Defining the Boundaries of "Personal Injury": Rainer V. Union Carbide Corp
Sen, Maya, Stanford Law Review
INTRODUCTION I. RAINER'S FACTUAL BACKGROUND II. RELEVANT PRECEDENT: DEFINING SUBCELLULAR INJURY III. THE RAINER OPINION: REJECTING ASYMPTOMATIC DNA INJURY AS AN ADEQUATE CAUSE OF ACTION IV. THE POST-RAINER WORLD: EVALUATING THE EFFECTS OF THE SIXTH CIRCUIT'S OPINION CONCLUSION
For over fifty years, workers at the Paducah Gaseous Diffusion Plant (PGDP) in western Kentucky were exposed to dangerous amounts of toxic radiation--largely without their knowledge. Since the news of the exposure exploded onto the national press in the late 1990s, (1) over six thousand compensation claims have been filed with the Department of Labor, and more than $175 million has been paid out. (2) Other workers--joined by the Department of Justice--have opted to file separate lawsuits, claiming that the PGDP's operators fraudulently withheld information from them. (3) Individuals with property adjacent to the PGDP have also filed suit. (4) The legal fallout from the PGDP contamination is destined to keep federal courts busy for years to come.
This Comment focuses on just one group of PGDP workers and their families. This group consists of about thirty individuals who, over the course of the last quarter century, were exposed in various degrees to the dangerous toxins present at the PGDP. But, unlike the other workers filing compensation claims and lawsuits, these individuals have experienced no physical symptoms associated with their exposure. To the contrary, they are all healthy men and women. They are not sick, nor do they claim to be sick. This group of PGDP affiliates instead sued the plant's operators under a completely novel theory-that they have suffered asymptomatic damage to their DNA. Their claim was rejected by the Sixth Circuit Court of Appeals in Rainer v. Union Carbide Corp. (5) a case of first impression for the federal appellate courts.
This Comment addresses this case. Part I briefly discusses Rainer's factual and legal background. Part II analyzes the relevant precedent in the field. Part III summarizes Rainer's legal arguments and public policy considerations, and Part IV discusses Rainer's impact and highlights some of the problems left unanswered by the Sixth Circuit's opinion.
I. RAINER'S FACTUAL BACKGROUND
Uranium is a uniquely potent element. In its ordinary form, the element is extremely heavy. But through the "enriching" process, uranium becomes more commercially and militarily useful. The PGDP has, since its construction in the 1950s, enriched more than 100,000 metric tons of uranium. (6) In addition to its enrichment activities, the PGDP produced various unwanted and toxic waste products, including two particularly dangerous radioactive elements: neptunium-237 and plutonium-239. (7) Both are extremely long lived and are absorbed readily by the body. (8) Substantial medical evidence exists linking these two elements with aggressive forms of cancer. (9)
Of the four plaintiffs' classes in the Rainer case, three were comprised of current or former PGDP workers. (10) These individuals were exposed in various capacities to neptunium-237 and plutonium-239 while working at the plant. (11) The other plaintiff class was composed of family members who, although not directly exposed to these elements, claimed that they had been injured as a result of secondary exposure. (12) But, although neptunium-237 and plutonium-239 are known carcinogens, none of the Rainer plaintiffs was, as the district court noted, "sick." (13) They suffered from nothing that would be characterized as a physical manifestation of disease. Nor was it their intent to claim that they were "sick" in the traditional sense of the word. (14)
Rather, the plaintiffs alleged that they had suffered chromosomal damage that was undetectable to the naked eye. In support, the plaintiffs submitted affidavits from an array of medical experts, who testified that, although the plaintiffs' injuries were not apparent to a lay observer, they were nonetheless "physical injuries." For example, the plaintiffs' main witness, Dr. Gordon Livingston, opined in an affidavit that eight percent of the plaintiffs' DNA exhibited structural chromosome abnormalities, (15) as opposed to an average of just over one percent for the general public. (16) As the court summarized:
Dr. Livingston concluded that "the physical injuries sustained by the DNA and the misrepair of those DNA strands is analogous to a knife wound of the skin dividing the cells of the body and the scar tissue that is generated as the body attempts to repair that cellular damage." Dr. Martin Raff, another expert, drew the analogy to HIV, noting that "patients who test positive for the HIV virus may not have any signs or symptoms of clinical disease for many years.... But even though a person with HIV does not have 'clinical disease' they are clearly in a diseased state." He also explained that "radiation damage to chromosomes is the quintessential determinant of altered physiologic function because our chromosomes control each and every bodily function.... As such this premorbid state is disease." Dr. Daniel M. Sullivan stated in his affidavit that "the physical injuries sustained by the DNA [of the plaintiffs] and the misrepair of those DNA strands is analogous to a cutting wound of the tissue of the body.... The primary difference is that DNA injury and chromosome misrepair have much more ominous consequences for the individual since such an injury is associated with an increased likelihood of the occurrence of cancer." (17)
The plaintiffs thus freely admitted that they suffered from no physical symptoms evincing a manifestation of disease. They instead contended that their irreparable chromosomal damage was by itself sufficient to stand as a cause of action under personal injury law.
II. RELEVANT PRECEDENT: DEFINING SUBCELLULAR INJURY
Although tort law requires that a successful claimant demonstrate some sort of harm, little discussion has been devoted to the topic of what defines harm--at least in the personal injury context. (18) Must the injury be obvious to the naked eye? Does it depend entirely on medical definitions? Must it be permanent? Of course, the average personal injury lawsuit generally involves a painfully obvious physical injury--e.g., a bruised head after a suitcase full of firecrackers has exploded on a railway platform (19)--as opposed to some ambiguous subcellular "harm" discernible only through advanced medical screening. Courts have thus had little need to explore the boundaries between salient …
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Publication information: Article title: Defining the Boundaries of "Personal Injury": Rainer V. Union Carbide Corp. Contributors: Sen, Maya - Author. Journal title: Stanford Law Review. Volume: 58. Issue: 4 Publication date: February 2006. Page number: 1251+. © 1999 Stanford Law School. COPYRIGHT 2006 Gale Group.