Judge rules in favor of Penn vs. brain-cancer victim; family plans appeal

A federal judge has found in favor of the University of Pennsylvania in a lawsuit brought by the estate of Jeffrey H. Ware, a neuroscientist who died of a rare brain cancer after exposure to radiation during his research at Penn.

But his family's attorneys say the case never belonged in federal court, arguing that Penn improperly invoked a law that governs nuclear power plants, not research laboratories, and has filed a notice of appeal.

The lawsuit also contends that Ware was enrolled in a clinical trial at Penn without his informed consent, subjecting him to painful side effects well after there was any hope of remission.

Ware, who studied the effects of radiation on animals to guide efforts to prevent cancer in astronauts, died of gliosarcoma in October 2011 at age 47. He lived in Haddonfield with his wife, Barbara Boyer, an Inquirer reporter, and their two daughters.

In reports submitted by the defense in U.S. District Court, expert witnesses said Ware's radiation exposure was not enough to cause brain cancer. Judge Joseph F. Leeson Jr. relied upon those reports in granting summary judgment to Penn and its employees named in the lawsuit, including Ware's boss, Ann Kennedy.

Ware's estate counters that for most of his decade-plus tenure at Penn, the university did not provide lab employees with dosimeter badges to measure their radiation exposure, and that Ware's exposure was in fact much higher.

The original lawsuit was filed in 2013 in Common Pleas Court. Penn got the case moved to federal court, arguing that it fell under a federal law called the Price-Anderson Act.

That meant that the plaintiffs would have to show Ware was exposed to levels of radiation that would be expected in a nuclear power-plant accident.

In court filings, attorneys for Ware's family have argued that the case properly belongs in Common Pleas Court. To win a case in that court, they would not need to show that the radiation was above a specific threshold, only that it was a substantial factor in causing Ware's cancer.

According to a fact sheet from the U.S. Nuclear Regulatory Commission, Price-Anderson, enacted in 1957, covers liability from a nuclear accident involving a commercial power plant. It also has been applied to Department of Energy facilities and national laboratories.

Ware's family also has filed a separate worker's compensation claim, which is on hold.