FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RON J. DUMONTIER; JOHN FUGLE; 

ANDREW HARVIE; DAVID D.

HARVIE; DARREN HUGHSON; JOHN

HARPER; TORY KJELSTRUP; TODD

LOBREAU; ELBERT LOOMIS; ALLAN No. 05-36005 LUNGAL; WILLIAM L. ROBBINS;

W D.C. No. ILLIAM J. SCOFIELD; RON L.  SMATHERS; GERALD LAMB, CV-04-00016-RFC

Plaintiffs-Appellants, OPINION

v.

SCHLUMBERGER TECHNOLOGY

CORPORATION,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Montana

Richard F. Cebull, District Judge, Presiding

Argued and Submitted April 12, 2007

Submission Vacated December 24, 2007

Resubmitted June 2, 2008

Seattle, Washington

Filed September 11, 2008

Before: Alex Kozinski, Chief Judge, Raymond C. Fisher,

Circuit Judge, and Andrew J. Guilford,* District Judge.

Opinion by Chief Judge Kozinski

*The Honorable Andrew J. Guilford, United States District Judge for

the Central District of California, sitting by designation. 

12691
COUNSEL

Alexander Blewett, III, Christopher D. Meyer, Hoyt & Blewett PLLC, Great Falls, Montana, for the plaintiffsappellants. 

DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP. 12693
Donald E. Jose, Esq., Michael Garza, Esq., Jose & Wiedis,

West Chester, Pennsylvania; Robert E. Sheridan, Esq., Garlington, Lohn and Robinson, PLLP, Missoula, Montana, for

the defendant-appellee. 

OPINION

KOZINSKI, Chief Judge: 

We consider whether subcellular damage amounts to bodily

injury under the Price-Anderson Act. 

Facts

Schlumberger Technology Corporation’s employees carelessly left some cesium-137 on a drilling rig. Plaintiffs later

worked on the rig and were exposed. Though less well known

than uranium or plutonium, cesium isn’t a substance to be

toyed with. Unprotected exposure can cause burns, radiation

sickness and cancer; if ingested, it causes mania. Randal C.

Nelson, Songs of Cesium (1996), http://www.cs.rochester.edu/

u/nelson/cesium/cesium_songs.html. 

Plaintiffs have not developed cancer or any other illness.

Nevertheless they sued Schlumberger, claiming that the radiation caused subcellular damage, including to their DNA. They

brought a claim under Montana law seeking damages for

emotional distress, medical monitoring and actual malice.

Schlumberger argued that this claim was preempted and

moved to replace it with a federal cause of action under the

Price-Anderson Act, 42 U.S.C. § 2014(hh); it also moved for

summary judgment on the Price-Anderson claim. The district

court granted both motions and plaintiffs appeal. 

Analysis

[1] A nuclear incident is defined in the Act as “any occurrence . . . causing . . . bodily injury, sickness, disease, or

12694 DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP.
death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic,

explosive, or other hazardous properties of source, special

nuclear, or byproduct material.” 42 U.S.C. § 2014(q). Exposure to radioactive materials is compensable only if it causes

one of the harms on this list. Phillips v. E.I. DuPont De

Nemours & Co. (In re Hanford Nuclear Reservation Litig.),

No. 05-35648+, 2008 WL 2892318 at *16 (9th Cir. July 29,

2008); see also Berg v. E.I. DuPont De Nemours & Co. (In

re Berg Litig.), 293 F.3d 1127, 1131 (9th Cir. 2002); Brannon

v. Babcock & Wilcox Co., Inc. (In re TMI Litig.), 940 F.2d

832, 854 (3d Cir. 1991). 

[2] 1. Plaintiffs claim that they suffered a listed harm,

namely bodily injury, if we interpret bodily injury under Montana law. According to plaintiffs, we must do so pursuant to

42 U.S.C. § 2014(hh), which provides that “the substantive

rules for decision in [an action under the Act] shall be derived

from the law of the State in which the nuclear incident

involved occurs.” In Rainer v. Union Carbide Corp., 402 F.3d

608, 618 (6th Cir. 2005), the Sixth Circuit held that “[t]he key

question [under this section] . . . is whether [state] caselaw

equates ‘sub-cellular damage’ with ‘bodily injury.’ ” 

[3] Unlike the Sixth Circuit, we have never relied on state

law to interpret bodily injury. See Berg, 293 F.3d at 1133

(“We of course are interpreting a federal statute.”). Nor would

doing so be faithful to the statutory scheme. The Act doesn’t

call for us to apply state law in its interpretation; only for “the

substantive rules for decision”—i.e., the available causes of

action. See In re TMI Litig., 940 F.2d at 855-56. 

[4] The Act imposes two independent limits on claims

based on exposure to radioactive materials. First, as noted

above, plaintiffs can bring such claims only if the state where

the exposure occurred provides a cause of action. That’s what

the Act means when referring to state “substantive rules for

decision.” 42 U.S.C. § 2014(hh). For example, if a state

DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP. 12695
doesn’t provide a cause of action for emotional distress, a

plaintiff wouldn’t have a cause of action for emotional distress under the Act. Or, if state law provides a cause of action

for negligence but not for strict liability, the Act would provide a cause of action only for negligence. 

[5] In addition, 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. Phillips, 2008 WL 2892318 at *16; see Berg, 293 F.3d

at 1131 (rejecting emotional distress claim without physical

injury, despite Washington state law allowing it) (citing 42

U.S.C. § 2014(q)). The Act isn’t an invitation to survey state

jurisprudence on the meaning of bodily injury, sickness or

disease. Quite the opposite: It’s a bar to claims that would

otherwise be actionable under state law, a bar imposed by federal law and therefore interpreted as a matter of federal law.

[6] Were we to consult state law to define bodily injury,

section 2014(hh)’s preemption clause—which bars causes of

action that are “inconsistent with the provisions of” the Act—

would lose much of its force. A state could simply expand the

meaning of bodily injury, sickness or disease to include emotional distress. The Act was designed to safeguard the nuclear

industry from expansive liability under state law, see Berg,

293 F.3d at 1133; plaintiffs’ interpretation would permit an

end run. 

[7] 2. We next consider whether the term “bodily injury”

in the Act includes subcellular damage. Plaintiffs argue that

the slightest exposure to radiation damages cells by denaturing proteins and modifying DNA. This, they argue, qualifies

as bodily injury under the Act. But 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.

Adopting plaintiffs’ interpretation of bodily injury would ren12696 DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP.
der the term surplusage, as every exposure to radiation would

perforce cause injury. Cf. Berg, 293 F.3d at 1133 (noting that

the Act is intended to limit liability for nuclear incidents). 

[8] Plaintiffs argue that exposure to radiation surely causes

bodily injury if it exceeds the federal dose limit for members

of the public. But “[t]he various limits in present NRC regulations . . . have been set at a level which is conservatively

arrived at by incorporating a significant safety factor. Thus, a

discharge or dispersal which exceeds the limits in NRC regulations . . . although possible cause for concern, is not one

which would be expected to cause substantial injury or damage unless it exceeds by some significant multiple the appropriate regulatory limit.” 10 C.F.R. § 140.81(b)(1). X-ray

technicians, for example, are routinely exposed to more radiation than the public dose limit allows. Compare 10 C.F.R.

§ 20.1201(a)(1)(i) (limiting occupational exposure to 5 rem

per year) with 10 C.F.R. § 20.1301(a)(1) (limiting exposure

for members of the public to 0.1 rem per year). This reading

would make exceeding the federal dose limit a strict liability

offense, with damages determined by the extent of emotional

distress. The Act would cease to be a liability limit and

become an unlocked cash register. 

[9] Plaintiffs presented evidence that radiation always

“damage[s] the DNA or other important cellular components.” But this damage does not establish that there is or will

be pain or interference with bodily functions, and thus isn’t an

injury within the meaning of the Act. Plaintiffs’ expert also

explained that these subcellular alterations increase the risk of

cancer. The Act, however, permits recovery for disease—not

simply a risk of disease. We have previously held that such

a risk isn’t compensable. Berg, 293 F.3d at 1131. 

[10] 3. Plaintiffs argue that if the harm they suffered isn’t

on the section 2014(q) list, the Act simply doesn’t apply, and

their state claims aren’t preempted. But we held in Phillips,

2008 WL 2892318 at *16, that any suit seeking compensation

DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP. 12697
for a nuclear incident is preempted by the Act. See also Golden v. CH2M Hill Hanford Group, Inc., 528 F.3d 681, 683

(9th Cir. 2008). Plaintiffs claim compensation for exposure to

radioactive material, so they can only recover if they meet the

requirements of the Act. 

AFFIRMED.

12698 DUMONTIER v. SCHLUMBERGER TECHNOLOGY CORP.