Cook v. Rockwell Intern. Corp.

• Decision Date: 24 July 2003
• Docket Number: No. CIV.A. 90-K-181.,CIV.A. 90-K-181.
• Citation: 273 F.Supp.2d 1175
• Parties: Merilyn COOK, et al., Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION and THE DOW CHEMICAL COMPANY, Defendants.
• Court: U.S. District Court — District of Colorado

273 F.Supp.2d 1175

Merilyn COOK, et al., Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION and THE DOW CHEMICAL COMPANY, Defendants.

No. CIV.A. 90-K-181.

United States District Court, D. Colorado.

July 24, 2003.

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Daniel R. Satriana, Jr., Hall & Evans, United States District Court, Denver, CO, Bruce H. Deboskey, Steven William Kelly, Silver & Deboskey, P.C., Denver, CO, Merrill Davidoff, Jonathan Auerbach, David F. Sorensen, Bernadette M. Rappold, Eric L. Cramer, Stanley B. Siegel, Berger & Montague, P.C., Philadelphia, PA, Stanley M. Chesley, Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, OH, John David Stoner, Christopher Thomas Reyna, Chimicles & Tikellis, L.L.P., Haverford, PA, David Evans Kreutzer, Attorney General's Office Natural Resources Unit, Denver, CO, R. Bruce McNew, Taylor, Gruver & McNew, P.A., Greenville, DE, Ronald Simon, Simon & Associates, Washington, DC, Kenneth A. Jacobsen, Kenneth A. Jacobsen Law Offices, Media, PA, for Plaintiffs.

Joseph J. Bronesky, Sherman & Howard, United States District Court, Denver, CO, Franklin D. Kramer, Timothy P. Brooks, John D. Aldock, Patrick M. Hanlon, Michael K. Isenman, Edward J. Naughton, Wendy S. White, Valerie E. Ross, Heather H. Anderson, Amy Horton, Shea & Gardner, Washington, DC, Mark S. Lillie, David M. Bernick, Martin Thomas Tully, Kirkland & Ellis, Chicago, IL, Joseph F. Yenouskas, Morgan, Lewis & Bockius, LLP, McLean, VA, for Defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This action arises from operations at the Rocky Flats Nuclear Weapons Plant ("Rocky Flats" or "Plant"), a former nuclear weapon manufacturing facility owned by the United States and once operated by Defendants Dow Chemical Company ("Dow") and Rockwell International Corporation ("Rockwell") under government contract. Plaintiffs are individuals and businesses who own land or interests in land and/or reside near Rocky Flats. Plaintiffs, on their own behalf and as representatives of a class of others similarly situated, assert claims for trespass, private nuisance, negligence, strict liability, outrageous conduct and exemplary damages against Dow and Rockwell.

The claims arise from allegations regarding actual or threatened releases of plutonium and other hazardous substances from the Plant. Plaintiffs allege these releases have caused and continue to cause damage to Plaintiffs' and class properties and to create a risk of adverse health consequences. They seek compensatory damages relating to the properties, damages or injunctive relief to provide medical monitoring services, exemplary damages, permanent injunctive relief and attorney fees and costs.

A class has been certified as to the property-related claims, see Cook v. Rockwell Int'l Corp. ("Cook IV"), 151 F.R.D. 378 (D.Colo.1993), which is defined in part by the contours of a plutonium "plume" extending approximately six miles from the Plant based on measurements of plutonium in off-site soils. According to Plaintiffs' most recent statement, the Property Class seeks compensatory damages for diminution in the value of their properties and exemplary damages under theories of trespass, nuisance, negligence and strict liability. A separate class was initially certified with respect to Plaintiffs' request for medical monitoring services, but was later decertified. See Cook v. Rockwell Int'l Corp. ("Cook VIII"), 181 F.R.D. 473, 480 (D.Colo.1998). The Property Class claims and individual medical monitoring and other claims are bifurcated for trial, with the Property Class claims to be tried first.

In connection with certain pretrial evidentiary motions and failed efforts to prepare a stipulated pretrial order, the parties have argued and extensively briefed their disagreements regarding various elements of the Property Class claims and the issues to be tried in the first phase of this action.¹ As set forth below, this memorandum opinion and order decides the issues raised by the parties and thus clarifies the scope of trial in the Property Class phase of this action.

I. Violation of Federal Nuclear Safety Standards as an Element of Plaintiffs' Tort Claims

None dispute this is a "public liability action" arising under the Price-Anderson Act, 42 U.S.C. § 2210 ("Price-Anderson" or "Act"), because it is an action in which Plaintiffs seek to impose liability arising out of or resulting from a "nuclear incident."² See 42 U.S.C. § 2014(w), (hh). Section 2014(hh) of the Act directs that "the substantive rules for decision in such an action shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of [the Price-Anderson Act]." 42 U.S.C. § 2014(hh). Defendants admit this statutory provision permits Plaintiffs to assert claims based on Colorado tort law in this action, but contend it nonetheless preempts the heart of these tort claims, which is imposition of a state law-based standard of care on Defendants' conduct. Preemption is required under the Act, Defendants argue, because the strict liability and negligence standards of care that would govern Plaintiffs' claims under Colorado law are inconsistent with federal nuclear safety standards for the release of plutonium in air and water. Defendants maintain, in turn, that these federal standards are part of Price-Anderson's "regulatory scheme." As a result, Defendants assert that under the Price-Anderson Act Plaintiffs must prove Defendants released plutonium in excess of federal nuclear safety standards in order to prevail on each of their otherwise state law-based tort claims.

Defendants' authorities for this proposition are In re TMI Litigation Cases Consol. II ("TMI II"), 940 F.2d 832 (3d Cir. 1991), O'Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir.1994), and their progeny. After a careful review of these decisions, the subject statutory language and other relevant authority, however, I am persuaded that Congress did not intend for federal regulatory standards to preempt state law standards of care in Price-Anderson public liability actions. I therefore reject Defendants' contention that Plaintiffs must prove Defendants violated federal standards as an element of their tort claims.

A. Law of Federal Preemption

The law of federal preemption is founded in Congress' power to preempt state law under Article VI of the Supremacy Clause, which provides that the laws of the United States are "the supreme Law of the Land; ... any Thing in the Constitution or the Laws of any state to the Contrary notwithstanding." U.S. Const. Art. VI, cl. 2; see United States v. Wagoner County Real Estate, 278 F.3d 1091, 1096 (10th Cir.2002). The "ultimate touchstone" of any preemption analysis, therefore, is whether Congress intended federal law to preempt state law. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992).

"Congress' intent may be explicitly stated in the statute's language or implicitly contained in its structure and purpose." Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (internal quotation omitted). Congressional intent in the first instance, generally termed express preemption, is determined primarily by reference to the plain language of the clause in question, "which necessarily contains the best evidence of Congress' preemptive intent." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) (quoted in Sprietsma v. Mercury Marine, 537 U.S. 51, 123 S.Ct. 518, 526, 154 L.Ed.2d 466 (2002)). Other relevant considerations are the structure and purpose of the statute encompassing the preemption provision "as revealed not only in the text but through the reviewing court's reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law." Medtronic, 518 U.S. at 486, 116 S.Ct. 2240.

Congress' intent to preempt state law may also be implied in two situations: (1) "where the state law regulates conduct in a field that Congress intended the Federal Government to occupy exclusively" (field preemption); and (2) where state law "actually conflicts with federal law" (conflict preemption) either because "it is impossible for a private party to comply with both state and federal requirements" or "state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." English v. General Electric Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) (internal quotation omitted); see Sprietsma, 123 S.Ct. at 527; Choate v. Champion Home Builders Co., 222 F.3d 788, 795 (10th Cir.2000). Preemption in these instances is based on the assumption that Congress would not want state law to apply if any of these circumstances exist. See Geier v. American Honda Motor Co., 529 U.S. 861, 873, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000); see English, 496 U.S. at 79 n. 5, 110 S.Ct. 2270. This assumption may be overcome, however, by evidence that Congress was willing to tolerate continued state regulation or application of state law in circumstances in which implied preemption would otherwise be found. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 186, 108 S.Ct. 1704, 100 L.Ed.2d 158 (1988) (incidental state regulation in field exclusively occupied by federal regulation not preempted because federal statute indicated Congress was willing to accept any potential conflict between federal regulation and such indirect state regulation); Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984) (state tort law indirectly regulating field exclusively occupied by federal regulation not preempted because relevant legislative history demonstrated Congress intended that state tort law would continue to apply in this field); see...