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Photo: Zach Sheldon

A lawsuit accusing Penn of contributing to the death of a former University researcher has been dropped for the second time. 

On Sept. 18, the U.S. Court of Appeals for the Third Circuit upheld the dismissal of a lawsuit accusing Penn, the Hospital of the University of Pennsylvania and other affiliates of negligence in the death of Jeffrey Ware, a former Penn cancer researcher. 

Barbara Boyer, Ware's wife, filed the original lawsuit as the executor of her husband's estate in December 2013 in the Court of Common Pleas. The suit alleged that the University provided inadequate protection from radiation which caused Ware to develop gliosarcoma, a rare form of brain cancer. 

Ware performed research at Penn for over 15 years. His research at the time of his diagnosis centered around studying the effects of radiation on astronauts in orbit. He died at the age of 47 in October 2011, roughly one year after he was diagnosed with cancer. 

Boyer's 2013 suit alleged that when Ware turned to HUP for treatment, he was enrolled in chemotherapy and radiation without being informed that due to the advanced stage of his disease, the method of treatment would likely be ineffective. The suit also claimed that Ware was enrolled without consent in an experimental project measuring the effects of chemotherapy and radiation on brain cancer.

The Court ruled that because Ware’s annual radiation exposure of 0.0047 rem was below the five rem threshold required by the Price-Anderson Act for a relief claim and because Boyer failed to produce any expert reports to substantiate her claims, her appeal was "moot" and her case against Penn was dismissed.  

"We are very sympathetic to the family with respect to the loss of their loved one," Penn spokesperson Ron Ozio said in an emailed statement. "However, we do believe that the court correctly applied federal law and also correctly found that Jeffrey Ware was exposed only to a minimal and safe level of radiation consistent with federal and state safety standards.” 

Aaron Freiwald, an attorney for the Ware estate, said he did not agree with the court’s verdict. He believed that the case should never had been taken to federal court, and that the law regarding radiation exposure used in Penn's defense was inapplicable.

“The law that the University invoked, you know, the Price Anderson Act, was never ever intended to apply to Universities,” he said. “It was intended to cover the nuclear power, the nuclear weapons industries.”

Freiwald also expressed concerned about the threshold amount of radiation exposure necessary to receive a claim. He explained that exposure to quantities much smaller than the five rem minimum could still be very harmful. 

He also added that the ruling in this case set a negative precedent because, “based on this ruling, if it stands, all of those claims — not just for Dr. Ware, but for everybody else who is exposed to radiation in some smaller but still significant amount - effectively has no claim.”

The court first ruled in favor of the defendants in 2016 stating that Boyer lacked expert testimony to support her claims. 

The original suit included 20 counts of negligence, fraud, retaliation and battery. 

While originally filed in local court, Penn had the case moved to federal court by arguing that the claims were covered under the Price-Anderson Act which as under federal jurisdiction. 

Freiwald added that the Ware estate is exploring its options going forward which might include another appeal.

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