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COLEY v. COMMONWEALTH EDISON CO.

May 10, 1991

KEVIN D. COLEY, individually and as Special Administrator of the Estate of REBEKAH ANN COLEY, Deceased, MARSHAL L. COLEY, ROBERT ANDREW PERINO, a minor by his father and next friend, Michael A. Perino, MICHAEL A. PERINO, individually and KAREN M. PERINO, Plaintiffs,
v.
COMMONWEALTH EDISON COMPANY, Defendant


Charles P. Kocoras, United States District Judge.


The opinion of the court was delivered by: KOCORAS

CHARLES P. KOCORAS, UNITED STATES DISTRICT JUDGE

 This matter is before the court on the defendant's motion for summary judgment. The motion challenges the plaintiffs' ability to prove two elements of their case: negligence on behalf of the defendant and a causal link between the defendant's conduct and the alleged injuries. Because the plaintiffs are unable to provide sufficient basis on which a jury might find negligence, this court will grant summary judgment in favor of the defendant without addressing the causation issue.

 BACKGROUND

 In 1981 Rebekah Coley was born with a birth defect known as Trisomy 18. Three years later, Robert Perino was born with the same defect. The fathers of both children, Kevin Coley and Michael Perino, worked for Defendant Commonwealth Edison Company ("ComEd") at its Dresden Plant. In the course of their work, the defendants were exposed to ionizing radiation.

 During the reproductive process, chromosomes normally separate and move to opposite ends of the cell wall. When the cell divides, each of the new cells have one of the formerly joined chromosomes. Nondisjunction is an abnormal process in which the chromosomes fail to separate. The result is the formation of one cell with an extra chromosome and one cell with a chromosomal deficiency. Such nondisjunction may occur in either the egg or the sperm. In Trisomy 18 a sperm or egg containing two number 18 chromosomes joins with a healthy egg or sperm and develops into a child who has three rather than the normal two number 18 chromosomes and a very limited life expectancy.

 The plaintiffs believe that the nondisjunction leading to Rebekah's and Robert's Trisomy 18 occurred in their fathers' sperm. They further believe that such nondisjunction was caused by the fathers' occupational exposure to radiation in the six months prior to the children's conception. As a result, the plaintiffs argue, ComEd should be liable in tort.

 Earlier this year, this court determined that a strict liability theory was not viable against public utilities such as ComEd. Coley v. Commonwealth Edison Company, No. 88 C 7830, Memorandum Opinion, [1991 U.S. Dist. LEXIS 844] (N.D.Ill. January 25, 1991). Accordingly, if the plaintiffs are to succeed on their claims, it must be pursuant to a negligence theory. That is, the plaintiffs must show that ComEd knew or should have known in the early 1980s that the occupational doses to which Messrs. Coley and Perino were exposed could cause defects in their unconceived children and failed to take adequate steps to protect against that reasonably foreseeable result.

 To support their claims the plaintiffs have submitted deposition testimony and several recent reports suggesting some association between parental exposure to radiation and chromosomal damage. The plaintiffs' primary expert witness, Dr. Alice Stewart, is a radiation epidemiologist whose theories have not gained wide acceptance in that portion of the scientific community that studies the effects of radiation on humans. Dr. Stewart testified that although there is no known cause of Trisomy 18, radiation is known to cause chromosomal damage and Trisomy 18 could be a variant of such chromosomal damage known to be caused by radiation. Stewart 1990 deposition at 99. The plaintiffs' other experts are the children's doctors. Dr. Roth testified that he could not say with a reasonable degree of medical certainty that Rebekah's condition was causally related to her father's pre-conception exposure to radiation. (Roth deposition at 12). Dr. Salafsky, Robert Perino's doctor, testified that he believed his patient's condition "could have" been caused by paternal exposure to radiation. Salafsky deposition at 25. The recent studies relied upon by the plaintiffs were issued in the last four years. The studies suggest that there is a connection between parental exposure to radiation and birth defects such as Trisomy 21 (Down's Syndrome) or child cancer.

 Absent from the documents submitted by the plaintiff is any basis upon which a jury could find that the defendant knew or should have known that paternal exposure to radiation could cause birth defects at the time the allegedly injurious exposure occurred. To the contrary, the documents submitted by both parties indicate that in the mid-1980s, the generally accepted view was that pre-conception exposure to either parent, and to fathers in particular, had at most negligible affect on the later-conceived offspring. This view was supported by the studies which demonstrated no increase in nondisjunctional events in the offspring of the A-bomb survivors in Nagasaki and Hiroshima. Although recent reports have questioned the accuracy of these studies, such discrediting does not detract from the fact that in the early 1980s the prevalent scientific view was that paternal exposure to radiation did not impact on future offspring.

 ComEd is a licensee of the Nuclear Regulatory Commission ("NRC") and is required to adhere to the regulations set by that body. See 10 C.F.R. ยง 20.1(b), 50.54(h). The regulations promulgated by the NRC include maximum permissible dose limits for different categories of individuals. Such limits were based on the existing national and international consensus regarding the levels of radiation at which no appreciable bodily injury was expected. Pursuant to these regulations, workers such as Kevin Coley and Michael Perino may only be exposed to 5 rem per year of radiation, while minors under 18 may only be exposed to.5 rem per year. Until 1985,.5 rem was also the limit prescribed by the International Commission on Radiological Protection ("ICRP") for the general population. The parties agree that Merrs, Coley and Perino were exposed to less than 5 rem but more than.5 rem per year during the relevant time period.

 The record further indicates that Dr. Stewart's theories have been very controversial and have not gained wide acceptance in the scientific field; the studies indicating a causal relation between radiation and cancer may not be relevant to this case since the two conditions are caused by very different phenomena; there is no report in studies of humans associating radiation and Trisomy 18; animal studies indicate that nondisjunction is not one of the principal effects of radiation, and that very high doses are needed to produce trisomies; preceding the conception of the children, there was only one study, apparently not widely accepted, connecting pre-conceptual radiation to health problems in off-spring and this study did not involve Trisomy 18; in the early 1980s it was the accepted belief that paternal radiation exposure had negligible if any affect on off-spring; and even today questions about the human health effects caused by low doses of radiation are extremely controversial.

 The defendant argues that summary judgment is appropriate on the issue of negligence because (A) its compliance with the NRC regulations conclusively proves that it was not negligent in the amount of radiation to which it allowed its male employees to be exposed; and (B) even if the regulations are not deemed determinative of the issue, the plaintiffs are unable to show that ComEd knew or should have known that paternal exposure would cause Trisomy 18 in yet-to-be-conceived offspring.

 In opposition to this motion, the plaintiffs make essentially two arguments. First, they argue that under Illinois law the regulations are not determinative of the care due to Kevin Coley and Michael Perino. Next they argue that, even if the NRC regulations are determinative, ComEd owed directly to the children of its workers a duty which is defined by those ...


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