Three Mile Island Mock Trial
The People of Pennsylvania
vs.
Metropolitan Edison Company (a subsidiary of General Public Utilities)
A class action suit filed on behalf of over 2,000 Harrisburg, Pennsylvania citizens and consolidated into 10 test cases as a result of personal injury claims due to gamma radiation exposure as a result of a meltdown at Three Mile Island.
Brought to the U.S. Third Circuit Court of Appeals
ROLES: 3 Plaintiff Attorneys, 3 Defense Attorneys, 2 plaintiffs (to serve as witnesses), 1 expert (to serve as a plaintiff witness), 2 court reporters/clerks, 3 experts (to serve as defense witnesses)
Main Sequence of Courtroom Events
1. Opening Statements: First the prosecutor (criminal case) or plaintiff's attorney (civil case), then the defendant's attorney, explain what their evidence will be and what they will try to prove.
2. Prosecution’s or Plaintiff's Case: Witnesses are called to testify (direct examination) and other physical evidence is introduced. Each witness called is cross-examined (questioned so as to break down the story or be discredited) by the defense.
3. Defendant's Case: Same as the 2ndstep except that defense calls witnesses (experts) for direct examination; cross-examination by prosecution/plaintiff.
4. Closing Statement: An attorney for each side reviews the evidence presented and asks for a decision in his/her favor.
5. Jury Instructions (Jury Trials Only): The Judge explains to the jury appropriate rules of law that it is to consider in weighing the evidence. As a general rule, the prosecution (or the plaintiff in a civil case) must meet the burden of proof in order to prevail. In a criminal case this burden is very high. Are some parts of the trial more important than others? Would you trust a jury of your peers to determine your guilt or innocence? Students should also explore their reactions to playing attorneys, witnesses, jurors, and the judge. What roles do each play in the trial process?
*Each attorney must question or cross-examine 2 witnesses/experts. Furthermore, 1 attorney must provide the opening statement and a different attorney must provide the closing statement.
*Witnesses and experts may be asked tosubmit all factual evidence to the judge pre-trial. Any evidence presented that is deemed fictitious or inaccurate by the judge will not be allowed during the trial or will be scratched from the record.
*Court reporters must each submit an article summarizing the key events of the trial after its conclusion, as well as serve as clerks during the trial.
CIVIL TRIAL ON BLAME FOR ACCIDENT AT THREE MILE ISLAND OPENS TODAY
By FRANK J. PRIAL (The New York Times); National Desk
November 1, 1982, Monday
Late City Final Edition, Section A, Page 17, Column 1, 1318 words
[ DISPLAYING ABSTRACT ]
The long-awaited trial to determine responsibility for the nuclear accident at Three Mile Island in 1979 is scheduled to begin in Federal District Court in Manhattan today. At issue, in addition to the immediate problem of who should pay for the cleanup and repairs at the severely damaged reactor, is the question of ultimate responsibility for any future nuclear accidents and, in the opinion of many who are close to the matter, the future of commercial nuclear power itself. General Public Utilities Corporation, whose subsidiary owned and operated the Three Mile Island power plant near Harrisburg, Pa., is demanding $4 billion in damages from the Babcock and Wilcox Company, the plant's manufacturer. Also named is McDermott Inc., Babcock and Wilcox's parent company. The Three Mile Island accident, combined with the drop in energy use after the oil crisis of the 1970's, has had a major impact on commercial nuclear power. Since the accident on March 28, 1979, only six new reactors have been licensed by the Federal Nuclear Regulatory Commission to operate at full power. Thirty-seven nuclear plants then in the planning stage or under construction have been canceled by utility companies, and the Regulatory Commission estimates that 19 other plants will be canceled or deferred indefinitely.
Epilog
Three Mile Island Litigation -- The Trial that Wasn’t
Shortly after the Three Mile Island accident in 1979, several citizens filed for claims of personal loss and health damage from the accident. General Public Utilities, the corporate owner of TMI, settled these claims out of court rather than go to the expense of a trial. This settlement produced over 2400 additional claims that would have cost the company billions of dollars to settle, so they decided to settle these cases in court. After many years of delay, the trial was set for the summer of 1996.
Nearly half the claims were for cancer (solid tumors and leukemia); the others included ailments such as aching joints, back pain, cesarean, constipation, diarrhea, hernia, and loss of memory. Obviously trying every claim would take centuries to complete, so the judge asked that each side pick six cases (later reduced to five) and the outcome of these test cases would be a guide for the settlement of the other 2400. Then the pretrial arguments began.
What was interesting about the litigation was the tactics used by the two sides. Because cancer is the only ailment documented as a radiation effect, the plaintiffs picked all their five cases as cancers. The defendants might have picked five non-cancer cases and would have had an easy time showing that these were not caused by radiation. However, they also chose five cancers, apparently five litigants who had low radiation doses and therefore would be easy to show that radiation could not have caused these cancers.
As indicated earlier, the average dose to the public, as determined by several studies, was less than a tenth of a mGy. The maximum dose to anybody was only 1 mGy (100 mrem). From the risk factors listed earlier, the risk of anybody getting cancer from a dose of less than 1 mGy is very small. Based on these risk factors, the plaintiffs would have had a hard time proving damage. However, the plaintiffs would take a different approach.
Rather than trying to prove that 1 mGy caused the claimed effects, the plaintiffs attempted to prove that, because the claimed effects were observed, then the radiation dose to the public had to be much more than 1 mGy. They were claiming the dose was 1000 mGy (100 rem). To me this is an interesting tactic: using the claims you are trying to prove as the truth and then use that “truth” to prove that the cause existed.
But how can you explain the fact that all the radiation measurements from the company, state and federal agencies showed doses less than 1 mGy? Simply argue that the radioactivity released by the plant followed narrow paths such that they fell between all the radiation monitors and were never detected. And that is just what they planned to do.
In addition, the plaintiffs had to argue that the emissions from the plant were much higher than the other experts had calculated. The studies done after the accident put the release at 2.5 million Curies. A witness for the defendants calculated the release was 8.6 million Curies; a considerably higher amount than the other studies gave. The plaintiffs had a witness who claimed that the plant released between 25 and 100 million Curies during some large releases called blowouts, but this witness later retracted his testimony (Rambo).
The plaintiffs presented evidence that they claimed showed high radiation levels existed after the accident. These claims included detection of radioactivity in Albany, New York, and Portland, Maine; reddening of skin, hair loss, vomiting, and pet deaths near the plant; a re-analysis (by Wing; later published as Wing, et al.) of a health study (Hatch et al.) that showed higher doses; witness from Russia that studied tree damage; and an analysis of blood samples (taken in 1994 and 1995) of local people that indicated high doses from the accident (Rambo).
The defendants countered with witnesses who testified that only one of the ten test cases received more than 0.25 mGy (25 mrem); that person had a dose of 0.75 mGy (75 mrem). In addition, they introduced other studies that verified their dose calculations, the Pennsylvania Department of Health and other studies that showed no evidence of health effects, and whole body counting studies done at local hospital that showed no evidence of radioactivity in people near the plant (Rambo).
How does a judge handle such a case? The purpose of the pretrial testimony is to give the judge a basis for deciding which witnesses will be allowed to testify before a jury. This means that the judge must have some knowledge of the scientific facts of the case. In this case, Judge Sylvia Rambo, of the United States District Court for the Middle District of Pennsylvania, did her homework. She not only studied previous legal cases involving radiation injury, but she also studied the basic literature on radiation, including the BEIR V report.
To have a valid claim, Judge Rambo specified four factors, based on Pennsylvania law, for the plaintiffs to prove: one. The defendants released radioactivity into the environment in excess of regulatory limits; two. The plaintiffs were exposed to this radiation; three. The plaintiffs have injuries; and four. Radiation was the cause of those injuries. The defendants conceded factor one and did not dispute factor three.
The problem with claiming radiation caused cancer is that there are so many other causes of cancer that it is impossible to state with absolute certainty that radiation was the cause. In order to prove damage, Judge Rambo specified several ways that the plaintiffs could meet this burden of proof: the illness was caused by radiation; the diagnosis occurred within the established latency period; cite evidence that the illness is susceptible to radiation induction at exposures in excess of 100 mGy (10 rem) (based on scientific literature that below 100 mGy the statistical evidence of increased risk is not certain); rule out other potential causes; present studies that there is an expected rise in the illness after radiation exposure; and show indication of radiation effects on plants and animals in the area (Rambo).
The plaintiffs presented evidence to satisfy these conditions. However, Judge Rambo was not convinced their evidence was valid. In her ruling, she had the following comments.
1. The plaintiffs had no admissible source term evidence. The testimony of the plaintiff witness amounted "to little more than speculation regarding what might have happened." According to the witness: "I did not see any supporting indications that would lead me to believe that there was a blowout...I do not believe there was evidence of a blowout."
2. The plume "testimony was found to be inadmissible during the Daubert hearings based upon the unscientific and unreliable methodology supporting his testimony."
3. The evidence for the high doses claimed by the plaintiffs was lacking.
The record presently before the court does not support the fundamental assumptions made by Dr. Wing -- that the doses were significantly higher than originally estimated. In the absence of this assumption, Dr. Wing himself admits that he would be unable to make a causal interpretation based on his findings.
The abnormalities in the blood samples "decrease significantly in the first year following exposure.... Plaintiffs have presented no scientific evidence that would support a finding that the ... analysis, performed more than fifteen years after the accident, is more than a minimally accurate means of proving prior exposure to radiation.
The tree damage evidence was found to be lacking in scientific depth. About the witness: "Professor Shevchenko likely has more personal experience making first-hand observations of radiation exposed areas than any other expert involved in this litigation. His credentials are impressive.... Indeed his observations of tree damage in the former Soviet Union were made in conjunction with subcellular analysis of tree tissue. However, Professor Shevchenko has not performed similar studies on the trees he observed in the TMI area. ("No, I have not conducted such investigation (sic). ... I did not have such an opportunity.") To the extent that Professor Shevchenko's confidence in his abilities is warranted, the record nevertheless shows that his observations were cursory (Rambo).
In her final ruling, Judge Rambo stated: "The paucity of proof alleged in support of Plaintiffs' case is manifest. The court has searched the record for any and all evidence which construed in a light most favorable to Plaintiffs creates a genuine issue of material fact warranting submission of their claims to a jury. This effort has been in vain" (Rambo). She then granted a summary judgment for the defendants.
What does all this mean? There is one rather interesting implication from this litigation. The plaintiffs did not argue that the measured doses caused the claimed health damage. They tried to argue that the doses were high enough so their claims would have validity based on data in the scientific literature. This implies that they conceded that low doses cannot cause measurable radiation damage. If this is the case, then those who oppose the construction of low-level radioactive waste facilities, for example, cannot argue that people will suffer health damage. Predictions of drastic health effects from low levels of radiation will still be good fodder for the press, but when taken to court, the claims will not hold water.