Law360 (July 25, 2019, 7:27 PM EDT) — U.S. sailors who allegedly suffered radiation injuries during their response to the 2011 Fukushima nuclear disaster urged the Ninth Circuit on Wednesday to revive their $1 billion lawsuit against Tokyo Electric Power Co. and General Electric Co., arguing it belongs in California federal court, not Japan.
Nothing substantial has changed since the district court and the Ninth Circuit previously decided that the claims against Tepco could stay in U.S. courts, the sailors said. And the lower court should have allowed discovery and further briefing before determining that Japanese law should apply to the claims against GE, the sailors argued.
“There is no ‘new’ development after years of litigating this case, other than the fact that the Japanese government changed its mind about where these claims ought to be litigated and what law should control,” the sailors said of the claims against Tepco. “With all due respect to the district court, nothing has changed except for the court’s willingness to revisit the issue of international comity and decide to punt this case to Japan.”
The sailors’ suit, originally filed in 2012 and amended three times since, is one of at least two suits lodged against Tepco and GE over the sailors’ Fukushima-related radiation exposure. It was filed on behalf of a proposed class of more than 70,000 U.S. citizens who were potentially exposed to the radiation.
The district court previously refused to dismiss the proposed class action against Tepco on the company’s claims that U.S. courts lacked jurisdiction. The Ninth Circuit upheld that decision in June 2017, saying that either the international comity doctrine — which allows a court to dismiss a case when another country has a strong interest in handling the claims and can adequately do so — or the political question doctrine could be used as a reason to dismiss the sailors’ lawsuit once the case progresses and more facts come to light.
GE and Tepco sought the dismissal in April 2018 and in March, U.S. District Judge Janis L. Sammartino said Japan has an overriding interest in applying its own laws in cases related to the meltdown at the Fukushima nuclear plant, which happened in Japan and primarily affected Japanese citizens.
“In sum, after balancing the impairments and reviewing the relevant case law, the court is persuaded that Japan’s interests would be ‘more impaired’ [than California’s] if its law was not applied to this matter,” Judge Sammartino wrote.
In its bid for revival Wednesday, the sailors split their arguments into claims related to Tepco and claims related to GE, which was added as a defendant more recently.
In the lead-up to the Ninth Circuit’s previous decision to keep the claims against Tepco alive, the Japanese government filed an amicus brief stating that it wants the claims to be handled in Japan, the sailors explained Wednesday.
“The U.S. government’s position, however, did not change, nor have the interests of any of the parties — most especially not those of the 239 plaintiffs,” the sailors said. “Thus, there is no ‘new’ development after years of litigating this case, other than the fact that the Japanese government changed its mind about where these claims ought to be litigated and what law should control.”
Judge Sammartino dismissed the claims against Tepco without prejudice to their being filed in Japan but the sailors asked the Ninth Circuit to keep them in California.
The judge dismissed the claims against GE with prejudice, however, finding that Japan’s Compensation Act, rather than U.S. law, applies in this case and that under such a law, the claims cannot survive. The sailors agreed that the claims against GE would be dead under the Compensation Act but said the law should not have been applied in the first place.
“California has an overwhelming interest in seeing that this case remains here and GE continue as a party-defendant, subject to the laws of California regarding liability for its wrongdoing,” the sailors said. “Allowing the lesser interests of Japan to trump those of California will allow GE to escape, scot-free.”
They argued that discovery and further briefing could clarify numerous aspects of the case and answer questions of venue and choice-of-law.
“Questions regarding the breakdown in operational responsibilities at FNPP, including the role GE played in the plant’s operation and maintenance, might be critical,” they said. “In addition, discovery could shed light on exactly what information Tepco had about the incoming U.S. naval vessels that carried plaintiffs to the area, when it had that information, and what were the details regarding the dissemination of that information.”
Another suit, valued at $5 billion, addressed issues outlined by 157 plaintiffs, including estates, spouses and children of personnel who have since died from what the suit claimed were radiation-based illnesses. Both suits were filed by a legal team that includes former North Carolina Sen. John Edwards and his daughter Cate Edwards, who is based in the Edwards Kirby firm’s San Diego office.
However, Judge Sammartino dismissed that suit in January 2018. She said her court can’t exercise personal jurisdiction over Tepco because its alleged actions aren’t sufficiently tied to California and that federal courts didn’t have jurisdiction over GE because there’s no evidence of any other plaintiffs outside California.
The plaintiffs are represented by John R. Edwards and Catharine E. Edwards of Edwards Kirby LLP, and Charles A. Bonner, A. Cabral Bonner and Paul C. Garner of the Law Offices of Bonner & Bonner.
Tepco is represented by Gregory P. Stone, Daniel P. Collins, Hailyn J. Chen, Kyle W. Mach and Bryan H. Heckenlively of Munger Tolles & Olson LLP.
GE is represented by David J. Weiner, Sally L. Pei and Michael D. Schissel of Arnold & Porter.