Golden v. Ch2m Hill Hanford Group, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL R. GOLDEN; CINDY L. 
GOLDEN, wife, No. 05-35832
Plaintiffs-Appellants,
v.  D.C. No.
CV-04-05076-LRS
CH2M HILL HANFORD GROUP, INC., OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted April 12, 2007
Submission Vacated December 24, 2007
Resubmitted June 2, 2008
Seattle, Washington
Filed June 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.
6627
6630 GOLDEN v. CH2M HILL HANFORD GROUP, INC.
COUNSEL
William Rutzick, Schroeter, Goldmark & Bender, Seattle,
Washington, for the plaintiffs-appellants.
Thomas J. Heiden and Mary Rose Alexander, Latham & Wat-
kins LLP, Chicago, Illinois; Mark A. Miller, Latham & Wat-
kins LLP, Washington, DC; Stanley J. Bensussen, CH2M Hill
Hanford Group, Inc., Richland, Washington, for the
defendant-appellee.
OPINION
KOZINSKI, Chief Judge:
We interpret the Price-Anderson Act.
Facts
Daniel Golden worked at a facility on the Hanford Nuclear
Reservation, operated by the CH2M Hill Hanford Group, Inc.
(CH2M). CH2M stored liquid waste in large storage tanks;
the liquid contained radioactive materials and nonradioactive
heavy metals. On May 20, 2002, Golden was working on one
of these tanks when up to four gallons of this toxic liquid
splashed on him.
Golden sued CH2M in state court under Washington law,
claiming that the accident caused him physical injuries rang-
ing from colitis to sinusitis, as well as emotional distress. Gol-
den’s wife sued for loss of consortium. CH2M removed. The
GOLDEN v. CH2M HILL HANFORD GROUP, INC. 6631
district court had jurisdiction under the Price-Anderson Act,
which preempts all state-law claims for injury resulting from
nuclear incidents. See Phillips v. E.I. DuPont De Nemours &
Co. (In re Hanford Nuclear Reservation Litig.), 521 F.3d
1028, 1054 (9th Cir. 2008). The district court granted sum-
mary judgment to CH2M, and the Goldens appeal.
Analysis
[1] 1. To survive summary judgment on a toxic tort claim
for physical injuries, Golden had to show that he was exposed
to chemicals that could have caused the physical injuries he
complains about (general causation), and that his exposure did
in fact result in those injuries (specific causation). Jaros v.
E.I. DuPont (In re Hanford Nuclear Reservation Litig.), 292
F.3d 1124, 1133 (9th Cir. 2002). To show specific causation,
Golden offered the testimony of his physician, Dr. Wilkinson.
At Dr. Wilkinson’s first deposition, he was asked if he could
state with a reasonable degree of medical certainty that Gol-
den’s symptoms resulted from his 2002 exposure. Dr. Wilkin-
son responded, “I can’t prove it. Any time you have people
with chronic illness, there’s little that you can prove. But we
have to work on assumptions . . . . I deal with things from the
standpoint of what I can do to get my patient well.” An
assumption made for purposes of treatment doesn’t establish
causation. In prescribing treatment, physicians err on the side
of caution and consider potential causes—even if they are
remote—because a failure to treat may risk permanent injury
or death. That Golden’s physician considered a potential
cause in prescribing treatment doesn’t mean that Golden’s
exposure in fact caused his injuries.
[2] Several months later, Dr. Wilkinson offered another
opinion: “Mr. Golden has had adverse health effects caused
by or exacerbated by those exposures.” But Dr. Wilkinson’s
reference to “those exposures” was not limited to the May 20,
2002, accident. Instead, he explained that Golden “worked for
years without protective equipment, including respiratory pro-
6632 GOLDEN v. CH2M HILL HANFORD GROUP, INC.
tection, in an area in which people are now required to wear
respiratory protection . . . . [I]t is likely that he was chroni-
cally exposed to toxic materials as a result of that work.” Gol-
den does not claim that CH2M is liable for chronically
exposing him to toxins. He claims only that CH2M is liable
for the toxic exposure from the May 20, 2002, accident.
[3] As Golden’s expert was unable to support his claim that
this accident caused his physical injuries, Golden is unable to
prove specific causation. Because Golden must show both
specific and general causation, we need not consider whether
Golden presented sufficient evidence of general causation.
We affirm the district court’s grant of summary judgment to
CH2M on Golden’s claim for physical injuries.
[4] 2. Golden’s remaining claim is for emotional distress.
“The [Price-Anderson Act] is the exclusive means of compen-
sating victims for any and all claims arising out of nuclear
incidents.” Phillips, 521 F.3d at 1054 (citing 42 U.S.C.
§ 2014(hh), (w)). But claims for exposure to radioactive mate-
rials are only “compensable” under the Price-Anderson Act if
such exposure caused “physical injury.” Id.; see Berg v. E.I.
DuPont De Nemours & Co. (In re Berg Litig.), 293 F.3d
1127, 1131 (9th Cir. 2002). Here, Golden can’t show that the
exposure caused his physical injuries, see pp.6631-32 supra,
and without physical injury, he can’t recover for psychic harm
arising from exposure to radioactive materials. So summary
judgment was proper as to his emotional distress claim for
exposure to radioactive materials. See Phillips, 521 F.3d at
1054; Berg, 293 F.3d at 1131.
[5] But the May 20, 2002, accident wasn’t just a “nuclear
incident;” the liquid that splashed onto Golden also contained
nonradioactive heavy metals, such as dimethylmercury. Inso-
far as Golden suffered separately identifiable harm from a
cause not related to the harmful properties of the radioactive
materials, his claim for such damages would not be preempted
by the Price-Anderson Act. See Phillips, 521 F.3d at 1053-54
GOLDEN v. CH2M HILL HANFORD GROUP, INC. 6633
(citing 42 U.S.C. § 2014(q)). For example, if the liquid in
question contained a heavy concentration of acid, and the acid
burned plaintiff’s skin, his state-law claim for damages aris-
ing out of the acid burn would not be preempted.
[6] In this case, Golden has not demonstrated that he suf-
fered any physical injuries that can be traced to the accident.
Nevertheless, it is possible that Golden suffered emotional
distress from exposure to the nonradioactive materials that is
separate and distinct from his emotional distress claim for
exposure to the radioactive materials. If so, the former would
not be preempted by the Price-Anderson Act, even though
Golden can’t show that he suffered physical injuries as a
result of this exposure. See Osarczuk v. Associated Univs.,
Inc., 830 N.Y.S.2d 711, 715 (N.Y. App. 2007) (“[T]o the
extent that [plaintiffs’ claims] are premised on exposure to
non-nuclear chemicals and substances that are nonetheless
toxic and hazardous, the defendant is not entitled to summary
judgment . . . .”); cf. Good v. Fluor Daniel Corp., 222 F.
Supp. 2d 1236, 1249 (E.D. Wash. 2002) (bodily injury from
“non-radioactive, or toxic chemicals” does not fall under the
Price-Anderson Act).
[7] It is possible that claims of emotional distress for expo-
sure to radioactive materials are simply not separable from
other harms. Here, for instance, Golden may have suffered
fear and depression as a consequence of having had gallons
of harmful sludge spilled on him, rather than having sepa-
rately identifiable fears from heavy metal and radiation expo-
sure. If Golden can only show emotional distress arising out
of a general fear for his future health that is intertwined with
his exposure to radioactive materials, the Price-Anderson Act
will apply and his emotional distress claim for exposure to
nonradioactive materials will be preempted. See Phillips, 521
F.3d at 1054; Berg, 293 F.3d at 1131. But Golden may be able
to make out a case that he suffers separate and distinct fears
arising from his exposure to nonradioactive heavy metals. If
so, that claim is not preempted, and Golden may be able to
6634 GOLDEN v. CH2M HILL HANFORD GROUP, INC.
prove his claim under state law. Likewise, Mrs. Golden may
be able to prove her loss of consortium claim under state law,
if she can show loss of consortium resulting from Golden’s
emotional distress that was caused by his exposure to nonra-
dioactive materials. We therefore vacate the district court’s
order dismissing Golden’s emotional distress claim resulting
from exposure to nonradioactive materials and Mrs. Golden’s
loss of consortium claim, and remand for the district court to
determine whether it wishes to exercise its supplemental juris-
diction over any such claim, now that the federal claims have
been dismissed. See 28 U.S.C. § 1367(c)(3).
AFFIRMED in part, VACATED in part and
REMANDED. No costs.