Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

O'CONNER v. COMMONWEALTH EDISON CO.

July 23, 1992

JAMES R. O'CONNER, PLAINTIFF,
v.
COMMONWEALTH EDISON COMPANY AND LONDON NUCLEAR SERVICE, INC., DEFENDANTS.



The opinion of the court was delivered by: Mihm, Chief Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Before the court is a motion by defendants to exclude part of the testimony of plaintiff's causation expert, Dr. Karl Scheribel, and defendants' Motion for Summary Judgment based on the evidence then remaining in the case. This court grants both of defendants' motions for the reasons stated herein.

I. INTRODUCTION TO THIS CASE

The plaintiff, James R. O'Conner ("O'Conner"), worked at a nuclear power plant and then later developed a medical condition, including bilateral cataracts, that he claims was caused by the radiation exposure that he received at the plant. He consulted with many physicians in an effort to determine whether or not he had a medical claim. He has consulted with and seen the following doctors regarding his alleged "injuries" caused by radiation: Dr. Karl Scheribel (ophthalmologist); Dr. John Nelson (ophthalmologist); Dr. Robert Reardon (ophthalmologist); Dr. Clarence Ward (ophthalmologist); Dr. William Bond (ophthalmologist); Dr. Michael Rosenberg (ophthalmologist); Dr. Ennio Rossi (internal medicine); Dr. Greg Ichtertz (pulmonary medicine); Dr. James Legrand (internal and pulmonary medicine); Dr. Bruce McLelland (dermatology); Dr. Mark Bullock (family medicine); Dr. Edward Silberstein (radiology); Dr. Robert Chapman (psychiatry); and Dr. Robert Sadoff (psychiatry). A description of his alleged "injuries" is more fully set forth below. He filed this lawsuit in Illinois State Court on October 1, 1985.

In passing the Price-Anderson Act, Congress recognized that a nuclear incident might be caused by any number of participants in the nuclear industry beyond the actual licensee. Congress did not want quick and fair compensation to be hampered by the complications likely to ensue if multiple defendants, each with its own law firm, were actively and separately defending. In a "significant departure from normal tort law precepts," H.R.Rep. 104, 100th Cong., 1st Sess. pt. 3, at 16 (1987), Congress, through mandatory indemnification provisions, channelled all public liability to licensees, and away from non-licensees, (such as contractors like London Nuclear), who might otherwise have borne such liability under ordinary tort law. See 42 U.S.C. § 2014(t), 2014(w), 2210(a). Congress noted that "regardless of whether a commercial power plant accident was caused by actions of the licensee, the plant manufacturer, or any other party, liability would be `channeled' to the licensee and payment would be obtained from the compensation pool funded by utilities." H.R.Rep. 104, pt. 3, at 16. The channelling provisions alter the ordinary congruence in tort law between causing and bearing liability. S.Rep. No. 218, 100th Cong., 2d Sess. 4, reprinted in 1988 U.S.C.C.A.N. 1451, 1476, 1479 ("The Price Anderson System including . . . the predetermined sources of funding, provides persons seeking compensation for injuries as a result of a nuclear incident with significant advantages over the procedures and standards for recovery that might otherwise be applicable under State tort law.") Consequently, contractor London Nuclear Services cannot separately be liable to plaintiff in any manner in this case. One law firm has represented both defendants, without conflict, throughout the pendency of this action, since there can only be one liability pursuant to Price-Anderson and that liability is channeled solely through the licensee and through the financial protection provided by Price-Anderson. Any disagreements between defendants as to who might have done what wrong are irrelevant to O'Conner's claim for compensation under Price-Anderson. The only relevant issues are whether the duty owed was breached (O'Conner's exposure), and whether that exposure caused his claimed injury (causation).

A. Procedural History

Only those pleadings that are pertinent to the present opinion are set forth here. This case was filed in state court on October 1, 1985. Defendants removed the case to this court pursuant to the provisions of 28 U.S.C. § 1441 and the Price-Anderson Amendments Act of 1988, 42 U.S.C. § 2210(n)(2) on September 13, 1988. On May 25, 1989, defendants filed a Motion for Summary Judgment on the grounds that there was no evidence that plaintiff had received a dose in excess of the Federal Permissible Dose Limits set forth at 10 C.F.R. § 20.101, and that there was no evidence that plaintiff's occupational radiation exposure caused any injuries to the plaintiff. Plaintiff filed his Response on July 25, 1989. Plaintiff included in his response, among other things, the deposition testimony of Dr. Karl Scheribel in which he states that only radiation could have caused plaintiff's cataracts, but did not include any affidavit from him that explained the basis of his causation opinion. At oral argument held on December 7, 1989, the court granted plaintiff's request to file supplemental affidavits and information regarding the basis of Dr. Scheribel's opinion. Plaintiff then filed a Notice of Compliance that included a short affidavit from Dr. Scheribel that simply listed the names of four articles that supposedly provided the scientific basis of his opinion. The articles referred to in this affidavit are discussed in detail infra at Section IV F.

On March 13, 1989, this court denied defendants' Motion for Summary Judgment on the grounds that a genuine issue of material fact existed as to whether plaintiff had received a dose in excess of the federal dose limits. That ruling was based upon what the court believed at the time was a reasonable inference from Dr. Scheribel's testimony that if O'Conner has radiation induced cataracts, he must have received a large dose of radiation in excess of the federal limits. On June 5, 1990, defendants filed a Motion in Limine to Exclude Dr. Scheribel From Testifying on Causation. Defendants also filed a Motion in Limine for a Determination of the Legal Duty Owed in which defendants requested that the court determine that the federal permissible dose limits set forth at 10 C.F.R. § 20.101 constituted the duty of care required of a utility operating a nuclear power plant and that a jury could not properly disregard these federal dose limits and substitute their own standards. The court granted defendants' Motion on September 26, 1990 for the reasons set forth in O'Conner v. Commonwealth Edison Co., 748 F. Supp. 672 (C.D.Ill. 1990) and also granted plaintiff's petition for interlocutory appeal which was then denied by the Seventh Circuit Court of Appeals. Misc. No. 90-8103 (7th Cir., Oct. 26, 1990). The court denied defendants' Motion to Exclude Dr. Scheribel on July 20, 1990.

However, on August 29, 1991, after reconsidering the issue of the admissibility of Dr. Scheribel's testimony sua sponte, the court entered an Order requesting "counsel to advise the court of the references in the record which bear on the admissibility of Dr. Scheribel's testimony." Specifically, the court requested plaintiff to provide more information on "exactly how many patients Dr. Scheribel has had with [radiation induced] cataracts" and "the information which provides the basis for Dr. Scheribel's opinion." Order dated December 22, 1989.

Both parties filed briefs in response to said request. Plaintiff also filed a Motion for Direction and/or Clarification requesting the court to provide plaintiff with specific information about the court's concerns regarding Dr. Scheribel's testimony. At oral argument held on January 17, 1992, the court told plaintiff's counsel that it was concerned with the admissibility of Dr. Scheribel's testimony under Rules 702, 703, and Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Specifically, the court advised plaintiff that Dr. Scheribel seemed to have no verifiable scientific foundation for his opinion that only radiation could have caused plaintiff's cataracts. Tr. of Oral Argument, Jan. 17, 1992 at 10-11. The court further advised that Dr. Scheribel did not appear to be qualified to opine that he could diagnose radiation induced cataracts by simply looking at them, and that such an opinion is not accepted in the scientific community. Id. at 13-14. Finally, the court specifically warned plaintiff that if he did not supplement the record to demonstrate that Dr. Scheribel was qualified and that there was a verifiable scientific basis for Dr. Scheribel's opinion, the court would exclude him from testifying and would grant defendant's Motion for Summary Judgment since the remaining record would be insufficient to go to a jury. Id. at 19. Both parties then filed briefs in response to the court's comments. Plaintiff has had sufficient time and sufficient opportunity to establish the verifiable basis of his expert's opinion, if there is any, or to substitute a new expert. Upon this extensive record the court now rules.

B. The Uncontested Facts of this Case

These uncontested facts are mostly taken from the statement of uncontested facts that both parties agreed to in the Pretrial Order. Other facts in this case can be found in the court's two prior Opinions. See O'Conner v. Commonwealth Edison Company, 748 F. Supp. 672 (C.D.Ill. 1990); O'Conner v. Commonwealth Edison Company, 770 F. Supp. 448 (C.D.Ill. 1991).

In September and October of 1983, when he was 43 years old, O'Conner took a job as a pipefitter at Quad Cities. At that time the plant was shut down to change fuel. This is known as a refueling outage. After passing a pre-employment physical exam, O'Conner worked 14 days in the month of September, and 17 days in the month of October, 1983.*fn1 Although he was actually employed as a pipefitter by Morrison Construction Company, a subcontractor at the plant, O'Conner was subject to extensive control by Commonwealth Edison as required by the NRC since this particular pipefitting work needed to be performed in an area containing radioactive materials.

When radioactive material is in an area, that area is designated as a radiation controlled area and access to the area is limited to only those radiation workers who have been specially trained to work in such an area. A worker with such training is known as a radiation worker — to distinguish him from a regular worker at the plant who does not have this training and therefore cannot enter any radiation controlled areas.

O'Conner worked as a radiation worker doing pipefitting, not as a regular worker doing pipefitting. As such, he was required to complete a radiation training course before he could enter any radiation controlled areas. After he completed the course he still could not enter any radiation controlled areas without first reading and signing in under a Radiation Work Permit, known as an RWP, which listed the actual levels of radiation in the work area and specified how the worker must dress and what radiation measuring devices the worker must wear at all times while he was in the radiation controlled area doing his work. O'Conner always obeyed these requirements. He never entered a radiation controlled area without the proper protective clothing or the proper radiation measuring instruments.

Radiation is measured in units just as distance is measured in units such as inches, yards or miles. The basic radiation units that are important in this case are known as "rem" and "millirem." One rem is equal to 1,000 millirem and conversely, one millirem is equal to one thousandth of a rem. To make these units of measurement more meaningful it is helpful to compare common doses all humans receive. The average American receives about 300 millirem per year from natural background radiation which is ubiquitous. Caputo v. Boston Edison Co., 924 F.2d 11, 12 n. 1 (1st Cir. 1991); Bubash v. Philadelphia Electric Co., 717 F. Supp. 297, 299 (M.D.Pa. 1989).

  Although mankind has produced many sources of
  radiation, natural background remains the greatest
  contributor to the radiation exposure of the U.S.
  population today. Background radiation has three
  components: terrestrial radiation (external),
  resulting from the presence of naturally occurring
  radionuclides in the soil and earth; cosmic
  radiation (external), arising from outer space;
  and naturally occurring radionuclides (internal),
  deposited in the human body.

Johnston v. United States, 597 F. Supp. 374, 389 (D.C.Kan. 1984) (quoting BEIR III at 37). In addition to natural background radiation, humans receive annual exposure from numerous medical sources and consumer products. For example, a routine chest x-ray gives a patient a dose of approximately 20 millirem. Hennessy v. Commonwealth Edison Co., 764 F. Supp. 495, 499 (N.D.Ill. 1991). Moreover, the average American will receive 6.5 rem (6,500 millirem) from medical and dental x-rays by the time he is 65. Johnston v. United States, 597 F. Supp. at 390. Construction materials and radium clocks provide an annual dose of about 7-9 millirem, and television sets provide an annual dose of 1 millirem. Id.; Allen v. United States, 588 F. Supp. 247, 328 (D.Utah 1984), rev'd on other grounds, 816 F.2d 1417 (10th Cir. 1987); cert. denied, 484 U.S. 1004, 108 S.Ct. 694, 98 L.Ed.2d 647 (1988).

The amount of radiation to which a radiation worker is exposed is known as his dose. The dose of a radiation worker is recorded by radiation detection devices that he wears while working.

One type of radiation detection device that all nuclear workers are required to wear is known as a film badge (or TLD). It is designed to record the worker's radiation exposure and save it for a two week period of time, after which the film badge is processed and the two week dose is recorded in the worker's radiation exposure records. A second type of radiation detection device is known as a self-reading pocket dosimeter (SRPD). This device can be read at any time by looking at it. Some SRPD's read out with digital numbers like a digital watch, while others read out with a gauge like a car's speedometer. O'Conner wore a film badge and two SRPD's when he worked at Quad Cities.

O'Conner's main complaint is that he felt warm while working on the night of October 3 and therefore felt something had happened to overexpose him. O'Conner's Dep. at 34. He alleges that he subsequently learned that London Nuclear was performing a dilute chemical decontamination on the same night and consequently that procedure must have caused him to receive "excessive" radiation exposure. Plaintiff never defined what "excessive" exposure was or offered any expert testimony that his dose exceeded the federal permissible dose limits applicable to radiation workers. O'Conner v. Commonwealth Edison Co., 748 F. Supp. at 675. In fact, his radiation exposure during the night of October 3, 1983 was measured at a maximum of .045 rem (45 millirem) on one of his SRPD's (the other SRPD measured .038 rem (38 millirem). His exposure for all of September and October was recorded at 1.465 rem by his film badge. It is uncontested that these does, if accurate, simply are insufficient to cause cataracts because they fall far short of the threshold exposure necessary to cause cataracts. Since the minimum dose necessary to cause cataracts is 200 rem (Aff. of Dr. George R. Merriam Jr. at ¶ 14, Section I D infra), a dose of .045 rem would be about 4,444 times too small to cause a cataract.

Defendants maintain that unless plaintiff can offer any credible evidence that O'Conner received a dose of 200 rem or more at one time, he cannot pass the required threshold dose in order to provide the necessary factual support for any expert opinion that radiation caused his cataracts. Defendants further contend that unless the plaintiff can offer any credible evidence that O'Conner received a dose in excess of 12 rem a year (or 3 rem in any quarter of the year) he cannot present the necessary factual basis for an expert opinion that the duty owed was violated. Plaintiff maintains that the testimony of Dr. Karl Scheribel meets both requirements.

C. Consensus Scientific Background for this Case

Radiation exposure and its effects upon humans is a very complex subject. Much background on this scientific subject can already be found in published case law. Johnston v. United States, 597 F. Supp. 374, 384-395 (D.Kan. 1984); Allen v. United States, 588 F. Supp. 247, 260-329 (D.Utah 1984); Akins v. Sacramento Municipal Utility District, 6 Cal.App.4th 1605, 8 Cal.Rptr.2d 785 (3rd Dist. 1992). This court will not repeat that published background material but will only add to it the following discussion of radiation induced cataracts.

Extensive discovery has established that there is a national and an international scientific consensus on the biological effects of ionizing radiation causing cataract formation in the lens of the eye. This scientific consensus is reflected in an extensive body of scientific literature and by numerous studies that have been performed by scientists seeking to prevent the development of cataracts in patients undergoing x-ray therapy involving large amounts (thousands of rem) of radiation. The four leading scientists who have pioneered such research are Drs. David G. Cogan, George R. Merriam, Jr., Arthur E. Upton and George W. Casarett.*fn2 Each has been studying the biological effects of radiation for decades. Their work has provided the scientific and medical basis for national and international scientific organizations such as the United Nations Committee on the Effects of Atomic Radiation ("UNSCEAR"),*fn3 the International Council on Radiological Protection ("ICRP"),*fn4 the National Council on Radiation Protection and Measurements ("NCRP")*fn5 and the National Academy of Sciences Committee on the Biological Effects of Ionizing Radiation ("BEIR")*fn6 to develop the consensus knowledge and principles on radiation induced cataracts. Since the reports of these various scientific groups are prepared entirely outside the context of ongoing litigation, they provide an unusually objective statement of the known science in this field.

This scientific consensus concludes, among other things, that radiation induced cataracts have a characteristic appearance but are not pathognomonic. "Pathognomonic" is the medical term for a specifically distinctive characteristic of a disease or pathologic condition on which a diagnosis can be made. (Dorland's Medical Dictionary (26th ed. 1985) at 977. See Aff. of Dr. Apple at ¶ 14; Aff. of Dr. Silberstein at ¶¶ 20-22; Aff. of Dr. Casarett at ¶¶ 10-11; Aff. of Dr. Cogan at ¶ 16; Aff. of Dr. Merriam at ¶¶ 25-26). This characteristic appearance is known as a posterior subcapsular cataract, because of its location in the back (posterior) part of the lens just below the capsule (subcapsular). Dorland's Medical Dictionary (26th ed. 1985) at 229. All radiation induced cataracts will be of the posterior subcapsular type (characteristic) but not all posterior subcapsular cataracts will be radiation induced (if it were otherwise they would be pathognomonic). Aff. of Dr. Cogan at ¶ 16. As we will see below, the failure to understand this distinction was one reason why Dr. Scheribel's opinion is logically flawed.

Radiation effects can be divided into acute (or nonstochastic) effects and stochastic effects. Acute effects will only occur above a certain dose threshold because they are the result of accumulated physical damage to cells. Stochastic effects theoretically can occur at any dose level because they are thought to start with a single altered cell, but the risk of the effect is related to the dose received, i.e., less risk at lower dose and more risk at higher dose. Health Effects of Exposure to Low Levels of Ionizing Radiation: 1990 ("BEIR V") at 396, 398. (This book is the latest edition of a report of the National Academy of Sciences concerning radiation health effects. It is eminently authoritative. Johnston v. United States, 597 F. Supp. 374, 383-84 (D.Kan. 1984)). Cataracts are an example of an acute effect while cancer is an example of a stochastic effect. BEIR V at 398. The scientific consensus establishes that radiation induced cataracts are an acute effect with a certain threshold: it takes a certain amount of radiation to cause a cataract (the threshold amount), and exposures below that amount simply will not cause any cataract. Aff. of Dr. Upton at ¶¶ 6, 8; Aff. of Dr. Cogan at ¶ 11-12; Aff. of Dr. Merriam at ¶ 16.

  D.  The Threshold Amount of Radiation Required to Cause
      Cataracts

The threshold amount of radiation necessary to cause a cataract is about 200 rem received at once or about 600 rem spread out over time. During the 1930's and 1940's large amounts (thousands of rem) of radiation (x-rays) were beamed into patients heads in order to treat a variety of medical conditions. Aff. of Dr. David G. Cogan at ¶ 7. The medical community noticed that cataracts sometimes resulted but did not know what dose level caused the cataracts and consequently how treatments could be changed to avoid the side effect of causing cataracts. Aff. of Dr. George Merriam at ¶¶ 6-7. Two ophthalmologists, one at the National Institute of Health (Dr. David Cogan) and one at Columbia Presbyterian Hospital (Dr. George Merriam) undertook very detailed scientific studies to find these answers so that unnecessary cataracts could be prevented.

Dr. George R. Merriam, Jr. has studied radiation induced cataracts in humans and animals for 36 years. Aff. of Dr. Merriam at ¶ 8. He has published 19 medical and scientific papers on the subject. Aff. of Dr. Merriam at ¶ 9. Dr. Merriam's studies have shown that radiation does not cause cataracts unless the dose is 200 rem (200,000 millirem) delivered all at once or 400 rem (400,000 millirem) delivered over 3 weeks to 3 months or 550 rem (550,000 millirem) delivered over more than 3 months. This last number, 550 rem, and the associated time frame would be the same as Dr. Cogan's 600 rem delivered over a period of months. Aff. of Dr. Merriam at ¶¶ 12-16. Dr. Merriam also found that the latency period between the exposure and the diagnosis of the cataract is extended with lower doses (200 to 400 rem) and with the radiation delivered over a longer period of time (many months). Aff. of Dr. Merriam at ¶ 13. For a dose of 250 rem (250,000 millirem) delivered all at once, it would be an average of 11 years and 8 months before a radiation induced cataract would appear, if one did happen to appear at all. Merriam and Focht, A Clinical Study of Radiation Cataracts and the Relationship to Dose, the American Journal of Roentgenology, Radium Therapy and Nuclear Medicine, at 299, Table V. He also found that a dose of 700 rem (700,000 millirem) was needed to produce even a 50% chance of developing any cataract at all. Aff. of Dr. Merriam at ¶ 15. Thus, cataracts would not appear at doses below 200 rem and even at 700 rem, the chances would only be 50-50 that a cataract may appear, and if so, it would only appear after many years had passed from the time of exposure. Dr. Merriam has examined the specific facts of the present case (i.e., a dose of .045 rem on October 3 or 1.465 rem for September, October 1983, and the 10 month latency period between exposure and first diagnosis) and concluded that radiation exposure at the Quad Cities simply could not have caused O'Conner's cataracts. Aff. of Dr. Merriam at ¶¶ 17-20.

Dr. Arthur C. Upton has been studying radiation induced injury to man and animals for 38 years and he has published four articles on radiation induced cataracts. Aff. of Dr. Upton at ¶ 3. Dr. Upton was a member of the United States Delegation to the 1977 United Nations Committee on The Effects of Atomic Radiation (UNSCEAR). Aff. of Dr. Upton at ¶ 4. The 1977 UNSCEAR Report focused on radiation carcinogenesis. The 1982 UNSCEAR Report focused on threshold effects, including cataracts. Aff. of Dr. Upton at ¶ 6. Distinguished UNSCEAR radiation scientists from all over the world studied the world's scientific literature on the subject and condensed it into a report which reflects the world scientific consensus. Aff. of Dr. Upton at ¶ 5. As to radiation induced cataracts UNSCEAR concluded:

  One of the conclusions of the present report is
  that at low doses and dose rates [as would be
  experienced occupationally] the induction of
  non-neoplastic effects [such as cataracts] is not
  observed.

UNSCEAR, 1982, at 11.

  [T]he human lens responds to doses of ~ 2 Gy [200
  rem] in a single treatment, or ~ 4 Gy [400 rem]
  when fractionated, resulting in the formation of
  cataract . . . The extent of cataract formation,
  as well as the incidence, is dose dependent.
  Higher doses yield more progressive cataracts with
  greater loss of

  vision. The latent period varies from 0.5 to 35
  years; with an average of 2-3 years, although
  latency is also dose dependent . . . Recent
  reviews . . . suggest that a threshold for
  cataract for occupational exposure of lengthy
  fractionation is in the range of 6-14 Gy [600 to
  1,400 rem].

UNSCEAR, 1982, at 598.

Dr. Upton also chaired The International Commission on Radiological Protection's (ICRP) task group which surveyed the world literature and wrote ICRP Publication 41: Nonstochastic Effects of Ionizing Radiation. Aff. of Dr. Upton at ¶¶ 7-8. This report was adopted by the ICRP in 1984. It concluded:

  At high doses, lens opacities (cataracts) develop
  within months, progress rapidly, and eventually
  cloud the lens completely, while at lower doses
  the opacities may take years to develop, remain
  microscopic in size, and cause no scientific
  impairment of vision.

ICRP No. 41, at 17.

  The threshold for x radiation for induction of
  minimally detectable lens opacities in the largest
  series of radiotherapy patients studied to date
  for such lesions (233 patients) was estimated to
  vary, from about 2 Gy [200 rem] in a single
  exposure to as much as 5.5 Gy [550 rem] when the
  dose was fractionated over a period of 3-13 weeks.

ICRP No. 41, at 18.

  The lowest dose observed to cause a progressive
  cataract [such as Mr. O'Conner has] among these
  patients, some of whom were followed up to 35
  years after irradiation, was 5 Gy [500 rem] . . .
  From these observations, it may be inferred by
  extrapolation that a dose of more than 8 Gy [800
  rem] of low-LET radiation [the type of radiation
  Mr. O'Conner received] would be required to
  produce a vision-impairing cataract under the
  highly protracted exposure conditions
  characteristics of occupational irradiation.

ICRP No. 41, at 18.

According to these two highly respected national and international bodies of radiation protection scientists who have surveyed the world literature on the subject, if there is any possibility that O'Conner's dose on the night of October 3-4 were to cause a cataract that dose would have to be at least 200 rem. His daily dose was actually measured by two independent scientific devices at .045 rem and .038 rem, which is 4,444 times too low to cause a cataract. If there is any possibility that O'Conner's total occupational dose from September and November of 1983 were to cause a cataract, it would have to be at least 800 rem. However, his total dose was actually measured by scientific instruments to be 1.465 rem, which is about 546 times too low to cause cataracts. Yet, plaintiff's expert, Dr. Scheribel, proposes to testify that O'Conner has radiation induced cataracts, based solely upon his visual examination.

Dr. Lauriston S. Taylor is the founder of the ICRP and the National Counsel on Radiation Protection and Measurements (NCRP). Aff. of Lauriston S. Taylor at ¶ 3. He co-chaired NCRP Report Number 39: Basic Radiation Protection Criteria which was published in 1971 after a review of the world scientific literature (Aff. of Lauriston S. Taylor at ¶ 5): NCRP No. 39 concluded:

  A long latent period exists between the time of
  the exposure and the onset of the development of
  cataracts. The interval varies inversely with
  dose, and five or more years may elapse between an
  exposure and the appearance of opacification. For
  very high doses, the interval may be reduced to
  months.
  Cataract formations in the human being has been
  considered to be a "threshold phenomenon," since
  exposures of the order of 600 R [rem] incurred in
  the course of therapeutic irradiations were
  required to produce opacification over the period
  of observations. Observation of survivors of the
  bombings at Hiroshima and Nagasaki have to date
  been consistent with the thesis that large doses
  of radiation are required to produce
  vision-impairing lens opacification.

NCRP Report No. 39, at 39.

  The specific objectives of radiation protection
  are: (1) to prevent, to the extent practicable,
  the occurrence of severe radiation induced
  nonstochastic diseases [such as cataracts] by
  adhering to dose equivalent limits that are below
  the apparent practical threshold dose equivalent
  levels [so that no such effects will ever occur in
  the exposed population] . . .

NCRP No. 91, at 4.

  For avoidance of nonstochastic effects [such as
  cataracts], the following annual dose equivalent
  limits are recommended for the occupational case:
  150 mSv (15 rem) for the crystalline lens of the
  eye.

NCRP Report No. 91, at 26 (emphasis added).

The national scientific consensus, as reflected by the 1987 NCRP recommendations is that even if a radiation worker is allowed to receive a dose of 15 rem to his eye for each year during his occupational lifetime (which may be 40 years), he still will not be expected to develop a radiation induced cataract. Fifteen rem per year for forty years would equal a lifetime occupational dose to the eye of 600 rem, which would not be expected to cause a single cataract in workers so exposed.

Dr. Henry N. Wellman, Radiologist, served on the National Academy of Sciences Committee on the Biological Effects of Ionizing Radiation which wrote The Effects on Populations of Exposure to Low Levels of Ionizing Radiation: 1980 BEIR III. Aff. of Dr. Henry N. Wellman at ¶ 4. This committee of the United State's most knowledgeable scientists in this field also studied the world literature on radiation induced cataracts and concluded:

  The available data suggest a sigmoid dose-response
  relationship with an apparent threshold for lens
  opacification. Threshold doses in many for x-rays
  and gamma rays delivered in a single exposure vary
  from 200 to 500 rads [rem], whereas the threshold
  for doses fractionated over periods of months is
  around 1,000 rads [rem].

BEIR III at 499.

The United States National Academy of Sciences (BEIR) agrees with the world scientific consensus as represented by UNSCEAR, ICRP and NCRP reports that it takes a dose of at least 200 rem delivered all at once or a dose of approximately 1,000 rem delivered over many months to exceed the threshold for radiation induced cataracts. Even at those large doses, less than 50 percent of the exposed individuals would develop cataracts. They are simply the minimum doses at which even one radiation induced cataract might appear in a group of exposed persons.

II. THE PRESENT EVIDENTIARY ISSUE

The issue that is the subject of this present Opinion is the admissibility of certain expert opinion testimony that plaintiff would offer at trial from a trial deposition transcript. Plaintiff's causation expert, Dr. Karl Scheribel, would state:

  I know what cataracts look like when they have
  been induced by radiation, by what ever dosage or
  time of exposure there was. Radiation cataracts
  are [a] clinically describable and definable
  condition which, when present, cannot be mistaken
  for anything else.

Dr. Scheribel's Evidence Deposition at 69. From the court's review of all the scientific material on radiation induced cataracts, Dr. Scheribel appears to be the only doctor or scientist who will make such a statement, and it directly contradicts the consensus science that radiation induced cataracts are not pathognomonic. The real question then becomes should this "lone voice" be allowed to testify against the vast scientific consensus? Plaintiff maintains that the answer is "yes," and the jury, as the judge of the facts, would then determine which position has the most credibility.

Defendants assert this case is a classic example of "junk" science, not only failing to assist the jury as expert opinion testimony should under Rule 702, but actually misleading any juror who would hear it. Consequently, defendants maintain that Dr. Scheribel's proposed statement should not be admitted into evidence. Relying upon cross-examination to expose the error is not sufficient, defendants claim, because that mechanism relies upon an unsophisticated lay person to arbitrate complex scientific issues which they may not even comprehend. Thus, the admissibility of Dr. Scheribel's testimony becomes the focal point of the case. "The trial judge, of course, decides ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.