ESTATE OF JEFFREY H. WARE, By Barbara Boyer, individually, on behalf of wrongful death beneficiaries and as Administratrix of the Estate of Jeffrey H. Ware, Appellant
HOSPITAL OF THE UNIVERSITY OF PENNSYLVANIA; UNIVERSITY OF PENNSYLVANIA; UNIVERSITY OF PENNSYLVANIA PERELMAN SCHOOL OF MEDICINE; UNIVERSITY OF PENNSYLVANIA TRUSTEES; ANN R. KENNEDY, D.S.C.; GARY KAO, M.D.; MICHELLE ALONSO-BASANTA, M.D.; NATIONAL SPACE BIOMEDICAL RESEARCH INSTITUTE; CENTER FOR ACUTE RADIATION RESEARCH
June 28, 2017
from the United States District Court for the Eastern
District of Pennsylvania (D.C. Civil Action No.
2-14-cv-00014) District Judge: Honorable Joseph F. Leeson,
A. Ellis, Esquire Aaron J. Freiwald, Esquire (Argued) Mathew
R. Bravette, Esquire Counsel for Appellant
E. Jose, Esquire (Argued)
Theresa F. Sachs, Esquire (Argued) Daniel J. Sherry, Esquire
Donna Modestine, Esquire Counsel for Appellees
Before: AMBRO, RESTREPO, and COWEN, Circuit Judges
Boyer, the widow of a cancer researcher who developed a fatal
tumor allegedly as a result of inadequate safety precautions
taken to protect him from radiation in his lab, sued the
University of Pennsylvania together with affiliated persons
and entities. Before us is the reach of the
Price-Anderson Act, see 42 U.S.C. § 2011,
et seq., and its remedy-limiting provisions. The Act
gives federal courts jurisdiction to resolve a broad set of
claims involving liability for physical harm arising from
nuclear radiation. Boyer asserts, however, that the Act's
unexpressed intent would exempt her husband's injuries
from its jurisdictional grant.
claims fall within the text of the Act, so if we are to limit
it to a zone of interests narrower than its text provides,
Boyer must offer a compelling limiting principle that would
put her allegations beyond the Act's reach. Although she
suggests several implicit limitations, each is either
unconvincing or, even if adopted, would leave this case still
within the Act's reach. Thus we must affirm.
H. Ware, Ph.D., was a neuroscientist at the University of
Pennsylvania who studied the effects of radiation on
biological organisms with the goal of better understanding
how radiation affects astronauts while in orbit. In the
course of his research Ware used cesium-137 irradiators to
track the effects of low-level radiation on mice and rats.
Ware suffered in 2010 a rare form of brain cancer called
gliosarcoma. Boyer claims gliosarcoma is associated with
radiation exposure (however, because she produced no expert
reports, there is nothing in the record to support this
link). She also alleges that Ware's cancer specifically
resulted from radiation exposure that UPenn failed to monitor
properly or protect against. Moreover, UPenn failed to inform
Ware of the level of radiation to which he was exposed.
his diagnosis, Ware turned to the University's affiliated
hospital for medical care. He underwent chemotherapy and
radiation in order to slow the cancer's progression.
Boyer alleges that Ware was not given appropriate information
about these treatments; that, given the advanced stage of his
disease, they provided little benefit; and that, at one
appointment where she was not present, a UPenn doctor
enrolled Ware in a research study to investigate the effects
of chemotherapy and radiation on brain cancer patients
without his knowing consent. According to Boyer, UPenn
concealed and withheld documents and data related to the
study to "cover up its terrible record of radiation
safety and to protect millions of research dollars."
Boyer's Br. at 9.
also discouraged Ware from seeking palliative care, she
claims, in order to maintain his participation in the study.
year after his diagnosis, Ware died from his cancer at age
47. Boyer filed a complaint in the Pennsylvania Court of
Common Pleas as administratrix of Ware's estate as well
as on behalf of herself and Ware's surviving children.
Her initial complaint alleged numerous counts, including
negligence, fraud, retaliation, and negligent infliction of
emotional distress. She added to the UPenn defendants the
National Space Biomedical Research Institute
("NSBRI"), a research organization started by NASA
that funded Ware's work.
and the NSBRI removed the case to federal court on the
grounds that (1) claims against UPenn are covered by the
Price-Anderson Act, which provides federal jurisdiction over
claims asserting "public liability" arising from a
"nuclear incident, " see 42 U.S.C.
§§ 2014(q), (w), (hh), & 2210(n); and (2) 28
U.S.C. § 1442(a) permits removal of claims against NSBRI
because it is a federal agency.
Boyer's unsuccessful motion to remand, the District Court
adopted a Magistrate Judge's Report and Recommendation
that the Price-Anderson Act applies to Boyer's claims
alleging that Ware was harmed by radiation from cesium-137
used in his lab and that the NSBRI is a federal agency. Boyer
responded by dismissing all claims against the NSBRI and
amending her complaint to include two counts of
"negligence under the Price-Anderson Act" (the
"Price-Anderson claims") and additional counts
styled as state-law claims for fraud, negligent infliction of
emotional distress, malpractice, and "corporate
negligence." J.A. 476-488.
began, and UPenn produced five expert reports and thousands
of pages of documents. Boyer failed to produce a single
expert report to substantiate her claims. UPenn filed four
motions that the District Court construed as motions for
summary judgment, to which Boyer never responded.
regulations issued by the Nuclear Regulatory Commission
("NRC"), entities holding licenses to handle
certain nuclear materials must limit the dose of radiation
received by employees from occupational exposure to five rem
(5, 000 millirem) per year. 10 C.F.R. § 20.1201
("Occupational dose limits for adults"). It is
uncontested that Ware's total occupational radiation
exposure over 16 years was only 0.075 rem (75 millirem),
which would yield an annual average of only 0.0047 rem (4.7
millirem). Because this amount is far below the
five-rem standard set in § 20.1201, Boyer concluded that
she could not prevail on any claims governed by the
Price-Anderson Act, so she moved to withdraw her
Price-Anderson claims and to remand the remainder of her
claims to state court.
District Court denied the motion to withdraw, and, because
Boyer had failed to produce any expert reports or even oppose
UPenn's motions for summary judgment, it granted summary
judgment to UPenn on all of her claims. Boyer appeals,
challenging the District Court's determination that the
Price-Anderson Act applies to her negligence claims as well
as the Court's denial of her motion to withdraw while
retaining jurisdiction over her remaining state-law claims.
II. STANDARD OF REVIEW
review de novo the District Court's
interpretation of the Price-Anderson Act and exercise the
same review over whether subject-matter jurisdiction exists.
See Fair Hous. Rights Ctr. in Se. Pennsylvania v. Post
Goldtex GP, LLC, 823 F.3d 209, 213 (3d Cir. 2016);
Weitzner v. Sanofi Pasteur, Inc., 819 F.3d 61, 63
(3d Cir. 2016). Our review of the District Court's denial
of Boyer's request for voluntary dismissal is for abuse
of discretion. Ferguson v. Eakle, 492 F.2d 26, 28
(3d Cir. 1974).
The Price-Anderson Act Governs Boyer's Negligence
District Court held the Price-Anderson Act applies to
Boyer's claims asserting that Ware was harmed by
radiation emitted from cesium-137 irradiators used in his
lab. The Act provides for removal to federal court of any
"public liability action arising out of or resulting
from a nuclear incident." 42 U.S.C. § 2210(n). As
noted, Boyer and UPenn agree that, if the Act applies, Boyer
can only state a claim for relief if Ware received more than
five rem of radiation per year. It is undisputed that Ware's
average annual radiation exposure was much less than five
rem, so any claim to which the Act applies is not viable.
that is not the worst of Boyer's situation: if the
Price-Anderson Act applies, even her claims that don't
stem from Ware's radiation exposure are lost as well.
Boyer failed to oppose summary judgment on any of her claims
(even those, like medical malpractice, that the parties agree
are not governed by the Act). Thus, on appeal Boyer attempts
to save her claims by contending that the District Court
either lacked jurisdiction over her claims or abused its
discretion by exercising it.
these reasons, Boyer contends the Price-Anderson Act, which
grew out of the federal Government's initial efforts to
regulate nuclear weapons and power plants in the 1940s and
'50s, does not apply to laboratory research. Her
interpretation of the Act conflicts with its text, and she
identifies no principle that would both rule ...