Tish Blake v. Florida Power ( 2008 )


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  •                                                               [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                      FILED
    U.S. COURT OF APPEALS
    ___________________              ELEVENTH CIRCUIT
    April 2, 2008
    No. 06-11132                  THOMAS K. KAHN
    ___________________                     CLERK
    D.C. Docket No. 03-14040-CV-JIC
    SCOTT FINESTONE, individually, as parent,
    guardian and friend of Zachary Finestone,
    REBECCA FINESTONE, individually, as parent,
    guardian and friend of Zachary Finestone,
    Plaintiffs-Appellants,
    versus
    FLORIDA POWER AND LIGHT COMPANY,
    a Florida public utility corporation,
    Defendant-Appellee.
    ___________________
    No. 06-11133
    ___________________
    D.C. Docket No. 03-14128-CV-JIC
    TISH BLAKE, as personal representative of the
    Estate of Ashton Lowe, on behalf of the Estate of
    Ashton Lowe as the surviving parent,
    JOHN LOWE, as personal representative of the
    Estate of Ashton Lowe, on behalf of the Estate of
    Ashton Lowe as surviving parent,
    Plaintiffs-Appellants,
    versus
    FLORIDA POWER AND LIGHT COMPANY,
    a Florida public utility corporation,
    Defendant-Appellee.
    __________________
    Appeals from the United States District Court
    for the Southern District of Florida
    __________________
    (April 2, 2008)
    Before DUBINA and KRAVITCH, Circuit Judges, and COOGLER,* District Judge.
    PER CURIAM:
    Appellants, the parents of minor children Ashton Lowe and Zachary Finestone,
    filed separate “public liability actions” against Florida Power & Light (“FPL”) in the
    United States District Court for the Southern District of Florida, alleging that their
    children developed cancer as a result of radiation released from FPL’s St. Lucie
    nuclear power plant. The actions were consolidated, and the district court granted
    FPL’s motions for summary judgment. For the reasons that follow, we affirm.
    *
    Honorable L. Scott Coogler, United States District Judge for the Northern District of
    Alabama, sitting by designation.
    2
    I.    BACKGROUND.
    A.     Radiation Releases.
    FPL began operations at its St. Lucie nuclear power plant (“the Plant”) near
    Port St. Lucie, Florida, in 1976. During construction of the Plant in 1975, a wash
    trough, or “sink,” was incorrectly plumbed in the radiation control area.
    Unbeknownst to FPL, the sink diverted its wastewater directly into the standard
    sanitary sewage system. In 1978, the Plant began using the incorrectly-plumbed sink
    to rinse items such as respirators and mops, which had been exposed to radiation.
    From 1978 to 1979, the Plant’s standard sewage was deposited into a septic tank that
    was emptied daily and shipped by truck to the Fort Pierce Sewage Treatment Plant.
    In December 1979, the Plant started an on-site sewage treatment facility. On
    January 8, 1982, and June 22, 1982, sludge from the on-site sewage treatment facility
    was transported to unoccupied farmland located near “Glades Cutoff” road (“the
    Glades Cutoff site”). The sludge was dispersed onto a field at the Glades Cutoff site,
    which was licensed and regulated, but only for the disposal of non-radioactive sewage
    sludge.
    On September 10, 1982, the incorrectly-plumbed sink clogged, and FPL
    subsequently discovered the original plumbing error. FPL notified the Nuclear
    Regulatory Commission (“NRC”), the Florida Office of Radiation Control, and the
    3
    Florida Department of Health and Rehabilitative Services (“FDHRS”) about the error
    and unmonitored disposals. FDHRS took soil and grass samples from various
    locations at the Glades Cutoff site. The presence of Cobalt-60, a radionuclide, was
    measured and recorded. NRC also took samples, and an aerial survey was performed
    by helicopter. FPL then removed contaminated soil from the Glades Cutoff site.
    Over the next two weeks, more samples were taken and additional contaminated soil
    was removed. In October 1982, FDHRS concluded:
    Based on the decontamination limit of five (5) picocuries
    per gram [pCi/g] averaged over one square meter . . .
    Florida Power and Light Company has achieved adequate
    decontamination. Post clean up maximum activities’ levels
    were no greater than one-half the decontamination limit.
    These data were from samples taken at the sites of greatest
    gamma exposure levels remaining after the
    decontamination.
    NRC opined: “it is unlikely that anyone received a measurable radiation dose.”
    B.    Children’s Cancer.
    Ashton Lowe was born on May 3, 1988. At the age of seven, Ashton was
    diagnosed with medulloblastoma. From his birth until the time of his diagnosis,
    Ashton lived in Port St. Lucie, Florida. Ashton died of his cancer on May 21, 2001.
    Zachary Finestone was born on March 1, 1994. Prior to his birth, his parents
    lived near the Plant. Zachary lived in Port St. Lucie, Florida, from August 1995
    4
    through August 1998. He was diagnosed with stage IV neuroblastoma, which had
    spread to his bone marrow, at the age of six. Zachary continues battling his cancer
    today.
    Plaintiff’s expert, Dr. Hari Sharma, presented evidence in this case that the
    baby teeth of both Ashton Lowe and Zachary Finestone contained elevated levels of
    Strontium-90 (“SR-90”). SR-90 is a radioactive isotope created by nuclear fission
    reactions. Common sources of SR-90 include nuclear power plants and nuclear
    weapons testing fallout. However, routine testing of Florida’s citrus fruit shows that
    SR-90 has been detected in citrus fruit in St. Lucie County since before the Plant
    began its operations.
    C.    Proceedings Below.
    Appellants brought their claims against FPL in the United States District Court
    for the Southern District of Florida under the Price-Anderson Act, which provides for
    federal lawsuits asserting public liability due to exposure to nuclear radiation. See
    
    42 U.S.C. §§ 2210
    (n)(2), 2014(hh). FPL filed a motion for determination of duty
    owed, and the district court subsequently issued an order holding that the standard of
    care in Appellants’ action “is set forth by the Radiation Dose Limits for Individual
    Members of the Public [outlined in 
    10 C.F.R. § 20.1301
    ] applicable for the time of
    the releases in question” (“the Dose Limits”). Finestone v. Fla. Power & Light Co.,
    5
    
    319 F. Supp. 2d 1347
    , 1350 (S.D. Fla. 2004). The district court rejected Appellants’
    contention that the standard of care should also include a requirement that licensee
    companies “achieve . . . doses to members of the public that are as low as is
    reasonably achievable (ALARA)1.” 
    Id. at 1349-50
    ; see also 
    10 C.F.R. § 20.1101
    (b).
    Extensive discovery was conducted, and Appellants contend that FPL
    consistently refused to provide documents crucial to their case. FPL concedes that
    it “inadvertently” omitted from production a single report on radiation releases in the
    Glades Cutoff site (“the Bailey Report”), which Appellants uncovered later in the
    litigation. As a result of FPL’s failure to timely disclose the Bailey Report,
    Appellants were granted an adverse jury instruction noting the belated production,
    and discovery was extended six weeks.
    FPL subsequently filed motions for summary judgment, and Appellants moved
    for partial summary judgment. The parties filed motions to strike the testimony of
    various experts. After four days of Daubert hearings on the parties’ motions to strike,
    the district court entered an Omnibus Order on January 6, 2006. The Omnibus Order
    1
    “ALARA . . . means making every reasonable effort to maintain exposures to radiation as
    far below the dose limits in this part as is practical consistent with the purpose for which the licensed
    activity is undertaken, taking into account the state of technology, the economics of improvements
    in relation to state of technology, the economics of improvements in relation to benefits to the public
    health and safety, and other societal and socioeconomic considerations, and in relation to utilization
    of nuclear energy and licensed materials in the public interest.” 
    10 C.F.R. § 20.1003
    .
    6
    excluded the testimony of four of Appellants’ expert witnesses and granted FPL’s
    motions for final summary judgment based on Appellants’ inability to proffer
    admissible evidence to support their claim that FPL released radiation in excess of the
    Dose Limits. This appeal followed.
    II.   DISCUSSION.
    Two broad issues are presented to this Court. First, Appellants attack the
    district court’s conclusion regarding the applicable standard of care in public liability
    actions under the Price-Anderson Act.          They contend that this Court should
    reconsider and revise its holding in Roberts v. Florida Power & Light Co., 
    146 F.3d 1305
     (11th Cir. 1998), and incorporate state law standards of care. In the alternative,
    they request that we apply ALARA as a requisite standard of care under Roberts.
    Second, Appellants argue that the district court erred in granting summary judgment
    in favor of FPL. They contend that the district court misapplied Daubert standards
    when it excluded Appellants’ expert witnesses’ testimony regarding radiation and the
    Dose Limits, and ignored the “prejudice” caused by FPL’s late production of the
    Bailey Report.
    A.     Standard of Care.
    “We review de novo the district court’s grant of summary judgment.”
    Greenberg v. BellSouth Telecomms., Inc., 
    498 F.3d 1258
    , 1263 (11th Cir. 2007)
    7
    (citing Burton v. Tampa Hous. Auth., 
    271 F.3d 1274
    , 1276-77 (11th Cir. 2001)).
    Moreover, a court’s determination of the applicable standard of care in a case like the
    one at hand is a question of law, also reviewed de novo. See, e.g., Jones v. United
    Space Alliance, L.L.C., 
    494 F.3d 1306
    , 1309 (11th Cir. 2007).
    In Roberts, this Court held that “federal safety regulations conclusively
    establish the duty of care owed in a public liability action.” 
    146 F.3d at 1308
    . While
    Appellants have requested that we reconsider this holding, “it is the firmly established
    rule of this Circuit that each succeeding panel is bound by the holding of the first
    panel to address an issue of law, unless and until that holding is overruled en banc,
    or by the Supreme Court.” United States v. Hogan, 
    986 F.2d 1364
    , 1369 (11th Cir.
    1993). Therefore, we are bound by Roberts.
    However, Roberts does not preclude a holding that ALARA is a standard of
    care in public liability actions—if, in fact, ALARA is mandated by federal safety
    regulations. The opinion of the district court for the Northern District of Ohio in
    McCafferty v. Centerior Serv. Co., 
    983 F. Supp. 715
     (N.D. Ohio 1997), may be
    persuasive on the question whether ALARA is a current standard of care in public
    liability actions, as set forth by federal regulation. See also Jason Bjorn Aamodt,
    Comment, Regulating the Standard of Care Owed to the Public During an
    Emergency at a Nuclear Power Plant, 16 ENERGY L.J. 181, 184-89 (1995)
    8
    (discussing, in part, how NRC guidance provides a measurable and precise ALARA
    standard); 
    58 Fed. Reg. 67657
     (Jan. 1, 1994) (noting that “[t]he revised standards for
    protection against radiation incorporated scientific information and reflected changes
    in the basic philosophy of radiation protection that had occurred since the
    promulgation of the original regulations”). In McCafferty, the court reasoned that a
    1991 amendment adding mandatory ALARA language to a newly created subpart
    under the federal regulation labeled “Standards for Protection Against Radiation,”
    which also contains the Dose Limits relied upon by the district court below,
    “demonstrates an intention to have the ALARA principle . . . act as a standard for
    radiation protection.” 
    983 F. Supp. at 719
    .
    While this Court finds the McCafferty rationale reasonable, we are not called
    upon to decide whether ALARA is mandated by current regulation. Rather, it is
    undisputed that the radiation releases at issue in this case occurred prior to the 1991
    amendment discussed in McCafferty. In fact, Appellants conceded at oral argument
    that in order for this Court to conclude ALARA applies to their claims, we must hold
    that ALARA was the requisite standard of care “all along”; that cannot be done.
    As correctly held by the Third Circuit Court of Appeals in In re TMI, 
    67 F.3d 1103
     (3d Cir. 1995), an ALARA standard of care did not exist in the federal
    regulations prior to the 1991 amendment. Before the amendment, ALARA language,
    9
    as it pertains to public radiation exposure, was located in a portion of the regulations
    dealing with licensing, which also included a clarification that the guidelines outlined
    therein were “not to be construed as radiation protection standards.” 
    10 C.F.R. § 50
    .34a(a). ALARA was also included in a different portion of the “Standards for
    Protection Against Radiation” section referenced above.           This particular pre-
    amendment language, which was officially removed in 1994 as superseded by the
    revised radiation protection standards initiated in 1991, see 
    58 Fed. Reg. 67657
     (Jan.
    1, 1994), stated only that licensees “should, in addition to complying with the
    requirements set forth in this part, make every reasonable effort to maintain radiation
    exposures, and releases of radioactive materials in effluents to unrestricted areas, as
    low as is reasonably achievable,” 
    10 C.F.R. § 20.1
     (1991) (emphasis added). This
    language does not establish the pre-amendment ALARA requirement for public
    liability that Appellants want this Court to adopt, and we affirm the district court’s
    use of the Dose Limits as the applicable standard of care in this case.
    B.     Evidentiary Burden.
    Appellants nevertheless maintain that they presented sufficient evidence, in the
    form of expert testimony, that FPL breached the Dose Limits. In its Omnibus Order,
    the district court excluded the testimony of Arnold Gundersen, Martin Resnikoff,
    Stanley Waligora, Christopher Busby, and Robert Peter Gale under the principles of
    10
    Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
     (1993). Appellants
    focus their appellate argument on the exclusion of their “dose calculation” experts:
    Gundersen, Resnikoff, and Waligora. Aside from a single footnote in their initial
    brief, Appellants do not discuss Gale and Busby, two of their “causation” experts.
    Because we do not reach the issue of causation unless Appellants can show they have
    sufficient evidence of a breach of the Dose Limits, this Court will focus its initial
    inquiry on the dose calculation experts. To that end, Appellants argue that although
    the district court couched its ruling in terms of their “reliability,” it is clear from the
    Omnibus Order that the dose calculation experts’ testimony was excluded only
    because their conclusions conflicted with those of the NRC.
    A district court’s decision to exclude expert testimony is reviewed for an abuse
    of discretion. See Kumho Tire Co. v. Carmichael, 
    526 U.S. 137
    , 152 (1999). “That
    standard applies as much to the trial court’s decisions about how to determine
    reliability as to its ultimate conclusion.” 
    Id.
     Therefore, “we defer to the district
    court’s ruling unless it is ‘manifestly erroneous,’” and “we give the district court
    ‘considerable leeway’ in the execution of its duty.” Rink v. Cheminova, Inc., 
    400 F.3d 1286
    , 1291 (11th Cir. 2005) (citations omitted).
    Pursuant to Federal Rule of Evidence 702, as well as Daubert and its progeny,
    “district courts must act as ‘gatekeepers[,’ admitting] expert testimony only if it is
    11
    both reliable and relevant.” 
    Id.
     “To fulfil their obligation under Daubert, district
    courts must engage in a rigorous inquiry to determine whether: ‘(1) the expert is
    qualified to testify competently regarding the matters he intends to address; (2) the
    methodology by which the expert reaches his conclusions is sufficiently reliable as
    determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists
    the trier of fact, through the application of scientific, technical, or specialized
    expertise, to understand the evidence or to determine a fact in issue.’” 
    Id. at 1291-92
    (quoting City of Tuscaloosa v. Harcros Chems., Inc., 
    158 F.3d 548
    , 562 (11th Cir.
    1998)). “The party offering the expert has the burden of satisfying each of these three
    elements by a preponderance of the evidence.” 
    Id.
     at 1292 (citing Allison v. McGhan
    Med. Corp., 
    184 F.3d 1300
    , 1306 (11th Cir. 1999)).
    “In ascertaining the reliability of a particular scientific expert opinion, we
    consider, to the extent possible: (1) whether the expert’s theory can be and has been
    tested; (2) whether the theory has been subjected to peer review and publication; (3)
    the known or potential rate of error of the particular scientific technique; and (4)
    whether the technique is generally accepted in the scientific community.” Quiet Tech.
    DC-8, Inc. v. Hurel-Dubois UK Ltd., 
    326 F.3d 1333
    , 1341 (11th Cir. 2003) (citing
    McCorvey v. Baxter Healthcare Corp., 
    298 F.3d 1253
    , 1256 (11th Cir. 2002)).
    “Notably, however, these factors do not exhaust the universe of considerations that
    12
    may bear on the reliability of a given expert opinion, and a federal court should
    consider any additional factors that may advance its Rule 702 analysis.” 
    Id.
     (citing
    Kumho Tire Co., 
    526 U.S. at 150
    ).
    Yet, a “district court’s gatekeeper role under Daubert ‘is not intended to
    supplant the adversary system or the role of the jury.’” Maiz v. Virani, 
    253 F.3d 641
    ,
    666 (11th Cir. 2001) (quoting Allison, 
    184 F.3d at 1311
    ).                 “[V]igorous
    cross-examination, presentation of contrary evidence, and careful instruction on the
    burden of proof are the traditional and appropriate means of attacking shaky but
    admissible evidence.” Allison, 
    184 F.3d at 1311
     (quoting Daubert, 
    509 U.S. at 596
    ).
    “The judge’s role is to keep unreliable and irrelevant information from the jury
    because of its inability to assist in factual determinations, its potential to create
    confusion, and its lack of probative value.” Id. at 1311-12. After a thorough review
    of the dose calculation experts’ reports and testimony, it is evident that the district
    court did not abuse its discretion; exclusion of these experts under Daubert was
    appropriate.
    This Court does question the district court’s focus on radiation samples taken
    by government agencies as a “real world test” of the conclusions of Gundersen,
    Waligora, and Resnikoff. While reliability of an expert’s opinion can be gauged by
    “whether the expert’s theory can be and has been tested,” Quiet Tech. DC-8, Inc., 326
    13
    F.3d at 1341, the sample results by government agencies are not actual tests of these
    experts’ theories. In fact, there are plausible explanations that could account for the
    differences between these experts’ conclusions, if correct, and the sample results.
    However, in this case, the district court also faulted the assumptions underlying
    Gundersen, Waligora, and Resnikoff’s methodologies. For instance, Gundersen
    bases his expert conclusions on hypotheticals that begin with the assumption that a
    truckload of radioactive sewage plant solids shipped from the Plant for disposal in
    Barnwell, South Carolina, in 1991 is the material that was dug up from the Glades
    Cutoff site nearly a decade earlier in 1982. There is, however, no evidence to support
    this assumption that the 828 cubic feet of material, which weighs approximately
    100,000 pounds, was from the Glades Cutoff, nor any explanation why the Plant
    would hold on to such a large amount of material for almost ten years. Yet,
    Gundersen takes the radiation concentration of the sewage solids in the 1991
    shipment and extrapolates backward using decay calculations for radioactive
    isotopes—effectively multiplying the radiation measurement for the 1991
    shipment—to conclude that the material dumped in 1982 had an excessive radiation
    concentration. Simply put, this is “the kind of scientifically unsupported ‘leap of
    faith’ which is condemned by Daubert.” Rink, 
    400 F.3d at
    1292 (citing Rider v.
    Sandoz Pharms. Corp., 
    295 F.3d 1194
    , 1202 (11th Cir. 2002)).
    14
    Waligora and Resnikoff, authors of a joint report, also made unsupported
    “leaps of faith.” For example, these experts extrapolated a dose exposure calculation
    by using an isotope ratio that FPL submitted to the NRC in its Final Safety Analysis
    Report (“FSAR”) as part of its original license application. This FSAR ratio was
    derived from the contents of a spent fuel pool in a separate building from the source
    of the Glades Cutoff site sewage sludge. Using the FSAR isotope ratio, Waligora and
    Resnikoff concluded that other radionuclides were present in the sewage sludge and
    calculated a total radiation concentration in excess of the Dose Limits. However, no
    expert was able to provide support for the assumption that the isotope ratios in the
    spent fuel pool would equate to those in the sewage sludge. When questioned at his
    Daubert hearing, Waligora would not say that use of the FSAR ratio was appropriate
    or scientifically acceptable. Waligora could only testify that “it was the best thing we
    could go with.”
    The choices made and utilized by these experts differ from a situation in which
    an expert inputs “hard data arrived at by unassailable methods.” Rink, 
    400 F.3d at 1293
    . This is not a case where the trial court rejected experts only because their final
    conclusions were inconsistent with the findings of other experts or agencies. “Here,
    the data [these three excluded experts] produced was driven by the methodology
    [they] used, and thus the district court’s inquiry into how [they] arrived at the data is
    15
    not inappropriate.” 
    Id.
     Therefore, we cannot say the district court erred when it
    examined and rejected unsupported assumptions underlying these three experts’
    methodologies. And, without their dose calculation experts, Appellants have not
    presented the sufficient admissible evidence of a breach of the Dose Limits needed
    to survive summary judgment on their Price-Anderson Act public liability actions.
    Appellants nevertheless maintain that summary judgment is inappropriate
    because the district court found that they had been prejudiced by the failure to
    produce the Bailey Report. The court rejected the ultimate sanction and, instead,
    granted Appellants “the lesser sanction of an adverse inference in the form of a jury
    instruction that Defendant did not timely produce the Bailey Report.” Appellants
    now contend that summary judgment “rewards” FPL for its sanctionable conduct.
    However, there is no legal support for Appellants’ proposition that summary
    judgment cannot be granted in this case because the district court previously
    sanctioned the moving party for belated production. Moreover, discovery was
    extended six weeks to allow Appellants time to follow up on information garnered
    in the Bailey Report. It appears from the record that no additional discovery
    extension was sought. Apparently, this was because Appellants were eager to keep
    their January 2006 trial date due to concerns related to Zachary’s serious illness. We
    cannot find fault, therefore, with the district court’s decision to enter judgment based
    16
    on the evidence presented.
    III.   CONCLUSION.
    These are truly tragic cases. We extend our deepest sympathies to the families
    involved, and we sincerely hope that Zachary prevails in his fight against cancer.
    However, for the reasons stated above, the district court’s order granting summary
    judgment must be, and hereby is, AFFIRMED.
    17