Dumontier v. Schlumberger Technology ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RON J. DUMONTIER; JOHN FUGLE; 
ANDREW HARVIE; DAVID D.
HARVIE; DARREN HUGHSON; JOHN
HARPER; TORY KJELSTRUP; TODD
LOBREAU; ELBERT LOOMIS; ALLAN
No. 05-36005
LUNGAL; WILLIAM L. ROBBINS;
WILLIAM J. SCOFIELD; RON L.
SMATHERS; GERALD LAMB,
 D.C. No.
CV-04-00016-RFC
Plaintiffs-Appellants, OPINION
v.
SCHLUMBERGER TECHNOLOGY
CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted April 12, 2007
Submission Vacated December 24, 2007
Resubmitted June 2, 2008
Seattle, Washington
Filed September 11, 2008
Before: Alex Kozinski, Chief Judge, Raymond C. Fisher,
Circuit Judge, and Andrew J. Guilford,* District Judge.
Opinion by Chief Judge Kozinski
*The Honorable Andrew J. Guilford, United States District Judge for
the Central District of California, sitting by designation.
12691
DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP. 12693
COUNSEL
Alexander Blewett, III, Christopher D. Meyer, Hoyt & Ble-
wett PLLC, Great Falls, Montana, for the plaintiffs-
appellants.
12694 DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP.
Donald E. Jose, Esq., Michael Garza, Esq., Jose & Wiedis,
West Chester, Pennsylvania; Robert E. Sheridan, Esq., Gar-
lington, Lohn and Robinson, PLLP, Missoula, Montana, for
the defendant-appellee.
OPINION
KOZINSKI, Chief Judge:
We consider whether subcellular damage amounts to bodily
injury under the Price-Anderson Act.
Facts
Schlumberger Technology Corporation’s employees care-
lessly left some cesium-137 on a drilling rig. Plaintiffs later
worked on the rig and were exposed. Though less well known
than uranium or plutonium, cesium isn’t a substance to be
toyed with. Unprotected exposure can cause burns, radiation
sickness and cancer; if ingested, it causes mania. Randal C.
Nelson, Songs of Cesium (1996), http://www.cs.rochester.edu/
u/nelson/cesium/cesium_songs.html.
Plaintiffs have not developed cancer or any other illness.
Nevertheless they sued Schlumberger, claiming that the radia-
tion caused subcellular damage, including to their DNA. They
brought a claim under Montana law seeking damages for
emotional distress, medical monitoring and actual malice.
Schlumberger argued that this claim was preempted and
moved to replace it with a federal cause of action under the
Price-Anderson Act, 42 U.S.C. § 2014(hh); it also moved for
summary judgment on the Price-Anderson claim. The district
court granted both motions and plaintiffs appeal.
Analysis
[1] A nuclear incident is defined in the Act as “any occur-
rence . . . causing . . . bodily injury, sickness, disease, or
DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP. 12695
death, or loss of or damage to property, or loss of use of prop-
erty, 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). Expo-
sure to radioactive materials is compensable only if it causes
one of the harms on this list. Phillips v. E.I. DuPont De
Nemours & Co. (In re Hanford Nuclear Reservation Litig.),
No. 05-35648+, 2008 WL 2892318 at *16 (9th Cir. July 29,
2008); see also Berg v. E.I. DuPont De Nemours & Co. (In
re Berg Litig.), 293 F.3d 1127, 1131 (9th Cir. 2002); Brannon
v. Babcock & Wilcox Co., Inc. (In re TMI Litig.), 940 F.2d
832, 854 (3d Cir. 1991).
[2] 1. Plaintiffs claim that they suffered a listed harm,
namely bodily injury, if we interpret bodily injury under Mon-
tana law. According to plaintiffs, we must do so pursuant to
42 U.S.C. § 2014(hh), which provides that “the substantive
rules for decision in [an action under the Act] shall be derived
from the law of the State in which the nuclear incident
involved occurs.” In Rainer v. Union Carbide Corp., 402 F.3d
608, 618 (6th Cir. 2005), the Sixth Circuit held that “[t]he key
question [under this section] . . . is whether [state] caselaw
equates ‘sub-cellular damage’ with ‘bodily injury.’ ”
[3] Unlike the Sixth Circuit, we have never relied on state
law to interpret bodily injury. See Berg, 293 F.3d at 1133(“We of course are interpreting a federal statute.”). Nor would
doing so be faithful to the statutory scheme. The Act doesn’t
call for us to apply state law in its interpretation; only for “the
substantive rules for decision”—i.e., the available causes of
action. See In re TMI Litig., 940 F.2d at 855-56.
[4] The Act imposes two independent limits on claims
based on exposure to radioactive materials. First, as noted
above, plaintiffs can bring such claims only if the state where
the exposure occurred provides a cause of action. That’s what
the Act means when referring to state “substantive rules for
decision.” 42 U.S.C. § 2014(hh). For example, if a state
12696 DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP.
doesn’t provide a cause of action for emotional distress, a
plaintiff wouldn’t have a cause of action for emotional dis-
tress under the Act. Or, if state law provides a cause of action
for negligence but not for strict liability, the Act would pro-
vide a cause of action only for negligence.
[5] In addition, the Act prohibits recovery when plaintiffs
haven’t suffered “bodily injury, sickness, disease, or death”—
even when the state cause of action doesn’t have that limita-
tion. Phillips, 2008 WL 2892318 at *16; see Berg, 293 F.3d
at 1131 (rejecting emotional distress claim without physical
injury, despite Washington state law allowing it) (citing 42
U.S.C. § 2014(q)). The Act isn’t an invitation to survey state
jurisprudence on the meaning of bodily injury, sickness or
disease. Quite the opposite: It’s a bar to claims that would
otherwise be actionable under state law, a bar imposed by fed-
eral law and therefore interpreted as a matter of federal law.
[6] Were we to consult state law to define bodily injury,
section 2014(hh)’s preemption clause—which bars causes of
action that are “inconsistent with the provisions of” the Act—
would lose much of its force. A state could simply expand the
meaning of bodily injury, sickness or disease to include emo-
tional distress. The Act was designed to safeguard the nuclear
industry from expansive liability under state law, see Berg,
293 F.3d at 1133; plaintiffs’ interpretation would permit an
end run.
[7] 2. We next consider whether the term “bodily injury”
in the Act includes subcellular damage. Plaintiffs argue that
the slightest exposure to radiation damages cells by denatur-
ing proteins and modifying DNA. This, they argue, qualifies
as bodily injury under the Act. But not every alteration of the
body is an injury. Thinking causes synapses to fire and the
brain to experience tiny electric shocks; fear stimulates the
production of chemicals associated with the fight-or-flight
response. All life is change, but all change is not injurious.
Adopting plaintiffs’ interpretation of bodily injury would ren-
DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP. 12697
der the term surplusage, as every exposure to radiation would
perforce cause injury. Cf. Berg, 293 F.3d at 1133 (noting that
the Act is intended to limit liability for nuclear incidents).
[8] Plaintiffs argue that exposure to radiation surely causes
bodily injury if it exceeds the federal dose limit for members
of the public. But “[t]he various limits in present NRC regula-
tions . . . have been set at a level which is conservatively
arrived at by incorporating a significant safety factor. Thus, a
discharge or dispersal which exceeds the limits in NRC regu-
lations . . . although possible cause for concern, is not one
which would be expected to cause substantial injury or dam-
age unless it exceeds by some significant multiple the appro-
priate regulatory limit.” 10 C.F.R. § 140.81(b)(1). X-ray
technicians, for example, are routinely exposed to more radia-
tion than the public dose limit allows. Compare 10 C.F.R.
§ 20.1201(a)(1)(i) (limiting occupational exposure to 5 rem
per year) with 10 C.F.R. § 20.1301(a)(1) (limiting exposure
for members of the public to 0.1 rem per year). This reading
would make exceeding the federal dose limit a strict liability
offense, with damages determined by the extent of emotional
distress. The Act would cease to be a liability limit and
become an unlocked cash register.
[9] Plaintiffs presented evidence that radiation always
“damage[s] the DNA or other important cellular compo-
nents.” But this damage does not establish that there is or will
be pain or interference with bodily functions, and thus isn’t an
injury within the meaning of the Act. Plaintiffs’ expert also
explained that these subcellular alterations increase the risk of
cancer. The Act, however, permits recovery for disease—not
simply a risk of disease. We have previously held that such
a risk isn’t compensable. Berg, 293 F.3d at 1131.
[10] 3. Plaintiffs argue that if the harm they suffered isn’t
on the section 2014(q) list, the Act simply doesn’t apply, and
their state claims aren’t preempted. But we held in Phillips,
2008 WL 2892318 at *16, that any suit seeking compensation
12698 DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP.
for a nuclear incident is preempted by the Act. See also Gol-
den v. CH2M Hill Hanford Group, Inc., 528 F.3d 681, 683
(9th Cir. 2008). Plaintiffs claim compensation for exposure to
radioactive material, so they can only recover if they meet the
requirements of the Act.
AFFIRMED.