Estate of Ware Ex Rel. Boyer v. Hospital of the University of Pennsylvania , 871 F.3d 273 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 16-3801
________________
ESTATE OF JEFFREY H. WARE, By Barbara Boyer,
individually, on behalf of wrongful death beneficiaries and as
Administratrix of the Estate of Jeffrey H. Ware,
Appellant
v.
HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA;
UNIVERSITY OF PENNSYLVANIA;
UNIVERSITY OF PENNSYLVANIA PERELMAN
SCHOOL OF MEDICINE;
UNIVERSITY OF PENNSYLVANIA TRUSTEES; ANN R.
KENNEDY, D.S.C.; GARY KAO, M.D.;
MICHELLE ALONSO-BASANTA, M.D.; NATIONAL
SPACE BIOMEDICAL RESEARCH INSTITUTE;
CENTER FOR ACUTE RADIATION RESEARCH
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-14-cv-00014)
District Judge: Honorable Joseph F. Leeson, Jr.
________________
Argued June 28, 2017
Before: AMBRO, RESTREPO, and COWEN, Circuit Judges
(Opinion filed September 18, 2017)
Glenn A. Ellis, Esquire
Aaron J. Freiwald, Esquire (Argued)
Mathew R. Bravette, Esquire
Layser & Freiwald
1500 Walnut Street, 18th Floor
Philadelphia, PA 19102
Counsel for Appellant
Donald E. Jose, Esquire (Argued)
Jose & Associates
108 Tramore Circle
Malvern, PA 19355
Theresa F. Sachs, Esquire (Argued)
Daniel J. Sherry, Esquire
Donna Modestine, Esquire
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street, Suite 2300
Philadelphia, PA 19103
Counsel for Appellees
2
________________
OPINION OF THE COURT
________________
AMBRO, Circuit Judge
Barbara Boyer, the widow of a cancer researcher who
developed a fatal tumor allegedly as a result of inadequate
safety precautions taken to protect him from radiation in his
lab, sued the University of Pennsylvania together with
affiliated persons and entities.1 Before us is the reach of the
Price-Anderson Act, see 42 U.S.C. § 2011, et seq., and its
remedy-limiting provisions. The Act gives federal courts
jurisdiction to resolve a broad set of claims involving liability
for physical harm arising from nuclear radiation. Boyer
asserts, however, that the Act’s unexpressed intent would
exempt her husband’s injuries from its jurisdictional grant.
Her claims fall within the text of the Act, so if we are
to limit it to a zone of interests narrower than its text
provides, Boyer must offer a compelling limiting principle
that would put her allegations beyond the Act’s reach.
Although she suggests several implicit limitations, each is
1
The defendants in this action are the University of
Pennsylvania; the Hospital of the University of Pennsylvania;
the Perelman School of Medicine; the Trustees of the
University of Pennsylvania; and Drs. Ann Kennedy, Gary
Kao, and Michelle Alonso-Basanta. We refer to them jointly
as the “UPenn defendants”; “UPenn” refers, depending on
context, to the University of Pennsylvania or all the
defendants.
3
either unconvincing or, even if adopted, would leave this case
still within the Act’s reach. Thus we must affirm.
I. BACKGROUND
Jeffrey H. Ware, Ph.D., was a neuroscientist at the
University of Pennsylvania who studied the effects of
radiation on biological organisms with the goal of better
understanding how radiation affects astronauts while in orbit.
In the course of his research Ware used cesium-137
irradiators to track the effects of low-level radiation on mice
and rats.
Tragically, Ware suffered in 2010 a rare form of brain
cancer called gliosarcoma. Boyer claims gliosarcoma is
associated with radiation exposure (however, because she
produced no expert reports, there is nothing in the record to
support this link). She also alleges that Ware’s cancer
specifically resulted from radiation exposure that UPenn
failed to monitor properly or protect against. Moreover,
UPenn failed to inform Ware of the level of radiation to
which he was exposed.
Following his diagnosis, Ware turned to the
University’s affiliated hospital for medical care. He
underwent chemotherapy and radiation in order to slow the
cancer’s progression. Boyer alleges that Ware was not given
appropriate information about these treatments; that, given
the advanced stage of his disease, they provided little benefit;
and that, at one appointment where she was not present, a
UPenn doctor enrolled Ware in a research study to investigate
the effects of chemotherapy and radiation on brain cancer
patients without his knowing consent. According to Boyer,
UPenn concealed and withheld documents and data related to
the study to “cover up its terrible record of radiation safety
and to protect millions of research dollars.” Boyer’s Br. at 9.
4
UPenn also discouraged Ware from seeking palliative care,
she claims, in order to maintain his participation in the study.
Just a year after his diagnosis, Ware died from his
cancer at age 47. Boyer filed a complaint in the Pennsylvania
Court of Common Pleas as administratrix of Ware’s estate as
well as on behalf of herself and Ware’s surviving children.
Her initial complaint alleged numerous counts, including
negligence, fraud, retaliation, and negligent infliction of
emotional distress. She added to the UPenn defendants the
National Space Biomedical Research Institute (“NSBRI”), a
research organization started by NASA that funded Ware’s
work.
UPenn and the NSBRI removed the case to federal
court on the grounds that (1) claims against UPenn are
covered by the Price-Anderson Act, which provides federal
jurisdiction over claims asserting “public liability” arising
from a “nuclear incident,” see 42 U.S.C. §§ 2014(q), (w),
(hh), & 2210(n); and (2) 28 U.S.C. § 1442(a) permits removal
of claims against NSBRI because it is a federal agency.
Following Boyer’s unsuccessful motion to remand, the
District Court adopted a Magistrate Judge’s Report and
Recommendation that the Price-Anderson Act applies to
Boyer’s claims alleging that Ware was harmed by radiation
from cesium-137 used in his lab and that the NSBRI is a
federal agency. Boyer responded by dismissing all claims
against the NSBRI and amending her complaint to include
two counts of “negligence under the Price-Anderson Act”
(the “Price-Anderson claims”) and additional counts styled as
state-law claims for fraud, negligent infliction of emotional
distress, malpractice, and “corporate negligence.” J.A. 476-
488.
5
Discovery began, and UPenn produced five expert
reports and thousands of pages of documents. Boyer failed to
produce a single expert report to substantiate her claims.
UPenn filed four motions that the District Court construed as
motions for summary judgment, to which Boyer never
responded.
Per regulations issued by the Nuclear Regulatory
Commission (“NRC”), entities holding licenses to handle
certain nuclear materials must limit the dose of radiation
received by employees from occupational exposure to five
rem (5,000 millirem) per year. 10 C.F.R. § 20.1201(“Occupational dose limits for adults”). It is uncontested that
Ware’s total occupational radiation exposure over 16 years
was only 0.075 rem (75 millirem), which would yield an
annual average of only 0.0047 rem (4.7 millirem).2 Because
this amount is far below the five-rem standard set in
§ 20.1201, Boyer concluded that she could not prevail on any
claims governed by the Price-Anderson Act, so she moved to
withdraw her Price-Anderson claims and to remand the
remainder of her claims to state court.
The District Court denied the motion to withdraw, and,
because Boyer had failed to produce any expert reports or
even oppose UPenn’s motions for summary judgment, it
granted summary judgment to UPenn on all of her claims.
Boyer appeals, challenging the District Court’s determination
that the Price-Anderson Act applies to her negligence claims
as well as the Court’s denial of her motion to withdraw while
retaining jurisdiction over her remaining state-law claims.
2
Boyer alleges that Ware was not, but should have been,
provided with a dosimeter badge at all times to monitor his
individual radiation exposure. However, she does not dispute
the 0.075 rem total exposure calculation.
6
II. STANDARD OF REVIEW
We review de novo the District Court’s interpretation
of the Price-Anderson Act and exercise the same review over
whether subject-matter jurisdiction exists. See Fair Hous.
Rights Ctr. in Se. Pennsylvania v. Post Goldtex GP, LLC, 823
F.3d 209, 213 (3d Cir. 2016); Weitzner v. Sanofi Pasteur,
Inc., 819 F.3d 61, 63 (3d Cir. 2016). Our review of the
District Court’s denial of Boyer’s request for voluntary
dismissal is for abuse of discretion. Ferguson v. Eakle, 492
F.2d 26, 28 (3d Cir. 1974).
III. ANALYSIS
A. The Price-Anderson Act Governs Boyer’s
Negligence Claims.
The District Court held the Price-Anderson Act applies
to Boyer’s claims asserting that Ware was harmed by
radiation emitted from cesium-137 irradiators used in his lab.
The Act provides for removal to federal court of any “public
liability action arising out of or resulting from a nuclear
incident.” 42 U.S.C. § 2210(n). As noted, Boyer and UPenn
agree that, if the Act applies, Boyer can only state a claim for
relief if Ware received more than five rem of radiation per
year.3 It is undisputed that Ware’s average annual radiation
3
The NRC regulations the parties cite merely set out rules
binding entities with licenses to hold certain nuclear
materials. See 10 C.F.R. § 20.1201. Neither party offers any
legal source that would limit liability under the Price-
Anderson Act to cases where exposure exceeds § 20.1201’s
limits. But because Boyer accepts this limitation as true and
failed to oppose summary judgment, we have no occasion to
challenge it.
7
exposure was much less than five rem, so any claim to which
the Act applies is not viable.
But that is not the worst of Boyer’s situation: if the
Price-Anderson Act applies, even her claims that don’t stem
from Ware’s radiation exposure are lost as well. Boyer failed
to oppose summary judgment on any of her claims (even
those, like medical malpractice, that the parties agree are not
governed by the Act). Thus, on appeal Boyer attempts to save
her claims by contending that the District Court either lacked
jurisdiction over her claims or abused its discretion by
exercising it.
For these reasons, Boyer contends the Price-Anderson
Act, which grew out of the federal Government’s initial
efforts to regulate nuclear weapons and power plants in the
1940s and ’50s, does not apply to laboratory research. Her
interpretation of the Act conflicts with its text, and she
identifies no principle that would both rule out its application
to Ware’s research and be true to the Act’s purpose and
structure.
1. The Price-Anderson Act
a. History
“With the object of encouraging the private sector to
become involved in the development of atomic energy for
peaceful purposes, Congress passed the Atomic Energy Act
of 1954[], 68 Stat. 919, a broad scheme of federal regulation
and licensing.” El Paso Nat. Gas Co. v. Neztsosie, 526 U.S.
473, 476 (1999) (internal brackets, quotation marks, and
citation omitted). “[I]n 1957 Congress amended the [Atomic
Energy Act] with the Price-Anderson Act, 71 Stat. 576[,
which] provided certain federal licensees with a system of
private insurance, Government indemnification, and limited
8
liability for claims of ‘public liability,’ now defined generally
as ‘any legal liability arising out of or resulting from a nuclear
incident or precautionary evacuation[.]” Id. (quoting 42
U.S.C. § 2014(w)).
Congress has continued to build on the Price-Anderson
Act’s foundation, expanding its scope and functions. The Act
initially relied on state courts and state law to rule on and
govern liability for nuclear accidents. In re TMI Litig. Cases
Consol. II, 940 F.2d 832, 852 (3d Cir. 1991). However,
amendments in 1966 “provided for the transfer, to a federal
district court, of all claims arising out of an extraordinary
nuclear occurrence”4 and brought about greater uniformity of
liability determinations while retaining state-law causes of
action. Id. The amendments require indemnified entities “to
waive the defenses of negligence, contributory negligence,
charitable or governmental immunity, and assumption of the
4
An “extraordinary nuclear occurrence” is
any event causing a discharge or dispersal of
source, special nuclear, or byproduct material
from its intended place of confinement in
amounts offsite, or causing radiation levels
offsite, which the Nuclear Regulatory
Commission or the Secretary of Energy, as
appropriate, determines to be substantial, and
which the Nuclear Regulatory Commission or
the Secretary of Energy, as appropriate,
determines has resulted or will probably result
in substantial damages to persons offsite or
property offsite . . . .
42 U.S.C. § 2014(j).
9
risk in the event of an action arising as the result of an
extraordinary nuclear occurrence.” Id.“In the wake of the 1979 accident at the Three Mile
Island nuclear power plant, suits proliferated in state and
federal courts, but because the accident was not an
‘extraordinary nuclear occurrence,’ within the meaning of the
Act, see § 2014(j), there was no mechanism for consolidating
the claims in federal court.” El Paso Nat. Gas, 526 U.S. at
477. So Congress acted again in 1988, providing for federal
jurisdiction over any actions “asserting public liability”
arising from a “nuclear incident,” which generally includes
any “occurrence” causing physical harm resulting from the
radioactive properties of nuclear material. See id. The 1988
amendments also took another step toward federalizing the
law applicable to nuclear accidents by providing that “any
suit asserting public liability . . . shall be deemed to be an
action arising under [the Price-Anderson Act]” rather than
state law. 42 U.S.C. § 2014(hh).
These 1988 amendments, which are at the heart of this
case, deliberately increased the scope of the Act’s coverage.
See Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir.
2000) (“‘Nuclear incident’ is not limited to a single,
catastrophic accident: indeed, one purpose behind the 1988
amendments was to expand the scope of federal jurisdiction
beyond actions arising from ‘extraordinary nuclear
occurrences’ only.” (citing Kerr–McGee Corp. v. Farley, 115
F.3d 1498, 1502 (10th Cir. 1997))). They provide federal
jurisdiction in a wider variety of situations than the prior
version of the law. See, e.g., Cook v. Rockwell Int’l Corp.,
618 F.3d 1127, 1133, 1140–42 (10th Cir. 2010) (claims of
property owners at risk of nuclear material blowing onto their
properties from nuclear weapons plant turned wildlife
refuge); Dumontier v. Schlumberger Tech. Corp., 543 F.3d
567, 569 (9th Cir. 2008) (claims of workers exposed to
10
cesium-137 carelessly left on oil drilling rig); Acuna, 200
F.3d at 338 (claims of workers, their family members, and
nearby residents for harm from uranium mine).
Although the history of the Act’s amendments tracks
major events in the development of nuclear power and
weapons, the Act’s concerns are not so narrow. As noted
above, Congress has “encourag[ed] the private sector to
become involved in the development of atomic energy for
peaceful purposes[.]” El Paso Nat. Gas, 526 U.S. at 476.
Among the purposes pointed to by Congress at the outset of
its plan for regulating atomic energy are “providing for . . . a
program of conducting, assisting, and fostering research and
development in order to encourage maximum scientific and
industrial progress[,] . . . for the dissemination of unclassified
scientific and technical information[,] and for the control,
dissemination, and declassification of Restricted Data, subject
to appropriate safeguards, so as to encourage scientific and
industrial progress[.]” 42 U.S.C. § 2013. Highlighting the
Act’s scientific aims, § 2210(k) specifically sets certain
financial requirements that apply to non-profit educational
institutions.
b. Key Provisions
Today the Price-Anderson Act provides for the
removal to federal court of any “public liability action arising
out of or resulting from a nuclear incident.” 42 U.S.C.
§ 2210(n). As the District Court commented, this “would
seem to be a peculiar way to describe a case alleging that a
researcher was injured while working on the campus of the
University of Pennsylvania,” Ware v. Hosp. of the Univ. of
Pennsylvania, No. 2:14-CV-00014, 2016 WL 4702117, at *2
(E.D. Pa. Sept. 8, 2016), but any peculiarity simply derives
from Congress’ slow expansion of the Act’s statutory
definitions to bring a growing set of matters within its scope.
11
In essence, the Act provides federal jurisdiction over
claims asserting legal liability for “any occurrence” causing
physical harm or property damage resulting from the
radioactive properties of nuclear material. 42 U.S.C.
§§ 2014(q), (w), (hh) & 2210(n)(2). However, because its
definitions are complicated, interlocking, and use words in
unintuitive ways, it is worth pausing to consider the Act’s key
provisions.
Section 2210(n)(2) contains the jurisdictional grant:
With respect to any public liability action
arising out of or resulting from a nuclear
incident, the United States district court in the
district where the nuclear incident takes place
. . . shall have original jurisdiction without
regard to the citizenship of any party or the
amount in controversy.
That grant, in turn, depends on the definitions of
“public liability action” and “nuclear incident.” A “public
liability action” is simply “any suit asserting public liability.”
Id. § 2014(hh).5 And “public liability” means (apart from
5
Under the Price-Anderson Act “the substantive rules for
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
[the Act].” 42 U.S.C. § 2014(hh). That is, although (1) the
case proceeds in federal court, (2) the cause of action is itself
federal, and (3) certain state-law defenses may not be raised,
see 42 U.S.C. §§ 2014(hh) & 2210(n)(1), state law
nonetheless will provide the elements of any public liability
action except to the extent that a provision of the Act requires
something different.
12
certain exceptions not relevant here) “any legal liability
arising out of or resulting from a nuclear incident or
precautionary evacuation.” Id. § 2014(w). That brings us to
“nuclear incident”:
The term “nuclear incident” means any
occurrence, including an extraordinary nuclear
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[.]
Id. § 2014(q).
This definition of “nuclear incident” is facially quite
broad, and, because the definitions above all rely on it, the
Price-Anderson Act’s jurisdictional grant is also broad.
2. Boyer’s Price-Anderson Claims
Despite these expansive definitions, Boyer contends
the District Court erred when it held that the Price-Anderson
Act applied to all of her claims alleging that Ware was
harmed by radiation from cesium-137 used in his lab. We
disagree.
The Act’s text maps neatly onto Boyer’s allegations.
There is no dispute that cesium-137 is a “byproduct
material,”6 and, according to Boyer, its radioactive properties
6
See 42 U.S.C. § 2014(e) (defining “byproduct material”);
Dumontier, 543 F.3d at 569 (applying § 2014(q) to injuries
caused by cesium-137).
13
caused Ware’s “bodily injury, sickness, disease, [and
ultimately] death.” 42 U.S.C. § 2014(q). As long as we give
the word “occurrence” its ordinary meaning—“something
that takes place; esp. something that happens unexpectedly
and without design; or the action or process of happening or
taking place,” Carey v. Kerr–McGee Chem. Corp., 60 F.
Supp. 2d 800, 805 (N.D. Ill. 1999) (quoting Webster’s Third
New International Dictionary (1993))—the facts alleged
constitute a “nuclear incident” under § 2014(q).
Boyer claims UPenn bears legal liability arising from
this nuclear incident, so what she alleges is “public liability”
under § 2014(w). Any suit asserting public liability is a
“public liability action . . . arising under section 2210” of the
Price-Anderson Act. Id. § 2014(hh). Accordingly, per
§ 2210(n)(2) the District Court had jurisdiction over Boyer’s
claims, and UPenn had the right to remove them to federal
court.
Boyer nonetheless raises arguments why the Act does
not apply. There may exist some limiting principle that would
effectively cabin the sweeping language Congress used to
describe any nuclear incident subject to the Act, but none is
persuasive here.
As noted, the Price-Anderson Act’s history largely
tracks major events in the development of the nuclear power
and energy industries. Thus Boyer’s first argument is that its
jurisdictional grant applies only to nuclear accidents involving
nuclear power plants or weapons facilities. For support, she
looks to cases, agency fact-sheets, and academic publications
summarizing the Act’s applicability. E.g., In re TMI II, 940
F.2d at 855 (“[T]here can be no action for injuries caused by
the release of radiation from federally licensed nuclear power
plants separate and apart from the federal public liability
action created by the [Price-Anderson] Act [amendments of
14
1988].”); See Acuna, 200 F.3d at 339 (“The Price Anderson
Act sets up an indemnification and limitation of liability
scheme for public liability arising out of the conduct of the
nuclear energy and weapons industries.”); United States
Nuclear Regulatory Commission, Nuclear Insurance and
Disaster Relief, https://www.nrc.gov/reading-rm/doc-
collections/fact-sheets/nuclear-insurance.pdf (December
2014) (“The Price-Anderson Act . . . cover[s] liability claims
of members of the public for personal injury and property
damage caused by a nuclear accident involving a commercial
nuclear power plant.”); Dan M. Berkovitz, Price-Anderson
Act: Model Compensation Legislation?–the Sixty-Three
Million Dollar Question, 13 Harv. Envtl. L. Rev. 1, 1 (1989)
(“The Price-Anderson Act[’s] . . . coverage for NRC licensees
encompasses activities of commercial nuclear power plants,
certain fuel fabrication facilities, and non-[Department of
Energy] reactors used for educational and research
purposes.”).
Boyer contends these descriptions limit the Act’s
application regardless of what is in its text. But the summaries
she cites do not purport to explore its scope. They merely
give the reader a rough sense of the Act’s general purpose. In
re TMI II, for example, addresses “federally licensed nuclear
power plants” because that’s what the case was about. 940
F.2d at 835.7 No one would take a court’s statement that
7
True, one District Court has cited the Fifth Circuit’s Acuna
decision for the proposition that “the [Price-Anderson Act]
only applies to the nuclear energy and weapons industries.”
Samples v. Conoco, Inc., 165 F. Supp. 2d 1303, 1321 (N.D.
Fla. 2001) (emphasis in original) (calling a plain text reading
of the statute “Hogwash!”). But a close reading suggests
Samples’ real concern was the defendants’ attempt to use the
Act’s tail to wag the dog. They sought to apply the Act to the
15
“Title VII of the Civil Rights Act provides a cause of action
to employees fired because of their race” to mean Title VII
provides no cause of action to individuals suffering
discrimination on the basis of sex, religion, or national origin.
What is more, the Price-Anderson Act plainly applies
in at least some contexts to research universities, as it has
provisions that cover specifically institutions like the
University of Pennsylvania. Section 2210(k) provides that
“nonprofit educational institution[s]” conducting “educational
activities” pursuant “to any license issued” under the federal
atomic energy scheme shall be indemnified by the NRC for
“public liability in excess of $250,000 arising from nuclear
incidents.” 42 U.S.C. § 2210(k)(1). “[C]ontracts of
indemnification [entered into by the institution and the
plaintiffs’ action because uranium was listed among “the
[many] hazardous substances found in the sludge ponds” at a
chemical waste site. Id. at 1320 n.16. The Court evidently
found this connection farfetched and gave the Price-Anderson
argument short shrift.
Moreover, Samples later suggests that a defendant’s
possession of a license to handle nuclear materials would
trigger the Act’s reach. Id. at 1321 (“The Defendants have
failed to provide the Court with proof demonstrating they are
a [Department of Energy] contractor or an NRC licensee.
Therefore, Plaintiffs’ lawsuit does not state a cause of action
under the [Price-Anderson Act.]”). As we discuss below,
UPenn had such a license. Thus, depending on how one reads
Samples—i.e., (1) the Act applies only to the nuclear power
and weapons industries or (2) the Act applies only to the
holders of licenses to possess nuclear materials—even that
Court could have held UPenn to be covered by the Act.
16
Commission] shall cover public liability arising out of or in
connection with the licensed activity[.]” 42 U.S.C.
§ 2210(k)(2). This section also exempts these licensed
institutions from certain “financial protection” requirements
under the Act. Id. It would make no sense for the Act to
contain these provisions if it did not apply outside the
weapons and energy industries. That is, Congress’ choice to
include a provision indemnifying licensed nonprofit
educational institutions from public liability suggests strongly
(perhaps overwhelmingly) that the Act applies to them.8
Boyer next argues, following the reasoning of a
District Court in our Circuit, that even if the Price-Anderson
Act applies to a broad set of industries, it only covers
defendants that have indemnity agreements with the NRC.
See Gilberg v. Stepan Co., 24 F. Supp. 2d 325, 339 (D.N.J.
1998), supplemented, 24 F. Supp. 2d 355 (D.N.J. 1998).
8
In the alternative, Boyer claims that, even if the Price-
Anderson Act applies to university research labs, it applies
only to labs that operate nuclear reactors. She cites no portion
of the Act in favor of this position. The most she does is point
to regulations dealing with indemnity agreements required for
institutions that do use reactors. See 10 C.F.R. § 140.72. But
the existence of regulations specifying requirements for
institutions with reactors does not imply that those without
them are somehow exempt from the Act entirely. She goes on
to cite the NRC’s list of institutions with nuclear reactors in
Pennsylvania and notes the University’s absence. See United
States Nuclear Regulatory Commission,
https://www.nrc.gov/info-finder/region-
state/pennsylvania.html. Its presence on the reactor list is
relevant only if having a reactor is a prerequisite to the Act’s
coverage, and we see no reason to hold that it is.
17
Noting § 2014(q)’s broad definition of “nuclear incident,” the
Gilberg Court looked for a limit to its reach in the nearby
definition of “extraordinary nuclear occurrence.” Id. (Recall
that extraordinary nuclear occurrences were the only events
that triggered federal jurisdiction before the 1988 Price-
Anderson Act amendments.) Following a long and
complicated analysis of the Act’s history and structure,
Gilberg concluded that a nuclear incident may only occur
(and the Act applies) when harm happens at a site covered by
an indemnification agreement with the NRC. Id. The
University of Pennsylvania has no such agreement, Audio
Recording of Oral Argument held June 28, 2017 at 31:23 to
31:40 (http://www2.ca3.uscourts.gov/oralargument/audio/16-
3801EstateofJeffreyHWarevHospitaloftheUnivesityofPennsyl
vaniaetal.mp3); so, the argument goes, its negligence toward
Ware did not cause a nuclear incident.
We are unpersuaded that an indemnification agreement
is necessary to trigger the Act’s applicability. What Gilberg
misses is that “one purpose behind the 1988 amendments was
to expand the scope of federal jurisdiction beyond actions
arising from ‘extraordinary nuclear occurrences[.]’” Acuna,
200 F.3d at 339 (citing Kerr–McGee, 115 F.3d at 1502).
Indeed, that is why the definition of “nuclear incident” is so
broad. Id. Thus we agree with the Fifth Circuit’s conclusion
that Gilberg’s “attempts to reintroduce the limitations of
‘extraordinary nuclear occurrence’ into the 1988
amendments’ substitution of ‘nuclear incident’ rely on faulty
statutory interpretation and are contrary to Congressional
intent.” Id. (citing Carey, 60 F. Supp. 2d at 803–07).
The remaining arguments suffer from the same flaw.
Even if we were to accept the limiting principles Boyer
proposes, her claims would still be governed by the Act. For
this reason, we have no need to pass on whether the Act is
18
limited in the remaining ways Boyer suggests. We note only
that, even so, the outcome here would be no different.
Boyer argues that the Act applies only when a
defendant has a license to possess nuclear materials. Indeed,
§ 2210(k)’s reference to “any license issued” under the
federal scheme for atomic energy could be read to suggest
that universities are covered by Price-Anderson only when
they hold a license to use the materials involved in any
nuclear incident. One District Court has held that, regardless
of the type of institution in question, the Act applies
exclusively to entities holding licenses. Irwin v. CSX Transp.,
Inc., No. 3:10-CV-300, 2011 WL 976376, at *2 (E.D. Tenn.
Mar. 16, 2011). And the unpersuasive Samples opinion
mentioned above in footnote 7 gives a nod to that view as
well, 165 F. Supp. 2d at 1321 (“the word occurrence as used
in the definition of nuclear incident means that event at the
site of the licensed activity, or activity for which the
Commission has entered into a contract, which may cause
damage” (internal quotation marks and citations omitted)
(emphasis in original)). For this reason too, Boyer asserts,
UPenn is not covered by the Act.
But the University of Pennsylvania has such a license.
Its license to engage in research using cesium-137 irradiators
was issued by the Pennsylvania Department of Environmental
Protection Bureau of Radiation Protection, which exercises
delegated authority from the NRC per § 274 of the Atomic
Energy Act of 1954, 42 U.S.C. § 2021. Boyer says that’s not
good enough; the license must be issued by the NRC directly.
Her argument, however, is hard to follow.
The Price-Anderson Act is part of the Atomic Energy
Act. The latter gives the NRC authority to enter into
agreements with states allowing them to issue licenses in the
NRC’s stead. See 42 U.S.C. § 2021. In her Reply, Boyer
19
seems to argue that, because UPenn has a state-issued license,
only state nuclear regulations apply to its and its affiliates’
conduct, and thus the Price-Anderson Act does not apply to
her suit. But Boyer never says why this would be true.
Indeed, our sister Circuit has held that “[t]here is nothing in
the definition of ‘nuclear incident’ which suggests [the Act’s
application] should be contingent on whether the occurrence
took place in a state which regulates its own [nuclear
material] industry under NRC guidelines” or leaves that
regulation to the NRC directly. Acuna, 200 F.3d at 339. We
thus reject the argument that UPenn’s state-issued license is
meaningfully different in this context from a license issued
directly by the NRC. As a result, even if Boyer is correct that
possession of a license is the lynchpin for Price-Anderson’s
applicability, UPenn’s license would satisfy that requirement
here.9
Next up is Boyer’s claim that the Act applies only to
unintentional releases of nuclear energy. For support, she
looks to one District Court that declined to apply the Act to
claims of cancer patients intentionally subjected to radiation
because “all of the cases applying the Price–Anderson Act
have extended potential liability only to the unintended
escape or release of nuclear energy.” In re Cincinnati
Radiation Litig., 874 F. Supp. 796, 832 (S.D. Ohio 1995)
(emphasis added). Boyer contends her claims similarly do not
implicate an unintentional release of nuclear energy. But
that’s not true. Her complaint alleges that Ware was harmed
by UPenn’s neglect of its duty to protect him adequately from
9
We do not hold that possession of a license determines the
Act’s applicability. Rather, we note only that, if having a
license matters in this context, it makes no difference whether
the license was issued by the NRC directly or by a state
acting under delegated authority.
20
radiation—that is, negligence, not deliberate exposure. So
even if this exception to the Act exists, it wouldn’t apply to
this case.
Finally, the Cincinnati Radiation Court also noted that,
during the legislative process leading to the 1988
amendments, Congress considered explicitly expanding the
Act’s reach to cover “persons operating nuclear pharmacies
or hospital medicine department[s,]” but declined to enact the
expansion. Id. at 832 n.33 (citing S. Rep. No. 100–218, at 18
(1988), reprinted as 1988 U.S.C.C.A.N. 1476, 1493). So,
Boyer argues, we should hold Congress’ failure to adopt this
language implies a limit on the Act’s application to harm
from radiation used for medical care.
But even if we were to read so much into Congress’
inaction, it wouldn’t help Boyer. The cesium-137 irradiators
that allegedly harmed Ware were not used for patient care or
any medical purpose nor were they kept in a nuclear
pharmacy. They were used for research only and kept in a lab.
The language Congress declined to enact simply has nothing
to do with the facts of this case.
None of this is to say that the Act applies to all harm
occurring from nuclear material in any situation whatsoever.
Counsel for UPenn conceded at oral argument that any
nuclear incident must, at the very least, involve “source,
special nuclear, or byproduct material[.]” See 42 U.S.C.
§ 2014(q). According to counsel, that limitation would
exempt harm arising from, among other things, x-rays, CAT
scans, and naturally occurring uranium and radium. Audio
Recording of Oral Argument held June 28, 2017 at 32:30 to
33:18 (http://www2.ca3.uscourts.gov/oralargument/audio/16-
3801EstateofJeffreyHWarevHospitaloftheUnivesityofPennsyl
vaniaetal.mp3). Moreover, as mentioned, we do not decide
whether the possession of a license, the intent of any nuclear
21
energy release, or the medical use of nuclear material, might
affect the Act’s applicability to a particular case. We note
only that these implicit limitations on the Price-Anderson
Act’s scope would not preclude its application here.
* * * * *
In sum, Boyer’s claims alleging that Ware’s cancer
developed because UPenn negligently exposed him to
cesium-137 are covered by the Price-Anderson Act. The
claims allege a “nuclear incident” in that they describe an
“occurrence . . . causing . . . bodily injury, sickness, disease,
or death . . . arising out of or resulting from the radioactive
. . . properties of . . . byproduct material[.]” 42 U.S.C.
§ 2014(q). Boyer contends UPenn is liable for the harm
arising from this nuclear incident, so her action is a “public
liability action” subject to federal court jurisdiction. Id.§§ 2014(w), (hh) & 2210(n)(2). We know no compelling
limiting principle that would bar this straightforward
application of the Act’s text to her case, so we affirm the
District Court’s exercise of jurisdiction.
B. The District Court Did Not Err When It
Declined to Permit Voluntary Dismissal of
the Price-Anderson Claims and Retained
Jurisdiction over Boyer’s Remaining Claims.
When Boyer failed to convince the District Court that
the Price-Anderson Act did not apply to her negligence
claims (and later discovered that she would be unable to make
the showing necessary to prevail on them), she asked to
withdraw them and remand the remaining claims to state
court. This tactic failed when the Court ruled that Boyer could
not withdraw her claims so late in the game and thus retained
jurisdiction over the entire case. It went on to grant summary
22
judgment to the UPenn defendants on all of Boyer’s claims
because she failed to oppose any of their motions.
Boyer argues the District Court abused its discretion
by denying her request to withdraw her Price-Anderson
negligence claims and by refusing to remand the remainder of
her claims. For the reasons that follow, we disagree.
1. Motion to Withdraw
Federal Rule of Civil Procedure 41 provides that a
“plaintiff may dismiss an action without a court order by
filing . . . a notice of dismissal before the opposing party
serves either an answer or a motion for summary
judgment[.]” Fed. R. Civ. P. 41(a) (emphasis added). Boyer
waited to withdraw her Price-Anderson claims until after
UPenn had filed its answer. At that point, any dismissal could
occur “only by court order[] on terms that the court considers
proper.” Id.; accord Ferguson v. Eakle, 492 F.2d 26, 28 (3d
Cir. 1974) (once an answer has been filed, whether to permit
dismissal is left to the discretion of the District Court).
Of course, the District Court’s discretion is not without
limit. It must consider “the presence or extent of any
prejudice to the defendant by the draconian measure of
dismissing [a] plaintiff’s complaint.” Ferguson, 492 F.2d at
29. We have noted that “Rule 41 motions ‘should be allowed
unless defendant will suffer some prejudice other than the
mere prospect of a second lawsuit.’” In re Paoli R.R. Yard
PCB Litig., 916 F.2d 829, 863 (3d Cir. 1990) (citing 5 J.
Moore, Moore’s Federal Practice ¶ 41.05[1], at 41–62
(1988)). The record reflects that UPenn would indeed have
suffered prejudice had the Price-Anderson negligence claims
been withdrawn.
23
The Magistrate Judge held that the Act applied to at
least some of Boyer’s claims in May 2014, and the District
Court adopted the Magistrate Judge’s Recommendation in
full in December 2014. By the time Boyer filed her
withdrawal motion a year later in December 2015, UPenn had
produced five expert reports and thousands of pages of
documents and had filed one of its four motions for summary
judgment (the other three would follow the next month).
These facts are of a piece with Ferguson, 492 F.2d at
29, which held that a District Court abused its discretion by
granting withdrawal “[f]ourteen months after [the objecting
parties] became defendants in one case and had gone to the
expense of retaining counsel, six months after they had gone
through pre-trial, and at least two months after they had
expected that all discovery had been completed[.]” Were
Boyer permitted to withdraw her claims without prejudice,
UPenn would have faced the prospect of potentially
relitigating, at some later date, claims it had put significant
time and resources into defending and already litigated to the
summary-judgment stage. Thus we have no doubt the District
Court acted within its discretion when it denied Boyer’s
motion.
2. Retention of Jurisdiction over Boyer’s
Remaining Claims
Boyer contends the District Court abused its discretion
by retaining jurisdiction over her remaining claims of fraud,
negligent infliction of emotional distress, medical
malpractice, and corporate negligence. We again disagree.
Per 28 U.S.C. § 1367, the District Court had authority
to exercise supplemental jurisdiction over any state-law
claims. Even had it permitted withdrawal of claims governed
by the Price-Anderson Act, the Court would not have lost
24
jurisdiction to hear any state-law claims “that are so related to
[the federal] claims . . . that they form[ed] part of the same
case or controversy.” Id.; cf. Arbaugh v. Y & H Corp., 546
U.S. 500, 513–14, (2006) (“[W]hen a court grants a motion to
dismiss for failure to state a federal claim, the court generally
retains discretion to exercise supplemental jurisdiction,
pursuant to § 1367, over pendent state-law claims.”). And
Boyer offers no argument that her state-law claims were not
part of the same case or controversy as those governed by the
Price-Anderson Act. We have explained that the decision to
retain supplemental jurisdiction “should be based on
considerations of judicial economy, convenience and fairness
to the litigants.” Kach v. Hose, 589 F.3d 626, 650 (3d Cir.
2009) (internal quotation marks omitted). As discussed above,
the parties had already engaged in significant litigation before
the District Court, so values of economy, convenience, and
fairness all supported its retention of jurisdiction. We see no
reason to second-guess it now.10
IV. CONCLUSION
The facts of Boyer’s action are tragic: her husband, a
47-year-old researcher whose life’s work was studying the
effects of radiation on biological organisms, died from a rare
form of brain cancer. But as often happens in the law, this
case provides us little opportunity to contemplate Ware’s
10
The District Court held that its retention of jurisdiction was
all the more appropriate because Boyer’s claims of fraud and
negligent infliction of emotional distress were in fact federal
claims governed by the Price-Anderson Act. Because we hold
that the District Court properly exercised supplemental
jurisdiction over Boyer’s “state-law” claims per § 1367, we
do not reach this alternative jurisdictional ground.
25
suffering from his illness or his family’s suffering from his
loss. Instead, our review is confined to bloodless questions of
statutory interpretation and appropriate management of
litigation. On these issues we find no fault with the District
Court’s holdings. The Price-Anderson Act governed Boyer’s
negligence claims, and the Court did not abuse its discretion
in denying her request to withdraw those claims and to
remand her others. We thus affirm its judgment.
26