Statute of limitations does not bar personal injury claims of plaintiffs who lived near nuclear testing facility

Law Reporter, May 2003

O'Connor v. Boeing N. Am., Inc., 311 F.3d 1139 (9th Cir. 2002).

The Ninth Circuit Court of Appeals held that claims by a class of California residents who sued nuclear testing facilities are not barred by the statute of limitations.

In this case, 52 people who lived near nuclear testing facilities sued the owners of the facilities, alleging they were injured by toxic substances caused by the facilities' operations. The trial court granted defendants' motion for summary judgment, holding that plaintiffs' claims were barred by California's discovery rule for commencement of actions. The trial court also held that publicity about the nuclear facilities was sufficiently notorious to impute plaintiffs with knowledge of it, and that the only reasonable inference to be drawn from that publicity is that plaintiffs should have suspected that their illnesses were caused by defendants' facilities. Plaintiffs appealed.

Reversing in part, the Ninth Circuit noted that in this case the delayed discovery rule of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. [sec] 9658, preempts the state discovery rule.

Under CERCLA, the limitations period did not begin to run until plaintiffs knew or should have known that their injuries and illnesses were caused by defendants' facilities. When a state statute of limitations gives plaintiff an earlier commencement date than that of CERCLA, CERCLA preempts the state law, so that the plaintiff is allowed to benefit from the more generous commencement date. Here, CERCLA defines the commencement date as the date the plaintiff knew or should have known that the injury was caused or contributed to by the toxic substance complained of, whereas California's law defines the date of discovery of the injury as the commencement date. Since the federal law has the more generous commencement date, this date governs plaintiffs' case, the court held.

Second, the court held that there are conflicting reasonable inferences that can be drawn by reading the publicity regarding defendants' facilities. Studies released about potential health effects of contamination by hazardous substances stated that such substances are not necessarily harmful to humans, and that further study was needed.

Therefore, one reasonable inference that can be drawn is tihat plaintiffs relied on statements that there was no immediate health threat from the substances, the court said. Thus, genuine issues of material fact remain, and summary judgment was improper, the court held.

Accordingly, the court reversed the trial court's grant of summary judgment for defendants.

Plaintiffs' Counsel

*A. Barry Cappello, Santa Barbara, Cal.

*Tina B. Nieves, Pasadena, Cal.

*Hector G. Gancedo, Pasadena, Cal.