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).
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
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
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
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
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
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
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
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
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
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.
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.
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.
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
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
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
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] . . .
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
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
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
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].
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
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,
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 ...