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MCLANDRICH v. SOUTHERN CALIFORNIA EDISON CO.

July 26, 1996

CHERYL MARIE McLANDRICH, et al., Plaintiffs,
v.
SOUTHERN CALIFORNIA EDISON COMPANY, SAN DIEGO GAS & ELECTRIC, COMBUSTION ENGINEERING, et al., Defendants



The opinion of the court was delivered by: BREWSTER

 The parties in the above-captioned case came before this Court on July, 1996 to consider defendant Institute of Nuclear Power Operations' ("INPO") motion to reconsider this Court's earlier order denying INPO's request to refer the case to the Nuclear Regulatory Commission ("NRC") and for continuing argument on defendant San Diego Gas & Electric's ("SDGE") motion for summary judgment. David Ringwood, Esq. appeared on behalf of plaintiff Cheryl McLandrich. Janice Brown, Esq. and Jim Miller, Esq. appeared on behalf of defendant INPO. Ned Isokawa, Esq. appeared on behalf of defendant SDGE. Having carefully considered the papers submitted and the oral arguments offered by all parties, the Court hereby GRANTS defendant INPO's motion for reconsideration and AFFIRMS its earlier order denying the motion to refer the matter to the NRC. The Court also DENIES defendant SDGE's motion for summary judgment. Finally, the Court also GRANTS INPO and SDGE's requests to certify the case for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

 I. BACKGROUND

 A. Factual Background

 This case arises out of events at the San Onofre Nuclear Generating Station ("SONGS") where Greogory McLandrich, plaintiffs decedent, was employed as a nuclear engineer from 1973 to 1990. (Second Amended Complaint ("SAC") P 19.) Southern California Edison ("SCE"), SDGE, the City of Riverside and the City of Anaheim are co-owners of SONGS. SCE manages the daily operation of SONGS pursuant to a Joint Operating Agreement among the co-owners. Allegedly, defendants, during the period of decedent's employment allowed dangerous levels of radiation to escape into areas of SONGS where employees worked, including Mr. McLandrich. (SAC P 20-22.) Defendant Combustion Engineering allegedly manufactured defective nuclear fuel rods and the other defendants knowingly kept these fuel rods in service despite the presence of "fuel fleas" (leaks of irradiated fuel fragments) in the air at SONGS and on workers' protective clothing. (SAC PP 23, 24.) Plaintiff alleges further that detection, monitoring and documentation of radiation exposure at SONGS were seriously flawed, and that dosimetry badges worn by workers were defective. (SAC PP 28-29.) Plaintiff asserts that defendants knew or should have known of the hazardous conditions at the plant, but did not correct the problems or warn Mr. McLandrich. (SAC P 32.) Moreover, plaintiff avers that defendants told Mr. McLandrich that his radiation dose levels and contamination exposures were low and below safety guidelines. (SAC "P 34.)

 INPO is an independent organization funded by the nuclear power industry whose members include the owners and operators of licensed nuclear power plants. INPO generally coordinates the activities of its members with respect to operational policies, including policies regarding the recording of radiation levels and the reporting of radiation exposure to plant workers. INPO has a formal arrangement with the NRC, called a "Coordination Plan," under which INPO and the NRC, recognizing "the existence of mutually compatible objectives reflecting concerns for the radiological protection of individuals who work at nuclear power plants," have agreed "to coordinate selected NRC and INPO utility radiological protection activities." Plaintiff alleges that INPO engaged in a conspiracy with SCE and SDGE to fraudulently misrepresent radiation exposures at SONGS and deceive workers, the public and the NRC. (SAC P 31.)

 Defendants were allegedly aware of the effects of radiation exposure and knew that Mr. McLandrich had been exposed to excessive levels of radiation, that he had suffered an injury and that the injury resulted from excessive radiation exposure. (SAC P 34.) Defendants' knowing failure to inform Mr. McLandrich of his radiation exposure allegedly aggravated his injury as he was unable to properly seek treatment and his exposure to excessive radiation continued. (SAC P 35.)

 During the mid to late 1980s, Mr. McLandrich developed severe stomach pains for which he could not obtain a diagnosis. (SAC P 35.) Mr. McLandrich was diagnosed in August, 1989, with leiomyosarcoma, a rare form of soft tissue cancer of the abdomen. He died in or around November 1990.

 B. Procedural Background

 Plaintiffs, Cheryl and Paul McLandrich, by and through their guardian ad lit em, Linda McLandrich filed their original complaint on February 6, 1995 stating among other things a claim for the wrongful death of their father, Gregory McLandrich. On April 3, 1995, United States District Judge Napoleon A Jones, Jr. granted defendants' motion to dismiss as to counts 1-14 of the original complaint, leaving only the claim for wrongful death. Judge Jones also ruled that decedent's wife, not the children, was the real party in interest where only the wife, as trustee of decedent's estate, could bring the estate's cause of action. *fn1" Defendants answered plaintiffs complaint on April 20, 1995. *fn2"

 This Court has had these parties before it on several occasions. On November 27, 1995, this Court granted SCE's motion for summary judgment on the basis of workers' compensation exclusivity. The Court simultaneously denied SDGE's similar motion for summary judgment, instead granting, sua sponte, summary adjudication in favor of plaintiff that SDGE is not a joint employer for the purposes of the workers' compensation laws and thus is not protected by the exclusivity rule. SDGE and Combustion Engineering then filed answers to the First Amended Complaint ("FAC"). SDGE filed a motion to reconsider the Court's earlier sua sponte grant of summary adjudication against it. After a hearing on January 22, 1996, this Court affirmed its prior ruling denying SDGE's motion for summary judgment and granting summary adjudication in favor of plaintiffs. At the motion for reconsideration, SDGE raised, for the first time, the argument that it was shielded from liability under the holding of Privette v. Superior Court, 5 Cal. 4th 689, 854 P.2d 721 (1993). The Court determined that considering an issue newly raised by the parties in a motion for reconsideration would be inappropriate but left open to the defendant the opportunity to bring a subsequent motion for summary judgment based on that argument. The Court upheld its finding that SDGE was not a "joint employer." On March 20, 1996, this Court heard oral argument on SDGE's new motion for summary judgment based on the application of the rule announced in Privette to the case at bar. The Court, during oral argument, suggested that this case might be effected by the state law doctrine of "ultrahazardous activities," requested that the parties submit additional briefing addressing that issue and scheduled further oral argument which was heard on July 15, 1996. The Court did not rule on the motion for summary judgment at that time. The Court has now received the supplemental briefing and heard the oral argument related to that issue.

 II. STANDARDS OF LAW

 A. Motion for Reconsideration

 On a motion to reconsider, relief should be granted only "if the district court (1) is presented with newly discovered evidence, (2) committed clear error or [its] initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multnomah County v. AcandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 129 L. Ed. 2d 861, 114 S. Ct. 2742 (1994).

 INPO requests reconsideration here on the grounds that this Court's earlier ruling was based on clear error. There has been no intervening change in the law and INPO has offered no new evidence to the Court.

 B. Motion for Summary Judgment

 On a motion for summary judgment pursuant to Fed. R. Civ. P. 56, the moving party must first establish that there is "no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. " British Airways Board v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978), reh'g den., 441 U.S. 968, 60 L. Ed. 2d 1074, 99 S. Ct. 2420 (1979). Summary judgment must be granted if the party responding to the motion fails "to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Although the moving party has the initial burden of demonstrating that summary judgment is proper, that burden may be discharged by pointing out to the court an absence of facts to support the nonmoving party's case. Id. at 325. The moving party is not required to produce evidence showing the absence of a genuine issue of material fact on such issues, nor must the moving party support its motion with evidence negating the nonmoving party's claim. United Steelworkers of America, et. al. v. Phelps Dodge, et. al., 865 F.2d 1539, 1542 (9th Cir. 1989), cert. denied, 493 U.S. 809, 107 L. Ed. 2d 20, 110 S. Ct. 51 (1989).

 The burden then shifts to the nonmoving party to show that summary judgment is not appropriate. Celotex, at 324. To make such a showing, the nonmoving party must go beyond the pleadings to designate specific facts showing that there is a genuine issue for trial. Id. Such evidence ...


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