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) |
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).
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

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