Kennedy v. Southern California Electric


In September 2000, Atlantic Legal Foundation filed an amicus brief in the United States Court of Appeals for the Ninth Circuit on behalf of four Nobel Prize winners in Medicine, Physics and Chemistry, the Vice-Chair of the Department of Radiation Oncology at the University of California at San Francisco, the Dean emerita of the School of Public Health at the University of California at Berkeley, and numerous other prominent scientists, including physicians specializing in cancer, epidemiologists, and physicists with expertise in nuclear physics and radiation exposure in support of Southern California Edison Company’s and Combustion Engineering, Inc.’s petition for rehearing en banc of a decision by a three-judge panel, which held that a jury could find for the plaintiffs if they found that the likelihood of plaintiffs’ decedent contracting cancer from exposure to radiation from a nuclear generating station was as low as "one in one hundred thousand."


ALF’s brief argued that the plaintiffs’ decedent’s exposure was purely hypothetical because there was no evidence that there was any radiation in her home, no evidence as to the amount of exposure, and no evidence as to the radiation dose she received. ALF also argued that, even assuming the "worst case" scenario hypothesized by plaintiffs’ experts, the dose received from the hypothetical particle of nuclear fuel that might have been carried into decedent’s home was far less than the "background radiation" to which everyone is exposed, far below any levels deemed safe by the Nuclear Regulatory Commission and professional scientific bodies, and far too small to have been causally linked to any illness.


Before the petition for rehearing was formally ruled on, the original panel of the Ninth Circuit withdrew its opinion, and on September 26, 2001 issued a revised opinion, in which it reversed its original determination, and affirmed the decision of the trial court dismissing the case, and found that the likelihood of causation was ‘only a one in 100,000 chance that [Mrs. Kennedy’s] CML was caused by the exposure’ to the fuel flea. The Court held that this was insufficient to sustain plaintiffs’ burden of proof as to causation. The court cited ALF’s amicus brief, referring to it as a brief submitted by distinguished amici in the scientific community.


On December 26, 2001, the Ninth Circuit denied plaintiffs’ petition for rehearing en banc.

Click here to view our brief
Decided: 2003-02-09