New trial ordered in woman's CML death

LOS ANGELES — In a 20-page opinion issued July 20, 2000, by Judge Michael Daly Hawkins, the Ninth Circuit Court of Appeals reversed a judgment entered by U.S. District Court Judge Napoleon A. Jones and ordered a new trial in Joe Kennedy vs. Southern California Edison (C.C. No. 98-56157 and D.C. No. CV-95-03769-NAJ/RBB).

Kennedy and his four children filed a wrongful death suit against Southern California Edison (SCE) and Combustion Engineering Inc. (CE) in 1996, alleging that wife and mother, Ellen Kennedy's, exposure to nuclear radiation from the San Onofre Nuclear Generating Station (San Onofre) was the cause of her terminal cancer at age 43. The Kennedy family is represented by Don Howarth and Suzelle M. Smith with the Los Angeles law firm of Howarth & Smith.

During the time Joe Kennedy worked at San Onofre, SCE operated the plant with more than 100 defective fuel rods for more than two years. From approximately 1984 to 1987, the defective fuel rods produced contamination leaks and releases of contamination both in the plant and off site. The Nuclear Regulatory Commission fined SCE $100,000 for its violation of safety regulations.

"The Ninth Circuit found that the trial court improperly instructed the jury on the key element of causation, which was prejudicial error," explained Smith.

"The law in California recognizes that with cancer, no expert can sort out which particular ray of radiation initiated the lethal process. This is especially true since cancer takes 7-10 years to develop after exposure. When the court refused to explain to the jury the particular law of causation in a cancer case, it gave SCE an unlawful defense and plaintiffs an impossible burden to prove.

"The law as set forth by the judge would never permit a plaintiffs' verdict in a toxic tort cancer case, and this is not just."

"The Ninth Circuit's ruling is correct and fair," said Howarth. "Ellen Kennedy's children will prove again that their mother was exposed to the contamination from San Onofre, and this time SCE will not be able to hide behind the limits of scientific knowledge to escape responsibility for their wrongful conduct."

Ellen Kennedy died in 1996 of chronic myelogenous leukemia (CML), a rare cancer linked almost exclusively to radiation exposure. She was survived by her husband, Joe, and four children, Shawn, Eric, Shannon and Chad. Joe Kennedy worked as a machinist at San Onofre from 1982 to 1990.

The defective rods were manufactured by defendant CE. The Ninth Circuit also reversed a summary judgment for CE. The trial court ruled that CE could not reasonably foresee that the defective rods might lead to exposure to workers or their families. This issue will now go to the jury.

"The family looks forward to retrial," said Smith, "and presenting their case on a level playing field. The first trial slanted the law unfairly in favor of SCE. Its attorneys focused almost their entire lengthy presentation on the fact that plaintiffs could not prove the particular ray which caused the cancer.

"This case once again raises the question as to how many people were really exposed to radioactive emissions from the San Onofre plant that manifest 1-15 years later in deadly CML."

"We are particularly pleased with this opinion because it will affect cases across the country," stated Howarth. "Power plants operating negligently have been able to avoid their obligations by using laws which were not designed for the complexities of cancer in the toxic tort content. We cannot go back and correct the wrongs done to the widows and orphaned children of the past, but at least future cases will have a just standard."

"When the new trial begins," said Smith, "we hope that it will serve to raise public awareness that while the production of nuclear energy is beneficial, it is also dangerous, and that strict controls must be exercised to prevent harmful emissions. The ultimate cost in human suffering and life is just too high a price to pay for SCE's increased profits."

Howarth & Smith represented R.C. Tang in Tang vs. SCE, the first San Onofre case to be tried against SCE involving these defective fuel rods. Tang worked for the Nuclear Regulatory Commission at San Onofre for two years. Her trial before federal Judge Rudi Brewster, which received national attention, resulted in a hung jury, and the same legal standard, which has now been reversed, was applied.

A confidential settlement was reached in Tang case close to the date of retrial. All together, Howarth & Smith has filed seven lawsuits against SCE with similar allegations.