14 Mars 2019
March 5, 2019
San Diego judge dismisses U.S. sailors' Fukushima radiation lawsuits, rules Japan has jurisdiction
A San Diego federal judge has dismissed two class-action lawsuits filed on behalf of hundreds of U.S. sailors who claimed they were exposed to dangerous levels of radiation during a humanitarian mission in Japan following 2011’s devastating earthquake and tsunami.
In the end, the case came down to a jurisdiction issue. U.S. District Judge Janis Sammartino ruled in orders Monday that Japanese law applies to these claims and leaves open the possibility for the sailors to pursue recourse there.
The sailors were serving on the then-San Diego-based carrier Ronald Reagan off Korea when the earthquake struck on March 11, 2011. The quake set off a tsunami that flooded Japan’s Fukushima-Daiichi Nuclear Power Plant, causing the plant’s radioactive core to melt down and release radiation.
The Reagan and other crew in the vessel’s strike force responded under a relief effort known as Operation Tomodachi — a Japanese word meaning “friends” — staying off the coast for more than three weeks aiding Japanese survivors. The Navy detected low levels of contamination in the air and on 17 crewmembers two days after the disaster and repositioned the ship.
Attorneys for the sailors said the radiation caused several ailments, including thyroid and gallbladder cancer, rectal bleeding, headaches and hair loss. Some have died.
The lawsuits blamed “negligently designed and maintained” boiling water reactors at the plant and also accused the power utility of denying and underplaying the disaster. The sailors sued the Tokyo Electric Power Company, known as TEPCO, as well as U.S. company General Electric, which designed the reactors in California.
The suits sought at least $1 billion each and include more than 400 sailors.
The case has had a long history in both district and appellate court. One lawsuit was filed in 2012 and has had many reiterations. A second, separate class-action was also filed in 2017, then filed anew in 2018 adding 55 new plaintiffs. Jurisdiction has always been a problematic issue in the litigation.
Sammartino found on Monday that Japanese law applies. That means sailors can petition for relief under Japan’s Compensation Act for all action tied to the operator — TEPCO.
Attorneys for the sailors have argued that their clients won’t get a fair day in court under Japan’s system. But the judge found “no convincing support” for that position.
“And while Plaintiffs’ contention that litigating in the Japanese forum will be exponentially more difficult than litigating in California may be true, Plaintiffs have shown no law or facts which indicate that the Japanese forum is closed to any of the named, or unnamed, Plaintiffs,” Sammartino said.
The Japanese government advocated for solving the litigation in its homeland, not the U.S. Japan has paid more than $76 billion to resolve more than 17,000 claims and approximately 160 court proceedings through TEPCO’s “Nuclear Damage Claim Dispute Resolution Center,” the judge noted.
The judge also dismissed General Electric from liability, finding that if Japanese law applies, then the business is considered a manufacturer, not an operator, and is therefore shielded.
Sammartino sided with the 9th U.S. Circuit Court of Appeal’s characterization of the legal battle as a “‘close case’ with competing interests pointing in both directions.”
She later concluded: “Now, however, after considering the Japanese and United States governments’ views, the Court finds that the foreign and public policy interests weigh toward dismissal.”
Paul Garner, a Carlsbad attorney on the sailors’ legal team, said Wednesday that he anticipates an appeal.
He called the notion that any of the sailors would be paid for personal injury or wrongful death in Japan “a fiction,” noting that Japanese citizens are only being compensated for damages such as loss of livelihood or losses due to relocation.
To seek remedy in Japan, the sailors would have to be able to afford the trip, be healthy enough to travel, hire a Japanese lawyer, have their medical records translated, and appear before a tribunal.
“I don’t foresee any of them having the ability to go to Japan,” Garner said.
A TEPCO spokesperson said in a statement late Tuesday: “We understand that the court agreed with our view. We will look into the court’s ruling and continue to respond to this case appropriately.”