By Gail Diane Cox
(The Recorder)

It's one thing to lose a case. It's another to lose after a six-week federal trial that took just three hours for a jury to decide -- unanimously.

Worse yet, this debacle in March 1998 was the third straight trial failure in a campaign by Los Angeles' Howarth & Smith to hold the San Onofre Nuclear Generating Station responsible for leukemia that had stricken a handful of people who had been in or around the plant in the mid-1980s.

"The jurors we interviewed afterward from all three juries told us exactly the same thing," litigator Don Howarth recalls. They could not -- as required by a jury instruction -- conclude that in a universe full of radiation, a particular ray from leaking fuel rods at San Onofre had actually caused the frequently fatal form of leukemia.

"We'd spent years of trying to prove the impossible," Howarth says. "Medical science can't prove exactly which of many potential causes triggers a cancer, and that's another way of saying that given those jury instructions, the plaintiff can't win."

After that third trial on behalf of cancer victims and their survivors, Howarth and his partner, Suzelle Smith, convened the plaintiffs, including those in four similar pending suits. They then laid out a double-or-nothing strategy: Unless they could convince the 9th U.S. Circuit Court of Appeals to change the jury instruction regarding causation, they would have to give up.

A MATTER OF EXPOSURE: The San Onofre Nuclear Generating Station, about 40 miles north of San Diego, is the alleged origin of leukemia that struck a handful of former plant workers and their families.

On July 20, climaxing Howarth's seven-year crusade, a 9th Circuit panel changed the instruction. The third case can be retried, and all future cases can go to trial, under a drastically lowered standard for tort liability.

"This is the first appellate ruling in a nuclear power plant case in 25 years -- that is, the first since Silkwood -- that does not further insulate the industry from liability," Smith says.

"I remember opening the envelope from the court," Howarth adds, "and, when I quit going 'wow,' yelling out to her that justice delayed is still justice achieved."

The new instruction requires a plaintiff to show only that exposure to radiation "in reasonable medical probability was a substantial factor" contributing to the risk of developing cancer. At its broadest, it substitutes "risk" for "actual cause." And the court noted in Kennedy v. Southern California Edison Co., 98-56157, that the chance of increased risk theoretically could be as small as one in 100,000 for a jury to find liability.

Industrial concerns were quick to oppose the ruling. The California Chamber of Commerce, the American Chemistry Council and the National Association of Manufacturers are among those urging reconsideration.

"If unmodified, liability for alleged injury associated with exposure to chemical products will be virtually unlimited," reads an amicus brief that Los Angeles' Gibson, Dunn & Crutcher submitted on their behalf. Citing the risk to the California economy, the brief, also representing Lockheed Martin Corp., Phillips Petroleum and Pfizer Inc., concludes that Kennedy is a "fundamental reordering of ... a plaintiff's burden of proof."

If the unanimous panel headed by Judge Michael Hawkins holds its ground, and the 9th Circuit doesn't intervene en banc, both sides agree the U.S. Supreme Court comes next.

Howarth insists he isn't worried about facing the combined forces of Los Angeles-based firms Paul, Hastings, Janofsky & Walker and Munger, Tolles & Olson, representing Southern California Edison Co. in addition to Gibson, Dunn. Ironically, years ago it might have been him, rather than Gibson, Dunn partner Robert Loewen, who wrote the amicus brief challenging the Kennedy ruling.

Loewen, from Gibson Dunn's Irvine, Calif., office, notes that Howarth built a career at Gibson Dunn defending asbestos cases. "You can bet Don wouldn't have thought much of this jury instruction then," he says.

But in 1985, Howarth earned himself a footnote in the annals of law firm heresy when he became the first partner to leave Gibson Dunn to strike out on his own, taking three promising associates, one of whom was Smith. At the time, he didn't express a burning desire to represent plaintiffs but rather to escape big-firm bureaucracy, which he complained was "risk averse."

By 1993, the date of the first San Onofre filing, Howarth & Smith had a statewide reputation for beguiling juries. But with fewer than 20 lawyers, the decision to take on the nuclear power industry -- on contingency -- was a sizable risk. Each trial has cost about $500,000, Smith notes, and that doesn't include several million dollars worth of lawyer hours expended over the years.

No one disputes that San Onofre's operators identified some 100 defective fuel rods in 1983 and chose to wait 18 months until the next scheduled overhaul to replace them. The Nuclear Regulatory Commission levied a $100,000 fine for safety violations. Located 40 miles north of San Diego, the Southern California Edison plant generates 20 percent of Southern California's electricity.

The first plaintiff was R.C. Tang, who worked for the Nuclear Regulatory Commission at San Onofre for two years. In her case, and the subsequent cases that Howarth & Smith filed, the cancer was chronic myelogenous leukemia. It is a blood disease seen in survivors of the atomic attacks on Hiroshima and Nagasaki. Although the only known cause is radiation exposure, the latency period can be so long that many victims have no record of contamination.

The Tang jury hung in February 1994. The case settled confidentially.

The second plaintiff was Glen "Jimmy" James, an electrical engineer at the plant. The defense argued in both cases that the plaintiffs' exposure was less than has been designated acceptable in industrywide standards. Howarth and Smith failed to score with their counterargument that the exposure was underestimated because it didn't include "fuel fleas" -- microscopic but dense fragments that are a byproduct of leaking rods and that arguably can lodge in hair and clothing, and even meandering cats, to follow workers home and irradiate their families and neighborhoods.

In the Kennedy case, the victim was married to a man who worked at San Onofre. She died of chronic myelogenous leukemia in 1996. The widower and their four children sued, and if this summer's 9th Circuit opinion holds, they qualify for a second chance to show that Southern California Edison as well as the manufacturer of the rods are to blame for her death. The four remaining lawsuits on file are a mix of claims by former workers with cancer and their widows.

Next time, Howarth and Smith won't have to rely so heavily on fuel fleas. As the amicus brief notes, "acceptable" risk levels established in 1986 by regulators for operating nuclear power plants -- formerly a slam-dunk defense -- exceed the one-in-100,000 range the court articulated in Kennedy.

Led by John Reding at the San Francisco office of Los Angeles-based Paul Hastings, the defendants are focusing on the Price-Anderson Act, in which Congress said nuclear power plant cases are to be tried in federal courts under the substantive law of the state where the alleged tort took place. Congress intended uniformity. The defense argues that other federal courts have required actual causation for radiation tort liability.

The amicus brief opposing the 9th Circuit ruling focuses on the court's reliance on Rutherford v. Owens-Illinois Inc., 16 Cal. 4th 953, an asbestos case that sets a strict liability standard. Rutherford was different from Kennedy, they maintain, because in Rutherford, causation was already established, and the jury used risk merely to allocate blame among multiple manufacturers.

And what if, as Don Howarth maintains, medical science can't be definitive enough to prove causation for radiation-linked cancers?

"Sounds like a reason not to assign liability," Loewen replies.