Defining the boundaries of "personal injury": Rainer v. Union Carbide Corp.

• Author: Sen, Maya

INTRODUCTION I. RAINER'S FACTUAL BACKGROUND II. RELEVANT PRECEDENT: DEFINING SUBCELLULAR INJURY III. THE RAINER OPINION: REJECTING ASYMPTOMATIC DNA INJURY AS AN ADEQUATE CAUSE OF ACTION IV. THE POST-RAINER WORLD: EVALUATING THE EFFECTS OF THE SIXTH CIRCUIT'S OPINION CONCLUSION INTRODUCTION

For over fifty years, workers at the Paducah Gaseous Diffusion Plant (PGDP) in western Kentucky were exposed to dangerous amounts of toxic radiation--largely without their knowledge. Since the news of the exposure exploded onto the national press in the late 1990s, (1) over six thousand compensation claims have been filed with the Department of Labor, and more than $175 million has been paid out. (2) Other workers--joined by the Department of Justice--have opted to file separate lawsuits, claiming that the PGDP's operators fraudulently withheld information from them. (3) Individuals with property adjacent to the PGDP have also filed suit. (4) The legal fallout from the PGDP contamination is destined to keep federal courts busy for years to come.

This Comment focuses on just one group of PGDP workers and their families. This group consists of about thirty individuals who, over the course of the last quarter century, were exposed in various degrees to the dangerous toxins present at the PGDP. But, unlike the other workers filing compensation claims and lawsuits, these individuals have experienced no physical symptoms associated with their exposure. To the contrary, they are all healthy men and women. They are not sick, nor do they claim to be sick. This group of PGDP affiliates instead sued the plant's operators under a completely novel theory-that they have suffered asymptomatic damage to their DNA. Their claim was rejected by the Sixth Circuit Court of Appeals in Rainer v. Union Carbide Corp. (5) a case of first impression for the federal appellate courts.

This Comment addresses this case. Part I briefly discusses Rainer's factual and legal background. Part II analyzes the relevant precedent in the field. Part III summarizes Rainer's legal arguments and public policy considerations, and Part IV discusses Rainer's impact and highlights some of the problems left unanswered by the Sixth Circuit's opinion.

1. RAINER'S FACTUAL BACKGROUND

   Uranium is a uniquely potent element. In its ordinary form, the element is extremely heavy. But through the "enriching" process, uranium becomes more commercially and militarily useful. The PGDP has, since its construction in the 1950s, enriched more than 100,000 metric tons of uranium. (6) In addition to its enrichment activities, the PGDP produced various unwanted and toxic waste products, including two particularly dangerous radioactive elements: neptunium-237 and plutonium-239. (7) Both are extremely long lived and are absorbed readily by the body. (8) Substantial medical evidence exists linking these two elements with aggressive forms of cancer. (9)

   Of the four plaintiffs' classes in the Rainer case, three were comprised of current or former PGDP workers. (10) These individuals were exposed in various capacities to neptunium-237 and plutonium-239 while working at the plant. (11) The other plaintiff class was composed of family members who, although not directly exposed to these elements, claimed that they had been injured as a result of secondary exposure. (12) But, although neptunium-237 and plutonium-239 are known carcinogens, none of the Rainer plaintiffs was, as the district court noted, "sick." (13) They suffered from nothing that would be characterized as a physical manifestation of disease. Nor was it their intent to claim that they were "sick" in the traditional sense of the word. (14)

   Rather, the plaintiffs alleged that they had suffered chromosomal damage that was undetectable to the naked eye. In support, the plaintiffs submitted affidavits from an array of medical experts, who testified that, although the plaintiffs' injuries were not apparent to a lay observer, they were nonetheless "physical injuries." For example, the plaintiffs' main witness, Dr. Gordon Livingston, opined in an affidavit that eight percent of the plaintiffs' DNA exhibited structural chromosome abnormalities, (15) as opposed to an average of just over one percent for the general public. (16) As the court summarized:

   Dr. Livingston concluded that "the physical injuries sustained by the DNA and the misrepair of those DNA strands is analogous to a knife wound of the skin dividing the cells of the body and the scar tissue that is generated as the body attempts to repair that cellular damage." Dr. Martin Raff, another expert, drew the analogy to HIV, noting that "patients who test positive for the HIV virus may not have any signs or symptoms of clinical disease for many years.... But even though a person with HIV does not have 'clinical disease' they are clearly in a diseased state." He also explained that "radiation damage to chromosomes is the quintessential determinant of altered physiologic function because our chromosomes control each and every bodily function.... As such this premorbid state is disease." Dr. Daniel M. Sullivan stated in his affidavit that "the physical injuries sustained by the DNA [of the plaintiffs] and the misrepair of those DNA strands is analogous to a cutting wound of the tissue of the body.... The primary difference is that DNA injury and chromosome misrepair have much more ominous consequences for the individual since such an injury is associated with an increased likelihood of the occurrence of cancer." (17) The plaintiffs thus freely admitted that they suffered from no physical symptoms evincing a manifestation of disease. They instead contended that their irreparable chromosomal damage was by itself sufficient to stand as a cause of action under personal injury law.

2. RELEVANT PRECEDENT: DEFINING SUBCELLULAR INJURY

   Although tort law requires that a successful claimant demonstrate some sort of harm, little discussion has been devoted to the topic of what defines harm--at least in the personal injury context. (18) Must the injury be obvious to the naked eye? Does it depend entirely on medical definitions? Must it be permanent? Of course, the average personal injury lawsuit generally involves a painfully obvious physical injury--e.g., a bruised head after a suitcase full of firecrackers has exploded on a railway platform (19)--as opposed to some ambiguous subcellular "harm" discernible only through advanced medical screening. Courts have thus had little need to explore the boundaries between salient physical injury and latent subcellular damage.

   The earliest cases involving asymptomatic or subcellular injuries arose in the late 1970s and early 1980s, when medical advancements first made it possible for such injuries to be identified. (20) Plaintiffs first brought forth claims under the broad argument that subcellular injuries placed them at an increased risk of future disease. (21) Eventually, plaintiffs' lawyers developed more sophisticated theories. Of particular note is the claim of medical monitoring, in which plaintiffs seek to be reimbursed for the costs associated with regular hospital visits, physical examinations, and diagnostic tests--all expenses incurred because their injury has presumably led them to become more vulnerable to developing a disease at a later point in life. (22) Under these theories, subcellular injury may present a cause of action, but only because the particular injury might very well lead the plaintiff to develop at some later time those physical symptoms normally associated with disease.

   The Rainer plaintiffs presented a related, but more direct theory--that subcellular injury standing alone is a cause of action. And, although the case was one of first impression for a federal appellate court, a handful of jurisdictions had already addressed this particular claim. The most thorough consideration of the topic--and certainly one of the earliest ones--was in Brafford v. Susquehanna Corp. (23) In that case, the plaintiffs, a family of five, had lived for over two years near a uranium-milling facility. As in Rainer, none of the plaintiffs suffered from any salient physical symptoms. They nonetheless sought damages for various injuries, including "chromosome damage" and an "increased risk of contracting cancer during their lifetimes." (24) The district court judge noted the link between the claims, observing that the plaintiffs "conclude that the chromosomal damage is itself a present injury that can give rise to a claim for future risk of cancer." (25) He further cautioned the plaintiffs that he perceived their characterization of subcellular changes as a present injury [as] an attempt to circumvent the present injury requirement." (26) Nonetheless, the court allowed the case to proceed, citing the consideration that the "plaintiffs have at least raised a question of fact with respect to whether a present injury in the form of chromosome damage was suffered by the plaintiffs as a result of their exposure to the radiation emitted from the mill tailings." (27) Brafford thus stands for the proposition that subcellular injury can stand as a cause of action. But drawing a legal conclusion from the district court's ruling is difficult, as it is unclear whether the district court would have entertained the plaintiffs' claims in the absence of their argument that their alleged "present injury" could give rise to a "claim for future risk of cancer." (28)

   A similar result was reached in Werlein v...