Dumontier v. Schlumberger Technology Corporation
United States Court of Appeals for the Ninth Circuit
11 September 2008
No. 05-36005 D.C. No. CV-04-00016-RFC

What constitutes “bodily injury” under Price-Anderson Act

This is one case where the Court is asked to consider whether sub-cellular damage constitutes bodily injury under the Price-Anderson Act.

It appears that respondent Schlumberger Technology Corporation’s employees carelessly left some cesium-137 on a drilling rig. Plaintiffs Dumontier, et al later worked on the rig and were exposed.

Albeit cesium is a substance less well known than uranium and plutonium, the Court said that it isn’t a substance to be toyed with. Unprotected exposure to it can cause:

• Burns


• Radiation sickness


• Cancer

And if ingested, it cause mania. (The Court citing Randal C. Nelson’s Songs of the Cesium (1996))

Even though the plaintiffs had neither suffered any injuries nor developed cancer, they nevertheless sued Schlumberger. They based their action under the Montana law claiming that the radiation caused sub-cellular damage including to their DNA, seeking damages for emotional distress, medical monitoring and actual malice.

Schlumberger, however, argued that this claim was preempted and moved to replace it with a federal cause of action under the Price-Anderson Act. It also moved for summary judgment on the Price-Anderson claim.

The district court granted both motions in favor of Schlumberger. Dumontier et al appealed.

In deciding this case in favor of Schlumberger, thus affirming the decision of the district court, the United States Court of Appeals first defined what a nuclear accident is. Under the Price-Anderson Act, a nuclear accident is any occurrence causing:

• bodily injury


• sickness


• disease


• death


• loss of or damage to property


• loss of use of property

Arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or by product material.

Citing several jurisprudences, the Court held that exposure to radioactive materials is compensable only if it causes one of the harms on this list.

Said the Court, “[t]he Act imposes two independent limits on claims based on exposure to radioactive materials”, to wit:

1. Plaintiffs can bring such claims only if the state where the exposure occurred provides a cause of action.


2. The Act prohibits recovery when plaintiffs haven’t suffered “bodily injury, sickness, disease, or death” – even when the state cause of action doesn’t have that limitation

The Court ruled that emotional distress is not provided as one of the allowed causes of action under the Act and is thus cannot be the basis of claim. The Court next considers whether or not the term “bodily injury” covers sub-cellular damage.

In deciding this issue in the negative, the Court said that “not every alteration of the body is an injury. Thinking causes synapses to fire and the brain to experience tiny electric shocks; fear stimulates the production of chemicals associated with the fight-or-flight response. All life is change, but all change is not injurious.”

Ultimately, the Court ruled that the sub-cellular damage claimed by the plaintiffs does not establish that there is or will be pain or interference with bodily functions, and thus, said the court, isn’t an injury within the meaning of the Price-Anderson Act. The Act permits recovery for disease – not simply a risk of disease.