Law360 report: Tepco, GE Escape $5B Fukushima Radiation Suit

Keith Goldberg, “Tepco, GE Escape $5B Fukushima Radiation Suit,” Law360, January 5, 2018.

Law360, 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.(TEPCO) 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.


Join discussion: leave a comment