Fukushima Radiation Case Doesn’t Belong in US. Any conflicts of interest there?

court 3.jpg

 

Posted on 6th Jan 2018 by Shaun McGee aka arclight2011

On the unfortunate news that the court case for the US nuclear victims from the USS Ronald Reagan which was contaminated by a radioactive plume from the Fukushima Daichi nuclear disaster in 2011 has been rejected in the USA, I decided to look into the finances of the presiding judge (Judge Janis L Sammartino) who was overseeing the case in the courts on Friday 5 Jan 2018.

The latest financial disclosure I could find was from 2010;

screenshot-from-2018-01-06-105721.png

 

Source of screenshot; https://www.scribd.com/document/74646914/Janis-L-Sammartino-Financial-Disclosure-Report-for-Sammartino-Janis-L

Looking at the companies listed I decided to see if there was any connection to the nuclear industry with these companies. First I looked at MiTEK;

Apr 3, 2014 – MiTek Industries has acquired Ellis & Watts Global Industries, a designer and fabricator of HVAC products for nuclear and military customers. Chesterfield-based MiTek, a supplier of engineered products, software and equipment for the construction industry that’s owned by Berkshire Hathaway, said Batavia … http://www.stltoday.com/business/local/mitek-acquires-ohio-hvac-fabricator-ellis-watts/article_d94a3326-e9e2-5cef-893e-c92d064b6b8a.html

And the link to the company can be found here;

MiTek is comprised of more than 40 companies operating in nearly 100 countries globally, providing a broad array of products and services. Together, we deliver a powerful combination of engineered products and technologies to customers in the ever-evolving building industry. https://www.mii.com/Our-Business/

Secondly, I looked at Fiserv, an investment company and I found a link to Fiserv`s technology officer;

In 1999, Jim was asked to join GE as their first e-commerce attorney. Jack Welch had just announced that the “E in GE stands for E-commerce” and Jim thought that it would be a great challenge to participate in the “digital transformation” of the large multinational company. While at GE, he managed the legal and compliance aspects of over 500 “business digitization” projects, and took advantage of GE leadership and quality training courses. In 2003, with privacy issues becoming more prominent, Jim was named “Chief Privacy Leader” for GE, and led GE’s pioneering initiative to implement Binding Corporate Rules for the transfer of personal data from Europe, personally meeting with dozens of European data protection officials. Eventually, though, it became apparent that Jim would have to move his family away from Atlanta to continue with GE, and he began searching for opportunities closer to home.

In 2005, Atlanta’s CheckFree was looking for a Chief Privacy Officer and decided that Jim would be the perfect person for the role. In December 2007, CheckFree was acquired by Fiserv, Inc. and Jim became the Chief Privacy Officer of the combined organization. Among other duties, Jim provides privacy and regulatory compliance guidance for the Fiserv Enterprise Risk and Resilience program. Founded in 1984, Fiserv (NASDAQ: FISV ) is a leading global technology provider serving the financial services industry , with over 500 products and service offerings. Fiserv had 2012 revenue of $4.48 Billion, has over 20,000 employees, and has over 16,000 clients in 106 countries, including relationships with all 100 of the top 100 U.S. banking institutions.  http://www.atlantatrend.org/news/99-news-april-2013/611-atlanta-spotlight-jim-jordan

And TEVA pharamaceutical industries which makes resin for nuclear waste containers. This company is in the process of being bought out because of financial difficulties.

Nov 5, 2017 – JERUSALEM, Nov 5 (Reuters) – Billionaire businessman Len Blavatnik is looking to buy a significant stake in debt-ridden Israeli drugmaker Teva Pharmaceutical Industries, according to Israeli media reports. Two of Israel’s leading financial news outlets, Globes and The Marker, reported on Sunday that … https://www.reuters.com/article/teva-pharm-ind-ma/billionaire-blavatnik-weighs-big-share-purchase-in-teva-pharm-reports-idUSL5N1NB0AV

And it might be worth pointing out from a Guardian report on Len Blavatnik that this billionaire has some interesting buisness practises;

His charitable donations have been described as some of the most generous ever made in the UK, but unease about Sir Leonard Blavatnik’s philanthropy has grown after a leading political academic quit the University of Oxford. The Ukraine-born billionaire gave £75m to Oxford to …  https://www.theguardian.com/business/2017/sep/03/len-blavatnik-oligarch-controversy-philanthropy-resignation-oxford-professor

It would be interesting to get an updated version of Judge Sammatino`s financial disclosures to confirm these connections still exist or when she divested from these companies. I leave the links and extracts above for any discerning journalist researcher or blogger to look into.

Fukushima Radiation Case Doesn’t Belong in US. Any conflicts of interest there?

Advertisements

Tepco, GE Escape $5B Fukushima Radiation Suit

court 2Law360, New York (January 5, 2018, 7:17 PM EST) — A California federal judge on Friday dumped a $5 billion suit against Tokyo Electric Power Co. and General Electric Co. over alleged radiation risks to U.S. Navy members responding to the 2011 Fukushima nuclear disaster, saying her court lacked jurisdiction over the sailors’ claims.
 
More than 150 California-based U.S. Navy first responders claimed that Tepco knew there were problems at the Fukushima Daiichi Nuclear Power Station as soon as five hours after a March 11, 2011, earthquake and tsunami but didn’t warn the U.S. responders who came as part of the Operation Tomodachi mission to bring aid to disaster victims. But U.S. District Judge Janis L. Sammartino said her court can’t exercise personal jurisdiction over Tepco because its alleged actions aren’t sufficiently tied to California.
 
“Plaintiffs’ allegations that the effects of TEPCO’s conduct were felt by American citizens while on U.S. ships, one of which with a home port of San Diego, are too attenuated to establish purposeful direction,” Judge Sammartino said. “Plaintiffs have provided no information to support an assertion that TEPCO knew its actions would cause harm likely to be suffered in California.”
 
Even though Tepco did business in California between 2003 and 2006, that can’t tie the company to any negligence involving Fukushima alleged by the plaintiffs, the judge said.
 
“But for TEPCO’s activities in California that ended five years before the incident, would plaintiffs have suffered their alleged injuries after being deployed to Japan?” Judge Sammartino said. “If TEPCO had not done any business in California, would the [Fukushima plant] have released radiation after being struck by the tsunami? Plaintiffs have not demonstrated that the answer to these questions is yes, thus, the court finds plaintiffs have failed to satisfy this element of specific jurisdiction.”
 
Judge Sammartino also rejected the plaintiffs’ argument that her court had jurisdiction over Tepco under the federal long-arm statute. The plaintiffs have only made state law claims and have asserted diversity jurisdiction as the reason the court should hear the case, which means their claims don’t arise under federal law, the judge said.
 
As for GE, which the plaintiffs claimed negligently designed boiling water reactors that were on site at Fukushima, Judge Sammartino said there’s no evidence of any other plaintiffs outside California. The lack of complete diversity of plaintiffs means the federal court doesn’t have jurisdiction, the judge said.
 
The suit, filed in August, was at least the second such suit against Tepco and GE over the sailors’ Fukushima-related radiation exposure, court records show. An earlier suit, originally lodged in 2012 and amended in 2014, was filed on behalf of a proposed class of more than 70,000 U.S. citizens who were potentially exposed to the radiation.
 
The current case addresses issues outlined by 157 plaintiffs, including estates, spouses and children of personnel who have since passed away from what the suit claims are 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. 
 
The Ninth Circuit in June upheld a lower court’s decision to allow the sailors in the earlier action to pursue their $1 billion lawsuit, rejecting Tepco’s contention that U.S. courts lack jurisdiction over the claims, court records show.
 
Tepco had asserted in that appeal the theory that the suit is blocked by the 1997 Convention on Supplementary Compensation for Nuclear Damage, an effort to establish an international liability framework for nuclear accidents.
 
The unanimous panel said in June that the convention’s provision that limits jurisdiction over nuclear accidents to the country in which it occurs only applies to claims arising after the convention’s entry into force, which was April 2015. The sailors’ lawsuit was filed in December 2012. The panel paid particular attention to the portion of the convention that gives exclusive jurisdiction to “the courts of the contracting party within which the nuclear incident occurs,” according to the ruling.
 
That case is currently pending in Judge Sammartino’s court. In dismissing the current case Friday, the judge downplayed the plaintiffs’ argument that Tepco’s dismissal bid was “an exercise in futility” because they would simply be added to the earlier suit.
 
“Although it may be true that dismissing this action against TEPCO will complicate the two cases, this has no bearing on the issue of whether personal jurisdiction is proper,” Judge Sammartino said.
 
Representatives for the parties couldn’t be immediately reached for comment Friday.
 
The plaintiffs are represented by Charles A. Bonner and A. Cabral Bonner of Law Offices of Bonner & Bonner, John R. Edwards and Catharine E. Edwards of Edwards Kirby, and John C. Garner.
 
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 Kaye Scholer LLP.
 
The case is Dustin Bartel et al. v. Tokyo Electric Power Co., case number 2:17-cv-01671, in the U.S. District Court for the Southern District of California.
 
–Additional reporting by Kat Greene and Juan Carlos Rodriguez. Editing by Emily Kokoll.
 

Judge: Sailors’ Fukushima Radiation Case Doesn’t Belong in US

 

SAN DIEGO (CN) – A federal judge on Friday dismissed without prejudice the latest class action filed by hundreds of U.S. sailors exposed to radiation in the Fukushima, Japan, nuclear disaster, finding a San Diego courtroom isn’t the right place for the case.

U.S. District Judge Janis Sammartino issued a 15-page order dismissing the class action against Tokyo Electric Power Co. (TepCo) and General Electric, finding the service members who were stationed aboard the USS Ronald Reagan in San Diego have failed to establish how the Japanese utility’s acts were directed at California.

“There is no targeting here. Plaintiffs’ allegations that the effects of TepCo’s conduct were felt by American citizens while on U.S. ships, one of which with a home port of San Diego, are too attenuated to establish purposeful direction,” Sammartino wrote.

Sammartino added the sailors “have provided no information to support an assertion that TepCo knew its actions would cause harm likely to be suffered in California.”

In an email, class attorney Cate Edwards said, “We appreciate the time and attention that Judge Sammartino gave our arguments. Per her order, we intend to refile the case on behalf of the Bartel Plaintiffs and continue to fight for the justice these sailors deserve. We will also be moving forward with the Cooper case in due course, and look forward to reaching the merits in that case.”

The judge’s order dismisses the most recent class action filed in San Diego Federal Court last August. It follows another class action filed by an initial group of sailors in 2012, a year after they were sent to render aid after the March 11, 2011 tsunami and earthquake which caused the Fukushima Daiichi nuclear plant to meltdown and release radiation. That case has survived dismissal and an appeal to the Ninth Circuit.

More than 420 U.S. service members in the two cases seek compensation and medical monitoring, testing and health care costs for exposure to radiation. Some sailors have died from complications of radiation exposure since the cases were filed, and more than 20 are living with cancer, according to the lawsuits.

In a court hearing Thursday, Sammartino considered the motions to dismiss from TepCo and GE. They argued California courts have no jurisdiction over events in Japan. Sammartino also considered a choice-of-law motion from General Electric, which wants to apply Japanese law to the case or have it transferred to Japan.

TepCo operated the Fukushima nuclear plant, and GE designed its reactors.

TepCo attorney Gregory Stone, with Munger, Tolles & Olson in Los Angeles, said at the Thursday hearing all claims brought in the United States could be brought in Japan and that the statute of limitations has not run out there.

GE attorney Michael Schissel, with Arnold & Porter in New York, also said the case belongs in Japan, where the facts originated and the witnesses are. Schissel said the Japanese government declared the nuclear meltdown was not a natural disaster, so TepCo could be held liable for damages.

But Edwards, of the firm Edwards Kirby in North Carolina, said it’s important to look at the situation “from altitude,” to see things from the sailors’ perspective.

“These are American sailors, American employees serving their country, who were sent on American ships on international waters at the request of the Japanese government … their ally, which owns the majority of stock in defendant TepCo,” Edwards said.

“Being on an American ship in international waters puts you on American soil.”

Edwards said that since the vast majority of the sailor-plaintiffs were stationed in San Diego and GE designed the nuclear reactors at its San Jose headquarters, the case belongs in California.

“They want the case in Japan because they know it goes away; that’s clearly their strategy,” Edwards said.

He added: “This case screams federal jurisdiction; this case screams United States of America. The underlying concept of this whole thing is fundamental and basic notions of fairness being met.”

Edwards’ co-counsel Charles Bonner, with Bonner & Bonner in Sausalito, said if the case were transferred to Japan, where GE could be dismissed as a defendant, GE could “continue building their defective reactors with impunity.”

Bonner added that California has a vested interest in applying its own laws, including strict liability for defective products, and punitive damages to deter companies from selling defective products. He pointed out that one-sixth of the U.S. Navy is based in San Diego, with 69 Navy ships in San Diego Harbor.

“(Japan’s) compensation act has not been applied to their own citizens, only businesses. Why should we speculate their compensation act will help our sailors? It will not,” Bonner said.

Stone countered that Bonner was “simply wrong” in claiming that the Japanese nuclear damage compensation act had not benefited individual Japanese citizens. He said it is the conduct of defendants TepCo and GE – which occurred in Japan – and not the plaintiffs’ place of residence that should determine jurisdiction over the case.

The sailors’ attorneys indicated Thursday if Sammartino dismissed the class action, they would seek leave to amend their first case, Cooper v. TepCo, to add additional plaintiffs who were dismissed from the second case, Bartel v. TepCo. The defendants are expected to oppose the motion.

Stone and Schissel did not immediately return phone and email requests for comment Friday.

https://www.courthousenews.com/sailors-fight-to-keep-fukushima-radiation-case-in-us/

Sailors Fight to Keep Fukushima Radiation Case in US

6.jpg
SAN DIEGO (CN) – Former Senator John Edwards and his co-counsel on Thursday asked a federal judge not to transfer to Japan a class action by hundreds of U.S. sailors exposed to radiation in the Fukushima nuclear disaster.
An initial group of sailors sued Tokyo Electric Power Co. (TepCo) and General Electric in 2012. A second class action from sailors sent to render aid after the earthquake and tsunami was filed in San Diego Federal Court last August.
The March 11, 2011 tsunami caused the Fukushima Daiichi nuclear plant to shut down, but loss of circulation water coolant led to meltdowns and explosions whose radioactive releases may not be completely cleaned up for centuries.
More than 420 U.S. service members in the two cases seek compensation and medical monitoring, testing and health care costs for exposure to radiation. Some sailors have died from complications of radiation exposure since the cases were filed, and more than 20 are living with cancer, according to the lawsuits.
U.S. District Judge Janis Sammartino on Thursday considered motions to dismiss from TepCo and GE. They claim that California courts have no jurisdiction over events in Japan. Sammartino also considered a choice-of-law motion from General Electric, which wants to apply Japanese law to the case or have it transferred to Japan.
TepCo operated the Fukushima nuclear plant; GE designed its nuclear reactors.
TepCo attorney Gregory Stone, with Munger, Tolles & Olson in Los Angeles, said all claims brought in the United States could be brought in Japan and that the statute of limitations has not run out in Japan’s court system.
GE attorney Michael Schissel, with Arnold & Porter in New York, said the case belongs in Japan, where the facts originated and the witnesses are. Schissel said the Japanese government declared the nuclear meltdown was not a natural disaster, so TepCo could be held liable for damages.
But Edwards, whose firm Edwards Kirby is based in North Carolina, said it’s important to look at the situation “from altitude,” to see things from the sailors’ perspective.
“These are American sailors, American employees serving their country, who were sent on American ships on international waters at the request of the Japanese government … their ally, which owns the majority of stock in defendant TepCo,” Edwards said.
“Being on an American ship in international waters puts you on American soil.”
Edwards said that since the vast majority of the sailor-plaintiffs were stationed in San Diego and GE designed the nuclear reactors at its San Jose headquarters, the case belongs in California.
“They want the case in Japan because they know it goes away; that’s clearly their strategy,” Edwards said.
He added: “This case screams federal jurisdiction; this case screams United States of America. The underlying concept of this whole thing is fundamental and basic notions of fairness being met.”
Edwards’ co-counsel Charles Bonner, with Bonner & Bonner in Sausalito, said if the case were transferred to Japan, where GE could be dismissed as a defendant, GE could “continue building their defective reactors with impunity.”
Bonner added that California has a vested interest in applying its own laws, including strict liability for defective products, and punitive damages to deter companies from selling defective products. He pointed out that one-sixth of the U.S. Navy is based in San Diego, with 69 Navy ships in San Diego Harbor.
“(Japan’s) compensation act has not been applied to their own citizens, only businesses. Why should we speculate their compensation act will help our sailors? It will not,” Bonner said.
Stone countered that Bonner was “simply wrong” in claiming that the Japanese nuclear damage compensation act had not benefited individual Japanese citizens. He said it is the conduct of defendants TepCo and GE – which occurred in Japan – and not the plaintiffs’ place of residence that should determine jurisdiction over the case.
Sammartino indicated she will want further briefing from the attorneys before ruling on the motion to dismiss.

US Atomic Veterans Who Helped Out During Fukushima – Lawsuit Against TEPCO For Radiation Exposure (USS Ronald Reagan)

Posted by

On the afternoon of March 12, the day following the earthquake, Plaintiffs arrived off the coasts of Fukushima Prefecture aboard the aircraft carrier U.S.S. Ronald Reagan and other vessels to provide humanitarian aid. Plaintiffs allege that TEPCO promulgated false information regarding the extent of the damage to the FNPP, misleading the public, Japanese officials, and the U.S. military. They allege that TEPCO’s management publicly announced that there was no danger to those participating in Operation Tomodachi, despite knowing that there was a risk of radiation exposure. Plaintiffs claim that they and U.S. military officials were unaware of the extent of the radiation leak and that they would not have been deployed as close to the FNPP had TEPCO been forthcoming about the damage. They further allege that the U.S. military would not ordinarily discover such radiation absent sufficient warning. On March 14, two days after their arrival, Plaintiffs allege that their vessels were repositioned further away from the FNPP after U.S. officials onboard the U.S.S. Ronald Reagan detected nuclear contamination in the air and on an aircraft operating near the FNPP. “Sensitive instruments” aboard the U.S.S. Ronald Reagan discovered measurable levels of radioactivity on seventeen aircrew members returning from relief missions.

 

img_7602.jpg

(U.S. Navy photo by Mass Communication Specialist 3rd Class Kevin B. Gray/Released, via Flickr)

 

COOPER V. TOKYO ELECTRIC POWER, Page 4

Filed June 22, 2017

Before: A. Wallace Tashima, Kim McLane Wardlaw, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

SUMMARY *

Interlocutory Appeal

The panel affirmed the district court’s denial of Tokyo Electric Power Company, Inc.’s motion to dismiss a putative class action brought by members of the U.S. Navy who allege that they were exposed to radiation when deployed near the Fukushima Daiichi Nuclear Power Plant as part of Operation Tomodachi, a relief effort following the 2011 earthquake and tsunami on Japan’s northeastern coast.

The panel held that Article XIII of the Convention on Supplementary Compensation for Nuclear Damage (“CSC”) did not strip U.S. courts of jurisdiction over claims arising out of nuclear incidents that occurred prior to the CSC’s entry into force on April 15, 2015.

The panel held that the district court did not abuse its discretion when it decided to maintain jurisdiction, and did not dismiss plaintiffs’ claim on international comity grounds. First, the panel held that the district court did not abuse its

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

COOPER V. TOKYO ELECTRIC POWER, Page 5

discretion in weighing U.S. and Japanese interests, and in concluding that the parties’ ties to the United States outweighed the fact that the alleged negligent conduct occurred in Japan. The panel noted that Japan has a strong interest in centralizing jurisdiction over Fukushima Daiichi Nuclear Power Plant-related claims, and the United States had a strong interest in maintaining jurisdiction over this in order to help promote the CSC. Second, the panel held that the district court did not abuse its discretion in finding that Japan would provide an adequate alternative forum for resolving plaintiffs’ claims. Finally, the panel held that because comity is not a jurisdictional decision, it is a fluid doctrine, and the district court would be free to revisit the question should either the facts or the interests of the governments change.

The panel held that the district court did not abuse its discretion in declining to dismiss on forum non conveniens grounds.

The panel held that at this stage in the litigation, it was unable to undertake the “discriminating inquiry” necessary to determine if the case presented a political question because there were outstanding basic factual questions regarding the Navy’s operations during Operation Tomodachi. The panel concluded that the political question doctrine did not currently require dismissal, but Tokyo Electric Power Company was free to raise the political question doctrine again, if and when, further developments demonstrated that a political question was inextricable from the case.

The panel provided no opinion as to whether California’s firefighter’s rule applied to military service members and, if so, whether it barred plaintiffs’ claims.

COOPER V. TOKYO ELECTRIC POWER 6

COUNSEL

Daniel Paul Collins (argued), Rio S. Pierce, and Gregory P. Stone, Munger Tolles & Olson LLP, Los Angeles, California; Bryan H. Heckenlively, Munger Tolles & Olson LLP, San Francisco, California; for Defendant-Appellant.

Adam Cabral Bonner (argued) and Charles A. Bonner (argued), Law Offices of Bonner & Bonner, Sausalito, California; Paul C. Garner (argued), Rancho Mirage, California; John R. Edwards, Edwards Kirby, Raleigh, North Carolina; Catherine E. Edwards, Edwards Kirby, Del Mar, California; for Plaintiffs-Appellees.

OPINION

BYBEE, Circuit Judge:

On March 11, 2011, a 9.0 earthquake and a massive tsunami struck Japan’s northeastern coast. The United States participated in a relief effort known as Operation Tomodachi (Japanese for “friend”). The plaintiffs in this putative class action lawsuit are members of the U.S. Navy who allege that they were exposed to radiation when deployed near the Fukushima Daiichi Nuclear Power Plant (“FNPP”) as part of Operation Tomodachi. The earthquake and tsunami damaged the FNPP, causing radiation leaks. Plaintiffs sued Defendant Tokyo Electric Power Company, Inc. (“TEPCO”), the owner and operator of the FNPP, in the Southern District of California for negligence and other causes of action. TEPCO moved to dismiss the case on the grounds of international comity, forum non conveniens, the political question doctrine, and the firefighter’s rule. The district court denied the motion

COOPER V. TOKYO ELECTRIC POWER 7

on all grounds, but certified its order denying TEPCO’s motion to dismiss for immediate appeal under 28 U.S.C. § 1292(b). We agreed to take the interlocutory appeal. At this interlocutory stage in the proceedings, we affirm the district court’s denial of TEPCO’s motion to dismiss on all grounds. Further developments, however, may require the district court to revisit some of the issues that TEPCO raised in its motion to dismiss.

I. FACTS AND PROCEDURAL HISTORY

A. The FNPP Meltdown

The March 2011 earthquake and resulting tsunami were nothing short of devastating. 1 Over 15,000 deaths were reported, and there was immense damage to the region’s infrastructure. Cleanup efforts continue to this day, over six years later. One of the most alarming consequences of the catastrophe was the damage to the FNPP. The incident has been described as the worst nuclear accident since Chernobyl. The FNPP consisted of six boiling water reactors. At the time of the earthquake, only units one through three were in operation. The earthquake triggered an automatic shutdown of the three operating units. Water from the tsunami, however, disabled generators necessary to cool the reactors, causing the three units to melt down and leak radiation. Plaintiffs allege that the first meltdown occurred five hours after the earthquake and that units one through three exploded that same day. They further allege that over 300 tons of contaminated water from the FNPP began seeping into the sea after the meltdown.

1 We take the facts from Plaintiffs’ complaint and, for our purposes, we assume them to be true.

COOPER V. TOKYO ELECTRIC POWER 8

On the afternoon of March 12, the day following the earthquake, Plaintiffs arrived off the coasts of Fukushima Prefecture aboard the aircraft carrier U.S.S. Ronald Reagan and other vessels to provide humanitarian aid. Plaintiffs allege that TEPCO promulgated false information regarding the extent of the damage to the FNPP, misleading the public, Japanese officials, and the U.S. military. They allege that TEPCO’s management publicly announced that there was no danger to those participating in Operation Tomodachi, despite knowing that there was a risk of radiation exposure. Plaintiffs claim that they and U.S. military officials were unaware of the extent of the radiation leak and that they would not have been deployed as close to the FNPP had TEPCO been forthcoming about the damage. They further allege that the U.S. military would not ordinarily discover such radiation absent sufficient warning.

On March 14, two days after their arrival, Plaintiffs allege that their vessels were repositioned further away from the FNPP after U.S. officials onboard the U.S.S. Ronald Reagan detected nuclear contamination in the air and on an aircraft operating near the FNPP. “Sensitive instruments” aboard the U.S.S. Ronald Reagan discovered measurable levels of radioactivity on seventeen aircrew members returning from relief missions.

In the months following the earthquake, Japan commissioned the Fukushima Nuclear Accident Independent Investigation Commission (the “Commission”) to investigate the incident. The Commission determined that the meltdown was foreseeable in light of the known tsunami risks in the region and that TEPCO and the relevant regulatory bodies failed to take adequate precautions to prevent the incident. Though the earthquake and tsunami were natural disasters,

COOPER V. TOKYO ELECTRIC POWER 9

the Commission characterized the FNPP meltdown as a “manmade” disaster. In 2013, TEPCO also allegedly admitted that it could have avoided the meltdown.

In an effort to compensate victims of the FNPP meltdown, the Japanese government developed a comprehensive scheme to deal with the millions of claims resulting from the FNPP leak, giving claimants the option to submit a claim directly to TEPCO, to the newly established Nuclear Damage Claim Dispute Resolution Center, or to a Japanese court. These avenues for relief are available to all victims, regardless of nationality. Over $58 billion has been paid out to victims of the disaster. Brief of Amicus Curiae the Government of Japan 1–2, ECF No. 23. The Japanese government has provided immense financial support to TEPCO to keep TEPCO solvent. Although Plaintiffs could have pursued their claims against TEPCO in Japan, they chose to sue in the United States.

B. District Court Proceedings

Each Plaintiff in the present suit alleges that he or she was exposed to radiation during Operation Tomodachi. Plaintiffs request a judgment compelling TEPCO to establish a billion-dollar fund to cover continuing medical monitoring costs. They also request damages, including lost wages, non-economic damages, and punitive damages.

In Plaintiffs’ First Amended Complaint (“FAC”), they alleged that TEPCO and the Japanese government conspired to keep the extent of the radiation leak secret. They further alleged that “the U.S. Navy was lulled into a false sense of security,” which led it to deploy Plaintiffs “without doing the kinds of research and testing that would have verified” the

COOPER V. TOKYO ELECTRIC POWER 10

extent of the nuclear meltdown. The district court found that adjudicating this claim would require impermissible scrutiny of discretionary military judgments and would also require the court to evaluate communications between the U.S. and Japanese governments regarding the FNPP. Accordingly, the district court dismissed the FAC under the political question doctrine but granted Plaintiffs leave to amend. Cooper v. Tokyo Elec. Power Co., Inc. (Cooper I), 990 F. Supp. 2d 1035, 1039–42 (S.D. Cal. 2013).

In the Second Amended Complaint (“SAC”), Plaintiffs removed their conspiracy allegations and relied instead on allegations that TEPCO was negligent in operating the FNPP and in reporting the extent of the radiation leak. TEPCO filed a motion to dismiss, arguing that the SAC still presented a political question because determining whether TEPCO’s conduct was the proximate cause of Plaintiffs’ injuries would require the court to evaluate the Navy’s decision to deploy troops near the FNPP. TEPCO also argued that, given Japan’s extensive efforts to compensate FNPP victims, the SAC should be dismissed under the doctrines of international comity or forum non conveniens. TEPCO further contended that the so-called firefighter’s rule, which bars first responders from suing those who cause the emergency to which they respond, barred Plaintiffs’ claims.

The district court denied TEPCO’s motion to dismiss.2

Shortly thereafter, TEPCO filed a motion for reconsideration

2 The SAC contained ten causes of action, including claims for negligence, strict liability, nuisance, and intentional infliction of emotional distress. The district court granted TEPCO’s motion to dismiss with respect to Plaintiffs’ claims of design defect and intentional infliction of emotional distress but let the remaining eight causes of action proceed.

COOPER V. TOKYO ELECTRIC POWER 11

in light of our opinion in Mujica v. AirScan, Inc., 771 F.3d 580 (9th Cir. 2014), which provided additional guidance to district courts on how to determine whether to dismiss a case on international comity grounds. The district court granted TEPCO’s motion for reconsideration, but again denied TEPCO’s motion to dismiss. Cooper v. Tokyo Elec. Power Co., Inc. (Cooper II), 166 F. Supp. 3d 1103 (S.D. Cal. 2015). The district court concluded that the SAC’s restyling of Plaintiffs’ claims no longer implicated any political questions because it focused on TEPCO’s negligence rather than the military’s decision to deploy troops. Id. at 1117–24. The district court also rejected TEPCO’s alternative theories for dismissal. Id. at 1126–28, 1130–40. Per TEPCO’s request, the district court certified the issues for immediate appeal under 28 U.S.C. § 1292(b). Id. at 1141–43.

C. Appellate Proceedings

On appeal, TEPCO urges us to reverse the district court’s determinations regarding international comity, forum non conveniens, the political question doctrine, and the firefighter’s rule. The government of Japan, which had expressed no views on the location of this litigation to the district court, also filed an amicus brief urging us to reverse the district court’s decision and order the district court to dismiss Plaintiffs’ claims so that Plaintiffs can pursue their claims in Japan. In its brief, the Japanese government expresses concern that foreign lawsuits such as Plaintiffs’ could threaten the viability of Japan’s continuing efforts to ensure that all FNPP victims receive fair compensation.

In light of Japan’s brief, we solicited the United States Department of State’s views on whether this litigation should proceed in the United States. In response, the United States

COOPER V. TOKYO ELECTRIC POWER 12

filed an amicus brief arguing that the district court did not err in allowing Plaintiffs’ claims to proceed for the time being. Specifically, the United States opines that allowing Plaintiffs’ lawsuit to continue in the United States is consistent with U.S. efforts to promote the Convention on Supplementary Compensation for Nuclear Damage (“CSC”).

The parties each filed supplemental briefs in response to the United States’ position. General Electric Co. (“GE”)3 also filed an amicus brief responding to the United States’ argument that maintaining jurisdiction will help promote the CSC. Both TEPCO and GE argue that, although it did not enter into force until after Plaintiffs’ litigation was already pending, the CSC strips all U.S. courts of jurisdiction over claims arising out of the FNPP incident. If correct, TEPCO and GE’s argument undermines the United States’ position that maintaining jurisdiction in the United States will help promote the CSC, and provides an independent basis for dismissing Plaintiffs’ claims.

II. ANALYSIS

We begin by addressing whether the CSC strips U.S. courts of jurisdiction over Plaintiffs’ claims. 4 We then

3 GE is a defendant in the district court but not a party to this appeal. Plaintiffs claim that GE is liable for defectively designing the FNPP’s reactors.

4 GE raised this argument in the district court, but the district court has yet to rule on it. Because TEPCO and GE’s argument questions our jurisdiction, we may consider it in the first instance on appeal. See Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093 (9th Cir. 2004) (“The court has a continuing obligation to assess its own subject-matter jurisdiction . . . .”).

COOPER V. TOKYO ELECTRIC POWER 13

address TEPCO’s arguments regarding international comity, forum non conveniens, the political question doctrine, and the firefighter’s rule.

A. Jurisdiction Under the CSC

The CSC is an attempt to create “a worldwide liability regime” for dealing with nuclear accidents. Convention on Supplementary Compensation for Nuclear Damage, Preamble, opened for signature Sept. 29, 1997, S. Treaty Doc. No. 107-21 (2002) [hereinafter CSC]. One of the main goals of such a regime is to control the nuclear energy industry’s liability exposure, thus ensuring the continuing viability of the industry, while at the same time ensuring compensation for victims of nuclear accidents. Prior to the CSC, there were two major conventions addressing liability for nuclear accidents: the Paris Convention on Third Party Liability in the Field of Nuclear Energy of July 1960 and the Vienna Convention on Civil Liability for Nuclear Damage of May 1963. Both of these conventions included a number of provisions aimed at compensating victims of nuclear accidents while keeping the nuclear energy industry viable, such as imposing strict liability on operators of nuclear installations, requiring those operators to maintain insurance in certain amounts, permitting countries to cap the liability of nuclear installation operators, requiring countries to fund compensation for nuclear damage should private insurance be inadequate, and centralizing jurisdiction over claims arising out of nuclear incidents in the country where the nuclear incident occurred. Vienna Convention on Civil Liability for Nuclear Damage arts. II, V, VII, XI, May 21, 1963, 1063 U.N.T.S. 266; Paris Convention on Third Party Liability in the Field of Nuclear Energy arts. 6–7, 10, 13, 15, July 29, 1960, 956 U.N.T.S. 251. The United States was not a party

COOPER V. TOKYO ELECTRIC POWER 14

to either of these conventions, but enacted similar measures in the Price-Anderson Nuclear Industries Indemnity Act of 1957. See 42 U.S.C. § 2210.

To join the CSC, a country must be a party to the Vienna or Paris Conventions or have laws (such as the Price-Anderson Act) that meet the requirements set forth in the CSC’s annex. The CSC builds upon these prior conventions and national laws by creating an international supplementary compensation fund for victims of nuclear incidents. Under the CSC, contracting countries are required to ensure the availability of a certain amount of funds to compensate victims of a nuclear incident that occurs within their territories. CSC art. III. Beyond that amount, the contracting countries will contribute to a supplemental compensation fund. Id. Like the Paris and Vienna Conventions, the CSC also provides that “jurisdiction over actions concerning nuclear damage from a nuclear incident shall lie only with the courts of the Contracting Party within which the nuclear incident occurs.” Id. art. XIII(1).

The CSC was set to enter into force ninety days after “the date on which at least 5 States with a minimum of 400,000 units of installed nuclear capacity” ratified it. CSC art. XX(1). The CSC opened for signature on September 29, 1997, at which time the United States signed it. See Int’l Atomic Energy Agency, Status Report on the Convention on Supplementary Compensation for Nuclear Damage (2016). The United States ratified the CSC in May 2008, id., but it was not until Japan signed and ratified the CSC on January 15, 2015, almost four years after the FNPP incident, that there were enough parties to put the CSC into effect. Ninety days later on April 15, 2015, the CSC entered into force, almost two-and-a-half years after Plaintiffs first filed this suit. Id.

COOPER V. TOKYO ELECTRIC POWER 15

TEPCO and GE do not argue that the entirety of the CSC applies to the FNPP incident. Rather, they acknowledge the general principle that “[u]nless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” Vienna Convention on the Law of Treaties art. 28, May 23, 1969, 1155 U.N.T.S. 331.5 Based on this principle, TEPCO and GE accept that the CSC’s supplemental fund is unavailable for nuclear incidents occurring before the CSC’s entry into force, including the FNPP incident. Appellant’s Opening Brief 28, ECF No. 14; Appellant’s Supplementary Brief 10, ECF No. 98; Brief of Amicus Curiae GE 11, ECF No. 96. TEPCO and GE maintain, however, that Article XIII’s mandate that “jurisdiction over actions concerning nuclear damage from a nuclear incident shall lie only with the courts of the Contracting Party within which the nuclear incident occurs” applies to cases pending before the CSC entered into force.

This is so, TEPCO and GE argue, because jurisdictional provisions are not subject to limits on retroactive application. In support of this contention, TEPCO and GE cite a long list of cases explaining that jurisdictional provisions do not retroactively alter substantive rights, but only alter where plaintiffs can go to obtain prospective relief. Accordingly,

5 Although the United States is not a party to the Vienna Convention on the Law of Treaties, it acknowledges the non-retroactivity principle as an element of customary international law. United States’ Brief 13 n.5, ECF No. 81; see Mora v. New York, 524 F.3d 183, 196 n.19 (2d Cir. 2008) (“The Department of State considers the Vienna Convention on the Law of Treaties an authoritative guide to current treaty law and practice.”).

COOPER V. TOKYO ELECTRIC POWER 16

TEPCO and GE argue that jurisdiction-stripping provisions such as the one at issue here presumptively apply to pending cases. See, e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994) (“We have regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed. . . . Application of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’” (citation omitted)); Bruner v. United States, 343 U.S. 112, 116–17 (1952) (“This rule—that, when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law—has been adhered to consistently by this Court.”); Duldulao v. INS, 90 F.3d 396, 399 (9th Cir. 1996) (“The Supreme Court has long held that ‘when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall within the law.’” (citation omitted)). TEPCO and GE also argue that the same principle applies to jurisdictional provisions in treaties. See, e.g., Third Report on the Law of Treaties, [1964] 2 Y.B. Int’l L. Comm’n 11, U.N. Doc. A/CN.4/167 (suggesting that certain jurisdictional provisions in treaties apply to any “dispute which exists between the parties after the coming into force of the treaty” regardless of whether “the dispute concerns events which took place prior to that date.”). In short, because the courts of Japan are undisputedly open to Plaintiffs, and because Article XIII makes no reservation as to pending cases, TEPCO and GE argue that the CSC strips us of jurisdiction over Plaintiffs’ claims.

We find this argument plausible, but ultimately unpersuasive. Although jurisdictional provisions can and often do apply to cases already pending when those provisions go into effect, it is not true that we always apply

COOPER V. TOKYO ELECTRIC POWER 17

new jurisdictional provisions to pending cases. Rather, we look at the jurisdiction-stripping provision in the context of the statute or treaty at issue, applying normal canons of construction, to determine if the provision should apply to pending cases. Hamdan v. Rumsfeld, 548 U.S. 557, 577 (2006) (“[Not] all jurisdiction-stripping provisions—or even all such provisions that truly lack retroactive effect—must apply to cases pending at the time of their enactment. ‘[N]ormal rules of construction,’ including a contextual reading of the statutory language, may dictate otherwise.” (second alteration in original) (citation omitted)); Lindh v. Murphy, 521 U.S. 320, 326 (1997) (“In determining whether a statute’s terms would produce a retroactive effect, however, and in determining a statute’s temporal reach generally, our normal rules of construction apply.”); see also Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 180 (1982) (“The clear import of treaty language controls unless ‘application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories.’” (citation omitted)).

Applying normal rules of construction to Article XIII, we do not believe that it strips U.S. courts of jurisdiction over claims arising out of nuclear incidents that occurred prior to the CSC’s entry into force. 6 Two things bring us to this

6 For purposes of this analysis, we will assume that Article XIII is self-executing. See Medellin v. Texas, 552 U.S. 491, 505–06 (2008) (explaining that a treaty “ordinarily ‘depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it,’” but that some treaties “contain[] stipulations which are self-executing, that is, . . . they have the force and effect of a legislative enactment” (citation omitted)); Letter of Submittal for the Convention on Supplementary Compensation for Nuclear Damage at XV, August 7, 2001, S. Treaty Doc. No. 107-21 (“As with similar jurisdictional provisions in earlier treaties submitted to the Senate for advice and consent to ratification, it is anticipated that the provisions of Article XIII would be applied without the need for further implementing legislation.”). Because we conclude that, in any event, Article XIII does not apply to claims arising out of the FNPP incident, we need not decide this issue.

COOPER V. TOKYO ELECTRIC POWER 18

conclusion. First, starting with Article XIII’s text, we find it informative that the CSC gives exclusive jurisdiction to “the courts of the Contracting Party within which the nuclear incident occurs.” CSC art. XIII(1) (emphasis added). The use of the present tense suggests that the provision applies to future nuclear incidents and does not include past incidents. One would expect the drafters to have used the past tense had they intended to alter jurisdiction over claims arising out of nuclear incidents that occurred before the CSC’s entry into force. Other paragraphs within Article XIII also use the present tense, similarly indicating that Article XIII refers only to claims arising out of future nuclear incidents. See id. art. XIII(2) (“Where a nuclear incident occurs within the area of the exclusive economic zone of a Contracting Party[,] . . . jurisdiction over actions concerning nuclear damage from that nuclear incident shall, for the purposes of this Convention, lie only with the courts of that Party.” (emphasis added)); id. art. XIII(3) (“Where a nuclear incident does not occur within the territory of any Contracting Party[,] . . . jurisdiction over actions concerning nuclear damage from the nuclear incident shall lie only with the courts of the Installation State.” (emphasis added)). 7

7 TEPCO and GE counter that versions of the CSC in other languages, which are equally authentic, see CSC art. XXVII, use different verb tenses. The Spanish text, for example, uses the phrase “haya ocurrido.” “Haya” is the present subjunctive form of the Spanish verb “haber,” which in English means “to have.” As TEPCO and GE note, the phrase “haya ocurrido” means “has occurred.” In other words, the Spanish text grants jurisdiction to the courts of the country where the nuclear incident “has occurred,” not where it “occurs.” TEPCO and GE suggest that this difference precludes us from giving much weight to the English text’s use of the present tense.

COOPER V. TOKYO ELECTRIC POWER 19

Second, the CSC’s overall framework also supports our conclusion that Article XIII does not apply to claims arising out of nuclear incidents that precede the CSC’s entry into force because we view the promise of exclusive jurisdiction as a quid pro quo for establishing a compensation fund. To accept TEPCO and GE’s argument that the CSC’s jurisdictional provision applies to the current case, we would have to view Article XIII as a stand-alone provision, independent of the CSC’s remaining provisions, to centralize jurisdiction over nuclear damage claims in a single country. We cannot fairly construe the CSC in this manner. Article XIII is but one component of the compensation scheme created in the CSC. The CSC’s title—The Convention on Supplementary Compensation for Nuclear Damage—suggests what the remainder of the document makes clear: the CSC is, first and foremost, concerned with creating an international backstop for funding claims by victims of nuclear incidents.

We think that TEPCO and GE’s reliance on the Spanish text is misplaced. The Spanish text’s use of the phrase “haya ocurrido”—a subjunctive form that conveys a mood of indeterminancy that has no direct English counterpart—does not necessarily suggest that the CSC’s jurisdictional provision encompasses pre-existing nuclear incidents. Even if the CSC used the past tense and limited jurisdiction to “the courts of the Contracting Party within which the nuclear incident occurred,” that would not answer the question at issue here. In that case, the use of the past tense only shows the temporal relationship between the nuclear accident and the lawsuit, the former obviously preceding the latter. But this wording leaves open the question whether the nuclear accident had to occur after the CSC’s entry into force for the provision to apply. Even if other languages make the answer to that question ambiguous, our second point above compels our conclusion that the CSC applies only to nuclear incidents occurring after the CSC’s entry into force.

COOPER V. TOKYO ELECTRIC POWER 20

The “Purpose and Application” section reinforces that “[t]he purpose of this Convention is to supplement the system of compensation provided pursuant to” the Vienna and Paris Conventions and national laws such as the Price-Anderson Act. CSC art. II(1). To carry out its goal, the CSC creates what the CSC itself refers to as a “system,” id. art. II(2), or a “worldwide liability regime,” id., Preamble. Nothing in the CSC suggests that one component of that system, such as the jurisdictional provision at issue here, would apply when the entire system does not. The jurisdictional provision is not independent of the compensation scheme, but is part of the mechanism for effectuating that scheme.

Other provisions of the CSC confirm our reading that Article XIII is not an independent agreement to centralize litigation from a nuclear accident in a single country, but a mechanism for administering the supplemental compensation fund. A country whose courts have jurisdiction under Article XIII obtains certain rights and responsibilities. Specifically, “the Contracting party whose courts have jurisdiction shall inform the other Contracting Parties of a nuclear incident as soon as it appears that” domestic funds may be insufficient to compensate victims. Id. art. VI. Once domestic funds are exhausted, “the Contracting Party whose courts have jurisdiction shall request the other Contracting Parties to make available” the supplemental compensation fund, and “the Contracting Party whose courts have jurisdiction” has “exclusive competence to disburse such funds.” Id. art. VII(1); see also id. art. X(1) (“The system of disbursement by which the [supplemental funds] are to be made available and the system of apportionment thereof shall be that of the Contracting Party whose courts have jurisdiction.”). “The Contracting party whose courts have jurisdiction” may also exercise certain rights of recourse under the CSC. Id. art…..” Read the rest-download document here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/22/15-56424.pdf

Interviews and more here: http://nuclearhotseat.com/2017/06/28/fukushima-radiation-hit-uss-reagan-sailors-win-right-to-sue-tepco-in-usa-314/

Dying Navy Sailors Push for Trial on Fukushima Meltdown

6

 

SAN DIEGO (CN) – Representing cancer-ridden Navy service members who say they were exposed to radiation on a humanitarian mission in Fukushima, former Sen. John Edwards urged a federal judge Thursday to set a date for trial.

Over a decade after serving as John Kerry’s running mate in the 2004 presidential election, Edwards now represents hundreds of Navy sailors who were aboard the USS Ronald Reagan as part of a humanitarian mission trip to Fukushima, Japan — bringing food and supplies to the city in March 2011 after it was devastated by an earthquake and ensuing tsunami.

We have all these sailors whose case is now five years old, who have died or are in the process of dying right now,” said Edwards, whose firm Edwards Kirby is based in North Carolina.

Edwards noted that some of his other clients have seen their children born with birth defects. He said he made the trip from Raleigh to San Diego to “try to get this thing moving.”

Japan’s earthquake triggered a nuclear meltdown at the power plant run by Tokyo Electric Power Co., and Edwards’ clients say the radiation exposure has caused them to develop cancer and other illnesses.

The suit is one of two pending against TEPCo and General Electric in the Southern District of California — the first filed in 2012 and an additional lawsuit naming more than 150 sailors filed last month.

Thursday’s hearing before U.S. District Judge Janis Sammartino came after the Ninth Circuit ruled in June that the lawsuit could proceed in federal court, rejecting an effort to have the case sent to Japan.

Edwards urged Sammartino to bypass the procedural hurdles, “so we know there’s a deadline over there.”

Instead of just staying still and going with the pleadings and the motions to dismiss, is there a way to get us a trial date and a structure,” Edwards asked.

I hate to see these sailors and say we filed motions, went to the Ninth Circuit, went to Washington, and I hate to say I don’t know when [we’ll get our day in court],” Edwards said.

He asked for a May 2019 trial date.

TEPCo attorney Gregory Stone said the Japanese utility accepts responsibility for the radiation released but maintains the amount Navy service members were exposed to was negligible.

He thanked the service members present at the hearing for their efforts, but said that radiation exposure is not necessarily the cause of 300 to 400 sailors out of 70,000 on the humanitarian trip getting sick.

It only indicates what epidemiologists tell us: people get sick at different times of their lives for different reasons,” Stone said.

We don’t think the exposure was at a level sufficient to cause the injuries,” Stone continued, amid muttered comments from the audience. “They don’t agree with us and are probably talking about it now.”

GE attorney Michael Schissel said the length of the case and trial will be significantly impacted if GE remains a defendant in the case. Unlike TEPCo, GE is not admitting liability over the failure of its Boiling Water Reactors. Schissel said this would then require a liability phase at trial, significantly lengthening the process.

Sammartino called the case a “moving target” as the attorneys threw out different ideas for how best to approach setting deadlines and moving forward. She said she would issue an order setting dates.

In an interview with Courthouse News following the hearing, Edwards said they are pleased the case will be tried in America. If the case were in Japan, Edwards said there was a concern that the possibility of traveling across the world would cause his clients to lose hope.

From the perspective of a lawyer, it’s a wonderful cause,” Edwards said. “Here are these completely innocent people whose lives have been taken away from some of them and they were there trying to help the Japanese people. It was such a just and righteous cause that they were there for and they’ve had their lives changed forever as a result of what happened.”

More sailors are coming forward every week, Edwards added, saying they expect the numbers to continue to go up as the word gets out about the lawsuits.

He said they want to make sure “the truth comes out” and that the “word gets out about the dangers and risks that exist not just in Japan, but in other parts of the world.”

https://www.courthousenews.com/dying-navy-sailors-push-trial-fukushima-meltdown/

 

Navy Families Sue Fukushima Operators for Wrongful Death

maxresdefault.jpg

 

SAN DIEGO (CN) — Families of five Navy service members who died after responding to the Fukushima nuclear meltdown have sued Tokyo Electric Power Co., blaming the deaths on radiation illnesses contracted from the March 2011 disaster.

The families wish to join a lawsuit from 152 other members or survivors of members of the 7th Fleet who performed humanitarian response from March 11, 2011 until March 14, when the USS Ronald Reagan aircraft carrier was moved away from Fukushima due to detection of nuclear radiation in the air and on helicopters returning to the ship.

The new plaintiffs want to join in the third amended complaint Cooper, et al. v. TEPCO, et al., originally filed in the same court in 2012. They say it is only recently that they discovered the extent of the injuries, real and/or expected, due to exposure to radiation from the Fukushima Nuclear Power Plant.

The federal lawsuit was filed Friday and made available Monday in U.S. District Court in the Southern District of California. They sued General Electric in addition to Tokyo Electric Power Co., or TEPCO.

The Navy servicemen and -women want a $5 billion survivor fund for medical expenses.

They say General Electric designed the defective GE Boiling Water Reactors at Fukushima, which was run by TEPCO, Japan’s largest electric utility. The 7th Fleet’s Operation Tomodachi provided humanitarian relief after the tsunami and ensuing nuclear disaster. The sailors say they will need medical monitoring for life, payment of medical bills, and health monitoring for their children, including for possible radiation-induced birth defects.

“These harms include, but are not limited to, the following: illnesses such as leukemia, ulcers, gall bladder removals, brain cancer, brain tumors, testicular cancer, dysfunctional uterine bleeding, thyroid illnesses, stomach ailments, birth defects, death, and a host of other complaints unusual in such young adults and victims,” the complaint states.

The 81-page lawsuit contains few details about the five service members’ deaths, three of whom died in 2016.

Ruby Perez, who died of ovarian cancer, is the only plaintiff whose illness is specified.

The families are represented by Paul Garner and Charles Bonner, with Bonner & Bonner of Sausalito, who did not respond to requests for comment Monday.

The families say the prime minister of Japan has effectively admitted the negligence of TEPCO. “This negligence was underscored on Dec. 12, 2013, by admission of the former Prime Minister of Japan, Naoto Kan, who was in office when the Fukushima disaster took place. It was at that time that he admitted, for the first time: ‘People think it was March 12th (2011) but the first meltdown occurred 5 hours after the earthquake.’

“Unaware of either the meltdown or any potentially harmful radioactive release, the U.S. Sailor First Responders arrived off the coast of Fukushima during the afternoon of March 12, 2011 in order to carry out their mission of providing humanitarian aid to the victims of the earthquake and tsunami disaster. At no time did this mission include, nor expand into a response to a meltdown or a nuclear emergency at the FNPP. Rather, plaintiffs were carrying out their mission to provide humanitarian aid to the people of Japan by coming to their aid by delivering clean water, blankets, food, and other aspects of providing other humanitarian relief to the inhabitants of Fukushima Prefecture.”

The plaintiffs claim that though the nuclear meltdown was induced by a natural disaster, the Fukushima Nuclear Accident Independent Investigation Commission found in July 2012 that the meltdown was manmade because GE and TEPCO did not take adequate precautions for earthquakes and tsunamis.

They claim TEPCO ignored warnings of risk of damage by a tsunami, dismissed the need for better protection against seawater flooding, and failed to inspect, maintain and repair critical pieces of equipment.

Radiation exposure came not just through the air but by radioactive seawater used to cool the reactors that was pumped back into the Pacific Ocean after it had been contaminated, then sucked into the Navy ship, according to the complaint.

It adds: “One plaintiff declared: ‘ship was still taking in sea water — but obviously the ship can’t filter out the radiation. Water we all showered with, drank, brushed our teeth, and had our food cooked with …’”

Citing a March 14, 2011 statement from the Navy, the plaintiffs say at least 17 service members on helicopter air crews had measureable levels of radioactivity after returning to the ship.

https://www.courthousenews.com/navy-families-sue-fukushima-operators-wrongful-death/