Silkwood v. Kerr-McGee Corporation

RESPONDENT:Kerr-McGee Corporation

DOCKET NO.: 81-2159
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 464 US 238 (1984)
ARGUED: Oct 04, 1983
DECIDED: Jan 11, 1984

C. Lee Cook, Jr. – on behalf of the Appellees
John H. Garvey – as amicus curiae
Michael H. Gottesman – on behalf of the Appellant

Facts of the case


Audio Transcription for Oral Argument – October 04, 1983 in Silkwood v. Kerr-McGee Corporation

Warren E. Burger:

We’ll hear arguments next in Silkwood against Kerr-McGee Corporation.

Mr. Gottesman, I think you may proceed whenever you’re ready.

Michael H. Gottesman:

Thank you, Mr. Chief Justice, and may it please the Court:

This is a tort action arising under state law.

It was in the federal court because of diversity of citizenship.

The occasion for this tort action is that plutonium escaped from a manufacturing plant of the defendant and that plutonium contaminated Karen Silkwood and her apartment.

And the complaint in this action, resembling complaints that have been filed, I suppose, for time immemorial in the courts of this… of the states of this nation, sought compensatory damages for both the injury to person and to property and punitive damages for this state law tort.

The jury awarded both compensatory and punitive damages.

The court of appeals, the court below, affirmed in part the compensatory damage award and reversed it in part.

For all purposes here that… the rulings on the compensatory damages are not important except that the court rejected an argument of the defendant that compensatory damages were preempted by the Atomic Energy Act, and in fact held that compensatory damages could be awarded, and in fact affirmed an award of compensatory damages for property damage.

Sandra Day O’Connor:

Now, the only compensatory damage award that remains in the case, as I understand it, is the $5,000 property damage award.

Michael H. Gottesman:

That is the only award that remains in the case.

There is a debate between the–

Sandra Day O’Connor:

And the entire $10 million punitive damages has to hang then on the $5,000 property damage, is that correct?

Michael H. Gottesman:

–Well, at the present… in the present posture of the case–

Sandra Day O’Connor:

At present?

Michael H. Gottesman:


In the present posture of the case, the punitive damage award, if it were not preempted, the court of appeals would have to address, number one, whether that size award can properly be predicated on the property damage award; and number two, if not, whether there should be a remittitur or whether there should be a retrial on the amount of punitive damages.

William H. Rehnquist:

Does Oklahoma law, so far as you know, as to punitive damages draw any distinction between a property damage award and a personal injury award?

Michael H. Gottesman:

None, Your Honor.

The courts have squarely held that punitive damages may be awarded for property damage alone, or for personal injury alone, or for both.

The standards are identical in both cases.

And the measure of punitive damages in Oklahoma relates to the gravity of the harm threatened by the defendant’s reckless or malicious conduct.

So that there have been a number of Oklahoma decisions which have set aside in part a compensatory damage award and yet still affirmed in full the punitive damage award.

But in any event, that issue is not here.

That issue is the next one for the Tenth Circuit to address once it’s established that punitive damages are not preempted.

Sandra Day O’Connor:


Even if you won, it would be remanded then to determine whether that damages award is adequate as premised or… or excessive… excuse me… excessive as premised on only a $5,000 property–

Michael H. Gottesman:

Well, that issue would be before the Tenth Circuit.

There is a question whether Kerr-McGee has waived the right to make that claim because it didn’t advance it, but certainly the question of whether it has been waived or not, and if not, the question of whether the award will sustain the punitive damage award are both for the Tenth Circuit to decide.

Michael H. Gottesman:

But, of course, the Tenth Circuit never got to those questions because it ruled that punitive damages are absolutely preempted by the Atomic Energy Act in any suit against a nuclear operator relating to exposure to radiation.

And that, of course, is the issue that has been brought to this Court by us, and there is a question at the threshold.

The issue was brought to this Court on an appeal alleging that the Tenth Circuit by ruling as it did had held invalid the Oklahoma punitive damage statute.

This Court has postponed the determination of jurisdiction, and I do want to spent just a moment explaining why we think that this in fact is a proper appeal under 1254.2.

In Oklahoma punitive damages exist only by statute.

There has been a punitive damage statute since the first territorial legislature of the state.

There has never been a common law of punitive damages.

And that punitive damage statute makes punitive damages available, if, of course, the culpable conduct is present, in any action except a contract action.

And the Supreme Court of Oklahoma has read those words literally and in authoritative decisions has said that except for contract actions, punitive damages are available in any action.

We will not entertain arguments as to whether it’s a good idea or a bad idea.

This is the legislative policy of this state.

Now, because that is the law of Oklahoma, the district court, upon finding that there was evidence to support a verdict, was required to submit the punitive damage issue to the jury and said that it was required to do so.

It submitted it in the words of the statute, and the jury found a violation in reliance on that charge.

Both parties told the court of appeals that punitive damages in Oklahoma are governed exclusively by this statute.

And the court below, given those arguments and given an argument by Kerr-McGee that there was preemption, began its conclusive paragraph, the paragraph where it found preemption, saying,

“Arguably, there should be a strong presumption against preemption of state laws affecting such vital interests of its citizens as those involved here. “

Now, in Oklahoma the only state law that the court could have been referring to was 23 Oklahoma Statute Section 9.

And though the court did not cite that section by name, having begun that conclusive paragraph saying

“Arguably, there are strong arguments against preemption of state laws, but nevertheless, we find preemption. “

we submit that the court has held invalid Section 9 as applied to nuclear operators in radiation cases in the full substance and import of its opinion.

We think, indeed, that’s what it said, but whether it said it or not, that is certainly the effect of what it did.

And as the Solicitor General acknowledges, appellate jurisdiction exists if the invalidity of the state statute was a necessary predicate for the court of appeals decision, and we think it was.

Now, turning to the issue on the merits, the preemption issue, we’re dealing here with a state’s right to punish, to punish conduct that injures people and that injures people and is accompanied by a particularly reprehensible state of mind… either the deliberate infliction of injury or the infliction of injury with a reckless disregard for the safety of the state’s citizens.

Now, this kind of punishment, this civil punishment, if you will, punitive damages, has been a traditional element of the tort law in 46 states of this country and is still in the tort law of 46 states.

And what it is designed to do lies at the core of the state’s interest, that the police power is designed to protect people against reprehensible conduct, very much as the criminal law is.

And the question we have here is whether Congress in enacting the Atomic Energy Act intended to deprive the states of this traditional piece of a tort action.

This is not a separate action.

It is a remedy available in the traditional tort action.

And, of course, the answer is wholly one of congressional intent.

We approach that question with certain assumptions that this Court has stated are always the starting point for analysis.

Michael H. Gottesman:

First, an attempt to preempt a traditional state right is never lightly presumed.

That is especially so when the state right is exercised in the form of tort actions.

This court has said that.

And it is, we would suggest, uniquely so in this case.

Never in the jurisprudence of this nation, not in this Court, not in any other court, has there ever before been a holding that Congress left compensatory damages unpreemptive and yet preempted the punitive damages in that very same cause of action.

William H. Rehnquist:

–Yet, Mr. Gottesman, the position you take that punitive damages are primarily to punish suggests, at least in your view, that the punitive damages serve a much different purpose than compensatory damages, which I suppose are just to make whole.

Michael H. Gottesman:

That’s correct.

They serve a different purpose, but the reason that you don’t find that kind of selective preemption is that the purpose that they serve, punitive damages, lie absolutely at the core of the state’s interest and much more at the periphery of the federal interest.

So that as I’ll indicate, as we do in our brief… and if we have time, I’ll get to… it would be much less likely that Congress would make a judgment to preempt punitive damages than compensatory.

William H. Rehnquist:

Are you suggesting it would be more likely if they had to choose that they would have preempted compensatory damages?

Michael H. Gottesman:

Well, I think it’s not likely they would choose to select between them, and indeed, there’s never been a ruling by this Court that found one and not the other.

Congress either leaves tort actions alone or it doesn’t.

And indeed, the burden of what I’m about to come to is that Congress has made rather remarkably clear here an intention to leave state tort actions alone, one that encompasses.

Sandra Day O’Connor:

Of course, logically, though, punitive damages are in a sense regulatory, and it was Congress’ intent to leave in place… to leave the regulatory aspects to the NRC for safety purposes.

Michael H. Gottesman:

Well, I think logically, Justice O’Connor, both compensatory and punitive damages are regulatory, and this Court has repeatedly so said.

Both have regulatory effects.

Both have regulatory purposes.

For example, the state court, by determining what is the standard of care that it will hold Kerr-McGee to and hold it responsible, therefore, for compensatory damages, regulates.

If it says the standard of care is simple, reasonable care, it imposes one burden on Kerr-McGee.

If it says the standard is absolute, strict liability, it holds Kerr-McGee to a much stricter standard of performance.

So that both compensatory and punitive damages are regulatory; they regulate different things.

Compensatory damages regulate what the Nuclear Regulatory Commission regulates: the standard of care with which you operate your plant.

Punitive damages regulate something that the NRC does not regulate: your state of mind in the operation of that plant, whether you are the kind of person who behaves with a reprehensible state of mind.


William H. Rehnquist:

Mr. Gottesman, are you conceding, in effect, that the radioisotopes involved here are subject to the same preemption doctrine as perhaps the operation of a nuclear reactor would have been?

Michael H. Gottesman:

–Well, there are some differences in this case.

I’m not sure that we necessarily have to.

I think the answer would be the same.

But I think it’s important to note that this plant was not covered by the Price-Anderson Act.

As to this plant Congress made the judgment we have no interest in impeding the operation of state tort law at all, as contrasted with a nuclear power plant where Congress has made certain selective judgments to override the state tort law.

Michael H. Gottesman:

Now, it’s–

Sandra Day O’Connor:

Do you think then that, for instance, damages to the public arising out of a terrorist attack on a nuclear facility would be preempted?

Michael H. Gottesman:

–Oh, absolutely not.

I would assume that, assuming states can otherwise prosecute terrorists criminally for invading any other plant, they could likewise prosecute them for invading a nuclear power plant.

I shouldn’t think that there would be a question about that.

Indeed, I think even the Solicitor General’s brief concedes you can prosecute everybody but the corporation itself.

Now, however we might derive answers to this logically, the fact is that the determinative question here is what Congress intended and what logic Congress was applying.

And we have the benefit here of a much more extensive insight into Congress’ views about preemption than we ordinarily have in a preemption case, because Congress spoke a lot more about this.

To be sure, as this Court held last term in Pacific Gas and Electric, Congress in enacting the 1954 Atomic Energy Act and opening up this industry to the private sector reserved to federal exclusive control regulation, at least in the strictest sense: licensing, inspections, that sort of thing.

There’s no question that Congress occupied that field.

And, indeed, those on the other side of this case embrace the statement that this Court made in PG&E that Congress has occupied the field of regulation, and seek to evolve their entire solution out of that sentence of the opinion.

But it can’t be done, because were that proposition right, it would follow that Congress had preempted compensatory damage remedies as well, which this Court has repeatedly said are regulatory.

And yet, everybody understands, and this Court has said in Duke Power and PG&E, that when Congress enacted the 1954 Act, it did not preempt the state’s existing rights to entertain tort actions by those who were the victims of radiation injuries.

And, indeed, it’s precisely because the ’54 Act did not preempt those tort actions that we got the Price-Anderson Act, because people said we’re not going to enter this field; we are afraid of our potential tort liability.

And so Congress addressed that question of tort liability in the Price-Anderson Act.

Now, Congress in that act did not cede to the states the right to entertain tort actions.

That’s what our adversaries here say.

They say Congress ceded to the states the right to have tort actions.

That’s not what Price-Anderson did.

Congress said the states have these tort actions.

They have them already.

The question here is whether we should put any limitations on them.

And in that context Congress spoke at length about its view about the state tort action.

We have a window to congressional understanding here that is quite unique, and I want to refer just to a few of the statements, and to read them very briefly, that Congress made expressing its views.

The other side says well, never mind what Congress said here: they really only meant compensatory damages.

But that wasn’t the congressional mind-set.

For example, the Joint Committee report in 1956… and this is when the only interference with state tort law that Congress made was to put a $560 million limit of liability for certain operators, not for Kerr-McGee.

The Joint Committee report stated the two basic principles underlying the bill, and the first of those was,

“Since the rights of third parties who are injured are established by state law, there is no interference with the state law except for the $560 million limit of liability. “

Senator Pastore, who was the chairman of the Joint Committee when the ’66… or the floor manager, I’m sorry… when the ’66 amendments were made said,

Michael H. Gottesman:

“This bill follows the approach of the original Price-Anderson Act; that is, making a minimum interference with the laws of the several states insofar as legal liability for nuclear incidents is concerned. “

“Our committee continues to endorse this general approach. “

Finally, the Joint Committee in 1966:

“The bill has been drafted so that minor claims involving nuclear facilities or materials. “

–and what we have here is a minor claim…

“may remain subject to the traditional rules of tort law. “

Now, there are no qualifications, and this isn’t a semantic thing.

Congress had a mind-set, and it approached this problem with several concerns.

The first of those concerns was that Congress or the sponsors of Price-Anderson felt that if they tried to overly interfere with state tort, well, they couldn’t get a bill through Congress.

And so there are a number of statements quoted in our brief of the principal sponsors of this legislation saying we are going to proceed by selective limitation on the state tort law.

We will identify with precision what it is about state tort law that we think we need to modify, because that’s the only way we’re going to get a bill through Congress.

If we try to reach out in an overly broad way in a field that is so sensitively one of state’s rights, we’re not going to get this bill through.

So that was number one.

Number two, they thought this to be an area that was big and mysterious and had lots of elements, and it was different in every state.

And they said there’s… the chairman of the Joint Committee said there’s a jungle of 50 states’ tort laws out there.

We don’t know where to begin to tackle those, and we don’t want to.

We are simply going to identify what the problems are that we think we need to address and address them explicitly.

And finally and most importantly, Congress said that except for extraordinary nuclear occurrences… the meltdown of a power plant… there is no reason why a nuclear plant should be treated any differently than any other business entity in this country in terms of its amenability to the tort law.

Sandra Day O’Connor:

Would a state tort action lie in the nature of a nuisance suit against a power plant, a nuclear power plant?

Michael H. Gottesman:

I would think that it would like for damages… if we’re talking about radiation emissions, then I would think that the message of this… it isn’t a necessary message, because that’s not what Congress was thinking about when they made these statements; what they were thinking about were people being injured.

But if we’re dealing with radiation emissions, then however the state may put the label, if my property or my person is injured by the emission of radiation and I suffer an injury, I have one of these lawsuits.

So that I think the answer would be yes.

But certainly in this category, in the Kerr-McGee–

Sandra Day O’Connor:

And you don’t… you’re not troubled by the language of this Court in the PG&E case about the preemption?

Michael H. Gottesman:

–Well, I think if… I think the question of whether a state court could enjoin a nuisance would be much more troubling, because there you would be doing not that which Congress so clearly had in mind, which is conferring damages, but there you would be, in effect, revoking the license of the plant to operate.

I think there’s a very serious question whether in light of PG&E that could be done.

William H. Rehnquist:

What you’re saying is that PG&E dealt with safety regulation by the states as such, by a commission or perhaps by a nuisance action, but it didn’t go so far as to say that perhaps things that are tangentially concerned with safety but primarily devoted to compensation or punishment were also to be swept under the rug with safety concerns.

Michael H. Gottesman:

That is our submission, Your Honor.

Yes, that’s right.

Now… now, I do want to note we have in our brief noted that there… it is unmistakable that the Atomic Energy Commission in 1966 after this bill believed… and it was the agency administering the statute… believed that punitive damages were available.

Michael H. Gottesman:

In the limited time I have remaining I don’t want to focus on that.

But the point that I do want to focus on and close with is that Congress made a judgment repeatedly articulated in this legislative history that except where we’re dealing with an ENO, there is no reason why these plants should be treated under the tort law any differently than any other plant.

And Kerr-McGee is here saying ah, but because we’re a nuclear operator, we ought to be exempted from the rules that are applicable in tort suits against every other plant.

Whatever the logic that they could spin out for that, that is not the decision that Congress made, and the legislative evidence is overwhelming that Congress made the opposite decision.

Byron R. White:

Well, Mr…. Mr…. Mr. Gottesman, if the… if the plant is complying in all respects safety wise with federal standards and federal regulations but the state nevertheless and by virtue of its tort standards says that you must conduct your plant differently, you must run your plant differently or you’re going to be subject to a damage suit, and it doesn’t make any difference to us whether you’re complying with the federal law or not; you have to comply with this safety standard or you’re going to be held to be negligent.

That’s essentially your submission, that the state may do that.

Michael H. Gottesman:

Everyone on the other side concedes the state may do that.

Byron R. White:

I don’t think that concessions can find the Court very easily.

Michael H. Gottesman:


But then–

Byron R. White:

I mean people frequently try to concede that–

Michael H. Gottesman:

–Then I take it is our submission… it is our submission and their submission that the state can say notwithstanding your compliance with the federal standards, which the federal government says are no guarantee of safety… this is cost-benefit; this is what we say we want… notwithstanding full compliance with that, you can still do incredible damage to people.

And if a state chooses to–

Byron R. White:

–So the states can say you just didn’t run your plant safely, so you’re subject to damages.

Michael H. Gottesman:


A state can have a negligence standard, and a jury will sit there and decide did you run your plant safely; and Congress said that’s exactly what we want.

Warren E. Burger:

Mr. Cook.

C. Lee Cook, Jr.:

Mr. Chief Justice, and may it please the Court:

As has been noted, this case comes to the Court as a $5,000 property damage case, the personal injury aspects of the case having been disposed of by the court of appeals below and not the subject of appeal here.

The liability for that $5,000 in property damages resulted from a… on the basis of a liability without fault under the doctrine of strict liability.

The plaintiff conceded that he did not and could not prove how the contamination to Karen Silkwood’s property occurred.

Now, the question, the principal question raised by this case is whether an award of punitive damages with respect to a claim based on radiation hazards resulting from the operation of a federally licensed and regulated plutonium plant is preempted by the Atomic Energy Act.

As has been noted, the question of jurisdiction has been reserved.

Just a brief comment on that.

The plaintiff seeks to make jurisdiction in this Court for mandatory appeal under Section 1254.2 of the Judicial Code.

That section is to be strictly and narrowly construed.

It permits mandatory appeal only when the court of appeals invalidates a state statute as being repugnant to the Constitution or the laws of the United States.

In this case, the state statute which the plaintiff seeks to invoke was not even mentioned by the court of appeals, much less held invalid either facially or as applied.

All the court did here was hold punitive damages under the circumstances of this case cannot be awarded; and thus we urge that there is no jurisdiction in this Court.

Also, we suggest to you that this is not an appropriate case to take on certiorari.

C. Lee Cook, Jr.:

Its unique facts make it very unlikely that it will have any precedential value, and the basic principle upon which it relies… namely, that stated in Pacific Gas and Electric… does not involve any conflict in the circuits but is now well settled in light of your decision last term.

Now, turning to the merits, in your decision in Pacific Gas and Electric you described two forms of preemption, both of which are applicable here.

First, you said there is preemption if the Congress has fully occupied a field.

You also said there is preemption even if Congress does not fully occupy a field if the state action stands as an obstacle to the accomplishment of the federal purpose.

Both those preemptions exist in this case and require affirmance of the decision below.

Let’s talk about the first one first.

In PG&E–

Byron R. White:

Which one did the court of appeals use, both or just one?

C. Lee Cook, Jr.:

–Your Honor, I think they used the… the preemption on the basis of entire occupation of field, but I cannot tell you whether they also had in mind that in this particular case there is an obstacle to the accomplishment of a purpose.

In your decision in PG&E you removed any doubt that Congress has fully occupied the field of the regulation of nuclear hazards and the safety in the operation of a radiation facility.

And that applies whether it’s a nuclear reactor or whether it’s a plutonium plant.

This is a licensed facility–

William H. Rehnquist:

Mr. Cook, if you’re right in that, I suppose… and although the California case involved state regulation licensing requirements… if you’re going to carry that over en bloc to state tort law, which I don’t think that statement from PG&E at all requires, I take it compensatory damages would also be preempted.

C. Lee Cook, Jr.:

–No, Your Honor, I do not think so.

Let me deal with that… that point right now.

The fact of the matter is that the suggestion here, the argument here that there is… that compensatory damages are also preempted and that somehow the Court was inconsistent in holding that punitive damages were preempted and compensatories were not I believe is wrong for at least two reasons.

First of all, Congress in the Price-Anderson Act and in the legislative history related to the Price-Anderson Act indicated an intention that with respect to the compensation of injured victims, making them whole, it was the intention of Congress that they should have available state tort law remedies.

No such intention with respect to punitive damage was ever expressed.

Secondly, and probably more important, the argument of the plaintiff here ignores the distinction between punitive damages and compensatory damages.

Punitive damages have as their sole function controlling of conduct, conduct that the jury believes does not meet the safety standard that should be applied.

Compensatory damages, on the other hand, have as their primary function the recompensing of the injured plaintiff; in other words, making the plaintiff whole.

William H. Rehnquist:

Well, but surely you don’t suggest that when the state court said charges on negligence sufficient to support a recovery of compensatory damages it isn’t laying down a standard of care directed to safety?

C. Lee Cook, Jr.:

I don’t suggest that at all.

What I do suggest is that there is a nonsafety rationale as well, and that is the making whole of the innocent injured victim of a nuclear incident.

William H. Rehnquist:

Well, but isn’t there also a nonsafety rationale to punitive damages in the sense of punishing someone who is regarded as having deliberately done wrong?

C. Lee Cook, Jr.:

No, Your Honor, I do not believe so.

I believe, particularly in Oklahoma, the law is that punitive damages are to punish and deter conduct.

As a matter of fact, this Court reaffirmed that principle just last term in Smith v. Wade where it said the purposes of punitive damage is to punish reprehensible conduct and deter the defendant and others from engaging in that conduct in the future.

In fact, under Oklahoma law if punitive damages do not have the effect of punishing and deterring conduct, they will not be permitted to stand.

The case cited in our brief, the Nixon case, stands for that proposition.

C. Lee Cook, Jr.:

And in the most recent brief filed last week by the plaintiff, its reply brief, there’s cited a new Oklahoma punitive damage case.

It’s the most recent statement by the Oklahoma Supreme Court on the subject of punitive damages.

That case not only restates all the principles that we expressed in our brief concerning the role of punitive damages, but it has this additional statement.

It said,

“Unlike the purpose of compensatory damages, which are to benefit the individual plaintiff, punitive damages are imposed to benefit society. “

“The plaintiff acts as a private attorney general to punish the culpable wrongdoer, thereby encouraging adherence to safety standards that benefit consumers generally. “

So what the court in the Theory v. Armstrong case at 661 Pacific Second and cited in the second footnote to the plaintiff’s reply brief, has made it clear is that punitive damages in Oklahoma are for the purpose of imposing a safety standard and then enforcing it.

William H. Rehnquist:

Well, has the Oklahoma court said that compensatory damages are not for that purpose?

C. Lee Cook, Jr.:

What the Oklahoma court I think has said is that compensatory damages have… and the… as their basis the intention to benefit the plaintiff, to make him whole for the wrong he has suffered.

Byron R. White:

What wrong, though.

Isn’t it as… as… as the Justice has said, you have to show that some standard of conduct has been violated before you’re going to get–

C. Lee Cook, Jr.:

Actually, in Oklahoma you do not because there’s… it’s strict liability in Oklahoma.

So irrespective of the conduct you engage in, if it’s your plutonium, you’re liable.

Byron R. White:

–Is that… and the jury was instructed both on negligence and strict liability, wasn’t it?

C. Lee Cook, Jr.:

Not with respect to the property damage.

The property damage–

Byron R. White:

Well, that may be so, but now let’s talk about personal injury.

You… you would say that… you would say that compensatory damages for personal injuries are not preempted.

C. Lee Cook, Jr.:

–Your Honor, I don’t think that–

Is that right or not?

C. Lee Cook, Jr.:

–Well, let me… let me–

Byron R. White:

I thought that’s what you had conceded.

C. Lee Cook, Jr.:

–Let me respond this way.

That question is not before you.

That’s the decision of the court of appeals.

Byron R. White:

Well, it’s before you right now.


C. Lee Cook, Jr.:

I understand it is before me right now.

Byron R. White:

Well, how about an answer.

C. Lee Cook, Jr.:

And my response… my response is on the state of the present law under… I would say the compensatory damages are not preempted.

Byron R. White:

Even though… even though in the process of awarding them you find that the plaintiff or the defendant has not lived up to some state-imposed standard of safety?

C. Lee Cook, Jr.:

If… if indeed… if indeed the state-imposed standard of safety is a negligence standard.

Byron R. White:

Well, even though… even though the plant is in complete conformity with federal law as far as safety is concerned.

C. Lee Cook, Jr.:

Your Honor, I would argue that if indeed the plant is in complete conformity with federal law, there is no way of finding, there’s no basis for finding that it was not operated reasonably and–

Byron R. White:

Well, there is… there is the state has a different standard or purports to impose a standard that’s inconsistent with federal law.

But you don’t purport in this case, as far as I can tell, to point… to rely for your preemption analysis on any conflict of federal law.

It’s more general preemption.

C. Lee Cook, Jr.:

–We rely on that because that is the basis of the decision below, that’s true.

Byron R. White:


C. Lee Cook, Jr.:

There is a conflict, however, that I want to deal with.

Byron R. White:

Well, then, if there is, I don’t know how you could concede on compensatory damages.

C. Lee Cook, Jr.:

Well, Your Honor, the reason I’m conceding on compensatory damages is because while compensatory damages may have a regulatory effect and they may produce a safety benefit, they have as well a nonsafety rationale, and that is, making whole the plaintiff who has been injured, who has suffered a loss.

This Court said… as a matter of fact, in your opinion you said the ration… the question we must ask–

That was the Court’s opinion.


C. Lee Cook, Jr.:

–That was the… excuse me, Your Honor.

The question we must ask in Pacific Gas and Electric was is there a nonsafety rationale for the state action, for the state statute involved there.

Now, if we apply that same question here, we can see a difference between punitive damages and compensatory damages, because if we ask that question with respect to compensatory damages, we have to say that there is a nonsafety rationale, and that rationale is to make whole, to recompense the injured plaintiff who has suffered damage because of a nuclear incident.

But under–

C. Lee Cook, Jr.:

Whether it be because of a standard of care or not.

William H. Rehnquist:

–Under your analysis then it would depend solely on the Oklahoma law.

If the Supreme Court of Arkansas had said that our punitive damages are just to make sure a plaintiff is really compensated… it may have nothing to do with safety… presumably the punitive damages would go the same way as compensatory damages under Arkansas law, even though it’s a federal inquiry.

C. Lee Cook, Jr.:

It may very well turn on that point, Your Honor.

I think, however, generally speaking the law of this country is that compensatory damages by definition are not… I mean punitive damages by definition are not compensatory but indeed are for the purpose of punishing alleged wrongdoing and establishing a safety standard.

After all, what we are dealing with here is whether under Oklahoma law and the purposes of Oklahoma… of punitive damages in Oklahoma we have preemption.

If we ask that same question… is there a nonsafety rationale for the state action in the case of punitive damages… we can only reach one answer.

There is no rationale other than safety with respect to punitives.

And that is particularly so in Oklahoma.

Sandra Day O’Connor:

Well, punishment of the offender.

C. Lee Cook, Jr.:

Punishment of the offender still has as its purpose, I submit, safety.

C. Lee Cook, Jr.:

It has no other purpose.

Sandra Day O’Connor:

Well, compensatory has the same element.

C. Lee Cook, Jr.:

Compensatory has that element plus the element of making the injured plaintiff whole, which is not present with respect to punitive damages.

William H. Rehnquist:

Well, but punitive has the element of punishing plus safety.

I mean you can say one… each one of them has two components if you want to break it down that way.

C. Lee Cook, Jr.:

Well, I submit, Your Honor, that punishment has a safety rationale and a safety rationale only.

Why… we only punish because this particular defendant has not lived up to the safety standard that the jury has been convinced is the appropriate safety standard to apply.

John Paul Stevens:

But, Mr. Cook, what about criminal laws?

Say the criminal statute provided for punishment for precisely the conduct that was involved here.

I think you’ve conceded that would not be preempted.

C. Lee Cook, Jr.:

Your Honor, I would concede that a criminal statute is different.

I… if… obviously if someone takes… chooses plutonium as the means by which to commit a crime as opposed to using a knife or some other–

John Paul Stevens:

Say the statute… say they had a statute… I can’t recite these rather complicated facts… the facts as we disclose by this record if done maliciously and so forth and so on shall constitute a crime under the laws of Oklahoma punishable by a fine $10 million, would that be preempted?

C. Lee Cook, Jr.:

–Your Honor, I… I don’t mean to dodge your question.

I have trouble under… I have trouble conceding a circumstance because all we’re talking about here is the general operations of this plant and how there could be a statute that–

John Paul Stevens:

Well, the briefs indicate there are unusual facts here.

C. Lee Cook, Jr.:

–Oh, well, Your Honor–

John Paul Stevens:

And we… so I think we have to take the facts as your opponent describes them in view of the fact that the jury ruled against you.

C. Lee Cook, Jr.:

–If you… if you… if you examine those facts in… unfortunately, many of those facts were contained in a series of footnotes in the reply brief.


C. Lee Cook, Jr.:

And we didn’t have a chance to respond to those.

Had they been in the opening brief, we would have.

Suffice it to say, and the bottom line, I think, on this is the testimony of the regional director of the Nuclear Regulatory Commission who had responsibility for this plant.

He testified that it was the view of his agency that the plant was safely operated.

John Paul Stevens:

Yes, I know, but they had some kind of a safety report that said there were about 18 or 20 safety problems, none of which violated the federal regulations.

C. Lee Cook, Jr.:

Oh, well, Your Honor, if I could just talk briefly about those.

Those are matters which were… were, I submit, not the basis of the punitive damage award in this case.

Let me just give you an illustration of one of them.

One of them said, for example, that there was a period of… a contamination incident or contamination was permitted to exist for 14 days.

It sounds like there’s some contamination out there that creates a danger, a risk.

C. Lee Cook, Jr.:

If you read the backup materials on that what you’ll see is we had a vacuum cleaner that we had trouble cleaning, and so that they couldn’t get it clean, so they decided to put it in a bag and put it aside and decide whether they could find a way to clean that or whether they had to throw the vacuum cleaner away.

It took 14 days to make that decision.

There was no exposure of the public or workers or anybody to health.

The reason that was rejected by the Nuclear Regulatory Commission is that it created no health or safety problem.

The whole argument on that point… I’m kind of getting out of order here… but the whole argument on that point, I submit, misses the point of what the Nuclear Regulatory Commission does.

The Nuclear Regulatory Commission has broad discretion in the regulation of plants such as this and does indeed control them.

John Paul Stevens:

Well, let me ask you this genera question.

Do you contend that the state could not make it a crime to do anything that is authorized by the federal agency?

If a federal agency authorizes it, then the company is immune from criminal liability?

That the federal agency has not prohibited it, I should say?

C. Lee Cook, Jr.:



You can’t say that.

C. Lee Cook, Jr.:

–Obviously, I do not submit that, Your Honor.

Let me turn… let me turn to the–

Byron R. White:

Just before you turn–

C. Lee Cook, Jr.:


Byron R. White:

–Suppose that there is a safety standard issued by the NRC which is… which the plant and the company is supposed to live up to.

Suppose that they did not, and it’s plain.

Plainly they did not, and it created… it hurt somebody, like Silkwood.

And it hurt somebody, and it’s… the… it’s shown that the company negligently, if not recklessly, disregarded the federal safety standard.

State tort suit.

I would suppose that consistent with your theory you would say that punitive damages would not be authorized then.

C. Lee Cook, Jr.:

That’s right.

Compensatory, yes, but not–

Byron R. White:

Well, I know.

But even though… even if… even if the purpose of imposing the punitive damages was regulatory in the sense we want you to make sure to live up to federal standards.

C. Lee Cook, Jr.:

–Yes, but you see, it’s the–

Byron R. White:

What’s wrong with that?

C. Lee Cook, Jr.:

–Well, what’s wrong with it is it conflicts with the intention of Congress.

Byron R. White:


C. Lee Cook, Jr.:

Because what Congress has done is said we’re going to have a… not a… we don’t want a dual regulatory system.

We want a single regulatory system–

Byron R. White:

Well, Congress certainly didn’t… didn’t reserve for itself the awarding of damages for injuries caused by violations of federal standards.

They certainly left that to the states, didn’t they?

C. Lee Cook, Jr.:

–Injuries, no, Your Honor.

They gave to… to the agency the power to impose sanctions and to–

Byron R. White:

I said the… the… the power to award damages to people who are hurt by the violation of federal standards.

C. Lee Cook, Jr.:

–Oh, that’s true, Your Honor.


Byron R. White:

They left that to the states.

C. Lee Cook, Jr.:


Byron R. White:

And you say that a state could not when a violation of a federal standard is found impose punitive damages.

C. Lee Cook, Jr.:

That’s right, Your Honor.

Byron R. White:

Even though the purpose of it was to live up to federal law.

C. Lee Cook, Jr.:

And because that… the function there is regulatory, and that’s the function that has been delegated to the Nuclear Regulatory Commission.

Now, in addition to the fact that Congress has occupied this field, the… the imposition of punitive damages stands as an obstacle to the accomplishment of the federal purposes, specifically the purpose to encourage widespread participation in the development of atomic energy for peaceful purposes, and the express desire and intention of Congress to have dual regulation of radiation hazard… to not have dual regulation of radiation hazards.

If a state passed a law or an administrative agency adopted a rule which imposed a standard upon a nuclear facility, even the plaintiff would concede that’s preempted.

But he argues somehow punitive damages are different.

But what is the saving difference?

Giving the jury the power to devise the safety standard is no different than having it done by a state agency except that it varies from case to case, and it’s subject to all the whims and vagaries of juries and the ability of counsel to inflame them.

But the result is the same.

It’s the state standard of safety which controls the plant and not the Nuclear Regulatory Commission’s standard of safety which this Court has already held has exclusive jurisdiction over that subject.

Byron R. White:

Would you say that the injuries in this case were caused by conduct that was perfectly proper under federal law?

C. Lee Cook, Jr.:

Your Honor, the fact of the matter is there is no evidence here of what caused this damage.

The plaintiff conceded that he could not prove what caused this damage.

And that brings me to this point with respect to the property damage award.

And if I could just close for a minute on that point.

When this case is reduced to a $5,000 property damage case, as it is, there is no predicate for the punitive damages because there is no showing of the cause of that property damage award.

And under Oklahoma law if it wasn’t caused by an act which was reckless or accompanied by malice, it cannot be the basis of punitive damages.

Byron R. White:

Well, that question’s still open, isn’t it, in the… even… even if… even if we reversed, wouldn’t that… would that issue still be open in the court of appeals?

C. Lee Cook, Jr.:

It would be, but, Your Honor, I think that is a basis for your affirming also, because there is no evidence of the cause of the damage to the property.

Thank you.

Warren E. Burger:

Mr. Garvey.

John H. Garvey:

Mr. Chief Justice, and may it please the Court:

I would like to make just two points.

The first of them is that the federal regulations in this case do exactly what the state of Oklahoma was trying to do through the imposition of punitive damages.

And the second point is that there is indeed a difference between compensatory and punitive damages which demonstrates that Congress intended to prohibit punitive damages and intended to encourage compensatory damages.

Let me just say a few words about my first point, which is that federal regulation is not only adequate to cover this case but also does exactly what Oklahoma did.

The Atomic Energy Act in Section 2077A and the regulations promulgated by the NRC in Section 70.3 say that you can’t possess plutonium without a license.

They also say that you can’t transfer plutonium except to a licensee.

There is no limit on the amount of plutonium that they’re speaking about.

That means that with respect to the 300 micrograms that were found in Silkwood’s apartment in this case that if either party had been responsible for the transfer or the possession of that plutonium in the apartment, it would have… it would have violated both the statute and the regulations.

William H. Rehnquist:

Is this a radioisotope, Mr. Garvey?

John H. Garvey:

I wish I knew.

I don’t think so.

I think when Congress used the words radioisotope in 1959 they meant maybe things like cobalt 60 and… and–

William H. Rehnquist:

Certainly it’s fairly important to determine in deciding whether this has been preempted or not, under the government’s theory, isn’t it, when the Joint Committee Report in ’59 says we’re leading… leaving radioisotopes–

John H. Garvey:

–Oh, there is… there is absolutely no doubt but that Congress attempted to preempt the operation of plutonium fuel fabrication facilities in all their respects.

In the ’59 report the… the… well, what Congress said was–

William H. Rehnquist:

–Well, one thing Congress said was that we’re leaving radioisotopes to the states.

John H. Garvey:


There is no question but that this is not radioisotope within the meaning of that discussion.

William H. Rehnquist:

And what’s your authority for that?

John H. Garvey:

Well, I think if you look at the AEC analysis of the bill, which appears in 105 Congressional Record ’83-’84, and if you read the House and Senate reports that accompany the 1959 amendments, it’s clear that Congress made a distinction between facilities that possess special nuclear material in quantities sufficient to form a critical mass, and this was such a facility, on the one hand.

And radioisotopes that are used for medical purposes or related uses, on the other hand.

There is no doubt but that Congress intended to cover this facility.

There is no doubt but that the… that the amount of plutonium found in her apartment, had Kerr-McGee been responsible for its presence there, would have violated both the statute and the regulations.

I might go on to say that the regulations also provide in great detail for the… for the protection of workers in plutonium and processing facilities like this one.

They talk about what sort of precautionary procedures have to be taken in handling plutonium.

John H. Garvey:

They also set exposure limitations which… which… which apply to this case.

The baseline exposure limitation is that operators of these kinds of facilities have to keep exposures as low as reasonably achievable.

Now, any willful exposure to plutonium almost by definition violates the as low as reasonably achievable standard, but it might also say that the amount of plutonium that the NRC discovered on its investigation in this case… that was discovered at the autopsy, had it been received in the course of a week or even in the course of a quarter would also have violated the numerical limitations that are found at the end of Part 20 of 10 CFR.

In addition to that statutory and regulatory scheme, the NRC imposes on licensees specifically tailored license conditions to make sure that these plants are operated safely.

In this case the license was about that thick.

It was introduced as Exhibits–

Byron R. White:

So your… your point is… is… is that if… that if had been shown that Kerr-McGee was responsible for the presence of that plutonium, there would have been a violation of federal law.

John H. Garvey:


I want to go farther than that, because the NRC conducted an investigation, and its report is reproduced as an appendix to the motion to dismiss in this case.

The NRC concluded that the appellees had not violated the federal regulations.

If they had concluded that there had been a violation, the current procedures, which you will find in Appendix C to Part 2 of 10 CFR, say, for example, that the NRC can impose civil fines for any significant failure to control licensed material.

That would include this case.

Byron R. White:

Well, that wouldn’t… there wouldn’t be any intention to… there wouldn’t be any bar, though, to a… to a state court action for compensatory damages–

John H. Garvey:

No, it would not.

Byron R. White:

–For the violation of the federal law.

John H. Garvey:

No, it would not.

In fact, Congress intended to encourage awards of punitive… of compensatory damages.

The NRC has no authority to award compensatory damages.

Byron R. White:

Right, right.

So there was no intent to preempt the state damage action.

John H. Garvey:

Indeed not.

In fact, the Price-Anderson Act rests on the assumption that state compensatory damages actions are permissible.

On the other hand, Congress enacted Section 2282 for the specific purpose of allowing the NRC itself to impose civil fines.

And as this Court noted in Gertz against Robert Welch, punitive damages are nothing other than private fines levied by civil juries.

There are a number of differences between compensatory and punitive damages which make clear Congress’ intent.

That first is that the statute treats them differently.

It leaves to the states the award of compensatory damages.

It gives to the NRC the authority to impose civil fines.

The second point I’d like to make is that appellant suggests that in some way reading the–

William H. Rehnquist:

But, Mr. Garvey, the civil fines imposed by the NRC, do they go to a person who’s claiming injury or do they go to the government?

John H. Garvey:

–Well, they go to the government.

William H. Rehnquist:

So that isn’t exactly analogous then to punitive damages.

John H. Garvey:

No, it’s not exactly analogous, although Oklahoma law recognizes that… that the collection of punitive damages isn’t a right of the private party.

It’s really a private party acting as a private attorney general on behalf of the public.

So I think where they go is really a matter of insignificance.

Appellant suggests that in some way it’s strange that Congress might–

Warren E. Burger:

Excuse me there.

The impact on the wrongdoer, if he is a wrongdoer, is the same whether the money goes to the government or whether it goes to the private claimant.

John H. Garvey:

–That’s correct.

Warren E. Burger:

It has a deterrent effect.

John H. Garvey:

That’s correct.

Appellant suggests that in some way it’s strange that Congress should have drawn this line between compensatory and punitive damages, but it’s done in any number of other statutes as this Court has recognized.

If this had been… if this facility had been a federal facility, the Federal Tort Claims Act would have subjected the government to state standards for negligence in suits for compensation but would not have permitted suits for punitive damages.

This Court has recognized that the Railway Labor Act, suits brought under that act permit compensation but not punitive damages.

Section 303 of the Labor-Management Relations Act permits compensation but not punitive damages precisely because of the effect that they have on future conduct.

That’s, I might add, a sensible reason for drawing a line between compensatory and punitive damages in this case.

In Pacific Gas and Electric this Court said that states were free to reject nuclear power if it cost too much, but not because it was unsafe.

I might add the Court’s opinion said that states were free to reject nuclear power if it cost too much, even though the decision about cost entailed some thinking about safety.

In the same way, Congress intended that the states should be allowed to assure that nuclear power pay all its costs… the cost of injury, the cost of harm… but that they not be allowed to go further and punish nuclear licensees for operating unsafely.

Byron R. White:

Well, I suppose that in the process of awarding compensatory damages if in a particular case the state was attempting to impose a standard of performance inconsistent with federal law, that would pose a different problem.

John H. Garvey:

I don’t believe so.

I think that Congress intended that the states should be allowed to award compensation under standards of strict liability.

Indeed, in the Price-Anderson Act they wanted to encourage that in the case of extraordinary nuclear occurrence.

Byron R. White:

Well, you aren’t answering my question.

John H. Garvey:

Well, I think I… I think I am, because in awarding damages under standards of strict liability, the state makes no decision about standards of care.

Byron R. White:

Well, I asked you if the state was awarding damages in accordance with some standard of care that was inconsistent with the federal law.

They didn’t work… suppose the state isn’t… doesn’t purport to award damages on a strict liability basis.

They are awarding damages because you failed to run your plant this particular way, and it just happens to be inconsistent with the federal law.

John H. Garvey:

I find it curious that appellants have turned that argument to their own advantage.

What they’re really saying is if the state, in order to protect a licensee, decides to award compensatory damages in less than all cases by using a negligence barrier to collection that that somehow justifies the state in awarding punitive damages in situations where the NRC would not permit them.

Warren E. Burger:

We’ll resume there at 1:00.

Mr. Gottesman, you may proceed.

Michael H. Gottesman:

Thank you, Mr. Chief Justice.

Lewis F. Powell, Jr.:

Mr. Gottesman, may I ask you a question before you commence?

If there were a nuclear disaster and hundreds of people were injured or killed and their claims exceeded the $560 million, I assume that each of the claimants would be entitled to a pro rata part of that sum.

Michael H. Gottesman:

That’s correct, Your Honor.

Lewis F. Powell, Jr.:

And would they then be entitled to bring punitive action suits?

Michael H. Gottesman:

Well, punitive damages would be part of the very cause of action, but the statute has in it, Price-Anderson has in it a provision that where the total recoveries of all elements of damage exceed the $560 million limit of liability the court will make apportionments based on which elements of recovery are the most deserving.

And we would certainly assume that compensatory would come before–

Lewis F. Powell, Jr.:

Does the statute make that clear, drawing a distinction between the two?

Michael H. Gottesman:


The statute simply says that the district court shall make such allocations or priorities of allocation as in its judgment it deems just.

Lewis F. Powell, Jr.:

And there’s nothing in the legislative history that sheds any light on that?

Michael H. Gottesman:

There is some discussion in the legislative history that personal should come before property.

That discussion does not have a reference one way or the other to punitive.

And that, I believe… I don’t know if it was in a report.

I think it was during the hearings somebody asked that question; they had that discussion.

This is, as we stated at the outset, solely a question of legislative intent.

And I think it’s worth noting that throughout the arguments on the other side no one is prepared to crack the binder and look at what Congress said.

All of the arguments on the other side flow from a logic, it would make sense for Congress to do this or it would make sense for Congress to do that.

As we’ve indicated, Congress told us what it did, and that is the answer here.

But the logic wouldn’t work, and I want to focus on the government’s argument about the scope of NRC regulations and how since the NRC is punishing, why do we need juries punishing as well… an argument that I assume would extend as well to the state criminal law, that anything–


Michael H. Gottesman:

–I’m sorry.


You said it would extend–

Michael H. Gottesman:

Why would it extend?

Because I don’t know how one could attribute to Congress, at least from the legislative history we’ve got, a dividing line that says the state can take the same malicious conduct or reckless conduct and if it calls it a crime, then it is free to punish it, but if it calls it punitive damages, then it is not free to do it.

I’m not saying Congress couldn’t make that distinction.

That I’m saying is there is absolutely nothing in this statute or in the logic of the legislative history that could allow one to conclude that that was the line that Congress actually drew here.

Michael H. Gottesman:

But the point I want to make is that it isn’t true that two punishments are the same.

The federal government is punishing violations of its regulations.

The deterrent purpose is that so people won’t violate the regulations again.

The state, through punitive damages, is punishing outrage, outrageous conduct motivated outrageously that inflicts injury on its citizens.

Its deterrent purpose is to get this wrongdoer to stop hurting people.

Now, that isn’t limited.

In this case it happens that the outrage was perpetrated with plutonium, but the deterrent purpose of the state extends to everything that Kerr-McGee does.

Kerr-McGee doesn’t just handle plutonium.

And even this plant has other ways that people can be hurt.

The state’s concern is that it has found a defendant that proceeds with a reckless disregard for the safety of its citizens, and the function of punitive damages is to make that defendant stop doing what it does with reckless disregard.

It isn’t in any way confined to plutonium or limited to.

Warren E. Burger:

–That does divide the regulation of the production of atomic energy, does not it not, between the state and the federal?

Michael H. Gottesman:

The act defines the… that it assigns certain functions to the Atomic Energy–

Warren E. Burger:

Your response, your analysis puts the jurisdiction in two places at the same time.

Michael H. Gottesman:

–We don’t think so, Your Honor.

The regulation that we understand Congress to have given to the federal government is the federal government’s alone.

That regulation… and we acknowledge that it is in at least some sense regulation… this Court said so in the Garman case… that flows both from compensatory and from punitive damages.

There is no evidence that Congress passed in the federal government alone.

Now, I want to end by pointing out one other thing, and that is, if you read Mr. Kepler’s testimony… he’s the AEC man… the description of their role is not as indicated here.

Warren E. Burger:

Thank you, gentlemen,–

The case is Submitted.