ML17249A553

Forwards Moran & Krenzer Summons & Complaint,Us District Court for Western District of Ny,Civil Action 79-1009

ML17249A553
Person / Time
Site:	Ginna
Issue date:	02/04/1980
From:	Lohrmann A ROCHESTER GAS & ELECTRIC CORP.
To:	Dinitz I Office of Nuclear Reactor Regulation
References
NUDOCS 8002080622
Download: ML17249A553 (45)

Text

REGuLATORY INFORMAT ION D IS TRIBU 7 ION S YS TEM (8 lDS)

AccEssIDN NoR:eooaoeobp Doc.DATE: eo/oa/ou NoTARTzED< No DOC KE,'T PAClC:50 204 Robert Fmmet Ginna blucfear Planti Unit

'UTHOR AFFILIAfION li Rochester G 05006204'O'fH SHAME

~ Rochester Gas 8 Electric Corp,

"'OHRAANNEA,A" RECII',blAME REClPIhNT AFFILIATION DLNl fig I ~ P ~ Antitrust 8 Lndemnity Group SUBJECTS Forwards Moran 8 Krenzer summons 8 complaintEUS District Court for Hlestei n District of NY C-ivil Action l9 1009, DISTRIBUTION CODE: H01 ES COPIES RECEIYED:LTR 2 ENCL J SIZE: 4X nsurance Claims ( ndemn ty NOTES: IC+ Z5.'8888k~~ 8 ~ A'FYT010ygR RECIPIENT COPIES RECIPIENT COPIES ID CODE/blAME L'fry ENCL ID CUOE/NAME Lt"fA"ENCl.

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ROCHESTER GAS AND ELECTRIC CORPORATION ~ 89 EAST AVENUE, ROCHESTER, N.Y. 14649 TE( EPHONE AREA CODE 7(5 546-2700 February 4, 1980 Mr. Era P. Dinitz Nuclear Regulatory Commission Washington, D. C. 20555 Re: Notice of Claim: R. E. Ginna Nuclear Power Plant, Unit 1; Docket No. 50-24II Jan B. Burba and Nancy Burba Edward W. Garrett and Doreen Garrett Donald C. Gray Thomas E. Michaels and Elaine Michaels Albert H. Morrison and Sharonlee Morrison Aaron W. Salter and Carol M. Salter Gordon D. Sheehan and Cheryl Sheehan vs. Rochester Gas and Electric Corporation

Dear Mr. Dinitz:

Enclosed herewith is a summons and complaint regarding the above captioned plaintiffs.

As discussed in our telephone conversation, similar actions have been brought in New York State Supreme Court.

The issue of whether the cases will be heard in State or Federal Court is still to be resolved.

Xf you have any further questions, please feel free to call upon me.

Very truly yours, Alan A. Lohrmann, Manager Claims and insurance Department AAL:lmv Enclosure QD 8008088

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( CIVIL ACTION FILE NO.

JP'l B, BURBA and IL'P'-!CY BURBA ED'bv'AM) t'b' Gl&~iETT and . DOREE.~ GARRETT DO"'JALD C GRAY e

THOLJ].S E. lfICHAELS and ELATE t~IC!IAELS bi

,rb ALBERT-'. PiORRISON and SHARO)LEE;YIORRXSOl~r-AAROH il., S/Q.TER and CAROL 3f. 'SALTER GORDON D. S.KEHA':i anci CHERYL,S1&'EltAH, Plaintiff SUMMONS ',

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I bi To the above named Defendant You are hereby summoned and requireB to serve upon ge[G( 7'dl('.((f LG(];((L((I (.'ll). '. 'c( ll((. I'P Luu(]G ]>). u LGLbca b,;pLL bpubV 8 fiLblfrq (b(u'Gs jpLrp I OL ply Q(

'r(r.'laintiff's attorney, whose address 257 Elmvood Avenue Buffa1o, Hex York 14222 r;))urry:.p'.J 8))(l, .O;..]b $ !b Ib6'O].G ]L!G' (ib]P "b"]b ]b(()I] f)g]Sp(l b(b((])ea ljQke'b(c r(!('].I.'GG an answer to the complaint which is herewith served upon you, within days after service of this b]i J(

f~h]',(ii) $ $ 5i 0 'bb(iii'('l]C]'ay summons'upon youl-(exclusive of the of service. If garou fail to do so, judgment by default7vill be taken against you for the relief demanded in the complaint.

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""" Clerk of Court.

3(Q(feed DC7>](81J Clerk.

December 28, 1979 Date: I Seal of Court]

XO'ZL: This summons -is issued pursunnt lo Ilu)c 4 of the Federnl 1$ ules of Civil Procedure.I;-.,

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~ H UNIT:D STATES DZS 'ICT COURT l"<STERN DISTRICT 0- NxH YORK""

JAN B. BURBA and NANCY BURBA,.

347 Daytona Drive Goleta, California 93017, and EDWARD N. GZ %BETT. and DOREEN GARRETT COMPLAINT'FOR 8 Karen Drive DECLPRATORY Rochester, New York 14606, and JUDGMENT AND DP~AGES DONALD C. GRAY 1380 Electric Avenue Lackawanna, New York, 14218, and JURY TRIAL THOMAS .E. MZCHAELS and ELAZNE MICF~LS DE1 QNDED 421 Eden Street Buf alo, New York 14220, md ALBERT H. MORRISON and SHARONLEE MORRISON 70 Schutt Court Grand island, New York 14072, and N. SALTER ana CAROL M SALTER 'ARON 597 Norfolk Avenue Buffalo, New York 14216, and GORDON D. $ HEEMN ana CHERYL SHEEMN 162 Rhea Crescent Rochester, New York 14615 Plaintiffs vs OCHESTER GAS AND "LECTRIC CORPORATION 89 East Avenue ochester, New York'efendant Th'e plaintiffs, by and through their attorneys, Moran nd Krenzer, seek Declaratory Judgment and damages for juries, and for their Complaint. respectfully state:

JURZSDZCTZON qz~rs g. sion~ 1. This Court has Ju 'sdiction under'z'ticl'e III, LiiO P'4D'T LVV

States Constitution; Article 1','ections One and =ignt o the Un'ted-States Constituti'on; Title 28 USC 'Sect'ons .1331 and 1337; and Title'2 USC Sections 20'll et 'seq'., as amended, as well as Title 42 VSC Sections 2201'nd 2401; and Rule 57 of the Federal Rules of Civil Procedure.,

This being a civil action brought under the actual and/or implied authority and'urisdiction oi this Court under an Ac of Congress and under the provisions of Title 42 USC Sections 2011 et seq., as amended (commonly referred. to as the "Price-Anderson Act") for claims of t-diation injury resulting f om radiation exposure during the regulation of, possession, use in interstate commerce facilities, use in ut'ilization facilities licensed and pervasively regulated by the United States, of atomic energy;'pecial nuclear material; and other federally licensed activities of the de endant under those statutory provisions.

This also being a civil action brought'under of this Court, since it arises under an Act of the'urisiction Congress'egulating commerce '('28'SC '1'337) and which arises under'he Constitution and Laws of the United States where the sum or value in controversy exceeds $ 10,000.00, exclusive of interest and costs (28 USC 1331).

This also being a civil action see3cing Declaratory Judgment (42 USC 2201'nd'401 and Rule 57) that the g>rovisions of Title 42 USC Sections 2201 et seer., and regulations made pursuant thereto,,grant a federal cause of action to plaintiffs, either expressly or as necessarily implied, to recover for injuries and

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d'or d~-;.ages sustained by them the matters set forth nerein below.

This also being a civ' action seeking a Declaratory Judgment (42 USC 2201,'401 and 3ule 57) tha the provisions of Title 42 USC '2201 'et seer. and regulations made pursuant thereto, under the='Supremacy Clause, create an. actual or:impliea federal statute of limitations. for. claw~ s of injuries and damages sustained by persons at federally licensed nuclear facilities as complained of herein, which permit suit. for recovery within such federal limit'ations. h This also being a civil action seeking a Declaratory Judgmen , under the provisions aforesaid, tnat Congress has pre-empted, through pexvasive regulation (statutorily and under the code'f Federal Regulations), the entire field of nuclear energy and radiation control and that the jurisdiction of United States District Courts are exclusive and original for claims arising out of injuries to non-employe'es of licensees through radiation or alternatively such. jurisdiction is at least jointly with the Courts of the several S"ates.

This also being a civil action seeking a Declaratory k

Judgment, under the provisions aforesaid, and by virtue of the Fourteenth Pmenament and Ti"le 28'SC 134'3 (Sub'-'se'etio'n's'3'and 4) zs well as the organic law which authorizes the institution of "Ms suit founded upon Tit'le 42 USC '1983, with respect to the facial validity and/or the application of CPLR 214 of the State of Yew choric to these plaintiffs under the circumstances complained of

'A.~iES J. %)OR.~N herein.

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This also being a civil ac"ion see/ ing a Declaraiory Judaic entI uncer the provisions, aforesaid, thai ihe provisions of CPLR.214 of the State of New York cenies to ihe plainiif s substanii've and/or procedural Due Process as wr'tien and/or as authoritatively construed by aranting the riant to sue and recover io 'citizens of the State of New York and the United States who may visit the-State of \

New York and/or seek recovery therein wnile denying the same to plaintiffs and access to the Courts under the circu-,stances herein contrary to ihe Fourteenih. Amencment and the I

provis'ons of life, liberty and property therefrom.

2. Ai all times herein relevant'the plaintiffs were resicents of the Staie of New York.

3. Upon information and belief, at all t.imes herein relevant,'he defendant was and continues to be a New York State business corporation with its pr'ncipal place of business located.

at 89 =ast Avenue, Rochester, New York.

4. Upon information and belief, at. all times herein relevant, the cefencant owned, opera"ec, maintained and conirolled a nuclear power plant known as the R.E. Ginna Nuclear Plant:

(hereinafter referred to as Ginna Nuclear Plant) located at Ontario'enter, New York.

5, Upon information and belief, at all times herein relevant, the cefencant was and continues to be controlled, reaulated and licensed by the United States throuah the Nuclear Reaula ory Commission and a's such is subject to all the provisions of 'Title 42 USC 2201 ei seer. and the Code oz Federal Regulationsg hh(ES J. 1(ORAN Title '10 thereof, and all controls of the United States with lTTOR'iXY hT LAW respect to raciation, protection therefrom ana compensation for

any injurious radiation and radiat'on injuries complained of herein.

6. That at all times herein relevant, the State'of New Yoik,'y statute, I

provides. for under Article 2; Section 214 of the CPLR, that all suits for injuries ana damages, in I

tne Courts of 'New York, must be commenced within three (3) .

years of the date of the infliction of the injury if based upon State founaed common law negligence. Further, that the Courts of. New'ork have construed the term "injury" to commence and occur at the time the substance was injected into or i.nflicted upon the boay and not when the injury is manifested and discovered'y the injured party.

7. That at all times herein relevant, the State of New York haa in force statutes and construction of. statutes wnich permitted certain classes of persons to be exempt from the 3 years statute of limitations.

.8. That at all times herein relevant, the United States, unaer various congressional provisions including Title 42 USC 2201 et seg., granted a period of limitations which permits the filing of this suit and enforcement for radiation injuries sustained as complained of'erein.

9. That upon information and belief, the defendant was notified of a damage claim maae by an employee of Nisco and of two other claims by other employees of Nisco within recent months.

Further, tnat aefendant, actm> g through Francis E.

JAifES J. 4)OWN A~iORNEY AT Lh'iY Drake, 'Chairman of the Boa d, by letter to the employees of

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"e e..dant and by written statement to the press and by 'ts attorneys, state that "it (de endant) intends to contest the claims vigorously". <<nd further that. the provis'ons of CPLR 214 are available in contest of p aintif s'laims herein by the

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efendant.

AS P>D FOR DECLABATO~~:

'UDGhENT 10.'he plaintif s repeat, reiterate and reallege each and every allegation contained in paragraphs numb'red 1 through 9 ove, the same as if more fully herein set forth.

1 . That the pla.intiffs were thereby injured and therwise damaged through. and by reason of the exc'essive and rohioi~ed overexposure to radiation by descendant wnicn occurred n or about the month of December 1973 or tfie months of January

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and February 1974.

Further, 'that no injury manifested itself to plaintiffs, or did they otherwise become aware of the excessive radiation and he progressive injury they were subjected to until the same was onfirmed by them immediately prior to the filing of ~his suit, ome 5 years and several months after the radiation overexposures ccurred..

12. That Congress, by 42 USC 2011, declared the egislative intent in enactment of the. Price-Anderson Act which

eclared the policy of the United States to be to direct the development, use and control of atomic energy so as to make the

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aximum contribution to the general welfare, subject at all times

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=o the paramount objective of common de ense and security.

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I nuc ea incident except inter alia claims under State or r eceral wcrkes en ' compensation acts of employees of persons inde~i.zified who are employed at the site of and. "n connection with the activity where the incident occurs. '

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That the Congress retained federal control over

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radiation and the protection agains~'radiation..hazards ( 2 USC 2021 (k) ) .. Further, that'omes ~ic distribution; 'owner'ship,'

possession 'and use of nuclear .material remains, controlled and y s s licensed by the United Ste's: (42 USU 2073 thron9h2094) .

15. Further, that, Congress has controlled the publishing and distribution of all.information re ating to atomic energy 'n the national interest and usurped the right to patent invent'ons and discoveries pertaining thereto.

16. That Congress pursuant to 42'SC 2210 the utilizaton facilities (including defendant) is required to have such inancial protection. to cover public liability claims and sets up provisions of federal indemnity, joint agreements, settlemen~ of claims, and limits of liability as well as waiver of defenses.

.17. That Congress has, in other respects, regulated and

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required licensing of virtually every aspect for use facilities and has granted the Nuclear Regulatory Commission exolusive authority over the maintainence of radiation controls, and protection and permits its determination of specifications and standards of facili ies and radiation exposure.. Further, that the Commission has pervasively regulated all aspects of human exposure to radiation and utilization facilities to the exclusion of the JAlf~M J. h1ORAX TTOR.'sEY AT LAÃ

various states.

18. Further that ~-'e several States are .not p ermitted to 1

regulate z'adiation or the exposure .to radiation. under the Act and

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the regulations promulgateG thereunder.

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19.. That Congress has seen forth specific federal Court jurisdiction under various provisions of the Act.

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Section. 2021(c) (Retention of Authority); Section'021(k) (Retention I

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of Authority against radiation hazards);Section I

2160 (a) (Prohibiting any. Court"reviewing Proliferation Statement);

Section 2184 (Injunctions ~d damages relating to paten0s);

Section 2210(n)( ublic liabi ity claims in extraordinary nuclear occurrence, then tne District Court of the district of occurrence); Section 2210 (o) (Allocation of funds iz claims may be in excess oz limit of liability, then District Court of that district may apportion); Section 2239 (District Court review of hearings); Section 2272 (cr~~ nal violations); and, Section 2281

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(contempt proceedings) .

20. That because of the pervasive regulation of atomic energy activities and in particular radiation and its hazards together with Congressional modifications of insurance recruirements, limitations, ~ ~~.-. unities and procedures including settlements together with specif ic District Court jurisdiction zor specified claims with exclusions only running to workmen's compensation claims, the en-i=e field has been pre-empted.

Further, that there=o e jurisdiction for plaintiffs'-"

LAW'laims lie jointly, if not exclusively, within the District Court J.ahfES J. hfORAN ATTO? KEY AT

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Further, that Congress 'a' ure to speci ically grant such

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jurisdict'on was an c~ersight or at leas< an assi'.1pt cn i at all c perscns on site who were exposed to' covered incident would be P \

employees of the licensee or the United .States as delineated under Section 2014 (w) . ~

21. That by reason thereof this Court'has such jurisdiction and should issue is Dec aratory Decree determining such jurisdiction.

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22. -That by reason of the 'clear recognition of the United States Congress in its 1975 amendment of Section 2210 (n) from an overall limitation of 10 years to 20 years from occurrence and an initial limitat'on of 3 y'ears from knowing or reasonably could have known about the injury, he Congress intended injured parties to be able to recover up to 3 vears after such knowlecge generally.

23. That by reason thereof the provisions of the New York CPLR 214 are in conflict and would deny to plaintiffs Due Process under the Fourteenth Amendment and this Court should issue its Declaratory Decree determining such. construction of limitations and the invalidity of CPLR 214 in respect to foreclosure of limitations before such radiation injury is manifested or before laintiffs could reasonably have known of such injury.

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24. That by reason of certain exemptions of classes of ersons from the rest ictions of CPLR 214 which are not ounded pon any rational basis and the denial of such exemptions to JAi)ES J. hfORA'i laintiffs similarly situated constitutes a denial of Eaual ATTORNEY AT LhlY

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II P otectio 1 of the L=ws under. the Fourteenth Amend. ent and this Court should 'ssue its Declaratory Decree determining sucn to be repugnant to the constitutional provisions aforesaid and therefore invalid ..

25. That, by reason of all of the above, Congress has created express and/or implied federal'causes of action sounding in negligence, as well as fraud, with the=ability of injured parties to file suit and recover. in the various federal District A

Courts under the PricIe-Anderson Act. Further that such express or

>~plied jurisdiction and cause of action of the District Court of the District of occurrence is either exclusive orig'nal or at the minm~ un jointly with the jurisdiction and claims avai able 'n the Courts of the several States. Further, that such express and/or implied jurisdiction has. been, at, least by dictum if not through a direct holding, noted by the various federal Courts 'ncluding the United States Supreme Court and therefore this Court should issue its Declaratory Decree determining such causes of action and jurisdiction.

AS AND FOR CAUSES OF ACTION IN FRAUD IN BENZ F OF THE PLAINTIFFS ~

JZ2J B BUBBAI EDW2 RD W GARRETT ~ DONALD C; GRAY, THOMAS E. MICHAELS~ ALBERT H.

MORRISON, AARON W. SALTER and GORDON D.

SHEEF~

.26. These plaintiffs repeat, reiterate and reallege each and -every allegation contained in paragraphs numbered 1 though 25 above, the same as if herein more fully set forth.

27. Upon information and belief, in tne latter part of 1973, the defendant entered into a cont act with Nisco, a companv

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rom New Jersey, in which N'sco agreed to perform work, cn a ccnta~~vent vessel located at the Gin a Nuclear P'ant.

28. Lpon information and be'ief, at the time that the Defendant entered into a contract witn. disco and at all relevant times thereafter,'he defendant knew that exposing indviduals to n

radiation could cause such individuals ~o suffer physical injuries and damage

29. Thereafter, Nisco eHiployed these plaintiffs .to perform a portion of the work to be Done by Nisco at the Ginna Nuclear Plant.

30.(a) As a result of his employment with Nisco, Mr.

Burba worked at, 0'e Ginna Nuclear Plant or a period of t ime in January and February, 1974.

k (b) As a result of his employment with Nisco, Garrett worked at the Ginna Nuclear. Plant for a period of time in January and February, 1974.

(c) As a result of his employment with Nisco, Mr. Gray worked at the Ginna Nuclear Plant for a period of time in January, 197.4.

(d) As a result of his employment with Nisco, Mr.

Michaels worked at the Ginna Nuclear Plant for a period of time in January, 1974.

(e) As a result of his employment witn Niscog Mr.

Morrison worked at, the Ginna Nuclear Plant for a period of time in January, 1974.

'A-~fES J. i%)OR.M (f) As a result. of h's employment with Nisco, Mr.

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Salter worked at Ze Ginna Nuclear Plant or a period of time in December, 1973.

(a) As a result of his employment with N'sco, Yx Sheehan worked at the Ginna Nuclear Plant for a'er'od of time in january ana February, 1974.

'1. Upon information and belief, during 'the aforement'oned periods,'hese plaintiffs 'ctivities and their exposure to radiation were monitored by the defendant.

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32. Upon. information .and belief, at all times herein relevant, the 'efendant knew,: or should have known, tne maximum amount of radiation which'ach of these plaintiffs should h'ave been allowed to receive per calendar quarter pursuant to the rules and regulations of the United States Atomic Energy Commission.

33.. Upon information and belief, during the period of time that these plaintiffs worked at the Ginna Nuclear Plant, they each receivea amounts of radiation which the de enaant knew, or

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I should. have known, were substantial enough to cause each of them physical injuries and damage.

34. Upon information and belief, auring the period of time that these plaintiffs worked I

at the Ginna Nuclear Plant, tney I

each received amounts of raaiation in excess of the amount permitted by the rules and regulations of the United States Atomic Energy Commission.

35. Upon information and belief, within several weeks after these plaintiffs inished working at Ginna I Nuclear Plant, the aefe'naant knew that each of these plaintiffs had received an J.aifES J. hiORAN amount of ra'diation which was substantial enough to cause him ATTORNEY AT'AVF 4

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physical injuries and damage.

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36. Upon information and belief, within several weeks after these plaintiffs inished working at Cinna Nuclear Plant, the defendant knew that each of these plaintiffs had received an 4

~count of radiation in excess of the amo nt permitted by the rules and regulations of tne United States atomic energy Commission.

37.(a) Within several weeks after Hr.:-Burba finished working at the Ginna Nuclear Plant, the defendant, with intent to r

deceive and defraud Hr. Burba, represented to him that he had r

received 5.580 rems of radiatrion while working at the Ginna Nuclear Plant.

(b) Withe~ several weeks after '~w. Garrett finished working at the Ginna Nuclear Plant, the defendant, with intent to

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deceive and defraud Hr. Garrett, represented to him that he had l

received 3 660 rems o< radiation while working at the Ginna

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Nuclear Plant.

(c). 'Within several weeks after Hr. Gray finished working at the Ginna Nuclear Plant, the defendant, with intent to deca ve and defraud Fw. Gray, represented to him that he had received 2.030 rems of radia ion while working at the Ginna Nuclear Plant (d) Within several weeks after Hr. Hichaels finished r

working at the Ginna Nuclear Plant, the defendant, with intent to r

aeceive and defraud Hr. Hichaels, represented to him that he had received 2.660 rems of radi,ation while working a,t the Ginna Nuclear Plant.

(e) Within several weeks after Hr. Morrison finished JAifES J. !LfORAX hTTORÃKY hT LAVf

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.iorking at the Ginaa Nuclear Plant'; the defendant,.with intent to "

~ l t aece~ve and de raud Mr. ?morrison, represented to him that he had

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received;4.170 revs o aaiation while working at the Ginna'.

..*" . (f)..:4'ithin'everal weeks q.fter ~a Salter finished ht

-t working at the Ginna Nuclear Plant, the defenaant, with intent- to C

t h aece've and aefraud Pw. Salter,'epresented to h~ that he had received .1. 200 ieris o~'aa'ation'hile -workinrg at the.Ginna'.,;,.: .",;,.==':.

Nuclear Plant.

(g) Within several weeks after Hr Sheehan f'nished working, at the Ginna Nuclear Plant, the defendant, with intent to deceive and defraud Pz. Sheehan, represented to him that he had received 3.980 rems oi radiation while working at the Ginna, I

t Nuclear Plant. I 3'8. Uponinformation and belief, these representions were false wnen made by the defendant and known by the defendant to be false when made.

39. When the dezendant so notified these plaintiffs, the dezendant, with intent to deceive and ae raud these plaintifzs concealed from them and did not inform them of the I fact that the amount of radiation each haa received was substantial enough and known to be substantial enough to cause physical injuries and damage.

40. When the defenaant, so notifiea these p aintiffs, the aefenaant, with intent to deceive and defraud these Plaintiffs concealed from them and aid not inform them of the fact that the amount. of raaiation each haa received was in excess of and known

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to be excess of the amount permitted. by the. rules and regulations 0 f the United States Atomic nergy Cc~~is s ion.

41., These plaintiffs believed and relied. upon misrepresentations'.and vere thereby caused to',...

these..'epresentations and t, I refrain from seeking meaical care and treatment, which each one '. .

F would have sought had each one been informed thht he had received

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an ~ount of radiation'hich was'nown'o be substantial enough to cause physical, injuries and dmage and "an amount of radiation was in excess of'the a~aunt permitted by the rules and 'hich regulations of the United States Atomic Energy Commission.

42. As a result of their failing to seek medical care and treatment, based upon their reliance upon tne representations and misrepresentations of the defendant, these plaintiffs each

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sustained the injuries and damaces hereinafter set forth. 4

43. (a) . As -a result of this inciaent,'w. Burba sustained 4

physical injuries and pain, as well as emotional distress and osychological damages. He has suffered a. reduced income earning potential and, upon in ormation and belief, will incur medical expenses as a result of these injuries., All of this is to his C

damage in 'the sum of $ 2,000,000.00 (b) As a result of this incident, Hz. Garrett sustained physical injuries and pain, as well as emotional distress and osycholocical damaces. He has suffered a reduced income eazning ootential ana, upon information and belief, will incur medical expenses as a result of these injuries. All of this Jg"ES J ~fORA is to his dai-,age in the sum of $ 2,,000,000 00.

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O' (c) - As-a result .of- this incident, D.'=! Gray sustaa.ned'-.'

hysical'injuries and I

pain, t as veil's emotional ai.stress, sychological camages, lost income asd has incurred medical i jexpenses. He has suffered a, reduced income earriing potential 4It and, upon information and belie ;, wi 1'=- incur future medical expenses's a result of these injuries.'.-'All 'of this is to his "'

I d~<<age'n the sun of $ 2,.000,000.00.'.=:;:>>:-

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• As a. result'of ...this 'ncident,'i;.;

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sustained physical inju~ies and pain, a's well as emotional and 'as

'i st ess f psycho 1 ogica 1 aamages, 1 ost income incurred meaical expenses. He has sufferea a reduced income earning potential and, upon information and be ief, vill incur future medical expenses as a result of these injuries. ,All of this is to his aamage in the sum of $ 10~000~000 00. I (e) As a result of this inciaent,, Hr, Morrison r

sustained physical injuries and pain, as well as emotional-di stress, psycho logica 1 damages, lost income and has incurred meaical,expenses. He has suffered a reauced income earning potential and, upon information and belief, will incur future medical expenses as a result of tnese injuries.. All of this is to his damage in the sum of $ 2,000,000.00.

(f) As a result of this incident, Hr. Salter sustained

~

pnysical injuries and pain, as well as emotional distress, psychological damages, los income and has incurred medical expenses. He has sufferea a reduced income earning potential and, upon information and belief, vill incur future medical expenses as J.<MES J. XfOR.<t a result. of these injuries'. All of this is to his damage in the h~iOPNEY AT LhW

~y~

V sum I

of $ 2;000,000.'00."

1 li (g) As a result of, ~his incident, P~. heehan sustainea physical injuries and pain, as well as emotional-a distress and psychological c~iages.- He..has'suffered a reduced.

1' income earning 11 potential and, upon, information and.1beli'ef, will r incur medical expenses as a result of these injuries. A 1 o this is'o'is damage

\

in the sum of $ 2,000,000 00..'- ;;..

1 AS'%3 FOR CAUSES OF ACTION; .V.. *": -"'"i";-"":.'='c';, c'""

-'N BEE~P OP JAN B. BUBBAi EDh'ARD H. GOTT, DONALD C..GRAY, THOMAS E. MICHAELS,. ALBERT H. MORRISON,

~

,AARON W. SALTER and GORDON D. SHEEHAN BASED UPON BREACH OP NARRANTY

44. These plaintiffs repeat, reiterate and realleae each and every allegation contained in paragraphs numbered 1 though 43 above, the same- as if herein more fully set forth.=

45. Upon information and belief, at some time prior to the times that these. plaintiffs began working at the Ginna Nuclear Plant, the oefendant entered into a contract with Nisco in which the defendant acrreed to pay Nisco a certain sum of money orovioed that Nisco would oerform certain reoair work .on a contamaent vessel located at the Ginna. Nuclear Plant.

a I

4 6'. Upon information and belief, as part of aefendant agreed to p'rovide ecruipment and pe=sonnel that'ontract,'he to monitor and safeguard the health and safety of these plaintiffs and other emoloyees of Nisco while they were employed at the Ginna Nuclear Plant.

47. At the times that these plaintiffs were emoloyed by

.<MES J. MORAN Nisco to work at the Ginna Nuclear Plant, the ce endant, th-ouah CTTOR'i'T LAW YY Y V

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Y its agents; off'cers, 'servants .and= e...ployees'x'press a'nd"'.=-.:" '-".: ~.

'Y 4(Y impliedly warranted to 'them and other employees'of Nisco that if-'.-'-'hey.

took all of the precautions out ined by. the defendant that

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they would riot receive an "amount"o~ radia'tio'n s'uYbstantial" eiiouoh';-.

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to,>> cause them physical injuries and damage, .nor'n an(ount radiation in excess'of the'amount, p'ermitted by De rules and of the United States Atomic Energy Commission 'egulations

.': 48.. These plaintiffs relied upon these'arranties;:,'.

Y made by the de endant in accepting employment by Nisco to work at the Ginna Nuclear Plant.

49. Each of these plaintiffs took all of the precautions he was told to take by the defendant, but nevertheless each received an amount of radiation substantial enough to cause him physical injuries and damage.

50. Each of these plaintif s took all the precautions he was told to take by the defendant, but nevertheless each received an amount o~ radiation which was in excess os the amount permitted by the rules and regulations or" the United States Atomic Energy Commission.

51. The injuries and damages suffered by each of these plaintiffs as outlined above were proximately caused by

~ the breach of the implied and express warranties of the defendant and without any negligence on the part of the plaintiffs contributing thereto.

JA~fES J. WtORAN ATTORNEY AT LAVF

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U AS AND FOR CAUSES 0= ACTION IN'-'-".'.-;"-'::'

BEP~~LF OF JAN B BUPBA g LDl>ARD Ne' GARRETT ~ DONALD C. GRAY ~ Ti=.O." =S E

? IICm- LS ( 2 LBERT H. IICRRISON, AARON N

-', SALT R 'P2'D GORDON'"D. "S "EHAN BASED, UPON"'. '.'-'-." .

VIOLATIONS OF NEÃ YOWL 'TATE Lt~OR LMV ";- --.";:=' " '=:.-.- *

, SECLION 200

52. These plaintiffs repeat,'re'iterate'nd reallege

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each and every allegation contained in. paragraphs numbe ed 1 t

th~ougli 51 above, the same as if herein more'ully set forth..

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53. At all times herein relevant, the New. York State J'

Labor Law Section 200, subparagraph 1 read in pertinent part as follows: 3 "All places to which this chapter applies shall be so constructed, equioped, arranged f

. operated and conducted as to provide reasonable and acetate protection to the lives, health and safety. of all persons employed therein or lawfully frequenting such. places."

54. In causing and allowing each of these plaintiffs to receive the amount of radiation he received while workina at the Ginna Nuclear Plant, the de endant violated the foreaoing section of the New York State Labor Law.

55. At all times herein relevant, each of these plaintiffs was a member of the class of persons meant to be protected. by the foreaoing statute.,

56. The injuries and damages sustained by each of olaintiffs, as outlined above were first medically diagnosed within the last three years, and, upon information Lb'hese and belief, could. not have been 'medically diagnosed more than

~ee years aao.

A! fES J. )fORAN ATTORNEY AT

57. The injuries and damages sustained by each of

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these plainti fs as outlined above were prox',ately* caused, by t..e defendant.'s violation of New York, State Labor Law, Section 200; sub-paragraph 1 and- without -any .neglig'ence on he part of--* "--

the plaintiffs 'contributiag thereto AS'Z) FOR CAUSES'OP ACTION IN."'-:i:.;,

BENZ,P OF JPS B. BURSA ~ EDWARD H; '-

G~TTI DONALD C. GRAYS, THOMAS. 'E MECHAELS ~ ALBERT H. MORRISON~ 3~ON W SALTER AND GORDON D.'HEEHPM BASED UPON NEGLIGENCE ..='-;-;,=..'- .

'-;, ":-'-":'"=.,',."-:i.:"'-'-

These plaintiffs..repeat, reiterate and

'8.

reallege each and every allegation contained in paragraphs numbered 3.

though 57 above, the same as if herein more fully set forth.

59. Upon information and belief, during the times herein relevant, the defendant violated 10 CFR, Section 20.101 (a) .

60.. Upon information- and belief, during the times herein relevant:, the defendant violated 10 CFR, Section

20. 101 (b) .

61. Upon information and belief, during the times herein relevant, the defendant violated 10. CFR, Section 20.102.

62. Upon information and be ief, during the .times herein relevant, the defendar.t violated. 10 CFR,. Section

20. 103.

63. Upon information and belief, during the times e ein relevant, the defenda,r" violated 10 .CFR, Sub-section

20. 201.

J,~lj~ J, llQRhic h TTORNEY Ar LLF

64. Upon in ormation and belief, during the times

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' ~ >> c" ere~'=-. elevant.,': ~~e def endant=.violated, "3.0 .CPR~ Section-=~ ~" ~..='~~',

2.

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65. Upon info=5,ation and beld.ef, during the tim5es .

erein relevant, Ae defendant,.violated.'10 CPR, Se'ction-,-:-':=:;-'~',-"".'-

20 203 0

'- 5 66.

Upon'nformation and belief,- during. the times;;:--" '.-

herein relevant,'the defendant violated 10. CPR,'ection,.:.:

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19.1'2.

67. 'Upon information and belief, during the times herein releva'nt, the defendant violated 10 CFR, Section 19.13.

information and be ief, the defendant caused.

5

68. Upon and allowed each of these plaintiffs to receive an amount of radiation which the defendant knew, or should, have known, to be substantial enough to cause'hysical injuries a'nd damage.

69. Upon information and belief, the defendant, caused and allowed each of these plaintiffs to receive an amount. of radiation in excess of the amount permitted .by the rules and regulations of the United States Atomic energy Commission.

70. Upon in ormation and belief, the def endant failed.

~

to prevent each of these plaintiffs from receiving an amount of radiation known by the defendant to be suostantial enough to cause physical injuries and damage.

'1. Upon information and belief, the defendant failed to prevent each of these plaintiffs from receiving an amount

,5 of radiation in excess of the amount permitted by the rules JAhfES J. %BORAX and egula ions of the United States Atomic Energy

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,72. Upon information

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"'" ~, and belief, the: defendant failed "'-"".=

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• I K properly monitor the amounts of radiation these pla'ntiffs II t

~sere receiving while working't the Ginna Nuclear .Plant. "

,'.,":"-.-73.'"Upon in+or~~ation and E'I belief,'he'defenda'nt,'failed

~o 'adequately'pprise"each of these pl'aintiffs 'within a *-;".-'-'.':"

easonable perio4. of time that each had. received an amount of adiation, which was known to be substantial enough. to cause

~ . ~,

hysical inju'ries. and damage.

74. Upon in ormation and belief, the defendant failed

~o adecruately apprise each of'hese plaintiffs within a

~easonable period of time that each had received an amount of adiation in excess of the amount permitted by the rules and I

regulations of the United States Atomic Energy Commission.

7.5. Upon information and belief, the defendant fai'led o advise each of these plaintiffs to seek medical care and treatment within a reasonable period of time, when it knew Mat they had each received an amount of radiation substantial enough to cause physical injuries and damage.

76. Upon information and belief, the descendant failed to take reasonable precautions to prevent each of these olaintiffs from receiving an amount'o< radiation substantial enough to cause physical injuries and damage..

-. 7 Upon information and belief, the defendant failed to take reasonable precaution to prevent each of these olaintiffs from receiving, an amount of radiation in excess of

!A M ES J. MORA i the amount permitted by the. rules and regulations of the i TORNEY AT LAVF

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~ .I United 'States"Atomic Energy Coruiisszcn";"~='==.-.'-.'. ~~ -.,".',-"-:-,

78. Upon 'in owation and belief, "Ne defendant failed h

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to maintain individual whole boay c.oses for each of these P

plaintifzs w'thin. the limits specific'd=.by tf e United States =.:.'

Atomic'nergy Commission.

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79. Upon in~o~ia tion .and, belie f, the de fendant failed rI to make adeouate surveys to assure that'ndividual whole body doses received by each of these plaintiffs did not exceed the amounts permitted .by the rules..and regulations of-the'Uni'ted'tates Atomic Energy Commission.

80.. Upon information and belief, the defendant failed to limit each plaintiff's exposure within the limits set forth in the rules and regulations of the United States Atomic Energy Commission.

81. Upon information and belief, the defendant failed to provide adecruate instruction to each of these plaintiffs in accordance with the rules and regulations of the United States A"omic Energy Commission.

82. Upon information and belief, the defendant. failed to issue to each oz tnese plaintiffs adequate radiation monitoring devices in accordance with the de endant's own proceaures.

83. Upon information and belie , the defendant failed to maintain training records for each of these plaintiffs in accordance with the defendant's own established procedures.

I

84. Upon information and be ief, the aefenaant failed continuous supervision of each of these plaintiffs LA%'o provide JA~fES J. MORA f W'ITOPSEY hT

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'tr' in the containment vessel.'.;,",'-

I'hile he was working

85. Upon incor..ation and belief, the defendant failed I

to, nsu e that e-ch of these plai. tiffs did not inadvertently II cause the shielding of the radiation measuring'devices each,- ."'="

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r was wearing '. ";-",

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86. Upon 'L "cfog ation and belief, the defendant, failed" I ~

to provide proper management "controls. for each. of these plaintiffs with respect to the conduct of me work being'--. '-'*'-

performed in,a manner that wa's consistent with the needs.

87. Upon information and belief, the defendant failed to determine the level of comprehension of each of these plaintiffs as a result of their purported training.

I

88. Upon in ormation and belief, the defendant failed to determine if each of these plaintiffs was following the r

reauirements of certain procedures by appropriate audits and surveillance;.

89. Upon information and belief, the defendant. failed r

to adecruately.instruct each of these plaintiffs regarding the t I precautions necessary and the danger involved in working in the containment vessel.

9Q. Upon information and belief, the acts of the cefendant set forth in paragraphs numbered 59 through 89 individually or collectively, were acts of above, taken negligence

91. The injuries and damages sustained by each of JAIIES J. Xj0344%

~Nese plaintiffs as outlined above were proximately caused by ATIOILNEY AT LAW 1

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the aforementioned acts. of negl'cence of the 'de endant and witnout '..

any neglicence on the part of the plaintiffs contributing 1

• '". " AS'ND FOR CAUSES OP :i.= -""

ACTION IN BEHALF OP JPR-.B.'

BUBBA> EDWIN~ W. GAB3ETT~"" -...'

DONALD C. GEQY ~ THO3 RS MICK ELS, ~BERT H.. MORRISON, AARON W. SALTER and GORDON D. SHEEHJ~N ..':,

~ - . ' BASED UPON STRICT LZ3i&ILITY *

92. 'These plaintiffs repeat, reiterate and reallege each and every all'eaation contained in paragraphs nuriZ>ered 1 throuah 91 Dove, the sane as if herein more fully set, forth.

93. The descendant,'in subjecting the p aintiffs to exposure to nuclear radiation, was encaging in an inherently danaerous and hazardous activity.,

94. These plaintiffs'xposure to this radiation resulted from this inherently dangerous and haza'rdous activity and the injuries and aamaaes sustained by tnese plaintiffs were proximately caused by their exposure to this radiation by the defendant..

AND FOR CLAIMS FOR PUNITIVE DAMAGES IN BEHALF OF JAN B. BURBAq EDWARD W.

GARBZTT~ DONALD C. GRAY, THO~S E 8KCHAELS g ALBERT H MORRISON g

+&NON W. SALTER and GORDON D. SH~ZEHAN

95. These plaintiffs repeat, reiterate and reallece each.

and every allegation contained in paragraphs numbered 1 throuch 94 above, the same as if herein more fully set forth..

96., Upon information and belief, all of the above JAifES J. EfORAN ATTORNEY AT LAW v\

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outlined actions of the defendant through'rits officers, I

acentst--

servants or employees, were done willfully, wantonly and recklessly; they were done with total aisrecard.for each of these

~ 'I ~

plaintiff's 'health, safety an'd welfare at'he twe'; they were done r with total disregard for'ach of these plaint'ff>s future- health,.

4 safety and welfare; and they were done. through.intentionally concealing and continuing to.conceal knowledge. and information. it, had in,its possession and control.-..

Accordingly:

(a) Jan B. Burba requests that punitive damages be assessed against, the defendant in the sum of $ 3,000,000.00.

(b) "dward N. Garrett requests that punitive damages be assessed aaainst the defendant in the sum of $ 3,000,000.00.

(c) Donald -C. Gray requests that punitive damaaes be assessed aaainst the def endant in the sum of '3, 000, 000. 00 ~

(d) Thomas E. Michaels requests that punitive damages acainst the defendant in the sum of $ 40,000,000.00. be'ssessed

'(e) Albert H. Morrison requests that punitive damaaes be assessed against the defendant in the sum of $ 3,000,000.00.

(f) Aaron N. Salter requests that punitive camaaes be assessed against the defendant in the sum of $ 3,000~000.00.

(g) Goraon D. Sheehan reauests that punitive damages be assessed against the defendant in the sum of $ 3,000,000 00.

F D'OR.'iEY X'.E$ J. IfORhN i AT LAW

C ~ I 1

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AS ZD~D "OR CAUSES .Or ACTZOlM iN- ', ..'-

BEKKLr Or NANCZ BURBA ~,'OPmEN GP&RZ T~ ELAiNE MICHA~~TS ~ SHARONLEE C>HOL M. SALTER Z2'D 'ORRl:SON, CHr RYL SHEEN+

'. 97. These plaintiffs repeat,,reiterate and reallege each and every allegation contained in paragraphs numbered 1 through 94

'l Reve, the same as if herein more fully'"set fog'th.

98. (a) At a.ll tiries herein relevant, Nancy Burba was and to. be .Ae wife of Jan B. Burba; lontinues At all times herein relevant, Doreen Garrett was

'b) and continues to be the wife of Eaward .H Garrett.

(c) At all times herein relevant, Elaine Michaels was and continues to be the wife of Thomas E Michaels.

(d) At all times herein relevant, Sharonlee Morrison was and continues to be the wife of Albert. H. >rrison. 1 (e) At all times herein relevant, Carol M. Salter was and cont22lu es to be the wxze of Aaron N. Salter.

(f) At all times herein relevant, Cheryl Sheehan was and continues to be the wife of Gordon D. Sheehan..

99.(a) As a result of the injuries sustained by Jan B.

Burba as outlined above, Nancy Burba has been deprived of his society, companionship and services', and upon information and belief, will continue to be so deprived for a long period of time.

~ ~ I All of, this is to her damage in the sum of Plg000g000 00.

(b) As a result of the injuries sustained by Eaward W.

Garrett as outlined above, Doreen Garrett has been deprived of his JAifES J. 33ORAN society, companionship and .services, and upon information and A'TVORBLY AT LAW belie ,'" will continue to 'be 'so aep'r"ved for a long period of tme."'

ll 4

of this is to her damace in the sum of $ 1,000,000.00.

(c) As a result of the injuries sustained by =hcmas E.

I~~chaels as outlined above, Elaine L: chaels'.has been deprived of h's society, companionship and services, and upon information and will continue to be so deprived or a long period of time.

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'elief, All of this is to hex damage in the sum of $ 2,000,00.0.00'.'-,.';."';

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(d) As a result of De injuries sustam~ed by Albert H..

hforrison as outlined above, Sharonlee Yorrison has been deprived or his society, companionship and services, and upon information and belie,,vill continue to be so deprived for a ong period o~

time All of this is to her damage in tne sum of $ 1I 000 000 00. g (e) As a result of the injuries sustained by Aaron W.

Salter as outlwed above', Carol H Salter has been aeprived of his society, companionship and services, and upon information and belief, will continue to be so deprived for a long period of time.

All of this is to her damace in the sum of $ 1,000,000.00.

.(f). As a result of the injuries sustained by Gordon D.

Sheehan as out,lined above, Cheryl Sheehan has been deprived of his society, companionship and services, and upon information and belief, will continue to be so deprived for a long period of time.

All of this is to hex damage in the sum of $ 1,000,000.00.

MiEB"~ORE:

A. (a} Jan .B. Burba demands compensatory damages acainst the ae enfant in the sum of $ 2,000,000.00 ana recuests that punitive punitive damages be assessed acainst the ae endant in the sum of jAMM~ J. WORM $ 3,000,000.00; Nancy Burba cemands compensatory damages against hTTOR.NEY AT IAW 1

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• I the aefend nt ',in the'-sum of .$ 1,000,000."00 ...:" "-'-'; ""-=,

(b} EQ-"ard N'. Garrett demands compensato~* damages against defendant 'm the sum of $ 2,000,000.00 ard requests .that

'heP

'I un'tive 8a-<<ages be assessed'gha~st the dezendanti in the sum of

$3 J 000 I 0 00 0 0 Doreen Gar*rett aemands compensathory aamages against h.

e defendant in the sum of $ 1;000',000.'00; h P

(c) Donald C. Gray demands compensatory damages against h ~

h e cefenaant in the sum of $ 2,000,000.00 and requests that i,h j unitive camages 'be, a'ssessed against the defendant .in .the siam of ~ P

$3 '00 ~ 000 ~ 00 (d) Thomas E. Hichaels demanas compensatory damages ga'inst the defendant in the sum of $ 10,000,000.00 and requests

'hat puni ive camages be assessed. against the ae er cant in the~

sum

$ 40,000,000.00; Elaine Michaels demands compensatory damages gainst the aefendant in the sum of $ 2,000,000,00; (e) Albert H. Morrison demands compensatory damiages I

against the defendat in the sum of $ 2,000,000.00 and requests that punitive aamages be assessed against the defendant in the sum f $ 3,000,000. 00; Sharonlee Horrison demands compensatory damages against the defenaant in. the sum of $ 1,000,000.00; (f) Aaron H. Salter demands compensatory damages against De aefenaant in the sum of $ 2,000,000.00 and requests that unitive ca <<ages be assessed against the defendant in. the sum of

$ 3,.000,000. 00; Carol M. Salter demanas compensatory damages

\

acainst the defenaant in the sum of $ 1,000,000.00,; and f (c) Gordon D. Sheehan demands compensatory aamages against.

JA.'ijES J. %5QR ~f Ze defencant in. the sum of $ 2,000,000.00 and requests that

.iTTORNEY hT LAVF

o. s unitive damages be assessed against the defendant in the sum of 3,000,000.00 Cheryl Sheehan demands compensatory damages against he'efendant in the sum oz $ 1,000,000.00.;

B. the plaintiffs eauest that this Court grant the eclaratory Judgment as prayed,'ll together with the cost and disbursements of tnis ction.

ated: Buffalo, New York December j P,. 1979 Yours', etc.

NORAH and KRENZER by ~ 'WH~M Attorneys zo~r.laxntxf fs

..~ Office. and P. O. Address 257 E~~ .wood Avenue

'uffalo New York 14222 (716) 885-8050 'el:

f Counsel:

x3:la.am E. Seekzord, Esp.

ffice and P. O. Address uite 1302 Towson Towers 8 Allegheny Avenue owson, Maryland 21204 301) 821-6868 ihMM~ J. IfQRAN

<TTORNEY hT LA'W

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