Cook v. Rockwell Int'l Corp.
| Decision Date | 03 September 2010 |
| Docket Number | 08-1226,No. 08-1224,08-1239.,08-1224 |
| Parties | Merilyn COOK; William Schierkolk, Jr.; Delores Schierkolk; Richard Bartlett; Lorren Babb; Gertrude Babb; Michael Dean Rice; Bank Western; Thomas L. Deimer; Rhonda J. Deimer; Stephen Sandoval; Peggy J. Sandoval; Sally Bartlett, Plaintiffs-Appellees-Cross-Appellants,v.ROCKWELL INTERNATIONAL CORPORATION and Dow Chemical Company, Defendants-Appellants-Cross-Appellees,American Nuclear Insurers; Nuclear Energy Institute, Inc., Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
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Christopher Landau, P.C., Kirkland & Ellis LLP, Washington, DC (John K. Crisham and Philippa Scarlett, Kirkland & Ellis LLP, Washington, DC; David M. Bernick, P.C., Douglas J. Kurtenbach, P.C. and Steven C. Seeger, Kirkland & Ellis LLP, Chicago, IL, with him on the briefs), Attorneys for Defendants-Appellants/Cross-Appellees.
Merrill G. Davidoff, Berger & Montague, P.C., Philadelphia, PA (Peter Nordberg and David F. Sorensen, Berger & Montague, P.C., Philadelphia, PA; Gary B. Blum and Steven W. Kelly, Silver & DeBoskey, P.C., Denver, CO, with him on the briefs), Attorneys for Plaintiffs-Appellees/Cross-Appellants.
Marjorie J. Berger, American Nuclear Insurers, Glastonbury, CT; Simon A. Steel, Harkins Cunningham LLP, Washington, DC; and John G. Harkins, Jr., Harkins Cunningham LLP, Philadelphia, PA, on the brief for American Nuclear Insurers, Amicus Curiae.
Ellen C. Ginsberg, Esq, Michael A. Bauser, Esq., Anne W. Cottingham, Esq., and Jerry Bonanno, Esq., Nuclear Energy Institute, Inc.; Donald E. Jose, Esq., Jose & Associates, Malvern, PA; and Charles F. Rysavy, Esq., K & L Gates LLP, Newark, NJ, on the brief for Nuclear Energy Institute, Inc., Amicus Curiae.
Before MURPHY, ANDERSON, and HOLMES, Circuit Judges.
The owners of property near the former Rocky Flats Nuclear Weapons Plant (“Rocky Flats”) filed a class action against the facility's operators under the Price-Anderson Act (“PAA”), alleging trespass and nuisance claims arising from the release of plutonium particles onto their properties. The district court conducted a lengthy trial, resulting in a jury verdict in favor of the plaintiff class. After a series of post-trial motions, the district court entered judgment in favor of Plaintiffs, awarding a total of just over $926 million, inclusive of compensatory damages, punitive damages, and prejudgment interest. Defendants, Dow Chemical Company (“Dow”) and Rockwell International Corporation (“Rockwell”), timely appealed the judgment, and the class members filed a timely cross-appeal.
Exercising appellate jurisdiction pursuant to 28 U.S.C. § 1291, this court REVERSES and REMANDS the case to the district court. We DIRECT the district court to vacate the judgment and conduct further proceedings not inconsistent with this opinion.
Rocky Flats, located near Denver, Colorado, was established by the United States Government in the 1950s to produce nuclear weapon components. The government contracted with Dow to operate the facility from 1952 to 1975, and then with Rockwell from 1975 to 1989. Operations at Rocky Flats ceased in June 1989 after the Federal Bureau of Investigation and the Environmental Protection Agency searched the facility. Rockwell was subsequently charged with, and ultimately pleaded guilty to, certain environmental crimes at the site. The facility has since undergone remediation efforts and is now designated as a wildlife refuge.
Property owners, whose properties lie within a thirty square mile area east of Rocky Flats, filed this class action on January 30, 1990, alleging a public liability action under the PAA involving trespass and nuisance claims against Dow and Rockwell. A public liability action is an action asserting legal liability arising from a nuclear incident.1 Plaintiffs' most recent amended complaint alleged the release of plutonium at Rocky Flats resulted in the contamination of the class members' properties. Plaintiffs sought compensatory damages, measured by the diminution of property values, as well as punitive damages.
In October 1993, the district court certified a class consisting of “[a]ll persons and entities owning an interest (including mortgagee and other security interests) in real property situated within the Property Class Area, exclusive of governmental entities, defendants, and defendants' affiliates, parents, and subsidiaries” as of June 7, 1989. In May 2005, the district court split the certified class into two subclasses:
The first sub-class shall consist of all Class members who owned property within the Class Area on the later of: (i) January 30, 1990, the date this action was filed; or (ii) the date on which the jury, per Restatement [(Second) of Torts] § 930(1), finds it appeared the trespass and/or nuisance asserted by Plaintiffs would continue indefinitely.... The second sub-class consists of all other Class members.
The district court generally referred to the first subclass as the “Prospective Damages Subclass” and the second as the “Non-Prospective Damages Subclass.”
After over fifteen years of litigation, the district court conducted a four-month jury trial between October 2005 and January 2006. In accordance with the district court's construction of Colorado law,2 the jury instructions did not require Plaintiffs to establish either an actual injury to their properties or a loss of use of their properties. With respect to the nuisance claims, the district court instructed the jury that Plaintiffs could establish Defendants' conduct interfered with the use and enjoyment of the class properties by proving Defendants' conduct exposed Plaintiffs to “some increased risk of health problems” or caused conditions “that pose a demonstrable risk of future harm to the Class Area.” As to Plaintiffs' trespass claims, the district court instructed the jury, “Plaintiffs are not required to show that plutonium is present on the Class Properties at any particular level or concentration, that they suffered any bodily harm because of the plutonium or that the presence of plutonium on the Class Properties damaged these properties in some other way.”
Plaintiffs' evidence regarding the effects of plutonium on their properties consisted of expert testimony indicating any plutonium exposure, no matter how small, increases the risk of cancer. Plaintiffs' experts did not testify, however, regarding the level of risk of developing cancer from exposure to plutonium released at Rocky Flats. Rather, they suggested any increased risk was small and unquantifiable.
The jury deliberated for three weeks and ultimately returned a verdict in favor of the plaintiff class on each of the trespass and nuisance claims. The jury awarded $176,850,340.00 in compensatory damages on the trespass claims and awarded the same amount on the nuisance claims, based on the diminution of the value of the properties. The jury also awarded punitive damages totaling $110,800,000.00 against Dow and $89,400,000.00 against Rockwell.
After a long series of post-trial motions, the district court entered a final judgment against Defendants on June 2, 2008, pursuant to Federal Rule of Civil Procedure 54(b). Including prejudgment interest, the court ordered compensatory damages against Dow in the amount of $653,313,678.05 and against Rockwell in the amount of $508,132,861.39. The judgment further stated, however, the total compensatory damages recovered by the plaintiff class shall not exceed $725,904,087.00. Punitive damages were ordered in the same amounts the jury awarded. Thus, the judgment awarded a total of just over $926 million to the plaintiff class, including prejudgment interest. The district court's judgment, however, did not allocate damages to individual class members. 3 Rather, the district court attached a Plan of Allocation to the judgment, which provides for the appointment of a claims administrator to make recommendations as to how the lump sum identified in the judgment should be distributed. The Plan of Allocation also provides a framework for calculating each class member's share and distributing any unclaimed funds. Dow and Rockwell timely appealed the district court's judgment and the class members filed a timely cross-appeal.
Before addressing the merits of an appeal, this court's first obligation is to assure itself of jurisdiction to do so 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir.2006). This appeal involves two jurisdictional issues: whether the district court properly exercised subject matter jurisdiction over this action and whether the district court entered an appealable final judgment.
This court sua sponte raised the issue of whether the district court properly exercised subject matter jurisdiction over this action.4 The court's concern arose from the language of 42 U.S.C. § 2210(n)(2), which provides: “With respect to any public liability action arising out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place ... shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy.” At first glance, the statute appears to require proof of a “nuclear incident” 5 to permit federal subject matter jurisdiction over a PAA action. Even assuming it imposes a jurisdictional requirement, however, closer inspection indicates 42 U.S.C. § 2210(n)(2) is not the sole source of federal jurisdiction over a PAA action.
Although the complete history of the PAA need not be repeated, a brief overview of its evolution, which this court described more fully in Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1503-04 (10th Cir.1997), is helpful. See also In re TMI Litig., 193 F.3d 613, 624 n. 7 (3d...
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