Rocky Flats Cook v. Rockwell Case

I posted a commentary two weeks ago about the tentative $375 million settlement of a lawsuit filed about 26 years ago by landowners near the plant (it requires approval by a judge). I was unaware that the settlement had been in the works for almost a year. A June 24, 2015 article by Alison Frankel gives details of the history of what has come to known as the Cook V Rockwell Case and what led to the recent announcement. A quick summary is that:

  • In 2005 a jury decided a class of property owners near Rocky Flats deserved multi-million dollar compensation for damage the plant had done to their property
  • In 2011 the 10th U.S. Circuit Court of Appeals overturned the verdict, ruling the “…trial judge was too expansive in instructing the jury about what constitutes a nuclear incident” and that there was no proof of actual damage
  • In June 2015 a different 10th Circuit panel ruled two to one to “…gave back what the appeals court took away in 2011”

I’ll provide my simplistic (with help from people closer to the case) explanation. The jury verdict was based on the fact that the original lawsuit was filed under the Price-Anderson federal law involving claims against nuclear facilities for “nuclear incidents.” The jury verdict in favor of the homeowners was overturned because Price-Anderson requires proof of actual damage, and not just a “perception of damage.” The ruling by the new panel determined that the restrictions on determining damages should be based on Colorado “nuisance laws,” which have a much lower burden of proof. The plaintiff lawyers told the panel “…they didn’t need to retry the nuisance claims because the jury had already reached a nuisance verdict…” (I’ll argue with that, since the reason the jury’s verdict was vacated was that the judge had given incorrect instructions.)

Regardless of what happened previously, apparently Dow, Rockwell, and the Department of Energy determined that new determination by the 10th Circuit panel forced them to settle a case that had no real legal basis or actual damages. My warning to them, made with no actual knowledge of legal things, is that they have opened up new liabilities that are already being worked. A group calling themselves “Rocky Flats Downwinders” have initiated “…a community survey designed to compile health impacts of those living in the area.” They say they are “…hoping to hear from anyone who lived here during the time of 1952 through 1992,” They think publicity from the settlement between Rocky Flats and homeowners will spark more interest, “We think we can piggy back on that in terms of using the information that is going to be learned through the claimant process.” Metro State University of Denver, University of Colorado and Colorado State University professors will study the surveys and compile the data from the former residents, who must have lived in the area from the plant east to Interstate 25 during the years the plant was in operation.

My prediction is that trial attorneys all over Colorado are studying the nuisance laws and licking their chops over the idea court awards can be made against companies and individuals who can be sued for perceived or maybe even real nuisances. I’m curious about the amount of my eventual award regardless of the fact I was well informed about the lack of any risk from Rocky Flats when I bought our current home downwind of the plant and moved in with my family. I doubt this is the last of the story.

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