14 Janvier 2018
US court dismisses 'Operation Tomodachi' suit
Judge: Sailors’ Fukushima Radiation Case Doesn’t Belong in US
SAN DIEGO (CN) – A federal judge on Friday dismissed without prejudice the latest class action filed by hundreds of U.S. sailors exposed to radiation in the Fukushima, Japan, nuclear disaster, finding a San Diego courtroom isn’t the right place for the case.
U.S. District Judge Janis Sammartino issued a 15-page order dismissing the class action against Tokyo Electric Power Co. (TepCo) and General Electric, finding the service members who were stationed aboard the USS Ronald Reagan in San Diego have failed to establish how the Japanese utility’s acts were directed at California.
“There is no targeting here. Plaintiffs’ allegations that the effects of TepCo’s conduct were felt by American citizens while on U.S. ships, one of which with a home port of San Diego, are too attenuated to establish purposeful direction,” Sammartino wrote.
Sammartino added the sailors “have provided no information to support an assertion that TepCo knew its actions would cause harm likely to be suffered in California.”
In an email, class attorney Cate Edwards said, “We appreciate the time and attention that Judge Sammartino gave our arguments. Per her order, we intend to refile the case on behalf of the Bartel Plaintiffs and continue to fight for the justice these sailors deserve. We will also be moving forward with the Cooper case in due course, and look forward to reaching the merits in that case.”
The judge’s order dismisses the most recent class action filed in San Diego Federal Court last August. It follows another class action filed by an initial group of sailors in 2012, a year after they were sent to render aid after the March 11, 2011 tsunami and earthquake which caused the Fukushima Daiichi nuclear plant to meltdown and release radiation. That case has survived dismissal and an appeal to the Ninth Circuit.
More than 420 U.S. service members in the two cases seek compensation and medical monitoring, testing and health care costs for exposure to radiation. Some sailors have died from complications of radiation exposure since the cases were filed, and more than 20 are living with cancer, according to the lawsuits.
In a court hearing Thursday, Sammartino considered the motions to dismiss from TepCo and GE. They argued California courts have no jurisdiction over events in Japan. Sammartino also considered a choice-of-law motion from General Electric, which wants to apply Japanese law to the case or have it transferred to Japan.
TepCo operated the Fukushima nuclear plant, and GE designed its reactors.
TepCo attorney Gregory Stone, with Munger, Tolles & Olson in Los Angeles, said at the Thursday hearing all claims brought in the United States could be brought in Japan and that the statute of limitations has not run out there.
GE attorney Michael Schissel, with Arnold & Porter in New York, also said the case belongs in Japan, where the facts originated and the witnesses are. Schissel said the Japanese government declared the nuclear meltdown was not a natural disaster, so TepCo could be held liable for damages.
But former Sen. John Edwards, of the firm Edwards Kirby in North Carolina, said it’s important to look at the situation “from altitude,” to see things from the sailors’ perspective.
“These are American sailors, American employees serving their country, who were sent on American ships on international waters at the request of the Japanese government … their ally, which owns the majority of stock in defendant TepCo,” Edwards said.
“Being on an American ship in international waters puts you on American soil.”
Edwards said that since the vast majority of the sailor-plaintiffs were stationed in San Diego and GE designed the nuclear reactors at its San Jose headquarters, the case belongs in California.
“They want the case in Japan because they know it goes away; that’s clearly their strategy,” Edwards said.
He added: “This case screams federal jurisdiction; this case screams United States of America. The underlying concept of this whole thing is fundamental and basic notions of fairness being met.”
Edwards’ co-counsel Charles Bonner, with Bonner & Bonner in Sausalito, said if the case were transferred to Japan, where GE could be dismissed as a defendant, GE could “continue building their defective reactors with impunity.”
Bonner added that California has a vested interest in applying its own laws, including strict liability for defective products, and punitive damages to deter companies from selling defective products. He pointed out that one-sixth of the U.S. Navy is based in San Diego, with 69 Navy ships in San Diego Harbor.
“(Japan’s) compensation act has not been applied to their own citizens, only businesses. Why should we speculate their compensation act will help our sailors? It will not,” Bonner said.
Stone countered that Bonner was “simply wrong” in claiming that the Japanese nuclear damage compensation act had not benefited individual Japanese citizens. He said it is the conduct of defendants TepCo and GE – which occurred in Japan – and not the plaintiffs’ place of residence that should determine jurisdiction over the case.
The sailors’ attorneys indicated Thursday if Sammartino dismissed the class action, they would seek leave to amend their first case, Cooper v. TepCo, to add additional plaintiffs who were dismissed from the second case, Bartel v. TepCo. The defendants are expected to oppose the motion.
Stone and Schissel did not immediately return phone and email requests for comment Friday.