,
dehydration, teeth problems, lumps/cysts, depression, irregular menstrual cycles, rectal
bleeding, infertility, anemia, heart palpitations/chest pains, blood in urine, kidney stones,
bloody noses, stress/anxiety attacks, extreme fatigue, numbness, mole discoloration, sleeping
difficulties, and headaches.”

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excessive amounts of radiation to make offensive physical contact with them
(“offensive contact” claims). The “offensive contact” claims are battery claims,
which do not require a showing of physical injury.
It is undisputed that the plaintiffs’ bodily injury claims are deemed to
arise under federal law by virtue of the PAA, 42 U.S.C. § 2014(hh). Pursuant to
the PAA’s venue and removal provision, 42 U.S.C. § 2210(n)(2), the defendants
removed this action to the United States District Court for the Southern District
of Texas, the district where the incidents giving rise to the complaint occurred.
The parties proceeded with discovery, and on the plaintiffs’ motion, the district
court admitted two expert reports by Dr. Marvin Resnikoff. These reports
opined that the plaintiffs’ injuries could have been caused by their workplace
exposure to radiation. The district court also admitted the report of the
defendants’ expert, Dr. Robert E. Jackson, to the contrary. After the deadline
for expert discovery, the plaintiffs attempted to designate a previously
undisclosed expert, Dr. Kalpana Patel, but the district court excluded Dr. Patel
as a witness and her affidavit as untimely.
Following discovery, the defendants moved for summary judgment,
arguing that the plaintiffs had not provided legally sufficient evidence to create
a factual issue as to whether their physical injuries or illnesses had been caused
by their exposure to radiation at the cleanup site. The defendants also argued
that the “offensive contact” claims were legally excluded by the PAA and
therefore were extinguished and not actionable. The district court held that the
plaintiffs had failed to show a genuine issue of material fact as to whether their
physical harms had been caused by overexposure to radiation, and accordingly
granted the defendants’ summary judgment motion in part.

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As to the plaintiffs’ “offensive contact” claims, however, the district court
determined that the defendants were not entitled to summary judgment. The
district court held that these claims were not deemed to arise under the PAA by
operation of 42 U.S.C. § 2014(hh) and were therefore purely state-law claims.
The district court reasoned that federal causes of action under the PAA are
available only for suits asserting liability arising out of “nuclear incident[s],”
which are defined as occurrences causing “bodily injury, sickness, disease, or
death,” id. § 2014(q); and that because the “offensive contact” claims did not
arise out of a “nuclear incident,” they fell outside the PAA’s scope. Furthermore,
the district court declined to exercise supplemental jurisdiction over the
“offensive contact” claims, which it observed “present novel legal issues not
previously addressed by the Texas Supreme Court.” Accordingly, the district
court dismissed the “offensive contact” claims without prejudice, allowing the
plaintiffs to refile them in state court.
This appeal followed. The defendants argue that the plaintiffs’ “offensive
contact” claims should have been dismissed on the merits because they are
barred by the PAA. The plaintiffs cross-appeal, challenging the summary
judgment dismissing their bodily injury and illness claims.
II.
We review a district court’s summary judgment de novo, “guided by the
same standard as the district court: Federal Rule of Civil Procedure 56.” In re
Segerstrom, 247 F.3d 218, 223 (5th Cir. 2001). Summary judgment is
appropriate when “there is ‘no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’” Kovacic v. Villarreal, 628
F.3d 209, 211 (5th Cir. 2010) (quoting Fed. R. Civ. P. 56(a)). “The party moving

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for summary judgment must establish that there are no genuine issues of
material fact. ‘Once the moving party makes that showing, however, the burden
shifts to the nonmoving party to show that summary judgment is not
appropriate.’” Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th
Cir. 2001) (quoting Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir.
1991)). “Thus, to defeat a motion for summary judgment, the nonmoving party
must ‘go beyond the pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.’” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)). “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (internal quotation
mark omitted).
The PAA, as amended in 1988, establishes a federal cause of action known
as a “public liability action” for tort claims arising out of incidents involving
radioactive materials. This cause of action “is built around preexisting state law,
[but] contains some distinctively federal elements as well.” O’Conner v.
Commonwealth Edison Co., 13 F.3d 1090, 1096 (7th Cir. 1994).2 “In explicitly
providing that the ‘substantive rules for decision’ in public liability actions ‘shall
be derived from’ the law of the state in which the nuclear incident occurred, . . .
Congress expressed its intention that state law provides the content of and

2
The Act “dictates the limitations period for a public liability cause of action, 42 U.S.C.
§ 2210(n)(1), provides for venue, § 2210(n)(2), limits the availability of punitive damages in an
action arising out of [a nuclear incident], § 2210(s), and mandates that normally-available
defenses be waived in the cases of [extraordinary nuclear occurrences], § 2210(n)(1). The . . .
Act, therefore, forms the state-based cause of action into the federal mold.” O’Conner, 13 F.3d
at 1096.

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operates as federal law.” In re TMI Litig. Cases Consol. II, 940 F.2d 832, 855 (3d
Cir. 1991) (quoting 42 U.S.C. § 2014(hh)). “Thus, a state cause of action is not
merely transferred to federal court; instead, a new federal cause of action
supplants the prior state cause of action.” O’Conner, 13 F.3d at 1099-1100.
“Congress clearly intended to supplant all possible state causes of action when
the factual prerequisite[s] of the statute are met.” In re TMI, 940 F.2d at 857.
“Congress desired that state law provide the content for and operate as federal
law . . . in the context of a complex federal scheme which would mold and shape
any cause of action grounded in state law.” O’Conner, 13 F.3d at 1100.
In short, a plaintiff who asserts any claim arising out of a “nuclear
incident” as defined in the PAA, 42 U.S.C. § 2014(q), “can sue under the [PAA]
or not at all.” Nieman v. NLO, Inc., 108 F.3d 1546, 1553 (6th Cir. 1997). “His
federal claim will be derived from state law,” id., “unless such law is inconsistent
with the provisions of [§ 2210],” 42 U.S.C. § 2014(hh).
Because the parties agree that the plaintiffs’ bodily injury claims arise
under the PAA, we first address the district court’s summary judgment on those
claims, before resolving the dispute regarding the proper disposition of the
“offensive contact” claims.
A.3
On cross-appeal, the plaintiffs argue that the district court erred in
dismissing their bodily injury claims for failure to provide evidence that
excessive radiation exposure at the cleanup site caused the plaintiffs’ injuries.
Our review of the record confirms that the district court properly entered

3
Judge Dennis concurs in affirming the district court’s summary judgment dismissing
the plaintiffs’ bodily injury and illness claims but disagrees in part with the majority’s
reasoning in part II(A) of this opinion, as set forth in footnote 1 of his partial dissent.

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summary judgment for the defendants on these claims. The plaintiffs’ evidence
was insufficient to raise a genuine issue of fact as to whether there was a causal
connection between the radiation exposure and the plaintiffs’ claimed injuries.
The plaintiffs attempted to use epidemiological studies to establish that
their overexposure to radiation caused their physical harms. The Texas
Supreme Court has held that epidemiological studies can be used “to raise a fact
issue on causation” only if three conditions are met: (1) the studies are
scientifically reliable and show a “substantially elevated risk,” (2) the claimant
is “similar to those in the studies,” and (3) “if there are other plausible causes of
the injury or condition that could be negated, the plaintiff must offer evidence
excluding those causes with reasonable certainty.” Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 720 (Tex. 1997) (emphasis added).
We need not address the first two Havner conditions because we agree
with the district court that the plaintiffs have failed to satisfy the third: they
have not offered evidence excluding other plausible causes of their injuries with
reasonable certainty. The defendants’ expert, Dr. Jackson, offered numerous
plausible causes, other than radiation exposure, for the plaintiffs’ alleged
injuries. The plaintiffs’ expert, Dr. Resnikoff, offered no deposition testimony or
evidence excluding with reasonable certainty Dr. Jackson’s proposed alternative
causes; to the contrary, Dr. Resnikoff acknowledged that the plaintiffs’ injuries
might have been caused by factors other than their exposure to radiation.
Similarly, Dr. Patel’s affidavit made no effort to exclude other possible causes of
the plaintiffs’ injuries. Indeed, her affidavit did not dispute Dr. Jackson’s
assertion: “[I]t is true, as described in Dr. Jackson’s Report, that all of the
disorders and conditions being experienced by the Plaintiffs could come from

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other causes.” Although Dr. Patel’s affidavit countered that “these disorders and
conditions can also be caused by radiation exposure,” it did nothing to exclude
Dr. Jackson’s suggested alternative causes with reasonable certainty. See E.I.
du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 559 (Tex. 1995) (holding
that an expert’s “failure to rule out other causes of the damage renders his
opinion little more than speculation”); Mobil Oil Corp. v. Bailey, 187 S.W.3d 265,
274-75 (Tex. App.—Beaumont 2006, pet. denied) (holding, under Havner, that
the plaintiffs did not offer sufficient evidence that asbestos exposure caused the
decedent’s lung cancer because the plaintiffs’ experts did not exclude other
plausible causes, such as smoking, with reasonable certainty); Exxon Corp. v.
Makofski, 116 S.W.3d 176, 188-89 (Tex. App.—Houston [14th Dist.] 2003, pet.
denied) (holding that under Havner, that the plaintiffs did not offer sufficient
evidence that benzene caused the decedent’s anemia because their expert did not
exclude other plausible alternative causes, such as iron deficiency, with
reasonable certainty). Thus, even taking into account Dr. Patel’s affidavit, the
plaintiffs have failed to satisfy their burden of excluding other plausible causes
of their injuries with reasonable certainty.4 Accordingly, we affirm the summary
judgment as to the plaintiffs’ bodily injury claims.
B.5
We now consider the plaintiffs’ “offensive contact” claims. In order to
determine whether these claims arise under the PAA, we must examine the

4
The district court excluded Dr. Patel as an expert and Dr. Patel’s affidavit as
untimely, a ruling which the plaintiffs now appeal. We need not address the issue, however,
in light of our conclusion that summary judgment was appropriate, even considering Dr.
Patel’s affidavit.
5
Judge Dennis joins fully in this part of this opinion.

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precise language of the PAA, and especially § 2014(hh), which defines the term
“public liability action” and identifies the legal rules that govern such actions.
“‘The objective of a court called upon to interpret a statute is to ascertain
congressional intent and give effect to legislative will.’ The clearest indication
of congressional intent is the words of the statute itself. When the language of
a statute is unambiguous we must follow its plain meaning.” Davis v. Johnson,
158 F.3d 806, 810 (5th Cir.1998) (citations omitted) (quoting Johnson v. Am.
Airlines, Inc., 745 F.2d 988, 992 (5th Cir. 1984)).
The statute employs a chain of definitions to define the scope of a “public
liability action.” A “public liability action” means a “suit asserting public
liability.” 42 U.S.C. § 2014(hh). “Public liability” means “any legal liability
arising out of or resulting from a nuclear incident.”6 Id. § 2014(w). A “nuclear
incident” involves “bodily injury, sickness, disease, or death, or loss of or damage
to property, or loss of use of property” caused by the “radioactive, toxic,
explosive, or other hazardous properties of source, special nuclear, or byproduct
material.”7 Id. § 2014(q). To summarize, a “public liability action” is a suit in
which a party asserts that another party bears any legal liability arising out of
an incident in which the hazardous properties of radioactive material caused
bodily injury, sickness, or property damage.

6
The definition provides for three exceptions, not relevant to this case. In addition,
the definition includes liability arising from a “precautionary evacuation,” not relevant here
because the plaintiffs do not claim to have been involved in such an evacuation.
7
The definition of “source, special nuclear, or byproduct material” is not at issue in this
appeal. It is undisputed for present purposes that the plaintiffs were exposed to some
radioactive waste that is encompassed by one or more of these terms. See 42 U.S.C. § 2014(e)
(defining “byproduct material”); id. § 2014(z) (defining “source material”); id. § 2014(aa)
(defining “special nuclear material”).

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This suit is a “public liability action” as defined by the PAA, because the
plaintiffs allege that they suffered injuries and illnesses due to their exposure
to radiation, and because they assert that the defendants bear legal liability
arising out of these incidents of exposure to radiation.8 Since it is a “public
liability action,” it is to be treated as arising under federal law: “A public liability
action shall be deemed to be an action arising under section 2210 of this
title . . . .” 42 U.S.C. § 2014(hh).
Therefore, the district court erred by holding that the plaintiffs’ “offensive
contact” claims did not arise under federal law. Those claims are part of this
suit, which is a “public liability action.” The PAA, in section 2014(hh), provides
that the entire suit, not just particular claims that are part of the suit, “shall be
deemed to be an action arising under section 2210.” Therefore, the “offensive
contact” claims, along with the plaintiffs’ other claims, must be treated as
arising under federal law. The fact that the plaintiffs have failed to produce
sufficient evidence to survive summary judgment as to whether their injuries
and illnesses were actually caused by their overexposure to radiation does not
change this result. It nonetheless remains true that this action is a “suit
asserting public liability.” Id. § 2014(hh) (emphasis added). As such, it is a
“public liability action” and therefore the entire suit is deemed to be an action
arising under federal law.
Because this entire suit—the bodily injury claims as well as the “offensive
contact” claims—arises under federal law, the district court’s disposition of the
“offensive contact” claims was erroneous. The district court believed the claims

8
Under the circumstances, we need not decide whether the plaintiffs could have
avoided this result through artful pleading.

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arose exclusively under state law, declined to exercise supplemental jurisdiction
over them, and thus dismissed the claims without prejudice. See 28 U.S.C.
§ 1367(c). Given that the claims actually arise under federal law by operation
of the PAA, however, the district court had original, rather than supplemental,
jurisdiction over them. As such, the district court could not decline to exercise
that jurisdiction. See New Orleans Pub. Serv., Inc. v. Council of the City of New
Orleans, 491 U.S. 350, 358-59 (1989).
C.9
Having established that the plaintiffs’ “offensive contact” claims arise
under federal law because they are part of a “public liability action,” this court
must consider whether such claims are compensable under the PAA. Section
2014(hh) provides that “[a] public liability action shall be deemed to be an action
arising under section 2210 of this title, and the substantive rules for decision in
such action shall be derived from the law of the State in which the nuclear
incident involved occurs, unless such law is inconsistent with the provisions of
such section.” Thus, the claims in this case, including the “offensive contact”
claims, are governed by substantive rules derived from Texas law unless that
law is inconsistent with 42 U.S.C. § 2210. See O’Conner, 13 F.3d at 1100-01
(“[T]he court will have to assess whether the applicable state law is consistent
with federal law.”); cf. Nieman, 108 F.3d at 1560, 1562 (considering, but not
resolving, the issue of “whether a claim for continuing trespass, as defined by
Ohio law, is inconsistent with the Price-Anderson Act,” specifically § 2210(n)(1)).

9
Section II.C of this opinion and the result as to the “offensive contact” claims
represent the views of the panel majority, Judge King and Judge Elrod. Judge Dennis
disagrees with Section II.C and sets forth his reasons in a separate opinion dissenting in part.

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An “offensive contact” claim is a type of battery claim under Texas law.
“[R]ather than physical injury, offensive contact is the gravamen of the action;
consequently, the defendant is liable not only for contacts which cause actual
physical harm, but also for those which are offensive and provocative.” Foye v.
Montes, 9 S.W.3d 436, 441 (Tex. App.—Houston [14th Dist.] 1999, pet. denied);
see also Price v. Short, 931 S.W.2d 677, 687 (Tex. App.—Dallas 1996, no pet.)
(“Battery requires only an offensive touching . . . .”). Thus, an “offensive contact”
claim does not require a plaintiff to prove that the battery caused any physical
injury. Foye, 9 S.W.3d at 441. The parties dispute whether a defendant’s
intentional overexposure of a plaintiff to radiation can be actionable as an
“offensive contact” battery under Texas law. We need not resolve this dispute,
however, because we conclude that, even if it is actionable under state law, in
this case such a cause of action would be inconsistent with section 2210 because
it would allow plaintiffs to recover on their public liability action without
establishing “public liability.”
As discussed above, a public liability action means a “suit asserting public
liability.” 42 U.S.C. § 2014(hh). Although “asserting” that a nuclear incident
occurred is sufficient to make the suit a public liability action, id. § 2014(hh),
proof of a nuclear incident is required to actually establish “public liability”:
“legal liability arising out of or resulting from a nuclear incident . . . .” Id.
§ 2014(w). Public liability—the only type of legal liability contemplated by a
public liability action—thus presupposes the occurrence of a nuclear incident.
Therefore, if the plaintiff cannot show that a nuclear incident occurred, there can

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be no public liability, and hence no recovery on his public liability action.10 See
Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1139 (10th Cir. 2010) (“[T]he
occurrence of a nuclear incident, and thus a sufficient injury under § 2014(q),
constitutes a threshold element of any PAA claim.”). This result is perfectly
logical: the success or failure of a plaintiff’s public liability action depends upon
whether the plaintiff can prove what he asserts—public liability.
Moreover, examination of section 2210 confirms this straightforward
reading of the statute. Section 2210, which is titled “Indemnification and
limitation of liability,” contains numerous provisions concerning financial
arrangements between the federal government and the nuclear energy industry
for the overall purpose of protecting the industry against potentially vast
liability that might arise out of a nuclear disaster. See Corcoran v. N.Y. Power
Auth., 202 F.3d 530, 539 (2d Cir. 1999) (“Congress enacted Price-Anderson to:
(1) ensure that adequate funds would be available to satisfy liability claims in
the event of a nuclear accident; and (2) encourage private sector participation in
the atomic energy industry by reducing the threat of potentially enormous
liability arising out of the operation of an atomic energy plant.”). Among other
things, section 2210 deals with insurance premiums, indemnification, limitation
of liability, and procedures for Congress and the executive and judicial branches
to follow when damages from a nuclear incident exceed the PAA’s liability limits.

10
The dissent argues that if Congress intended to limit recovery in this way, it could
have said so explicitly, pointing to the fact that three specific categories of claims are explicitly
excluded from the definition of “public liability.” Congress had no need to expressly exclude
claims not arising out of a nuclear incident, however, because those claims were never
included in the definition in the first place. “Public liability,” by it own terms, is limited to
“legal liability arising out of or resulting from a nuclear incident . . . .” 42 U.S.C § 2014(w).
As such, adding an exclusion for claims not arising out of a nuclear incident would be
redundant.

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Allowing recovery in the absence of a nuclear incident would be inconsistent
with almost all of these provisions. Far from placing an “overlay of federal law”
upon state law remedies, In re TMI, 940 F.2d at 858, it would permit an end-run
around the entire PAA scheme.
Crucially, the majority of the provisions in section 2210 deal with “public
liability” and thus presume the occurrence of a nuclear incident. The provisions
which limit liability, for example, speak of the “aggregate public liability for a
single nuclear incident . . . .” Id. § 2210(e)(1) (emphasis added); see also id.
§ 2210(r) (limitation on liability of lessors applies only to “liability arising out of
or resulting from a nuclear incident” (emphasis added)). The same is true of the
provisions which provide for compensation plans where these public liability
limits are exceeded. See id. § 2210(i). Similarly, other provisions require
nuclear licensees to obtain adequate insurance to provide “financial protection,”
id. § 2210(a)-(b), which is defined as “the ability to respond in damages for public
liability.” Id. § 2014(k) (emphasis added). Likewise, the indemnification
provisions apply to “public liability arising from nuclear incidents.” Id.
§ 2210(c)-(d) (emphasis added). And punitive damage awards are prohibited
“with respect to a nuclear incident . . . against a person on behalf of whom the
United States is obligated to make payments under an agreement of
indemnification covering such incident . . . .” Id. § 2210(s) (emphasis added).
Thus, if a public liability action can lead to a recovery without a showing of
public liability—which in turn requires the occurrence of a nuclear incident—it
undermines the “complex federal scheme” Congress has created to govern public
liability actions under the PAA. See O’Conner, 13 F.3d at 1100 (“Congress
recognized that state law would operate in the context of a complex federal

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scheme which would mold and shape any cause of action grounded in state
law.”).
In sum, the PAA expressly provides that state law supplies the
substantive rules of decision for a public liability action, “unless such law is
inconsistent with the provisions of [42 U.S.C. § 2210].” 42 U.S.C. § 2014(hh).
Yet recovery on a state law cause of action without a showing that a nuclear
incident has occurred would circumvent the entire scheme governing public
liability actions, which is clearly inconsistent with section 2210.11 Consequently,
we hold that in order for a plaintiff to prevail in a public liability action, he must
prove, rather than merely assert, public liability. See Cook, 618 F.3d at 1139-40
(rejecting plaintiffs’ argument “that they need only assert liability arising out of
a nuclear incident” in order to recover under the PAA).
Here, plaintiffs cannot make the required showing. As a result of the
summary judgment on their bodily injury claims, the plaintiffs cannot establish
public liability. Having failed to prove that radiation exposure caused their
bodily injuries, they cannot prove that a nuclear incident occurred—an
“occurrence . . . causing . . . bodily injury . . . arising out of or resulting from the

11
According to the dissent, allowing a plaintiff to pursue “other liability” beyond
“public liability” in their “public liability action” is not inconsistent with section 2210, even
though almost every provision governing “public liability actions” would be inapplicable to
those claims. The dissent explains that Congress contemplated that “public liability actions”
could involve claims of “other liability,” and affirmatively decided that section 2210’s complex
federal scheme would simply not apply to those claims. The problem with this reading is that
the statutory text does not contain even a whisper about liability other than “public liability,”
or a hint that an entire universe of claims—those not arising from a nuclear incident—would
arise under section 2210, yet be governed by almost none of it. Thus, the dissent’s criticism
of our reading applies with even greater force to its own: had Congress intended to create two
classes of liability in a “public liability action,” but subject only the “public liability” to the
numerous provisions in section 2210, it most likely would have expressly said so.

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radioactive, toxic, explosive, or other hazardous properties of source, special
nuclear, or byproduct material.” Id. § 2014(q). Without such a showing,
however, their “offensive contact” claims under Texas law are inconsistent with
the PAA, and they cannot establish public liability, as they must in order to
prevail in their public liability action.12
To be clear, the problem with the “offensive contact” claims is not, as
defendants argue, that the PAA forbids courts from entertaining claims whose

12
The dissent criticizes our holding for limiting the types of successful claims in a
“public liability action” to claims of “public liability,” resulting in consequences that it believes
Congress did not intend. Those consequences are essentially that if a plaintiff asserts that a
nuclear incident occurred, but cannot prove it, he will be unable to recover for damages
allegedly resulting from that occurrence. If, indeed, any “unintended consequences” flow from
our straightforward reading of the statutory text, they result from Congress’s decision to
embed the notion of causation into the definition of a “nuclear incident.” See § 2014(q)
(defining “nuclear incident” as “any occurrence . . . causing . . . bodily injury, sickness, disease,
or death, or” property damage, “arising out of or resulting from” the hazardous properties of
nuclear material (emphasis added)).
Moreover, our reading is surely more consonant with Congress’s intent than the one
proposed by the dissent, which would place absolutely no limits on the claims that a plaintiff
could recover for in a “public liability action.” The dissent contends that the definition of
“public liability” and “nuclear incident,” although used throughout section 2210, nevertheless
merely relate to jurisdiction and then have no further bearing upon the claims that can
succeed under the PAA. Thus, under the dissent’s reading, the plaintiff need only assert, but
never prove, the occurrence of a nuclear incident. The plaintiff would then be assured the
availability of a federal forum for any and all claims in the action—even those that bear no
relationship to the alleged incident. Recovery on any claims which do not arise from a nuclear
incident and do not amount to claims of “public liability” would not be subject to the damage
caps, recovery pooling, or insurance provisions of section 2210. The substantive rules for
decision for these claims would be derived from the law of the state in which the alleged
nuclear incident occurred. The upshot of all this is that by merely alleging a “nuclear
incident,” a plaintiff could pursue almost any claim, however unrelated to that incident, to
recovery in federal court, with choice of law dependent entirely on where the plaintiff alleges
the incident occurred. Surely, this cannot be what Congress envisioned when it enacted the
PAA. In our view, the text compels the conclusion that “public liability” is the only kind of
liability Congress contemplated in a “public liability action.” Thus, any recovery in such an
action must be limited to claims for “public liability,” such as those arising from a “nuclear
incident.”

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elements do not include physical injury, illness, or property damage—the harms
the statute uses to define a “nuclear incident.” See id. Rather, these claims are
inconsistent with the PAA because, in this particular case, they would allow
recovery without a showing that a nuclear incident occurred. In other words,
had the plaintiffs successfully proven their bodily injury claims and thus
established the occurrence of a nuclear incident, a recovery on their “offensive
contact” claims would not be inconsistent with the PAA.13
The defendants are certainly correct that the statute defines a “nuclear
incident” in part by referring to certain harms. Nothing in the statute, however,
specifies that a “nuclear incident” may cause only those listed harms. An
occurrence which causes a listed harm in addition to other harms does not
thereby cease to be a “nuclear incident.” Thus, the statute sets a minimum
threshold of injury that an occurrence must cause before it constitutes a “nuclear
incident” for purposes of the PAA. Reading this to limit the recoverable harms
contravenes the plain language of the statute, which explicitly provides that
“public liability” encompasses “any legal liability arising out of or resulting from
a nuclear incident.” 42 U.S.C. § 2014(w) (emphasis added). We therefore reject
defendants’ assertion that only the listed harms are compensable under the
PAA. We instead agree with the Tenth Circuit that it is “the occurrence of a
nuclear incident, and thus a sufficient injury under § 2014(q)” that is required

13
Arguably, had even one plaintiff successfully proven a bodily injury claim, that would
render the occurrence a “nuclear incident,” and make all the other plaintiffs’ claims consistent
with the PAA. We need not decide the question to resolve this appeal, however.

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in order to make a plaintiff’s public liability action consistent with the PAA.14
Cook, 618 F.3d at 1139-40.
The Ninth Circuit reached a similar conclusion in the factually analogous
case of Golden v. CH2M Hill Hanford Group, Inc., 528 F.3d 681, 683-84 (9th Cir.
2008). There, Golden asserted state law claims for physical injuries, as well as
emotional distress, allegedly resulting from his exposure to nuclear radiation.
Id. at 682-83. Just as in this case, the Golden court affirmed the district court’s
summary judgment on Golden’s claims for physical injury, agreeing that he had
failed to prove that radiation exposure caused his injuries. Id. at 683. The court
then rejected his emotional distress claims. In doing so, the court concluded that
“claims for exposure to radioactive materials are only compensable under the
Price-Anderson Act if such exposure caused physical injury”—that is, if the
exposure was a “nuclear incident” within the meaning of the PAA. Id. at 683
(internal quotation marks omitted) (citing In re Berg Litig., 293 F.3d 1127, 1132-

14
The dissent, relying on precedent developed under the Outer Continental Shelf
Lands Act (OCSLA), accuses us of improperly replacing state rules of decision with newly
created federal common law. Similar to the PAA, OCSLA imports state law rules of decision
to the extent they are not inconsistent with certain provision of OCSLA or federal law. See
43 U.S.C. § 1333(a)(2)(A). Under that statutory regime, the Supreme Court reversed a Fifth
Circuit decision which held that Lousiana’s statute of limitations was inconsistent with the
doctrine of laches, which the court applied as a matter of federal common law. Chevron Oil
v. Huson, 404 U.S. 97, 101 (1971), overruled on other grounds by Harper v. Virginia Dept. of
Taxation, 509 U.S. 86 (1993). The Supreme Court admonished that federal courts must not
create new federal common law to override rules of state law under OSCLA. Id. at 103-05.
In this case, our holding does not run afoul of the Court’s teaching. We have not created a new
rule of federal common law—or even identified an old rule of federal common law—and
concluded that recovery on the “offensive contact” claims is inconsistent with that rule.
Rather, engaging in statutory interpretation of the PAA itself, we have concluded that such
a recovery is inconsistent with section 2210. See 42 U.S.C. § 2014(hh) (“[T]he substantive
rules of decision in [a public liability action] shall be derived from the law of the State in which
the nuclear incident involved occurs, unless such law is inconsistent with the provisions of
[section 2210].”).

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33 (9th Cir. 2002)). As long as the exposure caused an injury sufficient to make
the occurrence a “nuclear incident,” a plaintiff’s claims for non-listed harms
arising out of that occurrence are not inconsistent with the PAA.15 See id.
(“Golden can’t show that the exposure caused his physical injuries and without
physical injury, he can’t recover for psychic harm arising from exposure to
radioactive materials.”).
In this case, the plaintiffs’ public liability action fails because they have
not proven the occurrence of a nuclear incident. As the summary judgment on
their bodily injury claims reflects, they have not shown that their radiation
exposure caused their alleged physical injuries. Thus, they have not shown that
their exposure constitutes a nuclear incident.16 Accordingly, they may not

15
To the extent some language in the Ninth Circuit’s decision in In re Hanford Nuclear
Reservation Litig. (Phillips v. E.I. DuPont de Nemours & Co.), 534 F.3d 986 (9th Cir. 2008),
might suggest that claims for non-listed harms are never compensable under the PAA, we
respectfully disagree for the reasons already discussed. Whether a disagreement actually
exists, however, is not entirely clear. In that case, the court stated that “claims for medical
monitoring are not compensable under the PAA, because they do not constitute claims of
‘bodily injury, sickness, disease, or death . . . .’” Id. at 1009 (quoting § 2014(q)). Yet on the
same page, the court clarified that its decision in In re Berg meant “that medical monitoring
claims [are] not compensable under the PAA absent physical injury.” Id. (emphasis added)).
Furthermore, a subsequent Ninth Circuit case cited In re Hanford for the proposition that
“[e]xposure to radioactive materials is compensable only if it causes one of the harms on [the
statutory] list,” not that only the listed harms are compensable. Dumontier v. Schlumberger
Tech. Corp., 543 F.3d 567, 569 (9th Cir. 2008).
16
We are not called upon to decide whether, should further injuries later appear which
the plaintiffs believe result from their radiation exposure, the plaintiffs may then bring a new
public liability action. We note, however, that defendants conceded in their brief and at oral
argument that the plaintiffs may do so: “If a plaintiff . . . is diagnosed with cancer at some
future point in time, the statute of limitations will begin to run when the cause of action
accrues, which requires a manifest injury. This suit does not preclude plaintiffs from bringing
a claim for a distinct injury, diagnosed at a later point in time.”

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recover on their “offensive contact” claims because such a recovery would be
inconsistent with the PAA.
III.
For these reasons, this panel unanimously AFFIRMS the district court’s
summary judgment dismissing the plaintiffs’ bodily injury and illness claims
with prejudice, and VACATES the district court’s disposition of the plaintiffs’
“offensive contact” claims; and a majority of this panel REMANDS the plaintiffs’
“offensive contact” battery claims with instructions to dismiss them with
prejudice.

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DENNIS, Circuit Judge, concurring in part and dissenting in part.
I concur in the majority opinion’s affirmance of the district court’s
summary judgment dismissing the plaintiffs’ physical radiation injury and
illness claims because the plaintiffs failed to adduce evidence to show that there
is a genuine dispute as to the material fact issue of specific or individualized
causation; that is, they failed to show that a reasonable trier of fact could find
that their alleged bodily injuries and illnesses were caused by overexposure to
radiation.1 But I respectfully dissent from the majority’s dismissal of the
plaintiffs’ “offensive contact” battery claims on the theory that the PAA
implicitly abrogates personal injury claims that are not based on or incidental
to “bodily injury, sickness, disease, or death, or loss of or damage to property, or
loss of use of property.” 42 U.S.C. § 2014(q). Had Congress intended to limit
recovery to these categories of personal injury claims, it easily could have and
probably would have plainly and expressly said so.2 Instead, however, § 2014 of
the PAA clearly uses the bodily injury and property damage terms only for a
specific federal jurisdictional purpose: it (1) defines a “nuclear incident” as an
occurrence causing bodily injury, sickness, disease, or death, or property damage

1
I respectfully disagree in part with the majority’s reasoning in basing its decision on
rules of decision derived from Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706,
720 (Tex. 1997). That was a Bendectin case in which the applicable rules of general or generic
causation and individual or specific causation are different from those which should be applied
in the instant nuclear radiation case. See In re Hanford Nuclear Reservation Litig., 292 F.3d
1124, 1136-37 (9th Cir. 2002) (distinguishing Bendectin cases from radiation cases because
“[r]adiation is capable of causing a broad range of illnesses, even at the lowest doses”) (citing
In re TMI Litig., 193 F.3d 613, 643 (3d Cir. 1999)).
2
Indeed, Congress spoke plainly and expressly in excluding from the definition of
“public liability” workers’ compensation claims, act of war claims, and certain property claims.
42 U.S.C. § 2014(w).

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or loss resulting from the radioactive or other properties of specified nuclear
material, 42 U.S.C. § 2014(q); (2) defines “public liability” as “any legal liability
arising out of or resulting from a nuclear incident or precautionary evacuation,”
except for certain claims that are covered by workers’ compensation, that arise
from an act of war, or that involve harm to the licensed property where the
nuclear incident occurs, id. § 2014(w); and (3) defines a “public liability action”
as “any suit asserting public liability,” which “shall be deemed to be an action
arising under” the PAA, id. § 2014(hh). Contrary to the majority opinion, I do
not think Congress intended for these jurisdictional terms to serve the additional
purpose of limiting the types of claims that may be brought in a public liability
action or of providing an ordinary preemption defense against state-law tort
claims. The PAA’s text and objectives contradict the majority’s reading.
The PAA itself does not set forth the grounds for or the scope of a
defendant’s liability for nuclear torts; rather, § 2014(hh) provides that “the
substantive rules for decision” in a public liability action “shall be derived from
the law of the State” in which a nuclear incident occurs, “unless such law is
inconsistent with the provisions of” 42 U.S.C. § 2210. The PAA expressly
excludes only three types of claims from public liability: workers’ compensation
claims, act of war claims, and certain types of property claims. Id. § 2014(w).
Nothing in § 2210 expressly excludes, abrogates or modifies any particular
kind of claim against a defendant in a public liability action. Further, the
substantive rules for decision derived from Texas law for the plaintiffs’ “offensive
contact” battery claims in this case are not inconsistent with any provision of §
2210. Section 2210 “provide[s] certain federal licensees with a system of private
insurance, Government indemnification, and limited liability for claims of ‘public

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liability.’” El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 476 (1999).
Specifically, § 2210 provides two classes of defendants — Nuclear Regulatory
Commission licensees and construction permitees, and Department of Energy
contractors — with protection against public liability by (1) requiring that
licensees shall maintain public liability insurance as prescribed by the
Commission, (2) requiring the Commission and the Department to indemnify
licensees and contractors against public liability in excess of the prescribed
liability insurance coverage, and (3) providing that the aggregate public liability
for a single nuclear incident shall not exceed certain specified dollar amounts.
The statute, and regulations under it, limit the application of the insurance,
indemnity, and liability cap provisions to coverage against liability resulting
from bodily injury, sickness, disease, death, and property damage; but this, of
course, is not the same thing as exempting all defendants from all other forms
of personal injury liability. Rather, it indicates only that Congress recognized
that without such protections, licensees and contractors could be mulcted in
damages for causing bodily injury, sickness, disease, death, or property damage
or loss; and that Congress considered it important to offer licensees and
contractors vehicles of protection from such liability “[w]ith the object of
‘encourag[ing] the private sector to become involved in the development of
atomic energy for peaceful purposes,’” id. at 476 (second alteration in original)
(quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 63
(1978)). Nothing in § 2210 immunizes licensees and contractors from liability
for other kinds of harms or prevents them from providing their own self-
insurance or private insurance against such liability.

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The majority opinion cannot point to any part of § 2210 that clearly
exempts nuclear licensees and contractors from liability for causing persons to
suffer harms other than bodily injury, sickness, disease, death, or property
damage or loss. Instead, the majority points to the coincidence that the
assertion of one of those named perils is essential both to jurisdiction for a
federal public liability action, per § 2014(hh), and to protection of licensees and
contractors by the insurance, indemnity, and liability-cap provisions of § 2210.
See Maj. Op. 13-15. Contrary to the majority’s reasoning, however, this
coincidence does not indicate that licensees and contractors are exempt from
liability for having caused harms that did not involve bodily injury, sickness,
disease, death or property damage. Instead, it clearly implies only that Congress
considered it crucially important that licensees and contractors be offered
protection from liability for those harms through § 2210.
By reading the PAA to exclude or bar any claim that is not based on or
incidental to bodily injury, sickness, disease, death, or property damage or loss,
the majority opinion gives those terms the effect of an ordinary preemption
defense that extinguishes all other claims.3 However, as the Supreme Court
made clear in El Paso Natural Gas, the PAA provides not for ordinary
preemption but for “complete preemption,” 526 U.S. at 484 n.6, which converts
all state-law claims into federal claims that are removable to federal court and

3
The majority depicts the list of harms in § 2014(q) as a “threshold” of proof that must
be met before a plaintiff may recover for any other kind of personal injury. But the list is a
prerequisite only for jurisdictional purposes; that is, a personal injury plaintiff must allege the
occurrence of a nuclear incident causing death, disease, sickness, bodily injury, or property
damage or loss, in order to assert a public liability action arising under the PAA.

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that, if removed, must be adjudicated there, see id. at 484-85. The majority’s
reading is therefore contrary to the Supreme Court’s interpretation of the PAA.
The majority opinion’s interpretation of the PAA will produce other results
that Congress is unlikely to have intended. By reading into the PAA a blanket
exclusion or bar to the recovery of damages that are not based on or incidental
to the types of injuries named in the Act, the majority opinion grants an ordinary
preemption defense to any defendant sued under the Act. In other words,
persons other than nuclear licensees and contractors will be exempted from
liability for causing personal injuries other than bodily injury, sickness, disease,
death, or property damage or loss, although they have not qualified for or
obtained licenses or contracts, and although they have not paid for the insurance
or contracted for indemnity with the Department of Energy as required of
licensees and contractors under § 2210. Thus, the majority opinion’s reading of
the PAA produces at least two effects that Congress likely did not intend: it
overprotects nuclear licensees and contractors by exempting them from liability
for causing the types of injuries for which Congress expected them to provide
their own self-insurance or private insurance; and it protects persons other than
licensees and contractors by barring their liability for personal injuries other
than bodily injury, sickness, disease, death, or property damage or loss, despite
their not having met the requirements that § 2210 places on licensees and
contractors.
1. Complete Preemption
The Supreme Court in El Paso Natural Gas explained that the PAA is an
instance of “complete preemption,” under which Congress has converted a public
liability action and its individual claims into federal actions that are removable

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to federal court and, when removed, must be adjudicated there. This supports
the view of the PAA that its plain words indicate — that personal injury
plaintiffs are not restricted to recovery only for bodily injury, sickness, disease,
death, or property damage, but may recover for injuries according to rules for
decision derived from state law, unless such law is inconsistent with § 2210.
This also corroborates the conclusion that recovery for personal injuries other
than bodily injury, sickness, disease, death, or property damage is not
inconsistent with § 2210, which is discussed in more detail in the next section
of this partial dissent.
Ordinarily, when a claim may be brought in either state or federal court,
the plaintiff is master of the selection of jurisdiction. A plaintiff is entitled to a
state forum for the adjudication of most claims arising under state law, even
when the defendant contends that federal law preempts those claims. In a suit
brought in state court under state law, “[f]ederal pre-emption is ordinarily a
federal defense to the plaintiff’s suit. As a defense, it does not appear on the face
of a well-pleaded complaint, and, therefore, does not authorize removal to federal
court.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987). However, this
general rule making a plaintiff the master of his claim is subject to an important
exception, known as “complete preemption.” Congress occasionally deems a
defined class of common-law claims to be claims arising under federal law and
entitles the defendant to choose a federal forum — not just for the ultimate
adjudication of such claims on the merits, but also for the threshold inquiry into
whether particular claims fall within the preempted class. See generally 14B
Charles Alan Wright et al., Federal Practice and Procedure § 3722.2 (4th ed.
2009).

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In El Paso Natural Gas, the Supreme Court confirmed that the PAA, “[b]y
its unusual preemption provision, . . . transforms into a federal action ‘any public
liability action . . . .’” 526 U.S. at 484 (quoting 42 U.S.C. § 2210(n)(2)). “The Act
not only gives a district court original jurisdiction over such a claim, but provides
for removal to a federal court as of right if a putative Price-Anderson action is
brought in a state court. Congress thus expressed an unmistakable preference
for a federal forum, at the behest of the defending party, both for litigating a
Price-Anderson claim on the merits and for determining whether a claim falls
under Price-Anderson when removal is contested.” Id. at 484-85 (citations
omitted). The Court stated that this statutory “structure, in which a public
liability action becomes a federal action, but one decided under substantive
state-law rules of decision that do not conflict with the Price-Anderson Act,
resembles what we have spoken of as ‘“complete pre-emption” doctrine.’” Id. at
484 n.6 (citations omitted) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386,
393 (1987)).4
The principal consequence of complete preemption, as distinguished from
ordinary preemption, is that a defendant sued in state court may immediately
remove the case to federal court; have the federal court resolve any dispute
about whether the plaintiff’s claims fall within the scope of the complete
preemption scheme; and, if they do, have the federal court adjudicate the case
on the merits if the plaintiff elects to proceed (and can proceed) with claims

4
See also Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003) (“[T]he Price-Anderson
Act contains an unusual pre-emption provision, 42 U.S.C. § 2014(hh), that not only gives
federal courts jurisdiction over tort actions arising out of nuclear accidents but also expressly
provides for removal of such actions brought in state court even when they assert only
state-law claims.” (citing El Paso Natural Gas, 526 U.S. at 484-85)).

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under federal law. See Caterpillar, 482 U.S. at 393-94; Metro. Life, 481 U.S. at
63-65. Significantly, a defendant’s right to immediate federal court resolution
of a preemption claim depends not on whether that claim is “obvious[ly]” correct
at the outset, see Metro. Life, 481 U.S. at 66, or even on whether it is ultimately
meritorious, see, e.g., Caterpillar, 482 U.S. at 399, but on whether it is a claim
subject to complete, rather than ordinary, preemption.
The majority, in effect, erroneously reads the jurisdictional requirement
of the assertion of a public liability action (to enforce liability for “bodily injury,
sickness, disease, or death,” or property damage or loss, caused by a nuclear
incident) as an ordinary preemption provision that extinguishes all other
personal injury claims. The majority’s interpretation of the PAA contradicts and
disregards El Paso Natural Gas and the PAA’s complete preemption provision,
42 U.S.C. § 2014(hh). Congress could not have intended for the jurisdictional
requirement of asserting a public liability action to do double duty as an
ordinary preemption provision that extinguishes, instead of enforcing, the
plaintiffs’ “offensive contact” battery claims. Instead, the legislative intent
inherent in the complete preemption provision of the PAA is to replace the
plaintiffs’ state-law claims with federal claims derived from state law which may
be removed and, if removed, must be adjudicated in federal court.
2. The PAA’s Text and Purposes
The majority opinion does not identify any provision of the PAA, nor any
purpose for which the PAA was enacted or amended, that is actually inconsistent
with anything in the plaintiffs’ “offensive contact” battery claims derived from
Texas law. “While the provisions of the PAA are complex, its chief feature is the
creation of a public/private insurance system covering reactor accidents,

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accompanied by a limitation (or ‘cap’) on aggregate liability to the public in the
event of a major accident.” Richard Goldsmith, Regulatory Reform and the
Revival of Nuclear Power, 20 Hofstra L. Rev. 159, 163 n.11 (1991). Section 2210
is titled “Indemnification and limitation of liability.” It requires some licensees,
and allows the Nuclear Regulatory Commission to require other licensees, to
maintain specified financial protection to cover “public liability claims,” 42
U.S.C. § 2210(a); provides that the Commission shall agree to indemnify and
hold harmless specified licensees and other persons from damages for “public
liability arising from nuclear incidents which is in excess of the level of financial
protection required” of them, id. § 2210(c); and limits “the aggregate public
liability for a single nuclear incident of persons indemnified” to specified dollar
amounts, id. § 2210(e). Nothing in § 2210 is inconsistent with a state or federal
court holding a defendant of any kind, including a nuclear licensee or contractor,
liable for nuclear-radiation-caused personal injuries not resulting in bodily
injury, sickness, disease, death, or property damage. Section 2210 is focused on
providing nuclear licensees and contractors with protection from public liability
arising from nuclear incidents, but it does not exclude or bar other types of
harms from reparation by state or federal courts.
Until the 1988 amendments to the PAA, personal injury claims arising
from nuclear radiation were brought under state law, although federal law
preempted state law in some important respects. Therefore, absent complete
diversity, the federal courts lacked original jurisdiction to hear most such claims.
See In re TMI Litig. Cases Consol. II, 940 F.2d 832, 857 (3d Cir. 1991). That
jurisdictional impediment assumed particular importance after the nuclear
accident at Three Mile Island in 1979, which gave rise to “150 separate cases

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against [Three Mile Island] defendants, with over 3,000 claimants, in various
state and Federal courts.” S. Rep. No. 100-218, at 13 (1987). There was then no
mechanism for removing those cases to a single federal court. The then-existing
removal and consolidation provisions of the PAA were confined to “extraordinary
nuclear occurrences,” see 42 U.S.C. § 2014(j), and the Commission had not
declared the Three Mile Island incident to be such an occurrence. The resulting
proliferation of uncoordinated lawsuits led Congress to amend the PAA’s
removal and consolidation provisions to encompass cases arising out of any
“nuclear incident.” See 42 U.S.C. § 2014(hh); id. § 2210(n)(2). To ensure
removability, Congress converted “any suit asserting public liability” for a
nuclear incident into “an action arising under” the PAA. Id. § 2014(hh).
In this case, the plaintiffs brought suit in state court alleging that they
sustained both physical injuries and offensive contact batteries as the result of
a nuclear incident, and the defendants — taking advantage of the PAA —
removed the entire case to federal court because it is a “suit asserting public
liability” under the PAA. The federal district court rendered partial summary
judgment against the plaintiffs because of the absence of a genuine issue as to
the causation of their physical injuries by the alleged nuclear incident. Now, the
majority holds that the dismissal of those claims also causes the plaintiffs’
remaining claims — which involve battery by “offensive contact” and do not
require proof of physical injury — to essentially be preempted and extinguished.
The majority holds that those remaining claims must be dismissed, even though
there has been no showing that the plaintiffs are unable to establish any of the
elements of those claims. I would instead hold that those remaining claims must
be adjudicated in accordance with the substantive rules for decision derived from

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state law, because the defendants have failed to show that the rules for decision
of those claims are inconsistent with § 2210.
The PAA determines whether an action is a “public liability action” based
on what a plaintiff “assert[s],” and not based on what the plaintiff is ultimately
able to prove. Id. § 2014(hh). This determination has to be made at the time the
action is either filed in, or removed to, a federal court, because the federal court
has to determine whether it has jurisdiction over the case. Any case in which
public liability for a nuclear incident is asserted is a “public liability action” to
be adjudicated according to “substantive rules for decision” drawn from state
law, “unless such law is inconsistent with the provisions of” § 2210. Id. There
is no provision of §2210 that is inconsistent with the rules for decision derived
from Texas law in plaintiffs’ “offensive contact” battery claims in this case. Nor
is there any provision of the PAA which requires a plaintiff to prove that a
“nuclear incident” has occurred before he or she can recover on any claim.5
Therefore, the plaintiffs should be able to proceed with their battery claims in
the federal district court under the rules of decision derived from Texas law.
As the majority recognizes, “‘The objective of a court called upon to
interpret a statute is to ascertain congressional intent and give effect to
legislative will.’ The clearest indication of congressional intent is the words of
the statute itself.” Davis v. Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998)
(citation omitted) (quoting Johnson v. Am. Airlines, Inc., 745 F.2d 988, 992 (5th

5
As a practical matter, many kinds of state-law radiation tort claims require a plaintiff
to allege that he or she has suffered some kind of bodily injury, illness, or property damage,
which coincidentally may meet the definition of a “nuclear incident” under § 2014(q). But the
PAA provides that state-law rules of decision, not § 2014(q)’s definition of a “nuclear incident,”
determine what a plaintiff must prove in order to recover on a tort claim in a “public liability
action.”

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Cir. 1984)). The words of § 2210 of the PAA do not require the plaintiffs to prove
that a “nuclear incident” has occurred in order to pursue their “offensive contact”
battery claims derived from state law. Furthermore, the statute’s legislative
history shows that the intention of Congress in enacting and amending the PAA
was to preserve state tort law as much as possible. The report of the House
Committee on Interior and Insular Affairs concerning the bill that became the
Price-Anderson Amendments Act of 1988 declared that “the policy of only
interfering with state tort law to the minimum extent necessary [is] a principle
which has been embodied in the Price-Anderson Act for the last 30 years.” H.R.
Rep. No. 100-104, pt. 1, at 20 (1987). Consistent with this clearly stated
congressional policy, courts ought not to read the PAA as impliedly putting up
additional hurdles that are not found in either the relevant state law or the text
of the PAA.
The majority’s reading of the PAA contravenes the main purpose of the
1988 amendments, in which Congress in light of Three Mile Island provided that
actions involving assertions of liability from “nuclear incidents” would be “public
liability actions” deemed to arise under the PAA and to be removable and fully
litigable in federal court. The purpose was to improve the manageability and
fairness of litigation arising from nuclear accidents like Three Mile Island by
making it possible to consolidate multiple suits in a single federal court. See El
Paso Natural Gas, 526 U.S. at 477, 486. This goal is not furthered by the
majority’s holding that the PAA exempts radiation suit defendants from all
liability, except for claims based on or incidental to bodily injury or property
damage. Future radiation victims who prefer to litigate their radiation claims
in state court are encouraged by the majority’s interpretation of the PAA to file

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No. 07-20939

separate non-bodily injury suits in state court and to avoid pleading a public
liability action in every case, so as to prevent or deter the removal of their state-
law suits to federal court and the automatic extinguishment of claims that are
not based on or incidental to successful bodily injury or property damage claims.
The likely multiplication of artfully pleaded state court suits is apt to seriously
undercut the 1988 amendments’ clear goal of removal and consolidation of
radiation suits to promote the efficient, fair and consistent resolution of claims
arising from alleged or asserted nuclear incidents.
Indeed, the majority’s reading of the PAA would impede Congress’s
purposes in the event of a future accident exactly like Three Mile Island.
Ultimately, Three Mile Island does not appear to have caused any bodily
injuries, sickness, disease, or death. Eric R. Pogue, The Catastrophe Model of
Risk Regulation and the Regulatory Legacy of Three Mile Island and Love Canal,
15 Penn St. Envtl. L. Rev. 463, 467-72 (2007); see In re TMI Litig., 193 F.3d 613
(3d Cir. 1999) (affirming grant of summary judgment in defendants’ favor on
some Three Mile Island-related personal injury claims). Therefore, if a similar
incident were to occur in this circuit in the future, numerous plaintiffs would
likely file separate suits in state court alleging only non-physical harms, in order
to avoid having those claims brought into federal court and extinguished. The
majority thus encourages the same proliferation of separate state-court lawsuits
that Congress sought to prevent.
In an analogous statutory context in which Congress similarly provided
for state law to serve as the source for federal rules for decision, our court and
the Supreme Court have emphasized that courts should follow the applicable
state law and refrain from creating additional rules of federal law. Similar to

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the PAA, the Outer Continental Shelf Lands Act (OCSLA) provides for the
application of state law as federal law. See In re TMI Litig. Cases Consol. II, 940
F.2d 832, 856 (3d Cir. 1991) (citing 43 U.S.C. § 1333(a)(2)). In an OCSLA case,
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971),6 the Supreme Court explained:
“Congress specified that a comprehensive body of state law should be adopted by
the federal courts in the absence of existing federal law. . . . Thus, Congress . . .
did not intend that federal courts fill in . . . ‘gaps’ [in federal statutes] by creating
new federal common law.” Id. at 104-05. Thus, “federal courts should not create
interstitial federal common law when the Congress has directed that a whole
body of state law shall apply.” Id. at 105 n.8. Accordingly, in Fontenot v. Dual
Drilling Co., 179 F.3d 969 (5th Cir. 1999), we observed that “our Circuit has
consistently rejected attempts of litigants to have ‘federal common law’ override
rules of Louisiana tort law” in the OCSLA context. Id. at 977; see also Olsen v.
Shell Oil Co., 708 F.2d 976, 979 (5th Cir. 1983) (following Huson and deploring
the creation of new federal common law in this context). In this case, the
majority’s imposition of an additional threshold requirement of proof of bodily
injury, sickness, disease, death, or property damage fails to follow the example
of these instructive OCSLA cases, and likewise fails to carry out the intent of
Congress to “only interfer[e] with state tort law to the minimum extent
necessary” through the PAA. H.R. Rep. No. 100-104, pt. 1, at 20 (1987).
In short, neither the words nor the purposes of the PAA support the
majority’s reading into the Act of a threshold requirement that the plaintiffs
must succeed with a bodily injury, sickness, death, or property damage claim in

6
Huson was overruled in part, on other grounds that are not relevant here, by Harper
v. Virginia Department of Taxation, 509 U.S. 86 (1993), as recognized in Reynoldsville Casket
Co. v. Hyde, 514 U.S. 749, 753 (1995).

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order to pursue their offensive contact battery by radiation claims. The
majority’s interpretation of the Act conflicts with Congress’s stated policies of
minimizing interference with state law under the PAA and of fostering the
removal, consolidation and uniform litigation of claims arising out of alleged or
asserted nuclear incidents. The plaintiffs’ claims of battery by “offensive
contact” should be resolved under substantive rules of decision derived from
Texas law, as required by § 2014(hh), because they are not inconsistent with
§ 2210 and because, as the Supreme Court made clear in El Paso Natural Gas,
they are subject to complete preemption, removal, and full litigation, rather than
extinguishment, in the federal district court under the PAA.

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