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Estate of Ware v. Hospital Of The University Of Pennsylvania

United States Court of Appeals, Third Circuit

September 18, 2017

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

          Argued June 28, 2017

         Appeal 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, Jr.

          Glenn A. Ellis, Esquire Aaron J. Freiwald, Esquire (Argued) Mathew R. Bravette, Esquire Counsel for Appellant

          Donald 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


          AMBRO, Circuit Judge

         Barbara 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.[1] 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.

         Her 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.

         I. BACKGROUND

         Jeffrey 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.

         Tragically, 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.

         Following 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.

         UPenn also discouraged Ware from seeking palliative care, she claims, in order to maintain his participation in the study.

         Just a 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.

         UPenn 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.

         Following 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.

         Discovery 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.

         Per 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).[2] 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.

         The 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.


         We 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).

         III. ANALYSIS

         A. The Price-Anderson Act Governs Boyer's Negligence Claims.

         The 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.[3] 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.

         But 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.

         For 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 ...

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