Full opinion text
OPINION AND ORDER OVERRULING DEFENDANTS’ POST-TRIAL MOTIONS THEIS, Chief Judge. This is a personal injury action for damages caused through exposure to radiation suffered by plaintiff’s decedent as a consequence of plutonium escaping a nuclear fuel processing plant operated by defendants. A lengthy jury trial culminated May 18, 1979, in a jury’s answers to interrogatories finding actual damages of $505,000.00 and punitive damages of $10,000,000.00. The jury’s answers also indicated liability of both defendants on strict liability and also on the basis of defendants’ negligence. The Court accepted the verdict and on June 21, 1979, entered judgment in accordance therewith. This matter now comes before the Court on defendants’ alternative motions for judgment notwithstanding the verdict or for a new trial. Twenty-two separate grounds are alleged to support these motions. For the reasons stated herein, the Court finds these motions without merit and denies defendants their requested relief. From the date this lawsuit was filed a dramatic divergence of perspective has existed regarding what the issues in this case are, how those issues arise in this suit, and the applicable legal standards that control their resolution. This manifest, often emotionally-charged disagreement has survived the pretrial and trial stages of the litigation, causing numerous heated objections over otherwise elementary rulings on discovery questions, admission of evidence, content of jury instructions, and the propriety of any determination of defendants’ liability for damages, especially in the instant amounts. This disagreement has once again made itself apparent in the post-trial motions of defendants. Because defendants’ misconception of the legal issues presented in this case permeates many aspects of the post-trial motions before the Court, the Court must make certain prefatory remarks, even though this litigation is in its most advanced stages. These remarks may put in better perspective the true import of this Court’s many evidentiary rulings and the instructions given the jury, and may help illuminate several aspects of defendants’ arguments otherwise not readily apparent. It is of singular importance for this Court to emphasize clearly what defendants argue and the legal theories upon which these arguments are premised. From the outset of this litigation, defendants’ perception of the basis upon which this lawsuit was brought has differed from the narrow issues presented in the pleadings. This was a personal injury action for damages caused through escape of plutonium from defendants’ facility. This was not an intentional tort case. In defendants’ strenuous and lucid arguments on these motions, counsel repeatedly stated that the trial of this action utterly failed to address “what this case was supposed to be all about” — to establish how plutonium came to be in Karen Silkwood’s apartment. This Court simply does not agree. In this case plaintiff sought to establish that culpable conduct of defendants permitted plutonium to escape from the Cimarron nuclear fuel reprocessing facility operated by defendants, and that this plutonium caused injury to Silkwood. How plutonium, once outside the plant, came into Silkwood’s apartment is an issue quite distinct from how it escaped the facility. Implicit in virtually all defendants’ arguments in these motions is the suggestion that plaintiff ought not to recover unless he can demonstrate that an agent of Kerr-McGee actually deposited plutonium in Silkwood’s apartment. The Court is well aware of the public speculation that has surrounded the facts of this case and the various theories of covert conspiracies advanced to explain intentional conduct that brought plutonium into Silkwood’s apartment. Neither public speculation nor charges of conspiracy or intentional contamination, however, formed any part of plaintiff’s claim in this trial. The sole issue before this jury was whether defendants were responsible or liable for the plutonium’s escape and whether Silkwood was injured as a result of that escape. This Court ruled that defendants would be held strictly liable for any injury caused through escape of defendants’ plutonium, unless, of course, defendants prevailed on their defense of assumption of the risk. Defendants’ resistance to this analysis of the case is predicated upon their contention that no liability may attach solely for the escape of plutonium from their facility and for injury caused thereby. This freedom from responsibility for negligent or non-negligent acts that permit plutonium to escape into the public domain is premised upon the purported import of the appropriate federal regulations governing the facility’s operation. Defendants also premise this argument upon a narrow theory of proximate causation, under which no liability exists unless a party caused the plutonium’s movement physically into Silkwood’s apartment. Defendants have here claimed that they have no common law duty to contain plutonium within the walls of their facility and thus cannot be held liable merely for permitting plutonium to escape. Defendants contend that Congress has occupied the field of nuclear regulation through its legislation in the area. Unless defendants’ conduct violates appropriate federal standards, or unless defendants may be held liable under federal law, they may not be held accountable in this Court. Imposition of liability on state common law principles represents the imposition of state standards where the federal government has not deemed them necessary. Federal preemption allegedly bars application of state law liability principles. Thus, defendants claim immunity from liability for any conduct for which the federal government does not impose liability. Alternatively, defendants argue that they are subject to strict liability on state common law grounds only where they have failed to comply with federal regulations or with their AEC license requirements. Thus, if defendants have complied with all federal regulations, they cannot be held liable for any damages caused by the operar tion of their facility. Plaintiff has the burden of proving defendants’ license noncompliance and in cases where no specific act or regulatory violation can be affirmatively established as the cause of injury, liability would not attach, unless the doctrine of res ipsa loquitur were applicable. This argument, of course, would essentially render nugatory the application of strict liability principles. Both arguments presume much about the nature of the federal regulation of nuclear facilities. The primary issue in this case is whether defendants may be held liable for the escape of plutonium into the public domain on state strict liability grounds or on ordinary principles of negligence. Although defendants contend that they may not be legally held accountable under state law for the instant damages, defendants have failed to note any federal law which creates a private cause of action for violations of federal regulations. Defendants do not address any statutory or regulatory provisions, or the history to the federal legislation, to support their view. Indeed, even cursory analysis of federal law clearly establishes that Congress specifically intended that state common law principles control nuclear accident litigation. Common law duties to act with all due care exist both in the absence of specific regulatory provisions and in conjunction with the federal guidelines for operation of nuclear facilities. It is also abundantly clear that Congress specifically intended that states apply strict liability principles, if available under state law, to liability determinations. Defendants’ theory of preemption is simply unsupported by law. APPLICABILITY OF STATE COMMON LAW STRICT LIABILITY PRINCIPLES Defendants argue in their brief and oral argument three or four basic propositions regarding federal preemption and the role of federal regulations. First, federal preemption allegedly prohibits imposition of liability except in accordance with federal law. Thus, strict liability may not be imposed unless federal law — the Price-Anderson Act — requires it. Defendants have orally argued and suggested in their brief that no liability may attach at all unless defendants have failed to comply with federal law and regulations that control their conduct. Secondly, defendants maintain that they cannot be held liable for any damages whenever a plaintiff’s exposure is within the maximum permissible exposure limits set by the Atomic Energy Commission (“AEC”) or the Nuclear Regulatory Commission (“NRC”). Third, defendants contend that substantial compliance with federal regulations bars any award of punitive damages and that the Court erred by failing to so instruct. These arguments all rest on the significance and effect of the federal Atomic Energy Act of 1954, the Price-Anderson Act, and the regulations issued pursuant thereto. A brief background is warranted. The federal government originally reserved to itself an absolute monopoly on the development of atomic power in the Atomic Energy Act of 1946. Act of August 1, 1946, ch. 724, § 2, 60 Stat. 755. A movement developed, however, to permit private enterprise to enter the technological field. These efforts culminated in the enactment of the Atomic Energy Act of 1954, which abolished the governmental monopoly over nuclear technology and allowed private operation of nuclear reactors under strict AEC supervision. Act of August 30, 1954, ch. 1073, 68 Stat. 919, as amended, 42 U.S.C. §§ 2011-2281 (1970). The concern over cost-disincentives to investment, particularly the availability and cost of liability insurance to cover major nuclear accidents, led to legislation in 1956 that provided for governmental indemnification against loss incurred through a nuclear accident. This bill was ultimately enacted in 1957 as the Price-Anderson Act. Act of September 2, 1957, Pub.L.No. 85256, 71 Stat. 576, codified at 42 U.S.C. § 2210 (1970); Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S.Ct. 2620, 2625-26, 57 L.Ed.2d 595 (1978); see generally, Note, The “Extraordinary Nuclear Occurrence” Threshold and Uncompensated Injury Under The Price-Anderson Act, 6 Rutgers-Cam.L.J. 360, 362-64 (1974). Originally effective for only ten years, the Price-Anderson Act has since been twice extended and is now effective until 1987. Act of October 13, 1966, Pub. L.No. 89-645, 80 Stat. 891; Act of December 31, 1975, Pub.L.No. 94-197, § 4, 89 Stat. 1111. Defendants contend that this federal legislation has occupied the field and prohibits imposition of liability except where federal law expressly so provides. Defendants have further orally argued that Congress never intended that state rules of strict liability be applied to actions for personal injury arising out of federally licensed nuclear facility operations. These statements are so palpably contrary to the legislative history of these acts that they hardly warrant serious argument. Prior to the enactment of the Price-Anderson Act in 1957, Congress intended that all questions of liability for radiation injuries be submitted for determination under state tort law. The Supreme Court stated in Duke Power Co. v. Carolina Environmental Study Group, Inc., supra, 98 S.Ct. at 2639 n. 33: “Appellees’ only relevant right prior to the enactment of the Price-Anderson Act was to utilize their existing common-law and state-law remedies to vindicate any particular harm visited on them from whatever sources.” Chairman Anderson of the Joint Committee on Atomic Energy spoke during the 1975 hearings on the need for renewal of the Price-Anderson provisions. He stated that without Price-Anderson’s requirement that state common law defenses to liability be waived, “[establishing liability would depend in each case on state tort law and procedures, and these might or might not provide for no-fault liability.” Hearings on H.R. 8631 before the Joint Comm, on Atomic Energy, 94th Cong., 1st Sess., 69 (1975), quoted in Duke Power Co., supra, 98 S.Ct. at 2639. The congressional reports issued in conjunction with the Price-Anderson Act stated that whether or not liability existed in any case was to be determined according to the applicable state law. S.Rep. No. 296, 85th Cong., 1st Sess., 9, reprinted in [1957] U.S.Code Cong. & Admin.News at 1803, 1810; H.R. Rep. No. 435, 85th Cong., 1st Sess., 9 (1957). When Congress passed the first extension of Price-Anderson in 1966, it similarly indicated that state law would control liability determinations. S.Rep. No. 1605, 89th Cong., 2d Sess., 3-4, 6-10, reprinted in [1966] U.S.Code Cong. & Admin. News at 3201, 3206-10. The AEC also agrees that liability determinations under Price-Anderson are made under applicable state law. AEC Staff Study of the Price-Anderson Act: Part I, 16 Atomic En.L.J. 205, 224 (1974). Numerous commentators have unanimously concluded that Price-Anderson left the issue of liability determinations to state law. Comment, Radiation and Preconception Injuries: Some Interesting Problems in Tort Law, 28 S.W.L.J. 414, 427 (1974); Note, The “Extraordinary Nuclear Occurrence” Threshold and Uncompensated Injury Under the Price-Anderson Act, supra, at 364; Green, Nuclear Power: Risk, Liability and Indemnity, 71 Mich.L.Rev. 479, 496 (1973); England, Nuclear Insurance and the Price-Anderson Act, 13 Atomic En.L.J. 27, 33 (1971); Green, Safety Determinations in Nuclear Power Licensing: A Critical View, 42 Notre D.L. 633, 646 (1968); Cavers, Improving Financial Protection of the Public Against the Hazards of Nuclear Power, 77 Harv.L.Rev. 644, 648, 650 (1964); Estep and Adelman, State Control of Radiation Hazards: An Intergovernmental Relations Problem, 60 Mich.L.Rev. 41, 42 (1961); Comment, Nuclear Liability Legislation in the United States and Europe, 13 Stan.L. Rev. 865, 866 (1961); Note, Recent Statutes, 71 Harv.L.Rev. 750, 752 (1958). Nor did the Price-Anderson Act mean to supplant the application of state tort liability to a nuclear accident of lesser magnitude which fails to qualify as an “extraordinary nuclear occurrence” within the terms of the Act. Recovery for a nuclear accident not covered by the Act was contemplated by Congress solely according to applicable state law, without the benefit of the Act’s provision for waiver of state defenses. S.Rep. No. 1605, 89th Cong., 2d Sess., 6-10, reprinted in [1966] U.S.Code Cong. & Admin.News at 3206-08; see also Comment, The Irradiated Plaintiff: Tort Recovery Outside Price-Anderson, 6 Environ.L. 859, 861 (1976); Note, The “Extraordinary Nuclear Occurrence” Threshold and Uncom pensated Injury under the Price-Anderson Act, supra, at 367 (1974). In enacting Price-Anderson, Congress considered and rejected the adoption of a federal tort statute based on absolute liability for nuclear power. Duke Power Co., supra, 98 S.Ct. at 2627; Comment, Radiation and Preconception Injuries: Some Interesting Problems in Tort Law, supra, at 427. Congress provided instead that in the event of a major nuclear accident, federal law would establish a waiver of defenses to state common law claims for damages. This approach was deemed preferable both for the sake of simplicity and to avoid complicated problems of tort law. Thus, Price-Anderson sought to deal only with certain problems in existing state law that impair the ability of radiation-injured plaintiffs to recover on state law. Price-Anderson “[left] undisturbed the remaining body of the law.” S.Rep. No. 1605, 89th Cong., 2d Sess., 10, reprinted in [1966] U.S.Code Cong. & Admin.News at 3210. Indeed, defendants impliedly concede that the federal government has not preempted from nuclear accident cases the applicability of state law liability principles. Although defendants fail to address the apparent disparity, they have vigorously argued that state workmen’s compensation principles must control recovery in this case. Defendants contend that the instant facts fall within that state statute’s provisions for determination of liability and damages, and that state law must therefore be applied. This Court agrees that if the facts warrant it, state workmen’s compensation law applies. S.Rep. No. 296, 85th Cong., 1st Sess., 18, reprinted in [1957] U.S.Code Cong. & Admin.News at 1819; see also, Hutton, Workmen’s Compensation and Radiation Injury, 12 Vand.L.Rev. 145 (1958); Finks, Radiation Injuries Compensable Under Workmen’s Compensation, 41 B.U.L.Rev. 183 (1961); Estep and Allen, Radiation Injuries and Time Limitations in Workmen’s Compensation Cases, 62 Mich.L.Rev. 259 (1963). Defendants argue further, however, that when a claim does not fit within state compensation law, it may not be brought on another appropriate state law ground— whether strict liability or negligence — because federal law has occupied the field and foreclosed the application of state law. This argument is curiously inconsistent, unexplained and not distinguished. Defendants further contend that application of state common law strict liability principles to determine the question of their instant liability conflicts with the Price-Anderson Act and with the general purposes of the federal energy programs. Lest there be any confusion on this point, the Court must note that both Houses of Congress expressly preferred that state strict liability principles be used to resolve liability determination in such cases. In its report on the first amendment and extension of the Price-Anderson Act, the Senate stated: “The question whether courts should apply legal principles akin to those of strict liability in the event of a serious nuclear incident seems to the committee to be free from dispute. The existing Price-Anderson system rests on the assumption that such principles will be so applied. All who have testified before the Joint Committee during the past 2 years have agreed that such principles should apply in such a case.” S.Rep. No. 1605, 89th Cong., 2d Sess., 9, reprinted in [1966] U.S.Code Cong. & Admin.News at 3209; see also S.Rep. No. 296, 85th Cong., 1st Sess., 9, reprinted in [1957] U.S.Code Cong. & Admin.News at 1810. Indeed, the Price-Anderson Act was enacted largely because of Congressional concern that certain states might not be willing to apply strict liability principles to claims arising from nuclear incidents. By adopting the waiver provisions of Price-Anderson, Congress therefore directed that the equivalent of strict liability principles must be applied, at least in major nuclear accidents within the definition of “extraordinary nuclear occurrences” covered by the Act. See Duke Power Co., supra, 98 S.Ct. at 2627, citing S.Rep. No. 1605, 89th Cong., 2d Sess., 6-10, reprinted in [1966] U.S.Code Cong. & Admin.News at 3201; Proposed Amendments to the Price-Anderson Act relating to Waiver of Defenses, Hearings Before the Joint Comm. on Atomic Energy, 89th Cong., 2d Sess., 5 (1966); AEC Staff Study of the Price-Anderson Act: Part 1, 16 Atomic En.L.J. 205, 224 (1974). It should come as no surprise that authorities commenting on the subject have concluded with virtual unanimity that strict liability would be applied to actions seeking recovery for radiation injuries caused by the operation of a nuclear facility. These authorities include the first major treatise written on the topic, a work cited and relied upon by defendants to support their own contention that federal legislation occupies the field and precludes imposition of “stricter standards” than those applied by the federal government. Stason, Estep, and Pierce, Atoms and the Law, at 637 (1959) (“it would seem that certain aspects of that [nuclear] industry will in all probability become subject to [strict liability’s] financial burden”). Indeed, these authors hypothesized a situation where special nuclear materials escape from a nuclear fuel reprocessing plant without a chain reaction incident — a factual situation remarkably similar to the instant case. The authors suggested that case law in 1959 was inconclusive, but they speculated that because the incident involved nuclear material, a court might well impose the rule of strict liability. Id. at 702. From the first year of private involvement in nuclear power to the present time, commentators have similarly concluded that the application of strict liability to these facts is both justified and to be anticipated. Becker and Huard, Tort Liability and the Atomic Energy Industry, 44 Geo.L.Rev. 58, 68 (1955) (“Quite conclusively, under one guise or another, liability without fault for injuries caused by the escape of radiation will be imposed on the owner or operator of a nuclear reactor”); Cable and Early, Torts and the Atom: The Problem of Insurance, 45 Ky.L.J. 3, 20, 28 (1956) (generally assumed that strict liability will apply); Freedman, Nuisance, Ultrahazardous Activities and the Atomic Reactor, 30 Temp.L.Q. 77 (1957); Frampton, Radiation Exposure—the Need for a National Policy, 10 Stan.L. Rev. 7 (1957); Stason, Tort Liability for Radiation Injuries, 12 Vand.L.Rev. 93 (1958); Seavey, Torts and Atoms, 46 Cal.L. Rev. 3, 8 (1958); Comment, Nuclear Liability Legislation in the United States and Europe, 13 Stan.L.Rev. 865, 866 (1961) (little doubt that operator will be held strictly liable); Cavers, Improving Financial Protection of the Public Against the Hazards of Nuclear Power, 77 Harv.L.Rev. 644, 653, 664 (1964); England, Nuclear Insurance and the Price-Anderson Act, 13 Atomic En.L.J. 27, 33 (1971) (Congressional proponents found it difficult to imagine strict liability would not be applied); Note, The “Extraordinary Nuclear Occurrence” Threshold and Uncompensated Injury Under The Price-Anderson Act, supra, at 370; Comment, Nuclear Torts: The Price-Anderson Act and the Potential for Uncompensated Injury, 11 N.Eng.L.Rev. 111, 120-22 (1975); Comment, Radiation and Preconception Injuries: Some Interesting Problems in Tort Law, 28 S.W.L.J. 414,433 (1974); Comment, The Irradiated Plaintiff: Tort Recovery Outside Price-Anderson, 6 Environ.L. 859, 884 (1976); Comment, The Plutonium Society: Deterrence and Inducement Factors, 41 Alb.L.Rev. 251, 269 (1977) (strict liability “certainly applicable”); Prosser, Law of Torts, § 78 at 516 (4th ed. 1971); Harper and James, Law of Torts, at 812 (1st ed. 1956); Restatement (Second), Torts, § 520, com.g.h (1976) (§ 519 strict liability for abnormally dangerous activities applicable to nuclear power), Cf. Keyes and Howarth, Approaches to Liability for Remote Causes: The Low Level Radiation Example, 56 Iowa L.Rev. 531, 546 (1971) (whether strict liability applies to low level radiation injury not resolved). Defendants also object to the application of strict liability in the instant case because the injured party was an occupational worker who “assumed the risk” of this type of injury. See Restatement (Second), Torts, § 523 (1976). It was uncontested in this case that Silkwood was contaminated at home in her apartment, an estimated twenty miles from the nuclear plant site. The jury was unable to find that Silkwood intentionally carried the plutonium from work to her apartment, and no evidence was introduced of any other way in which the contamination could have been work-related. As an occupational worker, Silkwood did not assume the risk of off-site contamination unrelated to her employment. No authority supports this Court’s excluding from application of strict liability workers who, during their private lives and away from their work, are exposed to radiation that coincidentally originates from their place of employment. Away from their employment these workers stand as any other member of the public. Kerr-McGee’s argument that plaintiff had the burden of proving that the incident was not work-related overlooks the fact that this issue is an affirmative defense. The Restatement itself entitles § 523 “assumption of the risk,” a defense that must be affirmatively pleaded and proved by defendants under federal rules. See Restatement (Second), Torts, § 523, com. a (1976); Rule 8, Federal Rules of Civil Procedure. Defendants contend that the application of strict liability is in conflict with federal energy legislation unless imposed in a situation where defendants have failed to comply with federal regulations controlling the facility. It is important to understand the thrust of this argument. In essence, defendants here contend that except in the event of their noncompliance with federal regulations, they are absolved from, and therefore immune against, any liability whatsoever for damages caused through their operation of a nuclear facility. If defendants contend that without noncompliance, application of strict liability conflicts with federal policy, but that application of negligence principles does not, they draw a distinction without foundation in the law. Nowhere is authority cited or logic or reason adduced to support the idea that imposition of strict liability somehow is inconsistent with federal law, while the imposition of ordinary negligence to determine liability for the same conduct is not. This Court cannot discern any reason for such a distinction. What defendants indirectly argue, of course, is that any determination of their liability — whether it be through application of state law principles of strict liability or negligence — is inconsistent with federal law unless defendants have violated a specific federal statutory or regulatory provision. This is made apparent in defendants’ argument that their compliance with government regulations is conclusive evidence of non-negligent conduct. Thus, absent noncompliance with federal regulations, liability could not be imposed on a negligence theory either. This brings the Court to an analysis of defendants’ contention that federal regulations alone control liability determinations, and that these defendants may not be held liable absent a showing of a regulatory violation. The import of this contention and the theory upon which it rests must be made clear. Proceeding by way of example may prove illuminating. Defendants’ evidence and arguments in the trial of this case demonstrated that federal regulation and regulatory guidelines would permit .5 grams of plutonium to escape their facility without detection, even assuming complete compliance with federal regulations and perfect operation of all detection equipment. Thus, a single worker who left the facility building twice per day could remove without detection 1 gram of plutonium per day, or 1 pound of plutonium over approximately 19 months. Two workers could achieve the same result in less than a year. Regulations controlling inventory difference would permit this facility to have approximately nine or ten pounds of plutonium unaccounted for, so loss of this one pound could easily go unnoticed. A Kerr-McGee witness characterized the implications of this 1 pound of plutonium in the public domain as “sheer havoc and death.” Even the potentially very grave dangers of one half gram of plutonium in the public domain were agreed upon by virtually all witnesses. For this “sheer havoc and death” Kerr-McGee would claim freedom from responsibility and liability because of federal preemption. Congress, of course, intended no such thing. As noted above, Congress clearly and indisputably indicated in its consideration of the Price-Anderson Act that state law would govern liability determinations for nuclear accidents in all actions. This was true whether or not the indemnification and waiver provisions of Price-Anderson were applicable, and whether state law would apply the strict liability principles under the Restatement of Torts, the strict liability principles of Rylands v. Fletcher, 3 H. & C. 774, 159 Eng.Rep. 737 (Ex. 1865), rev’d. L.R. 1 Ex. 263 (1866), affd. L.R. 3 H.L. 330 (1868), or ordinary principles of negligence. Quite simply, there is no preemption problem when Congress manifests its intent that state law play this specific role in the liability scheme. The underlying thrust of defendants’ argument is that Congress intended these principles of state law to apply only if a violation of the federal regulations is first demonstrated. It is quite clear that Congress intended no such effect be afforded these administrative regulations, and the commentators have so agreed. Defendants’ citation to preemption cases is inapposite where those cases deal with states that impose upon the nuclear licensee a standard of conduct that conflicts with the federal scheme and thus frustrates its effectuation. Application of state principles of liability for injury caused by conduct both within and in violation of the regulatory standards is consistent with the federal scheme. APPLICABILITY AND EFFECT OF GOVERNMENT REGULATIONS Having decided that federal preemption does not bar imposition of liability under state law, the Court must address the effect of federal regulations on the judgment of defendants’ conduct by the jury. As the Court understands their argument, defendants raise four separate contentions in this regard. For simplicity of exposition, it is helpful to separate the appropriate regulations and license requirements into two different groups — those relating to the conduct and operation of the facility, the “operational regulations,” and those which set the maximum permissible exposure limits for different workers, the “exposure limit” regulations. Defendants first have argued that substantial compliance with “operational regulations” bars recovery of actual damages, both because it prohibits imposition of strict liability, as discussed above, and because it is conclusive evidence of non-negligent conduct to bar a claim of ordinary negligence. Alternatively, defendants argue that substantial compliance with these operational guidelines must bar any award of punitive damages. Both arguments address whether liability may be imposed on defendants for operating their facility in such a way that plutonium might escape into the public domain. Defendants contend that when they do all that the government requires, they cannot be considered negligent and, a forti-ori, cannot be found willfully reckless. Defendants’ arguments on the “exposure limit” regulations address the separate issue of whether damages may be imposed for the escape of plutonium in the instant case. Defendants contend that a jury may not conclude that actual injury is inflicted for exposures below the 40 nanocurie limit for occupational workers, like Silkwood here. Alternatively, defendants argue that even if a jury finds that the instant exposure would create actual injury, a defendant may not be held liable in damages therefor because federal regulation permits it. Lastly, defendants argue that punitive damages ought not to be awardable for any conduct that has resulted in an exposure within the permissible guideline limits. Had this Court instructed the jury that substantial compliance with governmental regulations would bar an award of actual damages in the area of nuclear power, the Court would have paved a new road in jurisprudence that heretofore has not existed in any other comparable area of the law. Liability for operators and manufacturers of aircraft represents a situation analogous to that in the instant case. The federal government has occupied the field of regulating aircraft, and no aircraft may fly in this country without a federal certification of its airworthiness. In re Paris Air Crash of March 3, 1974, 399 F.Supp. 732 (C.D.Cal. 1975). Nevertheless, strict liability is frequently applied under state law for injuries suffered thereby, and preemption is not considered a problem. See In re Paris Air Crash of March 3, 1974, supra. Actions for injuries allegedly caused by a defectively designed aircraft are not barred by reason of the FAA’s certification of the craft and of its design as airworthy. See Rigby v. Beech Aircraft Co., 548 F.2d 288 (10th Cir. 1977). It is commonly the rule in the field of aviation law that a defendant’s complete compliance with governmental safety regulations is only some evidence of the defendant’s exercise of reasonable care, but it is not conclusive. Evidence of compliance is therefore admissible for consideration by the jury, but it does not bind the jury to find that a defendant’s conduct was reasonable under the circumstances. Bruce v. Martin-Marietta Corp., 544 F.2d 442, 446 (10th Cir. 1976); see also Banko v. Continental Motors Corp., 373 F.2d 314 (4th Cir. 1966); Prashker v. Beech Aircraft Corp., 258 F.2d 602, 605 (3rd Cir. 1958); Citrola v. Eastern Air Lines, Inc., 264 F.2d 815, 817 (2d Cir. 1959); Manos v. Trans World Airlines, Inc., 324 F.Supp. 470 (N.D.Ill.1971). In a similar vein, a failure to take certain acts can be found negligent, even though the FAA regulations do not require or suggest them. Bibler v. Young, 492 F.2d 1351 (6th Cir. 1974); Todd v. United States, 384 F.Supp. 1284, 1291 (M.D.Fla.1975) (standard of reasonable care may differ from conduct imposed by safety regulation). Notwithstanding the “complex and exacting scheme of regulations] developed by the FAA,” there is no problem of federal preemption when courts develop rules of liability and damages where the high standard of conduct consistent with the regulatory scheme has not been maintained. See Fisher v. Bell Helicopter Co., 403 F.Supp. 1165, 1172 (D.D.C.1975). Violation of a safety regulation is, however, conclusive evidence of negligence per se. Freeman v. United States, 509 F.2d 626, 630 (6th Cir. 1975); Todd v. United States, supra. The same principles obtain in the field of drug manufacture and distribution, another field where a governmental agency has promulgated a vast and extensive network of administrative regulations designed to insure public safety. It is typically, the rule that compliance with federal laws and regulations concerning a drug does not in itself absolve a manufacturer of liability for injury caused by that drug. Salmon v. Parke, Davis & Co., 520 F.2d 1359 (4th Cir. 1975), citing, 1 Frumer & Friedman, Products Liability, § 8.07[1]. A defendant’s compliance with these government regulations is admissible before the jury as some evidence of the exercise of reasonable care, but it is not conclusive or binding on the jury. Brick v. Barnes-Hines Pharmaceutical Co., 428 F. Supp. 496, 498 (D.D.C.1977); Chambers v. G. D. Searle & Co., 441 F.Supp. 377, 383 (D.Md.1975) (compliance with FDA requirements on required warning not conclusive on adequacy of warning), aff’d, 567 F.2d 269 (4th Cir. 1977); Gonzales v. VirginiaCarolina Chemical Co., 239 F.Supp. 567, 575 (E.D.S.C.1965). Thus, strict liability may be imposed on a defendant for failure to warn adequately even though full compliance with all government regulations and requirements in production and marketing is demonstrated. Stromsodt v. Parke, Davis & Co., 257 F.Supp. 991, 997 (D.N.D.1966) aff’d, 411 F.2d 1390 (8th Cir. 1969). See generally 1 Frumer & Friedman, Products Liability, § 5.04 (1979). Similarly, a manufacturer has been held liable for negligent failure to test a drug adequately under foreseeable market conditions even though federal regulations did not require any such test. A manufacturer cannot exempt itself from, liability for failure to exercise due care in an area where no specific regulation requires the affirmative act. Tinnerholm v. Parke, Davis & Co., 285 F.Supp. 432, 448 n. 12 (S.D.N.Y.1968), citing 3 Frumer & Friedman, Products Liability, § 33.01[3], aff’d, 411 F.2d 48 (2d Cir. 1969). The correlative rule is also applied that violation of a safety regulation constitutes, conclusive proof of negligence per se. Orthopedic Equipment Co. v. Eutsler, 276 F.2d 455, 461 (4th Cir. 1960); Griffen v. United States, 351 F.Supp. 10 (E.D.Pa.1972); Gonzales v. Virginia-Carolina Chemical Co., supra. A recent author has commented on the issue of tort liability for microbiologists engaged in hazardous genetic mutation research under the auspices of the National Institute of Health, where strict containment of biological material is required. That writer has suggested that compliance with NIH guidelines should constitute strong evidence of non-negligent conduct in an action for injuries caused by the research. He further finds, however, that courts would likely not deem compliance entitled to a presumption of reasonable care. McGarity, Book Review, 27 Kan.L. Rev. 459, 466 (1979). No problems of preemption or application of a “stricter standard” under state law have been perceived in any of these areas. Those writers who have addressed this subject in the field of nuclear facilities and radiation injuries have similarly concluded. Quoting again from the early treatise on this subject, the text writers stated: “[I]t seems to be agreed generally that proof of compliance with a criminal statutory or administrative standard should be accepted as some evidence of having used due care but that it ought not to be accepted as conclusive proof. * * * * * * “The present writers feel that, in general compliance with governmental radiation regulations should be accepted in negligence cases as evidence of having acted reasonably but should not be used as conclusive proof because there are too many variables in such a rapidly developing field. We would apply this rule generally to civil statutory and administrative regulations as well as criminal.” Stason, Estep and Pierce, Atoms and the Law, 125, 126 (1959). Noting a New Jersey trial court decision with a different holding, the writers concluded that they were: “[ijnclined toward the view that proof of compliance with a safety code, whether established by unofficial experts in the field or by a statute or administrative rulings, should be treated merely as evidence of use of due care.” Id. at 152. The purpose of AEC regulations, and the posture of the government agency at the time of their promulgation, render it unwise to bestow upon these health and safety operational regulations an absolute deference as conduct reasonable under any circumstances. When the AEC initially undertook promulgation of health and safety regulations, the atomic industry was just beginning to develop. Thus, the AEC faced the unique problem of promulgating regulations in advance of the development of those problems it was intending to regulate. Additionally, a variety of different types of facilities existed with diverse safety and security problems, and the AEC was inexperienced in the regulation of any industrial activities. These factors made it unwise, and even impossible, for the AEC to devise a set of government rules that would cover all atomic activities. Trowbridge, Licensing and Regulation of Private Atomic Energy Activities, 34 Tex.L.Rev. 842, 843-51 (1956). Sound logic supports the proposition that compliance with statutory and regulatory provisions does not necessarily lead to the inference that negligent conduct is not present. “[I]n a field developing as rapidly as atomic energy, particularly as to our knowledge of the injurious effect of radiation, it would be most unfortunate if statutes, administrative regulations, or decisional rules should develop hard and fast lines as to what is or is not a reasonable standard of conduct.” Stason, Estep, and Pierce, Atoms and the Law, supra, at 154. This is especially true when the AEC itself acknowledges that these regulations are not static or final standards for reasonable care upon which the industry might absolutely rely without additional safety precautions. The agency itself originally recognized that atomic energy regulation would be a slow evolutionary process with an emphasis in agency regulations on encouraging private industry both to develop their own measures of self-regulation and to improve upon the standards imposed by the government. Trowbridge, Licensing and Regulation of Private Atomic Energy Activities, supra, at 843-51. The AEC originally announced its intention to rely on certain measures of protection that it expected industry itself to put into effect, even though the Atomic Energy Act authorized the AEC to describe in detail the required measures of protection. Hearings on the Development, Growth, and State of the Atomic Energy Industry before the Joint Comm, on Atomic Energy, 84th Cong., 2d Sess., pt. 1 at 114-15 (1956). The AEC still acknowledges that its regulations evolve with time and are established or modified as operational experience is gained in new plants and as further information is obtained from ongoing research and development programs. Nuclear Safety Staff, United States Atomic Energy Commission, Regulation of Nuclear Power Reactors and Related Facilities, 16 Atomic En.L.J. 256, 260 (1974). A Director of Regulations of the AEC has recently cited the need for continuing development of operational procedures at nuclear facilities. Muntzing, Nuclear Standards — Licensing, Government and Industry, 14 Atomic En. L.J. 14 (1972). Others have also noted the need for constantly improving regulations governing the handling of nuclear fuels and the AEC’s own awareness of the need for better standards. Comment, Policing Plutonium: The Civil Liberties Fallout, 10 Harv.Civ.Rights—Civ.Lib.L.Rev. 369 (1975). These and other reasons support the proposition that the general rule should be no different for the atomic industry. Compliance with government safety regulations should be accepted as evidence of acting reasonably, but should not be used as conclusive proof because too many variables exist in any given situation for an absolute standard to apply. Comment, Radiation and Preconception Injuries: Some Interesting Problems in Tort Law, 28 S.W.L.J. 414, 428 (1974). This Court’s holding conforms both to traditional principles of tort law and to the principles many anticipated would govern similar cases. Defendants’ arguments have been made before and rejected by other courts in analogous contexts. It should not be surprising that one commentator described as “powerful precedent” for the radiation injured plaintiff the case of McLane v. Northwest Natural Gas Co., 255 Or. 324, 467 P.2d 635 (1970), which involved the explosion of a natural gas storage tank. There the court rejected the contention of a heavily regulated public utility that state authorizing legislation, which expressly permitted such storage of natural gas, prohibited imposition of strict liability. The court further rejected the utility’s contention that the presence of safety regulations required a violation of some regulation before liability could be imposed. With surprising foresight, the writer aptly described these as likely defenses available to a nuclear operator, such as Kerr-McGee here. Comment, The Irradiated Plaintiff: Tort Recovery Outside Priee-Anderson, 6 Environ.L. 859, 886-87 (1976). The same general rule is applicable to actions for radiation injuries where a plaintiff’s exposure is within the maximum permissible exposure regulations established by the AEC. These regulations are not intended to represent levels of radiation exposure at which no injury may be inflicted. Indeed, the exposure level regulations were adopted by the AEC from standards originally promulgated by the National Council for Radiation Protection and the International Commission on Radiological Protection solely as guides for good radiation practices rather than strict levels of safety. Hallmark, Radiation Protection Standards and the Administrative Decision-Making Process, 8 Environ.L. 785, 794, 800 (1978). Both the NCRP and ICRP have continuously emphasized that these recommendations were furnished as guides and both bodies cautioned against their adoption as rigid standards. Hansen, Development and Application of Radiation Protection Standards, 12 Idaho L.Rev. 1, 9 (1975). Both the AEC and the Environmental Protection Agency adopt the position that these levels are not a “safe” or threshold level below which injury does not become a possibility. Bar-am, Radiation from Nuclear Power Plants: The Need for Congressional Directives, 14 Harv.J.Leg. 905, 907 (1977). Thus, the standards represent a balancing of social benefit against estimated cost, a calculated risk in an area where scientific knowledge of low level radiation exposure effects is insufficient to determine the precise risk actually involved. Green, Radiation Wastes and the Environment, 11 Nat. Res.J. 281, 292 (1971); Comment, Survey of the Governmental Regulation of Nuclear Power, 59 Marq.L.Rev. 836, 843 (1976). Hallmark, Radiation Standards and the Administrative Decision-Making Process, supra, at 794, 808. “The setting of exposure standards at a given level requires the weighing of these risks and benefits to be derived therefrom. The weighing requires a value judgment as well as a measuring, and thus the standards are not scientific numbers below which no danger exists. “There has been a history of disagreement with the established radiation protection standards on the part of some members of the scientific community. The basis for this disagreement has often been the fact that science has been unable to fully discover the biological effects and costs of ionizing radiation. . This ignorance makes it impossible to assess fully the risks attendant to exposure in ionizing radiation.” Crowther v. Seaborg, 312 F.Supp. 1205, 1231-32 (D.Colo.1970); see also Citizens for Safe Power, Inc. v. Nuclear Regulatory Comm’n., 173 U.S.App.D.C. 317, 322, 524 F.2d 1291, 1296 (D.C.Cir. 1975) (undetermined whether exposure at guideline levels will or will not have injurious effects). Indeed, this acknowledgement of the limitations of the regulations led to the adoption in 1970 of the concept of “as low as practicable,” later changed to “as low as reasonably achievable.” This additional standard imposes on licensed operators the duty to maintain the release of radioactive material to unrestricted areas as far below the regulation limits as is practicable (now reasonably achievable). Baram, Radiation from Nuclear Power Plants, supra, at 927-28; AEC Staff Study of the Price-Anderson Act, Part I, supra, at 267. Even though the maximum permissible exposure ceiling has been frequently rendered more stringent over the years, see Rogers, The Development and Use of Regulatory Standards, 14 Atomic En.L.J. 173, 178 (1972); Goodman, Radiation Injuries, 5 Atomic En.L.J. 20, 23 (1963), the regulations still embrace the idea that exposures within the standards pose a potential for personal injury. Green, Nuclear Power: Risk, Liability, and Indemnity, 71 Mich.L. Rev. 479, 481 (1972-73); Taylor, Standards for Protection Against Radiation, 12 Atomic En.L.J. 139, 141 (1970); Comment, Nuclear Torts, The Price-Anderson Act and the Potential for Uncompensated Injury, 11 N.Eng.L.Rev. Ill, 113 (1975); Note, The “Extraordinary Nuclear Occurrence” Threshold and Uncompensated Injury Under the Price-Anderson Act, supra, at 383 (1974) . “In view of our present lack of knowledge as to exactly how damaging small doses [of radiation] are likely to be over a long period of time, the Commission’s exposure regulations cannot be said to fix definitively the point at which radiation becomes unacceptably dangerous.” Stason, Estep, and Pierce, Atoms and the Law, supra, at 128; see also Hansen, Development and Application of Radiation Protection Standards, 12 Idaho L.Rev. 1, 26 (1975) (exposure limit standards not decisive in determining liability in tort cases). Some writers, however, have expressed their view that more deference should be paid these exposure limit regulations. In their treatise on the subject, Professors Sta-son, Estep and Pierce suggest that whenever someone is exposed to radiation where the amount of radiation received, or the circumstances in which it was received, do not violate the applicable health and safety regulations, compliance should be argued to prove reasonable conduct. These authors urge that where the AEC makes a deliberate judgment on the specific issue of maximum exposure levels, a judge should hold compliance with that requirement as conclusive proof of compliance with a reasonable standard of conduct. Stason, Estep and Pierce, Atoms and the Law, supra, at 127— 28. These authors, however, acknowledge that both major treatises on torts reject this view. See 2 Harper & James, The Law of Torts, § 17.6 at 1014 (1st ed. 1956); Prosser, Law of Torts, § 36 at 203 (4th ed. 1971), cited in Atoms and the Law, supra, at 129. The authors conclude that: “[cjompliance or non-compliance with industry safety codes certainly should be given weight, and in most cases perhaps should constitute prima facie, if not conclusive proof, when no evidence to the contrary is introduced. Courts, however, should avoid a rigid rule and decide individual cases on the basis of the specific evidence produced.” (Emphasis added.) Id. at 155. At a later point in their treatise, the authors acknowledge that nuclear operators may be held liable for damages for the escape of nuclear materials, even where the amount that escapes is within the permissible governmental limits. Id. at 722. More recent writers have also suggested that a greater deference be given governmental exposure limits, but they acknowledge that as presently written, the regulations may not be so construed. These authors suggest possible use of the government regulations as a per se defense to a latent injury radiation claim, whereby a court would find that a plaintiff has failed to establish causation of his cancer by any exposure within the permissible governmental limits. Keyes and Howarth, Approaches to Liability for Remote Causes: The Low Level Radiation Example, 56 Iowa L.Rev. 531, 567-69 (1975). The writers acknowledge that: “[a]t the present time, however, the AEC has not declared the permissible dose level standards to be absolute safety limits. Nowhere in the regulations does any such language appear. The standards are considered only to be guidelines. Their use as a negligence-limiting factor, therefore, is severely limited. Employees are in no way precluded from bringing suit upon radiation exposures even well below the maximum permissible standards. * * * * * * “[The standards] are not . . . being granted any conclusive weight. Thus despite the fact that medical science feels the probabilities of direct causality are so remote between radiation at levels below the maximum prescribed standards, and a cancer or other disease, plaintiffs are not estopped from winning their cases.” (Emphasis added.) Keyes and Howarth, Approaches to Liability for Remote Causes, supra, at 545-46. These writers acknowledged that the standards represent a policy of balancing the benefits to society from the use of atomic energy and the possible harm to individuals from radiation. They continue: “Implicit in this decision is the assumption that, although very slight, some harm may be possible to those exposed below the permissible standards. It is, therefore, difficult to argue that these should be a judicially noticeable standard which would serve as a per se defense through the refusal of courts to consider any possible causal link between radiation and injury.” Id. at .567. The authors conclude that it is “unfortunate” that in radiation litigation the published radiation exposure standards are merely “some evidence” going to the weight of the evidence to be evaluated on both negligence and causation. “However, it would not appear that this per se defense approach can be supported without amendment of the law and the present AEC regulations and manual requirements. Mere compliance with the standards will not be interpreted as determinative of the issue of negligence and causation in the absence of a specific indication on the part of the promulgators of the standards that this was their intent." (Emphasis added.) Id. at 570; see also Hamilton and Krebs, Radiation Protection Regulation: An Opportunity for Cooperative Federalism, 12 Vand.L.Rev. 395, 407-08 (1959) (basic problem of radiation protection is to ascertain how much exposure may be permitted; separate problem is to determine what special measures are required to provide compensation to those injured by such exposure). In one of the few latent injury radiation cases to reach a court, the Court applied this approach. In Mahoney v. United States, 220 F.Supp. 823 (E.D.Tenn.), aff’d, 339 F.2d 605 (6th Cir. 1964), a radiation worker who received exposures within the governmental regulatory limits was denied recovery of damages for his cancer on grounds that he failed to prove causation between the exposure and the disease. Compliance with the guideline limits, however, was treated only as some evidence of the lack of a causal nexus. It is clear that the court did not treat the regulations as conclusive on the point. Even the adoption of the Stason, Estep and Pierce suggestion would not aid the Kerr-McGee defendants here. As noted in the record, Silkwood’s exposure took place at home in her apartment. Although her body burden constituted approximately one-fourth of that permitted by regulation for a radiation worker during her lifetime, it exceeded by two and a half times the exposure permitted to any other member of the public. The mere fortuity of her employment rendered the exposure within governmental guidelines. Any visitor in the apartment who received the same exposure would represent a clear violation of the exposure limit regulations. It is also clear that the circumstances under which Silkwood received the exposure were not embraced by the government regulations. The ten-fold difference in standards for workers and non-workers obviously does not reflect a medical judgment that non-workers are more prone to the biological effects of radiation. Rather, the standards reflect the philosophy that a radiation worker tacitly assumes the very small risk attributed to receiving radiation doses not exceeding the currently acceptable permissible limits. Assuming that the worker is properly informed of the nature and magnitude of the risk, as far as known, the market price for labor needed to induce workers to accept the occupational hazard should be commensurate with the risk. The market price of labor essentially compensates the worker for taking the risk. See Keyes and Howarth, Approaches to Liability for Remote Causes, supra, at 542. Silkwood, of course, did not assume in her occupation the risk of the contamination of her apartment. Nor were her employment wages designed to compensate her for any possible radiation exposure to which she might be subjected by a Kerr-McGee accident unrelated to her work at the plant. The jury in this case failed to find proof that the plutonium was carried by Silkwood from the facility. In essence, no showing was here made that Silkwood’s contamination was an “occupational hazard” the risk of which an employee customarily assumes. Thus, the argument for application of the higher permissible exposure regulations for workers fails under these conditions. Even were these standards entitled to conclusive effect, in all likelihood the Court could not have so instructed the jury in the instant case. Little further need be said on this Court’s failure to instruct the jury that substantial compliance with government regulations would bar an award of punitive damages. The existence of wanton conduct depends upon the actor’s or tortfeasor’s mental attitude at the time of the conduct. Tappen v. Ager, 599 F.2d 376, 382 (10th Cir. 1979). The culpable mental attitude necessary for punitive damages was set forth in the punitive damage instruction. For the same reason that mere compliance with government regulations cannot necessarily be found consistent with the reasonable person standard, so too it cannot necessarily be found consistent with an attitude and conduct devoid of that state of mind for which an award of punitive damages is appropriate. As in the drug and aviation cases noted above, a manufacturer may be found to have duties in addition to or different from those prescribed by regulation. A mere failure to act as a reasonable person in conformity with that duty would constitute negligence. A knowing and intentional disregard of that duty might under some circumstances constitute the gross recklessness and indifference to the safety of others that render punitive damages appropriate. No one could argue, for example, that a manufacturer who knew that its drug would cause blindness would not be responsible for punitive damages for knowingly marketing that product for profit, even though the drug had been approved for distribution and marketing after compliance with all FDA regulations. Similarly, no one would question the propriety of punitive damages assessed against an airplane manufacturer who, for example, knew that its plane was defectively designed and could crash during flight, notwithstanding that the manufacturer had complied with all government regulations and obtained an FA A certificate for the craft as airworthy. Cf. Tinnerholm v. Parke, Davis & Co., supra (FDA testing requirements for drug failed to reveal drug’s ability to cause injury; liability imposed); Gillham v. Admiral Corp., 523 F.2d 102 (6th Cir. 1975) (television manufacturer liable for punitive damages where evidence showed knowledge of grave danger to safety and failure to redesign or warn). Similarly, Kerr-McGee’s argument that compliance with regulations would still permit the escape of small quantities of plutonium overlooks the circumstances where punitive damages might be appropriate for damages caused through that escape. Surely defendants would not argue that punitive damages would be inappropriate if a nuclear licensee knew of the time and manner of the plutonium’s escape, but did nothing to prevent it because the regulations did not require it. Similarly, if a licensee were aware of defects within its facility that would render likely repeated exposures of employees to plutonium, but did nothing to correct it, as some evidence in this case indicated, punitive damages might be considered, regardless whether government regulations required those changes to be made. The character of the conduct and the state of the actor’s mind control the propriety of punitive damages, and not merely whether that conduct complies or fails to comply with a government regulation. See Restatement, Torts § 908(2) com. e at 556-57 (1939). Defendants argue that the Court’s instructions would result in imposition of punitive damages on a defendant who relied on the government standards in good faith. This is not the case. Good faith belief in, and efforts to comply with, all government regulations would be evidence of conduct inconsistent with the mental state requisite for punitive damages. Defendants placed this matter in issue and introduced evidence in this regard. Defendants were free to argue their good faith conduct in operating their facility safely. The jury was instructed to judge that conduct in light of the standards for the imposition of punitive damages. Had the jury believed this evidence, an award of punitive damages would not have been appropriate. Defendants’ argument that their conduct could not have been so found, based on the record, will be dealt with below. Defendants’ argument that no liability for actual damages may be imposed when a plaintiff’s exposure is within governmental regulatory limits has been shown to be erroneous. Defendants’ further argument that no punitive damages may be awarded on these facts similarly misses the point. Punitive damages in this case were awarded for conduct that caused or permitted the escape of plutonium and led to the contamination of Silkwood in her apartment. The jury was so instructed. Had this Court held that punitive damages could not be awarded unless expos