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Appellate Victory for Class in $1B Plutonium Contamination Suit Against Dow Chemical Co. and the former Rockwell International Corp.

Posted: June 24, 2015
By: Josh Rosenzweig

PHILADELPHIA, PA, June 24, 2015 - On a second trip to the Tenth Circuit Court of Appeals, Plaintiffs secured a victory in Merilyn Cook et al. v. Rockwell International Corporation et al., case number 14-1112, with the case being sent back to the district court, which in 2008, ordered the companies to pay a total of $926 million in damages, including $549 million in prejudgment interest due to extensive pre-trial delays.

Berger & Montague, P.C. has served as lead class counsel and lead trial counsel in what is considered one of the longest running cases in the United States, filed in 1990. Plaintiffs allege that Rocky Flats, a former nuclear weapons facility formerly operated by Dow Chemical Co. and Rockwell International Corp., dispersed plutonium and contaminated 30 square miles of property around the facility. Plaintiffs pursued claims of trespass and nuisance claims under Colorado state law and the federal Price-Anderson Act, passed in 1957 and relating to nuclear power and the hazards of radioactive materials.

The decision by the Tenth Circuit Court of Appeals provides the first clear guidance by any court of appeals that the Price Anderson Act as amended in 1988, after the infamous accident at Three Mile Island, was never intended to, and does not, destroy all state law claims, but preserves them.  Writing the majority opinion, Tenth Circuit Court of Appeals Judge Gorsuch wrote; "In two separate appeals spanning many years the defendants have identified no lawful impediment to the entry of a state law nuisance judgment on the existing verdict. They have shown no preemption by federal law, no error in the state law nuisance instructions, no mandate language specifically precluding this course. No other error of any kind is even now alleged."

He continues as follows "In this light, we can well understand why the plaintiffs on remand renounced a new trial and sought entry of a judgment based on the existing nuisance verdict. Indeed, without some specific mandate or identified error requiring so much we can imagine only injustice flowing from any effort to gin up the machinery of trial for a second pass over terrain it took fifteen years for the first trial to mow through. Injustice not only in the needless financial expense and the waste of judicial resources, but injustice in the human costs associated with trying to piece together faded memories and long since filed away evidence, the emotional ordeal parties and witnesses must endure in any retrial, the waste of the work already performed by a diligent and properly instructed jury, and the waiting - the waiting everyone would have to endure for a final result in a case where everyone's already waited too long, longer even than the lives of today's college graduates. When the district court receives this case it should proceed to judgment on the existing nuisance verdict promptly, consistent with resolving the outstanding class action question, wary of arguments that have already been rejected or forfeited. This long lingering litigation deserves to find resolution soon. The judgment of the district court is vacated and the case is remanded for proceedings consistent with this opinion."

Click here to view the full opinion.

The decision also paves the way for entry of judgment based upon the special jury verdict handed down on Valentine's Day, 2006 when a Colorado federal jury found against Dow and Rockwell after a 4-month trial led by Berger & Montague, P.C. Managing Shareholder Merrill Davidoff, co-trial counsel and fellow Managing Shareholder David F. Sorensen, and the late shareholder Peter Nordberg, and supported by attorneys Jenna McNaughton, Caitlin Coslett and Ellen Noteware.