## Facts

- The Paducah Gaseous Diffusion Plant (PGDP) in western Kentucky is a federally owned uranium-enrichment facility operated over time by Union Carbide (1950–1984), Martin Marietta entities (1984–1995), and Lockheed Martin Utilities Services (1995 onward); GE supplied spent uranium fuel to the plant.
- Plant workers and some family members sued corporate defendants, alleging long-term exposure to radioactive and other toxic substances.
- Four worker-plaintiffs alleged no clinical disease symptoms at filing but claimed subcellular DNA and chromosomal damage and an increased risk of future illness.
- Plaintiffs asserted federal and state claims, including Price–Anderson Act public-liability claims, state tort theories, and Bivens claims tied to alleged constitutional violations.
- During discovery, a privileged document was inadvertently produced; plaintiffs argued waiver or application of the crime-fraud exception.
- The district court dismissed or entered judgment against all claims and entered final judgment with prejudice, relying chiefly on lack of a present compensable injury and Kentucky workers’ compensation exclusivity.

## Issues

1. Whether asymptomatic subcellular DNA and chromosomal damage constitutes “bodily injury” for a Price–Anderson Act public-liability claim as supplied by Kentucky substantive law.
2. Whether the Kentucky Workers’ Compensation Act provides the exclusive remedy for the worker-plaintiffs’ claims against employer-operators, and whether the “deliberate intention” exception applies.
3. Whether the Price–Anderson Act’s remedial scheme precludes Bivens claims based on the same alleged nuclear-incident harms.
4. Whether inadvertent production of a privileged document waived privilege or triggered the crime-fraud exception.

## Decision

- The Sixth Circuit affirmed the district court’s judgment in full.
- Asymptomatic subcellular DNA/chromosomal damage, without clinical manifestation, was not “bodily injury” under the Price–Anderson framework as informed by Kentucky law.
- The Kentucky Workers’ Compensation Act barred employee tort claims against employer-operators; plaintiffs did not satisfy Kentucky’s narrow “deliberate intention” standard.
- The Price–Anderson Act’s comprehensive scheme precluded Bivens remedies for the same alleged injuries arising from a nuclear incident.
- Privilege was not waived by inadvertent disclosure, and the crime-fraud exception did not apply; the privileged document was properly ordered returned.

## Legal Principles

- In a Price–Anderson public-liability action, state law supplies substantive standards for actionable “bodily injury.”
- Under Kentucky law, a toxic-exposure tort claim generally requires a present physical injury; increased risk of future disease or asymptomatic cellular changes are not compensable absent clinical manifestation or impairment.
- The Kentucky Workers’ Compensation Act provides the exclusive remedy for covered workplace injuries against an employer, unless the employee proves injury caused by the employer’s “deliberate intention,” construed narrowly to require conduct tantamount to intent to injure or substantial certainty.
- Courts will not create a Bivens remedy where Congress has provided a comprehensive statutory mechanism addressing the same class of harms, such as the Price–Anderson Act for nuclear-incident injuries.
- Inadvertent production in discovery does not necessarily waive attorney-client privilege; the crime-fraud exception requires a showing that the communication furthered a crime or fraud.

## Conclusion

The court held that asymptomatic DNA and chromosomal damage from alleged radiation exposure did not satisfy Kentucky’s present-injury requirement incorporated into Price–Anderson public-liability claims, that workers’ compensation exclusivity barred most employee tort claims absent proof of deliberate intent, that Price–Anderson displaced parallel Bivens remedies for the same nuclear-incident harms, and that inadvertent disclosure did not defeat privilege.


Rainer v. Union Carbide Corp., 402 F.3d 608 (6th Cir. 2005)