A $554 million verdict was returned recently in a class action suit against two companies that ran a government-owned nuclear weapons production plant until its closure in 1989. The jury in the federal district court in Denver found in favor of nearly 12,000 neighboring property owners whose health and property values were affected by plutonium that was leaked on the plant site. The site is owned by the U.S. Department of Energy (DOE), but has been run by Rockwell International Corp. and Dow Chemical Co. since its opening in 1952. Although Rockwell and Dow were the defendants, the DOE will have to pay the final amount assessed as damages amount. The DOE has paid all of the legal expenses for the defendants. The award could possibly be reduced to as low as about $354 million under Colorado law.

The jury awarded $176.8 million for a nuisance claim and $176.8 million for a trespass claim, both of which were for compensatory damages. It appears that there can’t be a duplicate-damages award. It is still unclear whether the judge will view the two awards of $176.8 million as double damages or as two separate awards for different claims. If the compensatory damages are found to be double damages and reduced to one award of $176.8 million, then the punitive damages, which totaled more than $200 million between the two companies, would have to be reduced under Colorado law to no more than the compensatory damages, or $176.8 million. While it is also possible that pretrial interest will be allowed, that issue hasn’t been raised at this time. The DOE took a hard line in this matter and was “determined to fight all of these cases and viewed them all as frivolous.”

The plaintiffs argued that Rockwell and Dow knowingly stored plutonium in barrels and cardboard boxes that rotted on the Rocky Flats plant site, allowing the windy environment to blow the plutonium across an approximate six-mile radius. Rocky Flats and its surrounding area are approximately 17 miles outside of Denver. Although there was a 10-year, $7 billion clean-up project of the site – paid for by the DOE – that ended last year, it was contended by plaintiffs that animals, plants and other natural forces could bring the plutonium back to the surface. The DOE contended that a scientific investigation of the land concluded that there had not been, nor will there ever be, a health risk from the spilled plutonium. The defense also argued that there was no evidence of a decrease in property values. An increase in the incidence of cancer among area residents has been shown by some studies. People still live on the land, but some of the plaintiffs have moved away.

Rockwell pled guilty in 1992 to violations of the Resource Conservation and Recovery Act and the Clean Water Act as part of a plea deal and paid an $18.5 million fine. Rockwell was the last company to run the facility until it was shut down in 1989. Dow ran it from 1952 to 1975. The class included all of those people who owned land in the designated area as of 1989. Previous landowners were not included. Interestingly, it took almost 16 years to get this case to trial. I found that hard to understand regardless of how complicated the case might have been.

Source: The Legal Intelligencer

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