Russell Halbrook, et al. v. Mallinckrodt, LLC; Cotter Corporaiton

Plaintiff-Appellants assert wrongful-death claims under the public-liability

provision of the Price-Anderson Nuclear Industries Indemnity Act (the “Price-

Anderson Act” or the “Act”) alleging exposure to nuclear radiation. See 42 U.S.C.

§§ 2014, 2210. Defendants moved to dismiss claims brought on behalf of persons

who passed away more than three years prior to the filing of suit. The district court1

initially denied the motion, but on reconsideration, granted the motion, citing recent

The Honorable Audrey G. Fleissig, 1 United States District Judge for the

Eastern District of Missouri.

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Missouri Supreme Court authority. The district court held the Act incorporates a

Missouri statute of limitations that does not permit application of a discovery rule.

The court also rejected Appellants’ separate argument that the discovery rule and

statute of limitations from the Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9658(a)(1) & (b)(4)(A),

should apply. We affirm.

I.

Appellants allege their decedents were exposed to radioactive materials

handled by Defendants at several sites in the St. Louis area during World War II and

the Cold War. The decedents passed away more than three years prior to the filing

of suit. Appellants allege they did not know and reasonably could not have known

of the cause of injury or the identity of potentially responsible parties before the

decedents’ deaths. Given the purely legal nature of the issues on appeal, we need not

address the factual background further. We do note that Appellants allege a general

atmosphere of secrecy and concealment surrounding Defendants’ handling of nuclear

materials. For example, Appellants label Defendants’ activities “top secret” and refer

to Defendant Mallinckrodt’s participation in the Manhattan Project.

A few brief comments about the Act may aid in understanding the procedural

history of this case. Congress passed the Act in part to provide a measure of financial

protection for entities involved in the high-risk enterprise of developing the nation’s

nuclear programs for energy and defense. See O’Conner v. Commonwealth Edison

Co., 13 F.3d 1090, 1095 (7th Cir. 1994) (describing the purpose of the Act as

“protect[ing] the public and . . . encourag[ing] the development of the atomic energy

industry” (alterations and omissions in original) (quoting 42 U.S.C. § 2012(i))).

Many years later, Congress added a public-liability provision, creating a federal cause

of action for injuries caused by nuclear exposure. See Price-Anderson Amendments

Act of 1988, Pub. L. No. 100-408, § 11, 102 Stat. 1066 (adding 42 U.S.C.

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§ 2014(hh)). This amendment incorporates substantive state-law standards for

liability. See 42 U.S.C. § 2014(hh) (“A public liability action shall be deemed to be

an action arising under section 2210 of this title, and the substantive rules for decision

in such action shall be derived from the law of the State in which the nuclear incident

involved occurs, unless such law is inconsistent with the provisions of such

section.”).

The Act distinguishes between injuries arising from major, widespread releases

of radiation and those arising from more limited releases. The “Nuclear Regulatory

Commission or the Secretary of Energy, as appropriate” is authorized to declare a

nuclear incident an “extraordinary nuclear occurrence” (“ENO”). See id.§ 2014(j).

For claims arising from an ENO, the Act creates a statute of limitations that

incorporates a discovery rule and expressly permits the waiver of defenses. 42 U.S.C.

§ 2210(n)(1). In contrast, the Act includes no limitation or waiver-of-defense

provisions for “regular,” non-ENO claims. For regular claims under the Act, state

laws governing limitation periods and claim accrual, like other aspects of state law,

apply where states treat such laws as “substantive rules for decision.” Id. § 2014(hh);

see also Nieman v. NLO, Inc., 108 F.3d 1546, 1561 (6th Cir. 1997) (“[P]resumably

Congress intended not to alter the state law statutes of limitations for nuclear

incidents that are not ENOs . . . to the extent they are not inconsistent with § 2210 as

required by § 2014[.]”).

Against this backdrop, Defendants moved for dismissal, citing Missouri’s

statute of limitations for wrongful-death claims. See Mo. Rev. Stat. § 537.100. The

district court initially denied the motion, determining that section 537.100 was a

substantive rule governing the present claims but also determining the possible

application of a discovery rule precluded dismissal. Then, after the district court

issued its order, the Missouri Supreme Court issued two partially inconsistent

opinions interpreting section 537.100. See Boland v. Saint Luke’s Health Sys., Inc.,

471 S.W.3d 703 (Mo. banc 2015); Missouri ex rel. Beisly II v. Perigo, 469 S.W.3d

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434 (Mo. banc 2015). The district court determined that, although both cases rejected

the application of a discovery rule for determining claim accrual, the cases were at

least partially inconsistent in that Boland also rejected a theory of equitable estoppel.

Beisly, in contrast, held a wrongful-death defendant could be equitably estopped from

asserting a statute-of-limitations defense if the defendant’s fraudulent concealment

caused the plaintiff’s untimeliness. Beisly, 469 S.W.3d at 444 (“Equitable estoppel

does not toll the running of the statute. Rather, it forecloses the wrongdoer, who

concealed his or hear actions fraudulently, from asserting the defense.”).

Based on these conclusions, the district court granted Defendants’ motion to

dismiss, finding no discovery rule could be applied. The district court determined any

difference between Boland and Beisly’s treatment of equitable estoppel did not

change the result because Appellants “never alleged that Defendants engaged in

fraudulent concealment.” Finally, Appellants argued federal law applied for

determining claim accrual such that a discovery rule could be applied to

contamination-based claims pursuant CERCLA. The district court rejected this

argument, holding the CERCLA provisions asserted by Appellants applied only to

claims arising under state law whereas claims under the Act were federal claims that

merely incorporated state-law standards.

II.

We review de novo the district court’s grant of a motion to dismiss. Mick v.

Raines, 883 F.3d 1075, 1078 (8th Cir. 2018). When called upon to interpret state law,

our role is to follow the law as decided by that state’s highest court. Progressive N.

Ins. v. McDonough, 608 F.3d 388, 390 (8th Cir. 2010). Absent clear direction from

that court, we must conduct our analysis as a predictive exercise, interpreting state

law in the manner we believe the state’s highest court would rule. Id.

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A. Missouri’s Wrongful Death Statute of Limitations

We first address the Missouri Supreme Court’s opinions in Boland and Beisly.

In Boland, the court held no discovery rule could be applied to section 537.100, and

claim accrual could not be tolled by a tortfeasor’s concealment of its wrongful acts.

471 S.W.3d at 710 (“The language of section 537.100 is unambiguous, and this

Court’s precedent is clear: the plaintiffs’ claims accrued at the decedents’ deaths, and

section 537.100 does not provide for delayed accrual under these circumstances.”).

The Boland plaintiffs alleged a hospital employee murdered their family members

with intentional overdoses of insulin and other substances. Id. at 705. The plaintiffs

sued the hospital, alleging the hospital initially concealed its suspicions about the

deaths, and later concealed actual facts about the situation. Id. at 705–06. According

to the plaintiffs, the hospital’s concealment of facts and suspicions allowed the

pattern of murders to continue and subsequently prevented discovery of the

“circumstances surrounding the deaths of their family members.” Id. at 706.

Recognizing the outcome was harsh, the court nevertheless concluded the plain

language of Missouri’s wrongful-death statute did not permit application of a

discovery rule or tolling. Id. at 710. The court also rejected equitable estoppel,

concluding the statute could not accommodate a “fraudulent concealment exception.”

Id. at 712–13.

In Beisly, the composition of the court differed from that in Boland; a court of

appeals judge sat with the en banc court due to a recusal. The Beisly court agreed

with Boland regarding the inapplicability of a discovery rule. 469 S.W.3d at 444

(“The cause of action still accrues at the decedent’s death, and the statute of

limitations begins to run at that time.”). Beisly differed from Boland, however, in that

Beisly held a defendant could be equitably estopped from asserting a statute of

limitations if the defendant’s fraudulent concealment of its own wrongful acts

prevented the plaintiffs from discovering the basis for their claims. Id. (“The

application of equitable estoppel does nothing to engraft a tolling mechanism or

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otherwise extend the statute of limitations beyond what is stated expressly in the

statute. . . . Rather, it forecloses the wrongdoer, who concealed his or her actions

fraudulently, from asserting the defense.”).

The facts of Beisly were compelling in that two murderers’ own acts of

concealment delayed discovery of their involvement in the offense. Id. at 436 (noting

that the murderers evaded detection by “(1) disguising the nature of the decedent’s

death by staging it to look like a home invasion and using a weapon that could not be

traced; (2) lying to law enforcement; (3) destroying evidence; and (4) denying their

involvement in the decedent’s death”). The facts of Beisly, however, were not

necessarily distinguishable from those in Boland in a manner sufficient to justify the

different outcome. In fact, at least some members of the court acknowledged that the

opinions were contradictory rather than distinguishable. See, e.g., Boland, 471

S.W.3d at 713–14 (Draper, J., concurring in part and dissenting in part) (“I believe

the holding in . . . Beisly . . . , handed down this same day and addressing this precise

legal issue, supports the plaintiffs’ claim that the doctrine of equitable estoppel

forecloses the hospital from relying on the wrongful death statute of limitations as an

affirmative defense due the fraudulent concealment of its wrongdoing.”); Beisly, 469

S.W.3d at 445 (Fischer, J., dissenting) (“In my view, this Court should not have

issued the majority opinion in this case that is contrary to the position taken by a

majority of the regular members of this Court in Boland, especially as the majority

in this case was only possible with the assistance of a special judge from the Court

of Appeals, Western District.”).

Fortunately, we need not attempt to resolve the tension between these two

cases. Both cases agree no discovery rule applies, and Beisly, at most, permits a

plaintiff to invoke equitable estoppel if a defendant’s own acts of fraud caused the

plaintiff’s untimeliness. But here, Appellants allege merely that Defendants

conducted their affairs with secrecy; they do not allege anything in the nature of

fraud. Moreover, Appellants failed to assert a theory of fraudulent concealment in

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the district court. Rather, they raised the issue for the first time in their appeal brief.

And, Appellants failed to respond after Defendants argued Appellants had not raised

fraudulent concealment in the district court. “Ordinarily, we will not consider an

argument raised for the first time on appeal.” United States v. Hirani, 824 F.3d 741,

751 (8th Cir. 2016). As such, we agree with the district court: Boland and Beisly’s

common ground, rather than their differences, control the present case. The

Appellants’ wrongful-death claims are untimely.

B. CERCLA Statute of Limitations

In an attempt to avoid application of Missouri law, Appellants seek to invoke

CERCLA by characterizing their decedent’s injuries as having been caused “by

exposure to any hazardous substance, or pollutant or contaminant.” 42 U.S.C.

§ 9658(a)(1). Citing this provision, Appellants argue CERCLA provides a discovery

rule that delays claim accrual and expressly preempts any state law that would impose

an earlier commencement date. 2 See id. § 9658(b)(4)(A) (“‘[F]ederally required

commencement date’ means the date the plaintiff knew (or reasonably should have

known) that the personal injury or property damages referred to in subsection (a)(1)

of this section were caused or contributed to by the hazardous substance or pollutant

or contaminant concerned.”).

2CERCLA, at § 9658(a)(1), provides in full:

In the case of any action brought under State law for personal injury, or

property damages, which are caused or contributed to by exposure to

any hazardous substance, or pollutant or contaminant, released into the

environment from a facility, if the applicable limitations period for such

action (as specified in the State statute of limitations or under common

law) provides a commencement date which is earlier than the federally

required commencement date, such period shall commence at the

federally required commencement date in lieu of the date specified in

such State statute.

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We conclude the district court correctly rejected Appellants’ argument in this

regard because CERCLA’s claim-accrual provision applies only to claims “brought

under State law.” Id. § 9658(a)(1). The Act itself states clearly how we are to

characterize the present claims:

The term “public liability action”, as used in section 2210 of this title,

means any suit asserting public liability. A public liability action shall

be deemed to be an action arising under section 2210 of this title, and

the substantive rules for decision in such action shall be derived from

the law of the State in which the nuclear incident involved occurs,

unless such law is inconsistent with the provisions of such section.

42 U.S.C. § 2014(hh). Section 2210(n)(2), in turn, provides that federal jurisdiction

over such actions is “original jurisdiction without regard to the citizenship of any

party or the amount in controversy.” Read together, these provisions show Congress

created a federal cause of action for public-liability claims concerning nuclear

incidents. Congress expressly invoked federal-question jurisdiction in the Article III

courts, rather than diversity jurisdiction, and incorporated state law only to the extent

consistent with the Act. Congress spoke clearly when stating such “action shall be

deemed to be an action arising under” federal law.3

3The Third Circuit and the Seventh Circuit have addressed similar questions

and explained convincingly why claims under the Act are claims under federal rather

than state law. See In re TMI, 89 F.3d 1106, 1114 (3d Cir. 1996) (“[Congress] did

not . . . simply grant federal courts subject matter jurisdiction over all cases arising

from nuclear accidents. Instead it created substantive federal law governing nuclear

accidents in the choice of law provision of the Amendments Act . . . .”); id. at 1114

n.7 (“Article III of the Constitution limits the type of cases that federal courts . . . may

hear. For this reason, H.R. 1414 expressly states that any suit asserting public

liability shall be deemed to be an action arising under the [Act], thereby making suits

asserting public liability ‘Cases . . . arising under . . . the laws of the United States’

within the meaning of Article III.” (quoting H.R. Rep. No. 104, 100th Cong., 1st

Sess., Pt. 1, at 18 (1987))); O’Conner, 13 F.3d at 1099 (“Because . . the [Price

Anderson] Amendments Act embodies substantive federal policies and does not

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In summary, Missouri’s wrongful-death statute of limitations applies and does

not permit tolling. To the extent equitable estoppel due to fraudulent concealment

might be permitted under Missouri law, Appellants failed to raise the issue of

fraudulent concealment in the district court. Finally, CERCLA’s provisions

governing actions brought under state law are inapplicable to the present claims.



* * *

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merely create federal jurisdiction for a state claim, we must conclude that Article III’s

‘arising under’ requirement has been met.”); In re TMI Litig. Cases Consol. II, 940

F.2d 832, 855 (3d Cir. 1991) (“[S]tate law provides the content of and operates as

federal law.”). These cases addressed the history of the federal court’s jurisdiction

over cases “arising under” the laws of the United States. They also addressed the

legislative history of the Act, the evolution of public-liability provisions of the Act,

the overall context of comprehensive federal regulation of nuclear activities, and the

difference between mere congressional grants of jurisdiction over state claims and

congressional creation of substantive federal law through the incorporation of state

law. As comprehensive as these other courts’ analyses are, we find it unnecessary to

rely on these cases or repeat their analyses to reach the same conclusion. We are

persuaded by the plain language of the Act.

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We affirm the judgment of the district court.