US Personal Injury Litigation Arising from Fukushima Nuclear Power Accident Continues—For the Time Being

The World in U.S. Courts: Summer 2017 - Personal Jurisdiction/Forum Non Conveniens

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Cooper v. Tokyo Electric Power Co., Inc., US Court of Appeals for the Ninth Circuit, June 22, 2017

US military personnel were deployed to assist Japanese forces in the wake of the 2011 earthquake and tsunami that hit Northern Japan and resulted in catastrophic damage to the Fukushima Daiichi Nuclear Power Plant, operated by Tokyo Electric Power Company (TEPCO). The plaintiffs alleged they suffered serious medical injuries as a result of exposure to radiation, and that their injuries were occasioned by TEPCO’s misstatements incorrectly minimizing the extent of the radiation leak. Although a comprehensive plan for adjudicating claims of injury was established in Japan, the plaintiffs filed suit against TEPCO in Los Angeles. The District Court denied TEPCO’s efforts to dismiss the case on various grounds and an immediate appeal followed. The Court of Appeals affirmed the District Court’s decisions—albeit with recognition that the case presented a number of close questions, and an invitation for the District Court to reconsider its conclusions as the case proceeded.

Of note, the district court had rejected an argument by TEPCO that the case should be dismissed because an international treaty (referred to as the “CSC”) governing compensation in the event of nuclear disasters required that all litigation regarding a disaster be brought in the country where it occurred. The US was an early signatory of the CSC, but Japan only ratified the treaty after the Fukushima tragedy, and the Court of Appeals thus held it inapplicable to claims arising out of the Fukushima incident. The Court of Appeals also gave weight to questions of international comity, and received briefs from the Governments of Japan and the US. Japan argued that the case should proceed under the Japanese compensation framework, citing its substantial interest in hosting resolution of claims arising from the disaster. The US argued that keeping the case in the US would serve as an incentive for countries to join the CSC, sending a message that maintaining exclusive jurisdiction over nuclear accidents could only be obtained through ratification of the CSC. The Court of Appeals acknowledged Japan’s very strong interest in retaining jurisdiction over all claims arising from the tragedy, but concluded that the District Court exercised reasonable discretion in finding that interest counterbalanced by the US desire to promote ratification of the CSC by as many countries having nuclear power plants as possible. But the Court of Appeals also recognized that “comity” is a “fluid doctrine,” and that the District Court might have reason to change its mind regarding relative national interests as the litigation progressed.

As relevant here, the Court of Appeals also declined to dismiss the case on forum non conveniens grounds, largely for the reasons it declined to dismiss the case on ground of international comity. Added to the analysis, however, was the deference US courts give to the choice of US citizens to litigate in their home countries.

[Editor’s note: The Cooper case is also discussed in the Foreign Sovereign Immunity Act (FSIA)/Political Question section of this report.]

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