Comity

• Pages: 26-30

26 Volume 23, April–June 2017 international law update

© 2017 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

COMITY

In Case of Claims for Damages by

Persons Affected by Fukushima Nuclear

Power Plant Incident in Japan, Ninth

Circuit Reviews Denial of Motion to

Dismiss on Grounds of International

Comity, Forum Non Conveniens, the

Political Question Doctrine, and the

Firefighter’s Rule

e March 2011 Earthquake and resulting

tsunami which struck Japan’s Northeastern coast

were nothing short of devastating. One of the most

alarming consequences of the catastrophe was the

damage to the Fukushima Daiichi Nuclear Power

Plant (FNPP). e incident has been described as

the worst nuclear accident since Chernobyl. e

FNPP consisted of six boiling water reactors of

which units one to three were in operation at the

time of the earthquake. On the afternoon of March

12, the day following the earthquake, Plaintif‌fs

arrived of‌f the coasts of Fukushima Prefecture

aboard the aircraft carrier U.S.S. Ronald Reagan

and other vessels to provide humanitarian aid as

part of Operation Tomodachi. On March 14,

two days after their arrival, Plaintif‌fs alleged that

their vessels were repositioned further away from

the FNPP after U.S. of‌f‌icials onboard the U.S.S.

Ronald Reagan detected nuclear contamination in

the air and on an aircraft operating near the FNPP.

“Sensitive instruments” aboard the U.S.S. Ronald

Reagan discovered measurable levels of radioactivity

on seventeen aircrew members returning from relief

missions. In the months following the earthquake,

Japan commissioned the Fukushima Nuclear

Accident Independent Investigation Commission

(the “Commission”) to investigate the incident.

ough the earthquake and tsunami were natural

disasters, the Commission characterized the FNPP

meltdown as a “manmade” disaster. In 2013,

Defendant Tokyo Electric Power Company, Inc.

(TEPCO) also allegedly admitted that it could have

avoided the meltdown. In an ef‌fort to compensate

victims of the FNPP meltdown, the Japanese

government developed a comprehensive scheme to

deal with the millions of claims resulting from the

FNPP leak, giving claimants the option to submit a

claim directly to TEPCO, to the newly established

Nuclear Damage Claim Dispute Resolution Center,

or to a Japanese court. ese avenues for relief are

available to all victims, regardless of nationality.

Although Plaintif‌fs could have pursued their claims

against TEPCO in Japan, they chose to sue in the

United States.

Plaintif‌fs sued TEPCO, the owner and

operator of the FNPP, in the Southern District of

California for negligence and other causes of action.

Each Plaintif‌f alleged that he or she was exposed to

radiation during Operation Tomodachi. Plaintif‌fs

requested a judgment compelling TEPCO to

establish a billion-dollar fund to cover continuing

medical monitoring costs. ey also requested

damages, including lost wages, non-economic

damages, and punitive damages. *1198

In Plaintif‌fs’ First Amended Complaint

(FAC), they alleged that TEPCO and the Japanese

government conspired to keep the extent of the

radiation leak secret. ey further alleged that “the

U.S. Navy was lulled into a false sense of security,”

which led it to deploy Plaintif‌fs “without doing

the kinds of research and testing that would have

verif‌ied” the extent of the nuclear meltdown. e

district court dismissed the FAC under the political

question doctrine but granted Plaintif‌fs leave to

amend. Cooper v. Tokyo Elec. Power Co., Inc. (Cooper

I), 990 F.Supp. 2d 1035, 1039-42 (S.D. Cal. 2013).

*1198

In the Second Amended Complaint (SAC),

Plaintif‌fs relied on allegations that TEPCO was

negligent in operating the FNPP and in reporting

the extent of the radiation leak. TEPCO f‌iled

a motion to dismiss, arguing that the SAC still

presented a political question. TEPCO also argued

that, given Japan’s extensive ef‌forts to compensate

FNPP victims, the SAC should be dismissed under

the doctrines of international comity or forum non