June v. Union Carbide Corp.

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH August 21, 2009
Elisabeth A. Shumaker
U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court

T E N T H C IR C U IT

GARY JUNE; SCOTT JUNE,
individually and on behalf of the
deceased YVONNE JUNE; GENE
LYNN, individually and on behalf of
the deceased, LUCILLE LYNN;
ALVA FORD, on behalf of the
deceased, PHYLLIS W EYANT;
RANDY PORTER; BARBARA No. 07-1532
M EYERS, on behalf of the deceased,
M INNIE DALE W OODS; ROBERT
SNOW ; PHYLLIS W ILM A DAVIS;
JOSEPH VIGIL; E. LOUISE W ATTS;
JUNELLE W EATHERLY; ISABELLE
W OODEN; CHERIE ZUSPAN;
DAISY ARNOLD; BEVERLY
BATES; VALERIE BOGDAN; JUNE
ARGUELLO; BETTY JANE
M CBRIDE; LAURA O'BRIEN; OPAL
GARCIA; EM M A HANSEN; LA
VONNE O'BRIEN; STEPHEN
PLACE; M ARY ANN ROM ERO;
FRANK SHARP; LESLIE
HENDRICKS; CHRIS
HOLLINGSHEAD; GILDA
HOLLINGSHEAD; LAURA
HUGHES; ANNE LEM ELLE; ROBIN
SEELEY; SUSANN STEELE;
M ICHELLE THOM SON; PHYLLIS
TORIBIO; BETTY W HITE; LONZO
YARDLEY; CRYSTAL BARELA;
GLENNA M CCLAIN; LISA BACA;
DEBRA BLACK; EM M A
CHAM BERLAIN; PANSY
CISNEROS; ROSE CLEM ENT; LISA
CORTES; SUSAN DOLLARHYDE;
M ARTHA LINDSAY; AUDI LOEHR;
JOAN LONG; CASEY LONG;
THOM AS LYNN; NANCY M INGAS;
ROBIN ABRAM SON FOREST;
LINDA GARDNER; PAM HASKELL;
M ARK SALAZAR; ROBERTA
SALAZAR; BEN SANCHEZ; LORI
SELGADO; W ILLIAM SHARP;
GEORGE SHARP; JOHN SHARP;
KIRK SHARP; BRENDA LU SM ITH;
GW ENDA GONZALEZ; CRAIG
LONG; CYNTHIA STARKEY;
DEANNA ADDLEM AN; SHERRY
ALBERTS; IRIS ALLRED; LESLIE
AM ENT; M ARLENE BALL; DONNA
BELDEN; W ALLACE BELDEN;
KENNETH BELDEN; KEITH
BELDEN; BARBARA BERCUM E;
JUDY BLACK; DOROTHY BLAKE;
GUYE BLOOD; JERRY BLOOD;
THOM AS BLOOD; LORNA
BOW ERSOX; M ADGE BOW ERSOX;
CAROLEE BURNETT; RICHARD
BURNETT; GENE CAM PBELL;
ANNE M ARIE CHADD; ALEXIS
CLARK; M ARY ELIZABETH
CLARK; TERRY COPE; PHILIP
CRESPIN; THERESA CURTIS;
IRENE CUTCHINS; CYNTHIA
DAVID; PAULETTE DAVIS;
LYNDA DW ORNIK; JUNE
EASTERLY; EVA ELLIOTT;
CHRISTOPHER FOSTER; COLT
FREEM AN; GEORGIA FREEM AN;
BRETT FREEM AN; VICTOR
FRONK; SARA GILLILIN;
M ICHAEL HALL; M ARIE HALL;
IRIS HARVEY; NINA FAYE

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HASKELL; JUDITH HEARN;
CONNIE HECHT; M ARJORIE
HECHT; BARBARA HECHT;
SHARON HOISINGTON;
GERALDINE HOLLINGSHEAD;
KAREN HOLM AN; KENNETH
JOHNSON; BEVERLY JOSLIN;
CHRISTINE KEENER; BETTY
KIKER; ROXANNA KREBS; JONI
LEE LEFLER; LINDA LEW IS;
M ARY ELLEN LOVE; CAROL
LOVOI; M ARY LOU LYNN; CAROL
LYNN; DEBBIE M ADDOX; ILA
M ALONE; TED M ARTIN; M ARY
M ARTIN; JOHN M ARTINEZ;
SHERRIE M CDOW ELL; CLARE
M CNEAL; EDNA M ERYHEW ;
ALICE M OCKERM AN; STEPHANIE
M ORROW ; KATHERINE NYGREN;
KENT NYGREN; JAM ES
O'BRYANT; SALLY ELAINE
OLIVER; M ARGARET ORNDOFF;
SHARON OSBORN; TREASIA
PFIFER; BECKY PICTOR; KENNY
PRATTE; M ELVIN PRATTE; EVA
M AY PRATTE; JUDY PROCTOR;
DOROTHY REED; W ANDA REED;
CAROL RICE; THERESA
RICHARDS; LEAH ROBERTS;
BRYAN SALAZAR; CATHERINE
SALAZAR; PATRICK SCHEETZ;
SHERYL SEELEY; THORTHANE
SHARP; JODI SKEES; DEBORAH
SKILES; FREDDIE SM ITH;
VERNON SM ITH; M ARGARET
SNYDER; STEPHANIE TATUM ;
SHARON THOM PSON; KARA
TOOKER; CHAR LEE BELLE
UNGER; M ARY JANE VIA; JIM

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 W AUGH; LUCILLIE W AUGH-
SM ITH; ALVIN W ILSON; JOAN
W ILSON; JOHN W ILSON, SR.;
NORM A W RIGHT; NORM A YATES;
CHARLOTTE ZUFELT,

Plaintiffs - Appellants ,

v.

UNION CARBIDE CORPORATION,
a New York corporation; UM ETCO
M INERALS CORPORATION, a
Delaware corporation ,

Defendants - Appellees .

A PPE A L FR O M T H E U N IT E D ST A T E S D IST R IC T C O U R T
FO R T H E D IST R IC T O F C O L O R A D O
(D .C . N O . 1:04-C V -00123-M SK -M JW )

J. M ark Englehart, Beasley, Allen, Crow, M ethvin, Portis & M iles, P.C.,
M ontgomery, Alabama, (Rhon E. Jones, Beasley, Allen, Crow, M ethvin, Portis &
M iles, P.C., and J. Douglas M cCalla, The Spence Law Firm, LLC, Jackson,
W yoming, with him on the briefs), for Plaintiffs - Appellants.

Christopher Landau, Kirkland & Ellis, LLP, W ashington, DC, (Daniel J. Dunn,
Alan J. Gilbert, Holme Roberts & Owen LLP, Denver, Colorado, and M ichael P.
Foradas, P.C., Joel A. Blanchet, John W . Reale, Kirkland & Ellis LLP, Chicago,
IL, with him on the brief), for Defendants - Appellees.

Before H A R T Z , H O L L O W A Y , and A N D E R SO N , Circuit Judges.

H A R T Z, Circuit Judge.

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 The lawsuit before us arises out of alleged radiation injuries to residents of

Uravan, Colorado, a former uranium and vanadium milling town owned and

operated by Defendants Union Carbide Corporation and Umetco M inerals

Corporation. Plaintiffs brought an action in the United States District Court for

the District of Colorado under the Price-Anderson Act of 1957, Pub. L.

No. 86-256, 71 Stat. 576 (codified as amended in scattered sections of 42 U.S.C.).

They assert claims for personal injury based on disease or death allegedly caused

by radiation and claims for medical monitoring to detect the onset of disease in

those Plaintiffs who were asymptomatic. The district court dismissed all the

claims on pretrial motions, and Plaintiffs appealed. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm. Plaintiffs’ personal-injury claims fail for lack of

evidence of factual causation. Their medical-monitoring claims fail for lack of

evidence of a “bodily injury” as required by the Price-Anderson Act.

I. BACKGROUND

A. Factual B ackground

M ining and milling have been conducted in the Uravan area for many years.

The Standard Chemical Company was producing radium in the region as early as

1914. In 1928 Defendants purchased Standard Chemical’s holdings, and in 1936

began milling vanadium and uranium. To accommodate workers, Defendants

founded the community of Uravan, constructing homes and a number of facilities,

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including a medical clinic, elementary school, community center, tennis courts,

and a swimming pool.

Defendants ceased operations in Uravan in 1984, having produced 42

million pounds of uranium oxide. This production did not come without

environmental costs. In 1986 the Environmental Protection Agency placed

Uravan on the National Priorities List, see 51 Fed. Reg. 21054, 21063 (June 10,

1986), which ranks the nation’s most environmentally hazardous sites to prioritize

remedial action, see 42 U.S.C. § 9605(a)(8)(B). About this time, Uravan’s

remaining residents were evacuated and remedial activities began. The last

structures standing in Uravan were razed after this lawsuit was filed.

Plaintiffs either resided in Uravan during some period between 1936 and

1986, or represent decedents who did. (For ease of exposition, we shall use the

term Plaintiffs to refer to those allegedly injured by Defendants, whether they be

the Plaintiffs personally or the Plaintiffs’ decedents.) The thrust of their claims is

that Defendants’ milling operations exposed Uravan residents to various

radioactive materials, and that such exposure has caused, or increased the risk of,

radiation-related illnesses.

B. Procedural H istory

Plaintiffs brought this action under the Price-Anderson Act, which grants

federal district courts jurisdiction over lawsuits “arising out of or resulting from a

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nuclear incident.” 42 U.S.C. § 2210(n)(2). Unless inconsistent with § 2210 of

the Act, state law supplies the substantive law governing claims under the Act.

See id. § 2014(hh). Plaintiffs also pleaded seven causes of action under Colorado

tort law, but the district court ruled that they were preempted by the Price-

Anderson Act because they arose from an alleged “nuclear incident,” and it

converted the claims to federal claims under the Act.

Twenty-seven Plaintiffs are pursuing personal-injury claims and 152 are

pursuing only medical-monitoring claims. Of the 27 personal-injury Plaintiffs, 11

have been diagnosed with nonthyroid cancer and 16 have been diagnosed with

thyroid disease (including one case of thyroid cancer).

Defendants challenged Plaintiffs’ claims with two motions for summary

judgment. One motion argued that the personal-injury claimants had failed to

show the but-for causation required by Colorado tort law. The other argued that

the medical-monitoring claims could not proceed because (1) Colorado does not

recognize such a cause of action and (2) the medical-monitoring Plaintiffs had not

alleged a “bodily injury,” as required by the Price-Anderson Act.

In opposition to the first motion, Plaintiffs argued that causation in

Colorado is determined not by a but-for test but by a “substantial factor” test

requiring only that the defendant’s tortious conduct be “a substantial contributing

cause of the injury.” Aplt. App., Vol. XII at 1986. Plaintiffs contended that their

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experts’ opinions created a triable issue of fact “as to whether the Defendants’

emission of radiation over the course of decades substantially contributed” to the

personal-injury Plaintiffs’ illnesses. Id. at 2000. As for the medical-monitoring

claims, Plaintiffs asserted that they are viable under Colorado law and that the

“bodily injury” requirement of the Price-Anderson Act poses no obstacle because

each Plaintiff’s exposure to radiation resulted in “DNA damage and cell death.”

Id., Vol. VIII at 1385.

The district court rejected the substantial-contributing-cause argument in

support of Plaintiffs’ personal-injury claims. It stated that a tort claimant in

Colorado must demonstrate both of two distinct components of causation: (1) that

“but for” the defendant’s conduct the claimant would not have been injured and

(2) that the defendant’s conduct was a “substantial factor in bringing about the

injury.” Id. at 2205 (internal quotation marks omitted). Because Plaintiffs had

submitted no evidence of but-for causation, the court granted summary judgment.

The court also rejected the medical-monitoring claims. The threshold issue,

the court explained, was whether such claims constitute claims for “bodily injury”

under the Price-Anderson Act. Construing this issue to be jurisdictional, the court

treated Defendants’ summary-judgment motion on these claims as a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(1). It then held that to have

a claim for “bodily injury” under the Act, a plaintiff must “manifest[] objective

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symptoms.” Id. at 2228. Even if the DNA damage and cell death purportedly

suffered by Plaintiffs increased the risk of future illness, reasoned the court, that

injury was presently asymptomatic and thus not a “bodily injury.” Accordingly,

the court concluded that it lacked subject-matter jurisdiction over the medical-

monitoring claims and dismissed them without prejudice. The court did not

address whether medical-monitoring claims are recognized under Colorado law.

Plaintiffs challenged these rulings in a postjudgment motion under Federal

Rule of Civil Procedure 59(e), which the district court denied. Plaintiffs then

appealed to this court, presenting the following questions: (1) whether Plaintiffs

were required to show “but for” causation under Colorado law and (2) whether

unmanifested, subclinical injuries resulting from exposure to radiation can

support a “bodily injury” claim under the Price-Anderson Act.

II. D ISC U SSIO N

W e review the grant of summary judgment de novo. See Navair, Inc. v.

IFR Americas, Inc., 519 F.3d 1131, 1137 (10th Cir. 2008). Summary judgment

should be granted when there is no genuine dispute over any material fact and a

party is entitled to prevail as a matter of law. See id.; Fed. R. Civ. P. 56(c).

Likewise, “[w]e review a dismissal for lack of subject-matter jurisdiction de

novo, accepting the district court’s findings of jurisdictional facts unless they are

clearly erroneous.” M ontoya v. Chao, 296 F.3d 952, 954–55 (10th Cir. 2002).

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 As previously mentioned, actions brought under the Price-Anderson Act are

governed by the “substantive rules for decision” of the state in which the putative

nuclear incident occurred. 42 U.S.C. § 2014(hh). Plaintiffs claim that they

suffered harmful radiation exposure at Defendants’ facilities in Uravan, Colorado,

and the parties agree that Colorado tort law governs Plaintiffs’ claims. W e

therefore apply Colorado law. See Grynberg v. Total, S.A., 538 F.3d 1336, 1346

(10th Cir. 2008) (adopting parties’ assumption of applicable law).

A. Personal-Injury C laim s

In Colorado, as elsewhere, a party seeking recovery in tort must

demonstrate that the defendant’s conduct caused the alleged injury. See Vigil v.

Franklin, 103 P.3d 322, 325 (Colo. 2004). The general rule for causation is that

the plaintiff must prove that the alleged “injury would not have occurred but for

the defendant’s negligent conduct.” Kaiser Found. Health Plan v. Sharp, 741

P.2d 714, 719 (Colo. 1987). Plaintiffs do not dispute that proposition but argue

that when there are “potential multiple or concurring causes” for an injury,

Colorado applies a “substantial factor test” for causation, not the more stringent

but-for test. Aplt. Br. at 50. Under the substantial-factor test, Plaintiffs contend,

an actor’s conduct can be deemed causal “‘where it is of sufficient significance in

producing the harm as to lead reasonable persons to regard it as a cause and to

attach responsibility.’” Id. at 52 (quoting Sharp v. Kaiser Found. Health Plan,

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710 P.2d 1153, 1155 (Colo. Ct. App. 1985), aff’d on other grounds, 741 P.2d 714

(Colo. 1987)).1 Because the illnesses at issue in this case (cancer and thyroid

disease) can have multiple causes, Plaintiffs conclude that this more permissive

substantial-factor test applies.

The legal issues regarding causation that arise when a disease has multiple

possible causes are subtle. Plaintiffs’ statement of the substantial-factor test

reflects the difficulty of the issues; it relies on certain language from the

Restatement (Second) of Torts but misstates the law by overlooking other

language. To better understand the proper test, it is helpful to review the more

precise, and clearer, treatment of multiple possible causes in the Proposed Final

Draft of the Restatement (Third) of Torts: Liability for Physical Harm. 2 W e then

compare that treatment to the treatment in the Restatement (Second) and see that

the ultimate legal standards in the two Restatements are essentially identical for

our purposes. Roughly speaking (we will become more precise as we discuss the

1
The quoted language can ultimately be traced to Restatement (Second) of Torts
§ 431 cmt. a (“The word ‘substantial’ is used to denote the fact that the defendant’s
conduct has such an effect in producing the harm as to lead reasonable men to regard it
as a cause, using the word in the popular sense, in which there always lurks the idea of
responsibility . . . .” (emphasis added)), although, as we shall see, the court-of-appeals
decision in Sharp ignored essential requirements of the substantial-factor test.
2
The proposed final draft has been approved by the American Law Institute, but
its publication has been delayed until work on other topics covered in the Restatement
is finished. See Press Release, American Law Institute, Agenda Set for the American
Law Institute’s 86th Annual Meeting in Washington, D.C. (April 16, 2009).

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underlying concepts), under the Restatements a Plaintiff could recover from

Defendants only if either (1) Uravan radiation was a but-for cause of the

Plaintiff’s ailments or (2) that radiation (either alone or with other factors) would

have caused the ailments. Because Colorado law has been consistent with the

treatment of causation in the Restatements, we presume that it, too, would impose

this requirement for recovery. W e therefore reject Plaintiffs’ version of the

substantial-factor test.

To explain how we have arrived at this conclusion, we turn to an extended

discussion of general principles. Applying those principles to this case, we then

affirm the summary judgment.

1. G eneral Principles

The term substantial factor appears in the treatment of causation in the

Restatement (Second) of Torts (as well as its predecessor, the original

Restatement of Torts). It has been abandoned, however, in the Restatement

(Third) of Torts because of the misunderstanding that it has engendered. See id.

§ 26 cmt. j.

Causation under the Restatement (Third) has two components. First, the

tortious conduct must be the “factual cause” of the physical harm to the plaintiff.

See id. §§ 26, 27. Ordinarily, a cause is a “factual cause” only if it is a but-for

cause, see id. § 26, although there is a potential exception, which we will discuss

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shortly, when there are multiple causes, see id. § 27. Second, the harm must be

among the “harms that result from the risks that made the actor’s conduct

tortious.” Id. § 29. Traditionally, this second component has been referred to as

“proximate cause,” a term that has baffled law students (to say nothing of jurors,

lawyers, and judges) for generations; but the Restatement (Third) has wisely

redescribed the subject matter as “scope of liability.” See id. Ch. 6, Special Note

on Proximate Cause; id. § 29 cmt. b. W e need not dwell on this topic— the focus

of our attention is on factual cause— but an illustration in the Restatement (Third)

conveys what is necessary to show that an injury factually caused by the

defendant is within the scope of liability:

Richard, a hunter, finishes his day in the field and stops at a friend’s
house while walking home. His friend’s nine-year-old daughter,
Kim, greets Richard, who hands his loaded shotgun to her as he
enters the house. Kim drops the shotgun, which lands on her toe,
breaking it. Although Richard was negligent for giving Kim his
shotgun, the risk that made Richard negligent was that Kim might
shoot someone with the gun, not that she would drop it and hurt
herself (the gun was neither especially heavy nor unwieldy). Kim’s
broken toe is outside the scope of Richard’s liability, even though
Richard’s tortious conduct was a factual cause of Kim’s harm.

Id. cmt. b, illus. 3.

Returning to the concept of factual cause, § 26 states that “[c]onduct is a

factual cause of harm when the harm would not have occurred absent the

conduct.” As comment b to the section states, this standard “is familiarly referred

to as the ‘but-for’ test.” That test “requires a counterfactual inquiry” in which the

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court considers “what would have occurred if the actor had not engaged in the

tortious conduct.” Id. cmt. e. If the harm complained of would have occurred

notwithstanding the actor’s conduct, then that conduct is not a but-for cause. See

id.

Section 27, however, recognizes that it is sometimes appropriate to impose

liability even when the harm would have occurred without the defendant’s act.

This exceptional circumstance is narrowly defined to impose liability only “when

a tortfeasor’s conduct, while not necessary for the outcome, would have been a

factual cause if the other competing cause had not been operating.” Id. § 27

cmt. a. The black letter of § 27 states: “If multiple acts exist, each of which

alone would have been a factual cause under § 26 of the physical harm at the

same time, each act is regarded as a factual cause of the harm.” Again, an

illustration clarifies the concept:

Rosaria and Vincenzo were independently camping in a heavily
forested campground. Each one had a campfire, and each negligently
failed to ensure that the fire was extinguished upon retiring for the
night. Due to unusually dry forest conditions and a stiff wind, both
campfires escaped their sites and began a forest fire. The two fires,
burning out of control, joined together and engulfed Centurion
Company’s hunting lodge, destroying it. Either fire alone would
have destroyed the lodge. Each of Rosaria’s and Vincenzo’s
negligence is a factual cause of the destruction of Centurion’s
hunting lodge.

Id. cmt. a, illus. 1.

The formulation of the requirements for causation in the Restatement

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(Third) employs different nomenclature from that in the Restatement (Second),

but it does not impose a stricter requirement for factual causation. W e explain.

Section 430 of the Restatement (Second) states that a negligent person is

liable for another’s harm only if the negligent conduct was a “legal cause” of the

harm. Section 431 then introduces the notion of “substantial factor,” stating that

“negligent conduct is a legal cause of harm to another if . . . his conduct is a

substantial factor in bringing about the harm” and no rule of law exempts him

from liability. Section 433 sets forth considerations that are “important in

determining whether the actor’s conduct is a substantial factor in bringing about

harm to another.” Those considerations are:

(a) the number of other factors which contribute in producing the
harm and the extent of the effect which they have in producing it; (b)
whether the actor’s conduct has created a force or series of forces
which are in continuous and active operation up to the time of the
harm, or has created a situation harmless unless acted upon by other
forces for which the actor is not responsible; (c) lapse of time.

Restatement (Second) of Torts § 433.

Reading the black letter of §§ 430, 431, and 433, one could easily conclude

that courts and juries have substantial leeway to depart from but-for causation in

imposing liability. It would appear to be enough if the considerations listed in

§ 433 suggest that liability is appropriate. This is how Plaintiffs appear to

understand the doctrine. But this conclusion cannot stand once one reads § 432,

which imposes a requirement for liability that is at least as stringent as the

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factual-cause requirement in the Restatement (Third). Section 432(1) sets forth

the general requirement of but-for causation; and § 432(2) recognizes what has

become the exception in Restatement (Third) § 27 for “multiple sufficient

causes.” Section 432 states:

(1) Except as stated in Subsection (2), the actor’s negligent conduct
is not a substantial factor in bringing about harm to another if the
harm would have been sustained even if the actor had not been
negligent.

(2) If two forces are actively operating, one because of the actor’s
negligence, the other not because of any misconduct on his part, and
each of itself is sufficient to bring about the harm to another, the
actor’s negligence may be found to be a substantial factor in bringing
it about.

Thus, as we understand the substantial-factor requirement in the

Restatement (Second), it adopts essentially the same standard for factual cause as

the Restatement (Third). And that standard is different from what Plaintiffs

advocate. W hat Plaintiffs would apparently use to determine whether conduct is a

substantial factor— the conditions set forth in § 433— are actually limitations on

what conduct can qualify as a substantial factor. Once conduct satisfies one of

the alternative requirements in § 432(1) and (2)— which in the Restatement

(Third) §§ 26, 27 are the alternative grounds for being a factual cause— it must

still qualify under § 433 if it is to be considered a substantial factor. (The

counterpart to § 433 in the Restatement (Third) is § 36, which states that “[w]hen

an actor’s negligent conduct constitutes only a trivial contribution to a causal set

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that is a factual cause of physical harm under § 27, the harm is not within the

scope of liability.” An actor’s trivial contribution thus would still be a factual

cause, but the actor would not be liable because the harm was outside the scope of

liability. It should be noted that § 36, unlike Restatement (Second) § 433, applies

only to one of multiple sufficient causes, not to a but-for factual cause. 3 )

There are two further nuances regarding factual cause that need to be

explained: the notion of causal sets and the meaning of the term sufficient cause.

The notion of a causal set is a helpful innovation in the Restatement (Third). A

number of factors (often innocent) generally must coexist for a tortfeasor’s

conduct to result in injury to the plaintiff. Even when the defendant drives his car

into the plaintiff’s car, no injury would have resulted if the plaintiff had not

entered her car and driven to the accident site. That there are many factors does

not mean that the defendant’s conduct was not a cause. As comment c to § 26 of

the Restatement (Third) explains:

A useful model for understanding factual causation is to
conceive of a set made up of each of the necessary conditions for
plaintiff’s harm. Absent any one of the elements of the set, the
plaintiff’s harm would not have occurred. Thus, there will always be
multiple (some say, infinite) factual causes of a harm, although most
will not be of significance for tort law and many will be unidentified.

3
Restatement (Third) § 36 comment a implies that § 433 did not apply to but-for
causes. But the Reporters for the Restatement now believe that the comment was
erroneous in that respect. See Joseph Sanders, William C. Powers, Jr. & Michael D.
Green, The Insubstantiality of the “Substantial Factor” Test for Causation, 73 Mo. L.
Rev. 399, 421–22 n.90 (2008).

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 That there are a large number of causes of an event does not mean
that everything is a cause of an event. The vast majority of acts,
omissions, and other factors play no role in causing any discrete
event.

This causal-set model does not imply any chronological
relationship among the causal elements involved, although all causes
must precede the plaintiff’s harm. An actor’s tortious conduct may
occur well before the other person suffers harm and require a number
of subsequent events to produce the harm. Thus, a gas valve
negligently constructed may not fail for many years. Toxic
substances may be sold without adequate warnings but not produce
harm for decades. Conversely, the tortious conduct may occur after a
number of other necessary events have already occurred but close in
time to the occurrence of harm. Nor does this model imply any
relationship among the causal elements; causal elements may operate
independently, as when a property owner neglects a patch of ice on a
sidewalk and a careless pedestrian fails to notice the condition,
producing a fall.

W hen § 27 of the Restatement (Third) speaks of “multiple sufficient

causes,” it could more precisely speak of “multiple sufficient causal sets.” See id.

§ 27 cmt. f. For example, the evidence at trial may show (1) that conditions A, B,

C, D, E, and F were present; (2) that if only A, B, and C had been present, the

injury would probably have occurred; and (3) that if only D, E, and F had been

present, the injury would probably have occurred. If F is the defendant’s

misconduct, then F was not a but-for cause of the injury; even without F, the

injury would have occurred (all it took was A, B, and C). But since D, E, and F

would also have caused the injury, F is a component of a second causal set. F

must, of course, be a necessary component of the second causal set to be a factual

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cause of the injury. See id. That is, F would not be a factual cause if D and E

alone would have been enough to cause the injury; F must be a “but for”

component of at least one causal set for liability to attach.

M oreover, multiple causal sets may share some components. If A, B, and C

would probably have caused the injury (with each of A, B, and C being necessary)

and so would have A, B, and D, the tortfeasor who committed D would be liable.

The Restatement (Third) provides the following example:

Able, Baker, and Charlie, acting independently but simultaneously,
each negligently lean on Paul’s car, which is parked at a scenic
overlook at the edge of a mountain. Their combined force results in
the car rolling over the edge of a diminutive curbstone and
plummeting down the mountain to its destruction. The force exerted
by each of Able, Baker, and Charlie would have been insufficient to
propel Paul’s car past the curbstone, but the combined force of any
two of them is sufficient. Able, Baker, and Charlie are each a factual
cause of the destruction of Paul’s car.

Id. § 26 cmt. f, illus. 3.

A real-world example would be a typical asbestosis lawsuit. A person

suffering from asbestosis may have been exposed to asbestos from a number of

sources (say, four), and the total exposure may have been more than enough to

cause asbestosis. It may well be (1) that asbestosis would probably have arisen

even without exposure of the victim to Source A, so Source A is not a but-for

cause; and (2) that Source A by itself would not have caused asbestosis. But

Source A may be a factual cause if it was a necessary component of a causal set

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that included, say, two of the other sources and the three together would probably

have caused asbestosis. See, e.g., Spaur v. Owens-Corning Fiberglas Corp., 510

N.W .2d 854, 858 (Iowa 1994); Eagle-Picher v. Balbos, 604 A.2d 445, 459 (M d.

1992); Restatement (Third) of Torts § 27 Reporters’ Note cmt. g. 4

Finally, we attempt to dispel some confusion that may arise from use of the

word sufficient in the provisions of the Restatement (Second) and the Restatement

(Third) that provide an alternative to but-for causation in limited circumstances.

Restatement (Second) § 432(2) employs the phrase “forces . . . sufficient to bring

about harm to another” and Restatement (Third) § 27 is entitled “M ultiple

Sufficient Causes.” The use of the word sufficient in both Restatements does not

mean that either of them would impose liability for conduct that is not a but-for

cause if only the conduct could have caused the injury. Rather, it is necessary for

the plaintiff to show that the conduct (or the causal set of which it is a necessary

part) would in fact have caused the injury. As we all know, in the modern world

of many hazardous substances, there may be many possible causes of a particular

cancer. Each could be said to be sufficient to cause a specific person’s cancer.

But one who suffers that cancer does not have a cause of action based on each

4
Restatement (Third) provides no guidance on whether an actor’s contribution
can be considered as an element of a causal set that contains only a portion of another
actor’s contribution. See id. § 27 cmt. f. For example, could the causal set be
composed of the asbestos exposure caused by the defendant plus half of the asbestos
exposure caused by someone else? We need not take a position on this difficult
question to resolve the issues on appeal.

-20-
such substance to which he was exposed, regardless of how unlikely it is that the

cancer resulted from that exposure. Only a substance that would have actually

(that is, probably) caused the cancer can be a factual cause without being a but-

for cause. This is clear in the black letter of Restatement (Third) § 27, which

states: “If multiple acts exist, each of which alone would have been a factual

cause under § 26 of the physical harm at the same time, each act is regarded as a

factual cause of the harm.” Id. (emphasis added). And the illustrations to the

section confirm this reading. W e have already quoted the illustrations involving

two fires, each of which “alone would have destroyed the lodge,” id. cmt. a, illus.

1, and involving three persons leaning on a car, “the combined force of any two

of [whom] is sufficient [to propel the car],” id. cmt. f, illus. 3. W e leave to a

footnote a third illustration, the one most pertinent to the case before us, which

requires proof that a drug “would have caused” the birth defect that could also

have been caused by an unrelated genetic condition. Id. cmt. e, illus. 2. It is not

enough that the drug could have caused the defect, as might be inferred from use

of the term sufficient cause. 5

5
Comment e, Illustration 2 states:

Trent is the guardian ad litem and father of Lakeesha, an infant
born with a birth defect. Trent sues Pharmco, a pharmaceutical
company, alleging both that Pharmco’s drug caused Lakeesha’s
birth defect and that Pharmco was negligent for its failure to warn
that its drug was teratogenic. Pharmco makes a third-party claim
(continued...)

-21-
 The Restatement (Second) is not as clear as the Restatement (Third) in

excluding conduct that merely “could have” caused the injury, but the sole

illustration to the point in Restatement (Second) § 432 is essentially the same as

the concurrent-fires illustration in Restatement (Third) § 27. In any event, the

very notion of two (or more) causes (or causal sets), neither of which is a but-for

cause, necessarily assumes that each of the causes would have caused the injury.

Say there are two such causes, A and B. The reason that A is not a but-for cause

5
(...continued)
against Wardman, alleging that it negligently released chemicals
that contaminated Trent’s ground and drinking water. Trent
introduces sufficient evidence for the factfinder to find that
Pharmco’s failure to warn was negligent, that the drug was a cause
of Lakeesha’s birth defect, and that an adequate warning would
have prevented the birth defect. Pharmco introduces sufficient
evidence of Wardman’s negligence and that its chemical was a
cause of Lakeesha’s birth defect. Trent then receives permission to
amend his complaint to make a claim against Wardman. Pharmco
contends that its drug did not cause Lakeesha’s birth defect. Rather,
Pharmco contends, Lakeesha’s birth defect was caused by a genetic
condition wholly unrelated to the drug. Pharmco introduces
sufficient evidence in support of its claims. The factfinder must
determine if the drug, absent Lakeesha’s genetic condition, would
have caused the birth defect. The factfinder must also determine if,
absent the drug, Lakeesha’s genetic condition would have caused
the birth defect. If the factfinder determines that either the drug or
the genetic condition would have, in the absence of the other,
caused Lakeesha’s birth defect at the same time then each is a
factual cause pursuant to this section. If the factfinder determines
that either the drug or genetic condition played no role in the birth
defect, then the other’s causal status is determined under the but-for
standard of § 26.

(Emphases added).

-22-
is that the injury would probably have occurred even if A had not been present.

But that is merely another way of saying that even in the absence of A, B

probably would have caused the injury; it would not be enough (to prevent A from

being a but-for cause) that B may have caused the injury on its own but probably

would not have. 6

To sum up, as we understand the Restatement (Second) and the Restatement

(Third), a defendant cannot be liable to the plaintiff unless its conduct is either

(a) a but-for cause of the plaintiff’s injury or (b) a necessary component of a

causal set that (probably) would have caused the injury in the absence of other

causes. In particular, conduct was not a “substantial factor”, within the meaning

of the term in the Restatement (Second), in bringing about a plaintiff’s injury

unless it satisfied (a) or (b), and also was a sufficiently significant factor under

the considerations set forth in Restatement (Second) § 433. Thus, Plaintiffs’

substantial-factor argument misconceives the meaning of substantial factor in the

Restatement (Second).

To be sure, it is Colorado law that governs here, not the Restatements. The

Colorado Supreme Court may have decided to disagree with the Restatements and

adopt a different standard for causation. But we see no evidence of this. W e

6
We recognize that the factfinder could find that there was a 50% probability
that B would have caused the injury. We can leave to another day how such a
circumstance would affect the analysis of factual cause.

-23-
have reviewed the Colorado opinions relied upon by Plaintiffs for their view of

the substantial-factor standard. None expressly addresses multiple sufficient

causes. All but one are fully consonant with our above analysis. The sole

exception is the opinion by the Colorado Court of Appeals in Sharp, 710 P.2d at

1155. That decision held that the trial court had erred in requiring evidence of

but-for causation because the plaintiff had been required to show only that the

misdiagnosis of her heart condition was a “substantial factor” in causing her heart

attack. In language ultimately derived from Restatement (Second) § 431 cmt. a,

the court said, “A defendant’s conduct is a substantial factor where it is of

sufficient significance in producing the harm as to lead reasonable persons to

regard it as a cause and to attach responsibility.” Sharp, 710 P.2d at 1155; see

Restatement (Second) § 431 cmt. a (“The word ‘substantial’ is used to denote the

fact that the defendant’s conduct has such an effect in producing the harm as to

lead reasonable men to regard it as a cause, using the word in the popular sense,

in which there always lurks the idea of responsibility . . . .” (emphasis added)).

But the court apparently ignored Restatement (Second) § 432, discussed above,

which states that conduct is not a substantial factor unless it is a but-for cause or

one of multiple sufficient causes. In any event, the state Supreme Court took the

case and affirmed on a different theory. See Sharp, 741 P.2d at 718, 720 (finding

-24-
sufficient evidence of but-for causation and affirming court of appeals without

reaching its “‘substantial factor’ analysis”).

Our role here is to predict what the Colorado Supreme Court would adopt

as the governing law. See TM J Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1180

(10th Cir. 2007) (federal courts applying state law must “predict what the state’s

highest court would do” (internal quotation marks omitted)). Predicting another

court’s decision is necessarily an uncertain proposition. In our view, however, it

would be too adventurous on our part to assume that Colorado would depart from

the Restatements. W e therefore hold that Defendants would be liable only upon

proof of one of the following: (1) that exposure of a Plaintiff to Uravan radiation

was a but-for cause of the Plaintiff’s medical condition or (2) that such exposure

to Uravan radiation was a necessary component of a causal set that would have

caused the medical condition.

W e now examine whether Plaintiffs supplied such evidence.

2. C ausation E vidence

Plaintiffs failed to raise in district court a genuine issue of fact regarding

factual causation. That is, they failed to present to the court evidence, or even an

argument, that Uravan radiation was either a but-for cause of any medical

condition suffered by one of the Plaintiffs or that Uravan radiation was a

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necessary component of a causal set that would probably have caused one of those

conditions.

Plaintiffs presented five expert witnesses. Dr. Colin K. Hill, who was

offered only as an expert with respect to the medical-monitoring Plaintiffs,

testified regarding how radiation injures cells and begins the process that can lead

to cancer and other ailments. Dr. A. James Ruttenber addressed only general

causation, that is, whether radiation at Uravan had the capacity to cause the

cancers and thyroid diseases that the Plaintiffs developed. See Neiberger v. Fed

Ex Ground Package Sys., Inc., 566 F.3d 1184, 1191 (10th Cir. 2009) (discussing

general and specific causation); Restatement (Third) of Torts § 28 cmt. c(3), c(4)

(same). Dr. F. Owen Hoffman provided the raw data upon which the final two

experts relied. He estimated the mean dose of radiation received by each Plaintiff

from Uravan operations. And for the Plaintiffs claiming thyroid diseases, he

estimated their radiation exposure from the detonation of atomic weapons at a

testing site in Nevada (the Nevada Test Site or NTS) conducted between 1959 and

1970. In addition, for the cancer Plaintiffs (including the one who suffered

thyroid cancer) he converted the Uravan dosage into a figure representing the

“Excess Risk of Diagnosed Cancer” and an “Assigned Share” figure that can be

used to compare the number of cancers expected in a population exposed to that

-26-
level of radiation to the number that would be expected in an unexposed

population. Aplt. App., Vol. X at 1869, 1872.

To prove specific causation for each Plaintiff— that is, to prove that the

Uravan radiation caused the specific ailment of which the Plaintiff

complained— Plaintiffs relied on the remaining two experts: Drs. Inder J. Chopra

and Robert Peter Gale. Dr. Chopra addressed the Plaintiffs with thyroid disease

(including the one case of thyroid cancer) and Dr. Gale addressed the remaining

Plaintiffs, all of whom had suffered cancer.

Dr. Chopra prepared a report that assessed each thyroid Plaintiff and

concluded that the Plaintiff’s exposure to radiation from Uravan and NTS fallout

was a “substantial factor contributing to” the Plaintiff’s thyroid disease. See, e.g.,

id., Vol. IX at 1562. A “substantial factor,” he explained, “is intended to mean

that the exposures were one of the variables that contributed to the observed

health effect (thyroid disease).” Id. at 1556. He defined “substantial” as “an

amount that is not trivial,” id, concluding that if the “contribution of any one

source to [a Plaintiff’s] total exposure to irradiation was 5% of the total,” its

contribution was “substantial,” Id. at 1557. Because at least 5% of the radiation

exposure for each Plaintiff came from Uravan, the Uravan radiation was a

substantial contributing factor. Dr. Chopra’s report did not, however, state with

respect to any Plaintiff that Uravan radiation was a but-for cause of the Plaintiff’s

-27-
thyroid disease or was a necessary component of a causal set that probably would

have caused the Plaintiff to suffer the disease.

For the Plaintiffs with cancer (other than thyroid cancer), Dr. Gale’s report

opined that “to a reasonable medical probability exposure to ionizing radiations

was a substantial factor contributing to each plaintiff developing cancer(s).” Id.

at 1642 (emphasis omitted). The report did not define substantial contributing

factor, but it noted that, based on Dr. Hoffman’s data, each of the Plaintiffs had

an assigned share exceeding 10% , and he later submitted a declaration that this

meant that there is greater than a “10% likelihood [that a] Plaintiff’s cancer was

contributed to by the additional radiation exposure from Defendants’ uranium

operations.” Id. Vol. XII at 2075. As was true of Dr. Chopra, however, Dr. Gale

did not opine that Uravan radiation was either a but-for cause of any Plaintiff’s

cancer or was a necessary component of a causal set that would have caused the

cancer.

Thus, the evidence relied on by Plaintiffs did not show that Uravan

radiation was a factual cause of any of their ailments. In reaching this conclusion

we are not being hypertechnical. The problem for Plaintiffs is not that their

experts failed to utter some magic words, such as “but for.” Nor are we relying

on any expertise of this court in analyzing the data and opinions from Plaintiffs’

experts. W e claim no such expertise. For all we know, the data would support

-28-
but-for claims of some, or even all, Plaintiffs. The problem for Plaintiffs is that

they did not make a timely argument that they had produced evidence of but-for

causation, and they have never (not even in this court) contended that they have

produced evidence that Uravan radiation was a necessary component of a causal

set that probably would have caused the Plaintiffs’ ailments.

Our conclusion in this regard follows from an examination of how the issue

was joined below. The Defendants’ summary-judgment motion on the personal-

injury claims was premised on the absence of but-for evidence. Defendants

stressed that agents other than radiation can cause the Plaintiffs’ ailments and that

neither Dr. Chopra nor Dr. Gale had opined that those ailments “would not have

occurred ‘but for’ [the Plaintiffs’] exposure to the radioactive substances

attributable to Defendants’ activities.” Id. Vol. XI at 1928. In response,

Plaintiffs argued that they need not establish but-for causation and that their

experts— namely Drs. Chopra and Gale— created a triable issue of fact by opining

that exposure to radiation at Uravan “substantially contributed” to the

development of each Plaintiff’s disease. Id. Vol. XII at 1992, 1997–98. At a

hearing on the matter the district court rejected Plaintiffs’ “substantially

contributed” standard and stated that Defendants were entitled to summary

judgment because the Plaintiffs’ “experts ha[d] not offered the requisite opinion

of ‘but for’ causality.” Id. Vol. XIII at 2208. A few seconds after stating that

-29-
conclusion, the court asked whether there was “[a]ny need for clarification or

further explanation with regard to the ruling on this motion?” Id. Plaintiffs’

counsel responded “No, your Honor.” Id.

Ten days later Plaintiffs filed a motion to alter or amend the judgment

under Federal Rule of Civil Procedure 59(e). The motion asserted, for the first

time, that their evidence could satisfy the but-for requirement (if one were

erroneously imposed). But even then the specific arguments that Plaintiffs raised

amounted to no more than the assertion that the substantial-factor test “actually

subsumes the ‘but for’ test.” Id. at 2357. They pointed to no evidence that their

ailments would not have occurred in the absence of Uravan radiation. M oreover, a

Rule 59(e) motion cannot be used to “advance arguments that could have been

raised in prior briefing.” See Grynberg, 538 F.3d at 1354 (internal quotation

marks omitted).

-30-
 Plaintiffs make better but-for arguments on appeal. 7 But they come too

late. Based on the evidence and arguments properly before the district court,

summary judgment on all personal-injury claims was appropriately granted. See

Hutton Contracting Co. v. City of Coffeyville, 487 F.3d 772, 782 (10th Cir. 2007)

(“Absent special circumstances, we will not reverse on a ground not raised

below.”).

B. M edical-M onitoring C laim s

W e now turn to the claims seeking payment for medical monitoring to

detect the onset of disease. The district court dismissed these claims without

prejudice because they do not assert a “bodily injury,” as required for jurisdiction

under the Price-Anderson Act. W e affirm the dismissal. 8

7
The partial dissent says that two statements by Dr. Chopra would support a
finding of but-for causation with respect to the thyroid-disease Plaintiffs. But the
Plaintiffs did not rely on the two statements in the district-court proceedings, so the
Defendants lacked an opportunity to address, and perhaps dispose of, them. For
example, Defendants might have challenged whether Dr. Chopra could reasonably
conclude that the Uravan radiation was a but-for cause of each Plaintiffs’ thyroid
disease given that (1) none of the 16 thyroid-disease Plaintiffs was exposed to more
than 105 rads total from Uravan and NTS radiation; (2) the only thyroid disease suffered
by 11 of the 16 was hypothyroidism; and (3) Dr. Chopra’s report states that “[little] data
are available on the occurrence of hypothyroidism in persons exposed to low or
moderate doses of radiation (‹750 rads),” Aplt. App., Vol. II at 1623.
8
Defendants contend that bodily injury is not a prerequisite to subject-matter
jurisdiction under the Price-Anderson Act but merely a required element of the cause of
action. They therefore assert that the dismissal should have been with prejudice rather
than without prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th
Cir. 2006) (our “cases requir[e] that a dismissal for lack of jurisdiction be without
prejudice”). Defendants may be correct on the law. See Phillips v. E.I. DuPont de
(continued...)

-31-
 The Price-Anderson Act of 1957 protects the public while promoting the

generation of nuclear power by establishing an insurance and indemnification

scheme that caps liability in the event of a nuclear mishap. See Duke Power Co.

v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 64–65 (1978). The Act has

been amended on several occasions. In its present form it grants federal district

courts jurisdiction to hear “public liability action[s].” 42 U.S.C. § 2210(n)(2). A

“‘public liability action’” is “any suit asserting public liability.” Id. § 2014(hh).

The term public liability encompasses, with a few exceptions, “any legal liability

arising out of or resulting from a nuclear incident.” Id. § 2014(w). 9 A “‘nuclear

8
(...continued)
Nemours & Co. (In re Hanford Nuclear Reservation Litig.), 534 F.3d 986, 1009–10 (9th
Cir. 2008) (bodily injury is not prerequisite to subject-matter jurisdiction under Price-
Anderson Act). But their failure to cross-appeal on this issue precludes us from
remanding for entry of a dismissal with prejudice. Under the cross-appeal rule, “an
appellate court may not alter a judgment to benefit a nonappealing party.” Greenlaw v.
United States, 128 S. Ct. 2559, 2564 (2008). “This rule applies to preclude an appellate
court, in the absence of a cross-appeal, from changing a dismissal without prejudice to a
dismissal with prejudice.” Standard Inv. Chartered, Inc. v. Nat’l Ass’n of Sec. Dealers,
Inc., 560 F.3d 118, 126 (2d Cir. 2009); see 15A Charles Alan Wright, Arthur R. Miller
& Edward H. Cooper, Federal Practice and Procedure § 3904, at 198 (2d ed. 1991).
Also, our standard of appellate review of the bodily-injury issue would be the same in
this case whether we treat the issue as a matter of jurisdiction or of the sufficiency of
the evidence on summary judgment. See Montoya, 296 F.3d at 954–55 (review of legal
issues underlying dismissal for lack of subject-matter jurisdiction is de novo); Navair,
519 F.3d at 1137 (review of summary judgment is de novo). Therefore, we need not
decide whether bodily injury is a jurisdictional requirement.
9
The term does not encompass (1) workers’ compensation claims under state or
federal law brought by persons “employed at the site of and in connection with the
activity where the nuclear incident occurs”; (2) “claims arising out of an act of war”;
and (3) when used in 42 U.S.C. § 2210(a), (c), and (k), “claims for loss of, or damage
(continued...)

-32-
incident,’” in turn, is defined as “any occurrence . . . causing . . . bodily injury,

sickness, disease, or death, or loss of or damage to property, or loss of use of

property, arising out of or resulting from the radioactive, toxic, explosive, or

other hazardous properties of source, special nuclear, or byproduct material.”

42 U.S.C. § 2014(q) (emphasis added).

The parties agree that whether the medical-monitoring Plaintiffs (who do

not claim to have suffered a sickness or disease) can sue under the Price-

Anderson Act depends on whether they have suffered “bodily injury.” The

medical-monitoring Plaintiffs contend that they have suffered bodily injury in the

form of “DNA damage and cell death” resulting from their exposure to radiation

at Uravan. Aplt. App., Vol. VIII at 1384–85. Although these injuries are

subclinical— not having been manifested in any diagnosed disease or

injury— Plaintiffs contend that the alleged injuries have enhanced the risk that

they will develop disease in the future. They seek damages to cover the cost of

detecting latent radiation-related health problems.

In support of this claim, Plaintiffs rely on reports prepared by Dr. Colin K.

Hill, a radiation biologist. Dr. Hill’s reports explain that when radiation hits a

human cell, it can break DNA strands in the cell’s nucleus, by direct or indirect

9
(...continued)
to, or loss of use of property which is located at the site of and used in connection with
the licensed activity where the nuclear incident occurs.” 42 U.S.C. § 2014(w).

-33-
action. Although the vast majority of such breaks are properly repaired by the

body, some mutations in the DNA remain and can lead to the development of a

cancerous cell. Strand breaks also can result in death of the cell. Such radiation-

induced cell injury, Dr. Hill explained, can lead to thyroid disease. Dr. Hill

concluded that although a particular exposure to radiation may not trigger these

processes, there is no dosage threshold; any exposure to radiation can break DNA

strands and set the train in motion.

In our view, “DNA damage and cell death,” which creates only a possibility

of clinical disease, does not constitute a “bodily injury” under the Price-Anderson

Act. It is true that a number of courts have recognized medical-monitoring claims

(not brought under the Price-Anderson Act) premised on subclinical effects of

toxic exposure. But, tellingly, these courts have not reasoned that subclinical

injuries from a toxic agent are bodily or physical injuries. Rather, those that have

recognized medical-monitoring claims absent clinical symptoms have grounded

the cause of action on the plaintiff’s “legally protected interest in avoiding . . .

expensive medical evaluations caused by the tortious conduct of others.” 1 0 Other

10
Meyer ex rel. Coplin v. Fluor Corp., 220 S.W.3d 712, 717 (Mo. 2007); see,
e.g., Bower v. Westinghouse Elec. Corp., 522 S.E. 2d 424, 426–27, 430 (W. Va. 1999)
(in claim for medical-monitoring relief brought by asymptomatic plaintiffs exposed to
toxic substances, court rejects contention that claim “must rest upon the existence of
present physical harm”; “the exposure itself and the concomitant need for medical
testing constitute the injury” (internal quotation marks omitted)); Bourgeois v. A.P.
Green Indus., Inc., 716 So. 2d 355, 356–57, 359 (La. 1988) (although asymptomatic
(continued...)

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courts that have permitted medical-monitoring relief have required a present

physical injury; and they have generally presumed that the subclinical effects of

toxic exposure do not constitute physical injury. 1 1

Perhaps more significantly, adopting the Plaintiffs’ understanding of the

term bodily injury would render it superfluous in the statute. See M cCloy v. U.S.

10
(...continued)
plaintiffs did not suffer “bodily harm” from exposure to asbestos, their medical-
monitoring claim rested on “legally protected interest” of avoiding “costly medical
bills”), abrogated by statute, La. Civ. Code Ann. art. § 2315(B); Potter v. Firestone
Tire & Rubber Co., 863 P.2d 795, 801–03, 822 (Cal. 1993) (although plaintiffs could
not trace any physical symptom to their exposure to carcinogens, their need to pay for
medical monitoring was a “‘harm’” even if not a “‘physical harm’” within the meaning
of Restatement (Second) of Torts § 7); see also Owens-Illinois, Inc. v. United Ins. Co.,
650 A.2d 974, 985 (N.J. 1987) (New Jersey law allows recovery for medical-monitoring
expenses “even without evidence of physical injury.”)
11
See, e.g, Trimble v. Asarco, Inc., 232 F.3d 946, 950, 963 (8th Cir. 2000)
(rejecting medical-monitoring claim by neighbors of refinery that released “lead and
other particulates” into the air because Nebraska law does not recognize such a claim
absent “present physical injury”), abrogated on other grounds by Exxon Mobil Corp. v.
Allapattah Serv., Inc., 545 U.S. 546 (2005); Ball v. Joy Techs., Inc., 958 F.2d 36, 38–39
(4th Cir. 1991) (exposure to and absorption of toxic chemicals does not constitute
“physical injury” supporting medical-monitoring claim under Virginia or West Virginia
law), overruled in part by Bower, 522 S.E.2d 424 (W. Va.) (recognizing cause of action
for medical monitoring absent proof of physical injury); Houston County Health Care
Auth. v. Williams, 961 So. 2d 795, 811 (Ala. 2006) (costs of medical monitoring can be
recovered only on a claim of “present physical injury,” so costs cannot be recovered by
plaintiffs who had not undertaken procedure to remove breast implants or developed
“signs of . . . infection or other adverse “bodily injury” (which was defined as “‘bodily
injury, sickness, or disease . . . sustained . . . during the policy period”). Id. effects”);
Wood v. Wyeth-Ayerst Labs., Div. of Am. Home Prods., 82 S.W.3d 849, 850–51, 859
(Ky. 2002) (appellant who ingested diet drugs linked to heart problems could obtain
medical monitoring as component of damages when “testing demonstrates the presence
of disease”). But see Werlein v. United States, 746 F. Supp. 887, 901, 904–05 (D.
Minn. 1990) (chromosomal injury can constitute “present physical injury” supporting
medical-monitoring claim), vacated in part by 793 F. Supp. 898 (1992).

-35-
Dept. of Agric., 351 F.3d 447, 451 (10th Cir. 2003) (“Under a long-standing

canon of statutory interpretation, one should avoid construing a statute so as to

render statutory language superfluous.”). This superfluity becomes apparent

when we review what both Plaintiffs and Defendants agree to be the requirements

for a Price-Anderson claim.

The Price-Anderson Act is limited to claims arising from “nuclear

incident[s],” 42 U.S.C. § 2210(n)(2), which are occurrences caused by radioactive

substances, see id. § 2014(q) (defining nuclear incident as occurrence arising

from the “hazardous properties of source, special nuclear or byproduct material”);

id. § 2014(z) (defining source material); id. § 2014(aa) (defining special nuclear

material); id. § (2014)(e) (defining byproduct material). In addition, a plaintiff’s

cause of action must be recognized by the law of the state where the nuclear

incident occurred. See id. § 2014(hh). Further, the cause of action must be a

claim for property damage, see id. § 2014(q) (nuclear incident may be occurrence

causing “loss of or damage to property, or loss of use of property”), or a personal-

injury claim for “bodily injury, sickness, disease, or death,” id. This much, as we

understand the briefs before us, is not disputed. Given this context, however,

what purpose is served by the limitation to “bodily injury, sickness, disease, or

death” if, as Plaintiffs contend (and we do not question their science), every

exposure to radiation causes intracellular damage and such damage is a “bodily

-36-
injury”? Under Plaintiffs’ analysis, every personal-injury claim that satisfied

state law would also meet the requirements of Price-Anderson. The term bodily

injury (as well as the terms sickness and disease) would impose no limit on

claims; it would be superfluous. See Dumontier v. Schlumberger Tech. Corp.,

543 F.3d 567, 570 (9th Cir. 2008) (“[This] interpretation of bodily injury would

render the term surplusage, as every exposure to radiation would perforce cause

[bodily] injury.”).

Plaintiffs counter that “numerous courts interpreting insurance policies . . .

have held that ‘bodily injury’ for purposes of coverage and/or the duty to defend

includes” the subclinical injuries that they suffer. Aplt. Br. at 60. The insurance

cases that they rely upon fall into two categories. One category includes two

cases that concerned the allocation of indemnification responsibilities between

insurers who provided coverage for different periods during which disease

developed. For example, in Insurance Co. of North America v. Forty-Eight

Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980), the insured manufacturer of

asbestos was being sued by persons who had developed asbestosis. Asbestosis is

a disease that develops from exposure over time to asbestos. See id. at 1214. The

insured had obtained coverage from various companies for different periods of

time. See id. at 1215. The issue was whether a policy insuring against claims for

“bodily injury” (which was defined as “‘bodily injury, sickness, or disease . . .

-37-
sustained . . . during the policy period”), id. at 1216, would provide coverage if

the policy was not in effect when the asbestosis was diagnosed, but only when the

claimant was exposed to asbestos, see id. The court held that in this context

“bodily injury” encompassed asymptomatic tissue damage from asbestos that was

not diagnosable, and a policy in effect at the time of exposure therefore provided

coverage. Id. at 1223; see Sandoz, Inc. v. Employer’s Liab. Assurance Corp., 554

F. Supp. 257, 265–66 (D.N.J. 1983) (following Forty-Eight Insulations, in a case

involving a different disease, to reject view that “bodily injury” must be

manifest).

The second category of Plaintiffs’ cases includes decisions holding that an

insurer providing bodily-injury coverage has a duty to defend against claims when

there was an unmanifested injury during the policy period. See Guar. Nat’l Ins.

Co. v. Azrock Indus. Inc., 211 F.3d 239, 244 (5th Cir. 2000) (inhalation of

asbestos fibers during policy period triggers bodily-injury insurer’s duty to

defend), abrogated on other grounds by Don’s Bldg. Supply, Inc. v. OneBeacon

Ins. Co., 267 S.W .3d 20, 31–32 (Tex. 2008); Zurich Am. Ins. Co. v. Nokia, Inc.,

268 S.W .3d 487, 492–93 (Tex. 2008) (allegations of cellular injuries from use of

cellphones triggered bodily-injury insurers’ duty to defend)).

These insurance cases are readily distinguishable. As Forty-Eight

Insulations recognized, the legal meaning of the term bodily injury depends on

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context. See 633 F.2d at 1220–22. It observed that other courts had interpreted

“bodily injury” to require a manifest injury when resolving questions regarding a

statute of limitations, liability for workers’ compensation, and health-insurance

coverage. See id. But it decided that none of those decisions would be

controlling on the issue before it. See id. M ost important to the courts in all the

cases relied on by Plaintiffs was the proposition that they should construe

insurance policy language— and thus the term bodily injury— broadly “to promote

coverage.” Id. at 1219; accord Zurich, 268 S.W .3d at 491 (“W e resolve all

doubts regarding the duty to defend in favor of the duty.”). Guaranty National,

for example, acknowledged that another construction of the term bodily injury

was “arguably the truest to the . . . policy language,” 211 F.3d at 251, yet held

that “‘bodily injury’” encompassed “subclinical tissue damage,” id. at 243–44.

The term bodily injury arises in this case in a substantially different

context. Here it governs whether Plaintiffs can pursue a federal cause of

action— namely, the Price-Anderson Act’s “public liability action.” 42 U.S.C.

§ 2014(hh), (w), (q). Plaintiffs have not directed us to any interpretative canon

instructing courts to construe personal-injury causes of action broadly. Indeed,

public policy may well argue for denying relief to those without symptomatic,

diagnosed ailments so that scarce resources can be directed to compensate those

who have suffered more serious harms. See M etro-North Commuter R.R. Co. v.

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Buckley, 521 U.S. 424, 442 (1997) (in support of decision not to recognize claims

for medical-monitoring damages under Federal Employers’ Liability Act by

plaintiffs who lack manifest symptoms of disease, Court notes that permitting

medical-monitoring claims “could threaten both a flood of less important cases

(potentially absorbing resources better left available to those more seriously

harmed) and the systemic harms that can accompany unlimited and unpredictable

liability (for example, vast testing liability adversely affecting the allocation of

scarce medical resources)” (citation and internal quotation marks omitted)).

Accordingly, we see no reason to abandon traditional methods of statutory

interpretation and adopt a meaning for “bodily injury” that renders superfluous

several words in 42 U.S.C. § 2014(q).

Finally, we address Plaintiffs’ contention that the legislative history of the

Price-Anderson Act implies that we must interpret the term bodily injury in the

Act the way it would be interpreted in an insurance policy. The legislative history

on which they rely consists of the following sentence in a congressional

committee report: “The words ‘sickness, disease’ were added following bodily

injury [in the definition of nuclear incident] in order to make it perfectly clear

that the extent of bodily injury was the same as the definition of bodily injury as

specified by the standard NELIA [Nuclear Energy Liability Insurance

Association] insurance policy.” S. Rep. No. 85-296 (1957), reprinted in 1957

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U.S.C.C.A.N. 1803, 1817–18; see Berg v. E.I. Dupont De Nemours & Co. (In re

Berg Litig.), 293 F.3d 1127, 1131 (9th Cir. 2002) (relying on this history to

support proposition that Price-Anderson Act does not impose liability for purely

emotional injuries). W e are not persuaded. To begin with, we are reluctant to

base our interpretation of a statute on a single sentence in a committee report that

does not appear to be addressing the specific issue before us— namely, whether

asymptomatic, undiagnosable cellular injury constitutes a bodily injury under the

Act. M oreover, inspection of what was apparently the NELIA standard policy of

the time, see 23 Fed. Reg. 6681, 6684–87 (Aug. 28, 1958), suggests that “bodily

injury” did not encompass cellular, or any other undetectable, injury. Section IV

of the policy, entitled “Application of policy,” stated: “This policy applies only

to bodily injury or property damage (1) which results from nuclear incidents

occurring during the policy period and (2) which is discovered, and for which

written claim is made against the insured, not later than two years after the end of

the policy period.” Id. at 6685 (emphasis added); see 10 C.F.R. § 140.91 (current

standard-policy provision with identical language in § IV(2)). Because the policy

covers only “discovered” bodily injury, it apparently would not insure against

claims for undetectable injuries such as those at the cellular level. (This is not to

say that there would be no compensation under the Act for persons with latent

injuries that are detected years after the nuclear incident. For example, the

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government’s contribution to paying liability claims could include such injuries.

See, e.g., 42 U.S.C. § 2210(i)(2)(C) (when claims from a nuclear incident may

exceed Act’s liability cap, President must submit to Congress “1 or more

compensation plans” that may include “recommendations that funds be allocated

or set aside for the payment of claims that may arise as a result of latent injuries

that may not be discovered until a later date”).)

In short, under the Price-Anderson Act the asymptomatic DNA damage and

cell death that results whenever one is exposed to radiation is not in itself a bodily

injury. 1 2

III. C O N C L U SIO N

The judgment of the district court is AFFIRM ED.

12
Because we conclude that the Plaintiffs have not suffered bodily injury, we
need not determine whether Colorado law would recognize a cause of action for
medical-monitoring relief.

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No. 07-1532, June v. Union Carbide Corp.

H O L L O W A Y , Circuit Judge, concurring and dissenting:

I

I join Part II-B of the majority opinion affirming the dismissal of the medical

monitoring claim s. However, I must respectfully dissent from Part II-A of the

majority opinion to the extent that it affirms the district judge’s grant of summary

judgment on the personal injury claims of the plaintiffs with thyroid disease.

I acknowledge that the thyroid disease plaintiffs did not timely argue before

the district judge that they had produced sufficient evidence of but-for causation.

And as the majority indicates on p. 29 of their opinion, “[a]bsent special

circumstances, we will not reverse on a ground not raised below.” Hutton

Contracting Co. v. City of Coffeyville, 487 F.3d 772, 782 (10th Cir. 2007). However,

assuming that the but-for issue was not raised below, I am convinced that “special

circumstances” are present here. Therefore, I conclude that we should exercise our

discretion to reverse the district judge’s erroneous determination that the thyroid

disease plaintiffs did not produce sufficient evidence of but-for causation.

II

“W hether to address the argument despite the litigant’s failure to raise it below

is subject to this court’s discretion based on the circumstances of the individual

case.” United States v. Jarvis, 499 F.3d 1196, 1202 (10th Cir. 2007) (citing
Singleton v. Wulff, 428 U.S. 106, 120 (1976)). W e have exercised this discretion

w here the argument “involves a pure matter of law and the proper resolution of the

issue is certain.” Id. “W e have justified our decision to exercise discretion in these

situations because no additional findings of fact or presentation of evidence were

required for the issue’s disposition and both parties had the opportunity to address

the issue in their appellate briefing.” Id. The circumstances of the case before us

clearly support the exercise of our discretion to address whether the thyroid disease

plaintiffs produced sufficient evidence of but-for causation.

First, whether the thyroid disease plaintiffs presented sufficient evidence of

but-for causation to survive summary judgment is a legal question. See Strate v.

M idwest Bankcentre, Inc., 398 F.3d 1011, 1018 (8th Cir. 2005) (“[T]he focus of

inquiry at the summary judgment stage alw ays rem ains on the ultimate question of

law: whether the evidence is sufficient to create a genuine issue of fact . . . .”

(internal quotations omitted)); 9B Charles Alan W right, Arthur R. M iller & Edward

H. Cooper, Federal Practice & Procedure § 2524, at 232 (3d ed. 1998) (“It has long

been established . . . that whether the evidence presented at trial is sufficient to

create an issue of fact for the jury . . . is solely a question of law . . . .”); see also

Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1215 (10th C ir. 1999) (Lucero, J.,

dissenting) (indicating that whether sufficient evidence has been presented to survive

summary judgment is a legal question). Further, if the thyroid plaintiffs had argued

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that they produced sufficient evidence of but-for causation, and the district judge had

rejected that argument, we would review that rejection de novo. See Jarvis, 499 F.3d

at 1202 (finding a “pure issue of law” and stating that “[h]ad the trial court been

given the opportunity to rule [on the issue first presented on appeal], our review

would be de novo, just as it is now”); Navair, Inc. v. IFR Ams., Inc., 519 F.3d 1131,

1137 (10th Cir. 2008) (“W e review a grant of summary judgment de novo.”).

Second, taking the evidence in the light most favorable to the thyroid disease

plaintiffs, I am convinced that those plaintiffs produced sufficient evidence of but-

for causation to survive summary judgment. The thyroid disease plaintiffs relied on

the expert opinion of Dr. Inder Chopra as evidence that the defendants’ operations

were a but-for cause of their injuries. Dr. Chopra opined that “[i]t is more probable

than not that each of these two sources [i.e., the Nevada Test Site radiation and the

radiation from the defendants’ uranium operations] of itself was a substantial

contributing factor to each Plaintiff’s thyroid disease, without which the Plaintiff’s

respective thyroid disease would not have happened.” Aplt. App., Vol. XII at

2131–32 (Affidavit of Inder Chopra, M .D.) (emphasis added); see also id. Vol. XIII

at 2295 (Deposition of Inder Chopra, M .D.) (“W hen I use in this particular case that

radiation was a substantial factor contributing to occurrence of their medical–the

illness that we are talking about, in my mind, I am thinking that if they had not been

-3-
exposed to radiation, there is small or–probably they would not have–the disease

would not have occurred in them.”).

Third, the circumstances of this case fit squarely into our rationale for

addressing unraised legal questions whose resolution is certain. No additional

findings of fact or presentation of evidence would be required to determine whether

sufficient evidence of but-for causation w as presented by the thyroid disease

plaintiffs. And both parties have thoroughly taken advantage of the opportunity to

address whether the thyroid disease plaintiffs produced sufficient evidence of but-for

causation in their appellate briefing.

Therefore, although the thyroid disease plaintiffs did not timely argue before

the district judge that they had sufficient evidence of but-for causation, I am

convinced we should exercise our discretion to consider and correct the district

judge’s error in holding that those plaintiffs did not present sufficient evidence of

but-for causation to survive summary judgment. Accordingly, I must respectfully

dissent from the majority’s ruling affirm ing the summary judgment against the

personal injury claims of the thyroid disease plaintiffs.

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