This Day in History: Silkwood v. Kerr-McGee Verdict

via Carl Bunin &


The family of Karen Silkwood


May 18, 1979

A jury in a federal court in Silkwood v. Kerr-McGee established a company’s responsibility for damage to the health of a worker in the nuclear industry.

Karen Silkwood worked for the Kerr-McGee Nuclear Corporation at their Cimmaron, Texas, plant where plutonium was manufactured.

Silkwood had become the first female member of the Oil, Chemical and Atomic Workers bargaining committee, focusing on worker safety issues,
but had suffered radiation exposure in a series of unexplained incidents.
The jury in Judge Frank G. Theis’s court awarded her estate $505,000 in actual damages, and $10 million punitive damages.

She had died in a car accident on her way to a meeting with a The New York Times reporter five years earlier.


Karen Silkwood remembered, via Green Left Weekly:

Karen Silkwood remembered

Wednesday, August 1, 2001 – 10:00


Twenty-seven years ago, US anti-nuclear activist Karen Silkwood was killed in a car crash many suspect was deliberately caused by the Kerr McGee nuclear company.

Karen Silkwood will be remembered as someone who fought an uphill and often unpopular battle against the ruthless nuclear industry. She is an inspiration to all who believe in environmental justice and workers’ rights.

Silkwood grew up in Nederland, the petrochemical heart of Texas. Following an unhappy marriage and bitter divorce, in which she lost custody of her three children, she moved to Oklahoma City to look for work. In 1972 she began work in the Kerr McGee Metallography Laboratory.

Work at Kerr McGee was not pretty. Silkwood discovered numerous violations of health regulations: exposure of workers to contamination, faulty respiratory equipment, plutonium samples stored in desk drawers and plutonium samples taken to local schools for show and tell.

Because the plant provided just two showers for the 75 workers on each shift and allocated no paid time for workers to shower, most workers left the plant unshowered.

Within a few months of being employed at the plant, Silkwood was elected as the first female committee member of the Oil, Chemical and Atomic Workers Union at Kerr McGee. Alarmed at the health risks faced by workers, she collected evidence to expose the poor health and safety standards.

Her first hurdle was to get the workers onside. High unemployment meant people were desperate for a job and union membership was at an all-time low.

Kerr McGee was also seen as a “respectable” company because it was supported by the Atomic Energy Commission. Set up by Congress, the AEC had power over ownership of factories and over all substances from which atomic energy can be generated, plus research and development facilities.

The union warned Silkwood to work quietly because corruption in the nuclear industry was rampant. But nobody suspected the lengths to which the industry was prepared to go to protect its interests.

While she was collecting evidence, Silkwood’s phone was bugged, her movements monitored and, worst of all, she was deliberately contaminated with plutonium. The contamination was so severe that after her death all the clothes and other belongings removed from her apartment were put into sealed drums to avoid contaminating others.

After months of gathering evidence Silkwood decided to go public with the evidence she had collected, and made contact with a New York Times journalist prepared to print the story.

On November 17, 1974 Silkwood attended a union meeting, and then headed off on a 40-minute drive to a nearby town to hand her evidence over to the journalist. She never arrived.

Fourteen kilometres down the highway her car left the road and hit a concrete culvert. Found by a passing truck, Silkwood was taken to a local hospital and pronounced dead on arrival.

The car accident was highly suspicious. Silkwood was an experienced rally driver, yet tracks from the car indicated that it had gone for some distance on the grassed area to the side of the road. These marks would be consistent with the car being forced off the road.

The evidence that she intended to give the journalist was never found, although she had it with her when she left the union meeting.

Many sympathisers suspected that Kerr McGee (possibly with the support of government agents) had Silkwood murdered, but there was no evidence. However, a civil suit was filed against Kerr McGee for the Silkwood’s contamination by plutonium at the plant.

In 1979, Silkwood’s estate was awarded US$10.7 million for personal injury and punitive damages. Kerr McGee appealed the decision, and the appeal reduced the damages to just US$5000.

The litigation continued, and in 1986, 12 years after Silkwood’s death, Kerr McGee paid US$1.3 million dollars in an out-of-court settlement. Kerr McGee closed its nuclear fuel plants in 1975.

At the time of her death, Silkwood was just 28 years old. From all accounts, she was a loyal, strong, vibrant and determined person, who stood up for what she believed in and would not ignore something if it was wrong.

Silkwood’s battle did not end with her death, or even with the closure of Kerr McGee’s plant. It continues every day in a world where a company’s “right” to make profits still triumphs over workers’ rights to safety.

[Green Left Weekly, along with the Capricorn Conservation Council will be screening a film about Karen Silkwood in Rockhampton on August 4. Check the Activist Calender (page 30-31) for details.]



January 11 1984: The Supreme Court upheld the decision and the award.


U.S. Supreme Court




464 U.S. 238 (1984)

Decided January 11, 1984
JUSTICE WHITE delivered the opinion of the Court.

Last Term, this Court examined the relationship between federal and state authority in the nuclear energy field and concluded that States are precluded from regulating the safety aspects of nuclear energy. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n, 461 U.S. 190 (1983). This case requires us to determine whether a state-authorized award of punitive damages arising out of the escape of plutonium from a federally licensed nuclear facility is pre-empted either because it falls within that forbidden field or because it conflicts with some other aspect of the Atomic Energy Act.



Karen Silkwood was a laboratory analyst for Kerr-McGee at its Cimarron plant near Crescent, Okla. The plant fabricated plutonium fuel pins for use as reactor fuel in nuclear powerplants. Accordingly, the plant was subject to licensing and regulation by the Nuclear Regulatory Commission (NRC) (then the Atomic Energy Commission) pursuant to the Atomic Energy Act.

During a 3-day period of November 1974, Silkwood was contaminated by plutonium from the Cimarron plant. On November 5, Silkwood was grinding and polishing plutonium samples, utilizing glove boxes designed for that purpose. In accordance with established procedures, she checked her hands for contamination when she withdrew them from the glove box. When some contamination was detected, a more extensive check was performed. A monitoring device revealed contamination on Silkwood’s left hand, right wrist, upper arm, neck, hair, and nostrils. She was immediately decontaminated, and at the end of her shift, the monitors detected no contamination. However, she was given urine and fecal kits and was instructed to collect samples in order to check for plutonium discharge.

The next day, Silkwood arrived at the plant and began doing paperwork in the laboratory. Upon leaving the laboratory, Silkwood monitored herself and again discovered surface contamination. Once again, she was decontaminated.

On the third day, November 7, Silkwood was monitored upon her arrival at the plant. High levels of contamination were detected. Four urine samples and one fecal sample submitted that morning were also highly contaminated. Suspecting that the contamination had spread to areas outside the plant, the company directed a decontamination squad to accompany Silkwood to her apartment. Silkwood’s roommate, who was also an employee at the plant, was awakened and monitored. She was also contaminated, although to a lesser degree than Silkwood. The squad then monitored the apartment, finding contamination in several rooms, with especially high levels in the bathroom, the kitchen, and Silkwood’s bedroom.

The contamination level in Silkwood’s apartment was such that many of her personal belongings had to be destroyed. Silkwood herself was sent to the Los Alamos Scientific Laboratory to determine the extent of contamination in her vital body organs. She returned to work on November 13. That night, she was killed in an unrelated automobile accident.

Bill Silkwood, Karen’s father, brought the present diversity action in his capacity as administrator of her estate. The action was based on common-law tort principles under Oklahoma law and was designed to recover for the contamination injuries to Karen’s person and property. Kerr-McGee stipulated that the plutonium which caused the contamination came from its plant, and the jury expressly rejected Kerr-McGee’s allegation that Silkwood had intentionally removed the plutonium from the plant in an effort to embarrass the company. However, there were no other specific findings of fact with respect to the cause of the contamination.

During the course of the trial, evidence was presented which tended to show that Kerr-McGee did not always comply with NRC regulations. One Kerr-McGee witness conceded that the amount of plutonium which was unaccounted for during the period in question exceeded permissible limits. An NRC official testified that he did not feel that Kerr-McGee was conforming its conduct to the “as low as reasonably achievable” standard. There was also some evidence that the level of plutonium in Silkwood’s apartment may have exceeded that permitted in an unrestricted area such as a residence.

However, there was also evidence that Kerr-McGee complied with most federal regulations. The NRC official testified that there were no serious personnel exposures at the plant and that Kerr-McGee did not exceed the regulatory requirements with respect to exposure levels that would result in significant health hazards. In addition, Kerr-McGee introduced the Commission’s report on the investigation of the Silkwood incident in which the Commission determined that Kerr-McGee’s only violation of regulations throughout the incident was its failure to maintain a record of the dates of two urine samples submitted by Silkwood.

The trial court determined that Kerr-McGee had not shown that the contamination occurred during the course of Silkwood’s employment. Accordingly, the court precluded the jury from deciding whether the personal injury claim was covered by Oklahoma’s Workers’ Compensation Act, which provides the sole remedy for accidental personal injuries arising in the course of employment. Instead, the court submitted the claims to the jury on alternative theories of strict liability and negligence.

The court also instructed the jury with respect to punitive damages, explaining the standard by which Kerr-McGee’s conduct was to be evaluated in determining whether such damages should be awarded:

    “[T]he jury may give damages for the sake of example and by way of punishment, if the jury finds the defendant or defendants have been guilty of oppression, fraud, or malice, actual or presumed. . . .
    “Exemplary damages are not limited to cases where there is direct evidence of fraud, malice or gross negligence. They may be allowed when there is evidence of such recklessness and wanton disregard of another’s rights that malice and evil intent will be inferred. If a defendant is grossly and wantonly reckless in exposing others to dangers, the law holds him to have intended the natural consequences of his acts, and treats him as guilty of a willful wrong.”

The jury returned a verdict in favor of Mr. Silkwood, finding actual damages of $505,000 ($500,000 for personal injuries and $5,000 for property damage) and punitive damages of $10 million. The trial court entered judgment against Kerr-McGee in that amount.

Kerr-McGee then moved for judgment n.o.v. or a new trial. In denying that motion, the court rejected Kerr-McGee’s contention that compliance with federal regulations precluded an award of punitive damages. The court noted that Kerr-McGee “had a duty under part 20 of Title 10 of the Code of Federal Regulations to maintain the release of radiation `as low as reasonably achievable.’ Compliance with this standard cannot be demonstrated merely through control of escaped plutonium to within any absolute amount.” Therefore, the court concluded, it is not “inconsistent [with any congressional design] to impose punitive damages for the escape of plutonium caused by grossly negligent, reckless and willful conduct.”

Kerr-McGee renewed its contentions with greater success before the Court of Appeals for the Tenth Circuit. That court, by decision of a split panel, affirmed in part and reversed in part. The court first held that recovery for Silkwood’s personal injuries was controlled exclusively by Oklahoma’s workers’ compensation law. It thus reversed the $500,000 judgment for those injuries. The court then affirmed the property damage portion of the award, holding that the workers’ compensation law applied only to personal injuries and that Oklahoma law permitted an award under a theory of strict liability in the circumstances  of this case. Finally, the court held that because of the federal statutes regulating the Kerr-McGee plant, “punitive damages may not be awarded in this case.”

In reaching its conclusion with respect to the punitive damages award, the Court of Appeals adopted a broad pre-emption analysis. It concluded that “any state action that competes substantially with the AEC (NRC) in its regulation of radiation hazards associated with plants handling nuclear material” was impermissible. Because “[a] judicial award of exemplary damages under state law as punishment for bad practices or to deter future practices involving exposure to radiation is not less intrusive than direct legislative acts of the state,” the court determined that such awards were pre-empted by federal law.

Mr. Silkwood appealed, seeking review of the Court of Appeals’ ruling with respect to the punitive damages award….



As we recently observed in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n (1983), state law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. Kerr-McGee contends that the award in this case is invalid under either analysis. We consider each of these contentions in turn.


In Pacific Gas & Electric, an examination of the statutory scheme and legislative history of the Atomic Energy Act convinced us that “Congress . . . intended that the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant.”  Thus, we concluded that “the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States.”

Kerr-McGee argues that our ruling in Pacific Gas & Electric is dispositive of the issue in this case. Noting that “regulation can be as effectively exerted through an award of damages as through some form of preventive relief,” Kerr-McGee submits that because the state-authorized award of punitive damages in this case punishes and deters conduct related to radiation hazards, it falls within the prohibited field. However, a review of the same legislative history which prompted our holding in Pacific Gas & Electric, coupled with an examination of Congress’ actions with respect to other portions of the Atomic Energy Act, convinces us that the pre-empted field does not extend as far as Kerr-McGee would have it.

As we recounted in Pacific Gas & Electric, “[u]ntil 1954 . . . the use, control, and ownership of nuclear technology remained a federal monopoly.” In that year, Congress enacted legislation which provided for private involvement in the development of atomic energy.  However, the Federal Government retained extensive control over the manner in which this development occurred. In particular, the Atomic Energy Commission was given “exclusive jurisdiction to license the transfer, delivery, receipt, acquisition, possession, and use of nuclear materials.”

In 1959 Congress amended the Atomic Energy Act in order to “clarify the respective responsibilities . . . of the States and the Commission with respect to the regulation of byproduct, source, and special nuclear materials.”  The Commission was authorized to turn some of its regulatory authority over to any State which would adopt a suitable regulatory program. However, the Commission was to retain exclusive regulatory authority over “the disposal of such . . . byproduct, source, or special nuclear material as the Commission determines . . . should, because of the hazards or potential hazards thereof, not be disposed of without a license from the Commission.” The States were therefore still precluded from regulating the safety aspects of these hazardous materials.

Congress’ decision to prohibit the States from regulating the safety aspects of nuclear development was premised on its belief that the Commission was more qualified to determine what type of safety standards should be enacted in this complex area. As Congress was informed by the AEC, the 1959 legislation provided for continued federal control over the more hazardous materials because “the technical safety considerations are of such complexity that it is not likely that any State would be prepared to deal with them during the foreseeable future.”  If there were nothing more, this concern over the States’ inability to formulate effective standards and the foreclosure of the States from conditioning the operation of nuclear plants on compliance with state-imposed safety standards arguably would disallow resort to state-law remedies by those suffering injuries from radiation in a nuclear plant. There is, however, ample evidence that Congress had no intention of forbidding the States to provide such remedies.

Indeed, there is no indication that Congress even seriously considered precluding the use of such remedies either when it enacted the Atomic Energy Act in 1954 or when it amended it in 1959. This silence takes on added significance in light of Congress’ failure to provide any federal remedy for persons injured by such conduct. It is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.

More importantly, the only congressional discussion concerning the relationship between the Atomic Energy Act and state tort remedies indicates that Congress assumed that such remedies would be available. After the 1954 law was enacted, private companies contemplating entry into the nuclear industry expressed concern over potentially bankrupting state-law suits arising out of a nuclear incident. As a result, in 1957 Congress passed the Price-Anderson Act. That Act established an indemnification scheme under which operators of licensed nuclear facilities could be required to obtain up to $60 million in private financial protection against such suits. The Government would then provide indemnification for the next $500 million of liability, and the resulting $560 million would be the limit of liability for any one nuclear incident.

Although the Price-Anderson Act does not apply to the present situation, the discussion preceding its enactment and subsequent amendment indicates that Congress assumed that persons injured by nuclear accidents were free to utilize existing state tort law remedies. The Joint Committee Report on the original version of the Price-Anderson Act explained the relationship between the Act and existing state tort law as follows:

    “Since the rights of third parties who are injured are established by State law, there is no interference with the State law until there is a likelihood that the damages exceed the amount of financial responsibility required together with the amount of the indemnity. At that point the Federal interference is limited to the prohibition of making payments through the State courts and to prorating the proceeds available.”

Congress clearly began working on the Price-Anderson legislation with the assumption that in the absence of some subsequent legislative action, state tort law would apply. This was true even though Congress was fully aware of the Commission’s exclusive regulatory authority over safety matters. When it enacted the Price-Anderson Act, Congress was well aware of the need for effective national safety regulation. In fact, it intended to encourage such regulation. But, at the same time, “the right of the State courts to establish the liability of the persons involved in the normal way [was] maintained.”

The belief that the NRC’s exclusive authority to set safety standards did not foreclose the use of state tort remedies was reaffirmed when the Price-Anderson Act was amended in 1966….Similarly, when the Committee outlined the rights of those injured in nuclear incidents which were not extraordinary nuclear occurrences, its reference point was again state law. “Absent . . . a determination [that the incident is an “extraordinary nuclear occurrence”], a claimant would have exactly the same rights that he has today under existing law – including, perhaps, benefit of a rule of strict liability if applicable State law so provides.” Indeed, the entire discussion surrounding the 1966 amendment was premised on the assumption that state remedies were available notwithstanding the NRC’s exclusive regulatory authority…..

Kerr-McGee focuses on the differences between compensatory and punitive damages awards and asserts that, at most, Congress intended to allow the former. This argument, however, is misdirected because our inquiry is not whether Congress expressly allowed punitive damages awards. Punitive damages have long been a part of traditional state tort law. As we noted above, Congress assumed that traditional principles of state tort law would apply with full force unless they were expressly supplanted. Thus, it is Kerr-McGee’s burden to show that Congress intended to preclude such awards. Yet, the company is unable to point to anything in the legislative history or in the regulations that indicates that punitive damages were not to be allowed.

In sum, it is clear that in enacting and amending the Price-Anderson Act, Congress assumed that state-law remedies, in whatever form they might take, were available to those injured by nuclear incidents. This was so even though it was well aware of the NRC’s exclusive authority to regulate safety matters. No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever tension there was between them. We can do no less. It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept.

We do not suggest that there could never be an instance in which the federal law would pre-empt the recovery of damages based on state law. But insofar as damages for radiation injuries are concerned, pre-emption should not be judged on the basis that the Federal Government has so completely occupied the field of safety that state remedies are foreclosed but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law. We perceive no such conflict or frustration in the circumstances of this case.



The United States, as amicus curiae, contends that the award of punitive damages in this case is pre-empted because it conflicts with the federal remedial scheme, noting that the NRC is authorized to impose civil penalties on licensees when federal standards have been violated. However, the award of punitive damages in the present case does not conflict with that scheme. Paying both federal fines and state-imposed punitive damages for the same incident would not appear to be physically impossible. Nor does exposure to punitive damages frustrate any purpose of the federal remedial scheme.

Kerr-McGee contends that the award is pre-empted because it frustrates Congress’ express desire “to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes.”  In Pacific Gas & Electric, we observed that “[t]here is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power.”  However, we also observed that “the promotion of nuclear power is not to be accomplished `at all costs.'” Indeed, the provision cited by Kerr-McGee goes on to state that atomic energy should be developed and utilized only to the extent it is consistent “with the health and safety of the public.”  Congress therefore disclaimed any interest in promoting the development and utilization of atomic energy by means that fail to provide adequate remedies for those who are injured by exposure to hazardous nuclear materials. Thus, the award of punitive damages in this case does not hinder the accomplishment of the purpose stated in 2013(d).



We conclude that the award of punitive damages in this case is not pre-empted by federal law….
JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins, dissenting.

I join JUSTICE POWELL’s opinion in dissent and add comments of my own that, I believe, demonstrate (a) the incompatibility between the Court’s opinion last Term in Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Comm’n (1983), and its opinion in the present case, and (b) the fact that the Court is by no means compelled to reach the result it espouses today.

JUSTICE POWELL’s dissent well explains the fundamental incongruity of the Court’s result. The Court acknowledges that Congress pre-empted state regulation of safety aspects of nuclear operations largely out of concern that States were without the technological expertise necessary to regulate them. Yet the Court concludes that Congress intended to allow a jury to impose substantial penalties upon a nuclear licensee for failure to follow what the jury regards as adequate safety procedures. The Court recognizes the paradox of its disposition, but blames the irrationality on Congress. Then, with humility, the Court explains that it is duty-bound to follow the dictates of Congress. But such institutional modesty cannot transfer the blame for the tension that today’s decision injects into the regulation of nuclear power. The Court, in my view, tortures its earlier decisions and, more importantly, wreaks havoc with the regulatory structure that Congress carefully created….


Without explanation, the analysis proceeds as though the issue is whether a victim in a nuclear accident can seek judicial recourse for her injuries. That issue is not in dispute. The issue in this case is not whether a victim of radiation hazards can be compensated under state law. The issue is whether the jury can impose a fine on a nuclear operator in addition to whatever compensatory award is given….

The Court responds to an argument that has not been made. Respondents have not attributed to Congress a callous intent to deprive injured victims of compensation. Pacific Gas does not imply anything so heartless. Yet the Court’s analysis never focuses on the real issue; its entire analysis proceeds as if pre-emption of punitive damages would require pre-emption of compensatory damages as well.

The source of the confusion appears to be an argument by petitioner (formerly appellant) that a pre-emption analysis of punitive damages and compensatory damages must lead to the same result on the ground that both have a regulatory effect. Petitioner thus placed before the Court the bleak – though contrived – choice either to allow punitive damages or to deprive injured victims of “all judicial recourse” for their injuries. As pointed out above, there is no reason that similar treatment of punitive and compensatory damages is required; indeed, Pacific Gas requires that a distinction between the two be drawn.

The irony of the Court’s approach is that Pacific Gas, decided less than a year ago, drew precisely the line that the Court today is unable to find. Pacific Gas made clear that the purpose of a statute is critical in a pre-emption analysis under the Atomic Energy Act. In that case, moreover, the parties were in serious dispute over whether the statute in question was motivated out of safety or nonsafety concerns. In this case, in contrast, there is no disagreement on the dispositive issue; the Court does not dispute that punitive damages are intended to make a nuclear operator adopt better safety procedures.

Petitioner seems also to have obscured the distinction between compensatory and punitive damages by focusing on the role of a jury in awarding compensatory damages in a State, such as Oklahoma, where compensation is allowed only on a showing of negligence. Because a determination of negligence requires a jury to determine a licensee’s duty of care, petitioner argued that Congress has demonstrated a willingness to allow a jury to set a standard for licensee conduct. That being the case, petitioner suggested that there is no evidence that Congress intended not to allow a jury to impose a punitive award based on that standard.

It is not at all surprising, however, that Congress would tolerate a jury-imposed negligence standard for awarding compensation. In its desire to promote nuclear power, Congress has never expressed an intention to allow a nuclear licensee to avoid paying for any injury it causes. Indeed, where Congress has determined the liability standard for licensees, it has imposed strict liability. Congress thus has demonstrated its willingness to hold a nuclear licensee liable for all injury that it causes, regardless of whether it is at fault. When a State chooses to impose a more relaxed liability standard on a licensee – such as negligence – the State simply eliminates part of the burden that the Federal Government is willing to have the nuclear industry bear. In effect, a State that uses a negligence standard simply subsidizes the industry at the expense of those numbers of its citizenry that are victims of radiation hazards. The fact that Congress was willing to let States reduce the compensatory liability of licensees is hardly support for the notion that Congress would also allow States to set – either through administrative regulation or tort law – standards of care higher than the federal standard, and impose fines to secure compliance with them….

By using Price-Anderson’s legislative history in 1957 to conclude that the 1954 Act leaves all of state tort law intact, the Court implicitly proves too much. Surely the Court would concede that Congress did not intend, for example, to allow a state court to entertain a nuisance action and enjoin the operation of a nuclear powerplant on the ground that the plant was unsafe. Similarly, the Court must agree that a state court could not enjoin in a trespass action the release of effluents from a plant that was in compliance with Commission standards. Yet the Court’s position rests on the notion that state tort law must be treated as an undifferentiated body of law, and that all tort remedies have been left intact….


The Court’s decision, in effect, authorizes lay juries and judges in each of the States to make regulatory judgments as to whether a federally licensed nuclear facility is being operated safely. Such judgments then become the predicate to imposing heavy punitive damages. This authority is approved in this case even though the Nuclear Regulatory Commission (NRC) (then the Atomic Energy Commission) (AEC) – the agency authorized by Congress to assure the safety of nuclear facilities – found no relevant violation of its stringent safety requirements worthy of punishment. The decision today also comes less than a year after we explicitly held that federal law has “pre-empted” all “state safety regulation” except certain limited powers “expressly ceded to the States.” There is no express authorization in federal law of the authority the Court today finds in a State’s common law of torts.

Punitive damages, unrelated to compensation for any injury or damage sustained by a plaintiff, are “regulatory” in nature rather than compensatory….The purpose of a punitive damages award was made clear by the District Court’s instructions. The jury was authorized to impose such damages to “punish the offender for the general benefit of society, both as a restraint upon the transgressor and as a warning and example to deter the commission of like offenses in the future….”

The Court defends the awarding – even on the basis of inferences – of punitive damages judgments by lay juries with no competency to understand the highly sophisticated technology of nuclear facilities. In doing so, it states: “Congress assumed that traditional principles of state tort law would apply with full force unless they were expressly supplanted. . . . [T]he company is unable to point to anything in the legislative history or in the regulations that indicates that punitive damages were not to be allowed.”  In my view, this conclusion is irreconcilable with Pacific Gas & Electric Co.’s pre-emption holding….

This case is a disquieting example of how the jury system can function as an unauthorized regulatory medium. Under accepted principles of tort law punitive damages may not properly be awarded on the basis of negligent conduct. A jury therefore must find malicious, wanton, or grossly negligent conduct. As noted above, the evidence presented by plaintiff at the trial for the most part was wide-ranging “expert” testimony as to the overall operation of the defendant plant. There was little evidence related in any causal way to the plutonium leak that contaminated Ms. Silkwood. Nor was there any evidence whatever of the “oppression,” “fraud,” “malice,” or “wanton reckless[ness]” mentioned in the trial court’s inflammatory instructions to the jury.

More importantly, the trial court did not instruct the jury, as would have been proper, that if it found that Kerr-McGee had complied with the regulations there could be no finding of fraud, malice, or wanton or reckless conduct. Rather, in effect, the jury was told that it could decide that the regulations were invalid: “[S]uch regulations do not have to be accepted by you as right or accurate if they defy human credence, are questionable under best scientific knowledge, or can be shown not to accomplish their intended purpose.”

Until today, I had not understood that a jury lawfully could be instructed on the basis of its own determination of “human credence” to conclude that a presumptively valid federal regulation simply could be ignored. This Court nevertheless – without knowing which of the jumble of instructions the jury actually followed- concluded that the award of punitive damages does not conflict with the regulation program established by Congress and the AEC. On the record, it is at least more likely than not that the jury totally ignored federal regulations as authorized by the trial court. Moreover, the Court attaches no importance to the fact that the AEC – the agency that adopted the regulations and was responsible for their enforcement – investigated the Silkwood incident and found no significant violation of its regulations….

In sum, the Court’s decision will leave this area of the law in disarray. No longer can the operators of nuclear facilities rely on the regulations and oversight of the NRC. Juries unfamiliar with nuclear technology may be competent to determine and assess compensatory damages on the basis of liability without fault. They are unlikely, however, to have even the most rudimentary comprehension of what reasonably must be done to assure the safety of employees and the public….

Today, the Court opens a wide and inviting door to indirect regulation by juries authorized to impose damages to punish and deter on the basis of inferences even when a plant has taken the utmost precautions provided by law. Not only is this unfair, it also could discourage investment needed to further the acknowledged national need for this alternative source of energy. I would affirm the judgment of the Court of Appeals.


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