Petition for Writ of Certiorari — Edwards v. Walter Jones Construction

preme Court, U.&

FILED

992025 JUN 1 5 on

!

No.

‘ora’

wT

IN THE

SUPREME COURT OF THE UNITED STATES

DESIREE CHRYSLER, et al,

Petitioners,

Vv.

COTTER CORPORATION,

Respondent.

On Petirion For Writ Or CERTIORARI

To Tue Unrtep States Court OF APPEALS

For Tae Tents Circuit

PETITION FOR WRIT OF CERTIORARI

Don HowartTH *

SUZELLE M. SMITH

HowartTH & SMITH

800 WILSHIRE BOULEVARD

Surre 750

Los ANGELES, CA 90017

(213) 955-9400

Counsel for Petitioners

* Counsel of Record

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

BYP"

QUESTION PRESENTED

When the District Court applies the doctrine of

collateral estoppel to consolidated cases it is handling, is the

proper standard for appellate review “de novo” as held by the

Tenth Circuit or “abuse of discretion” under this Court’s

Parklane holding?

PARTIES TO THE PROCEEDING

Petitioners

DESIREE CHRYSLER; DANIEL CHRYSLER; AUGUST

CHRYSLER, and CLAYTON CHRYSLER, minors, by and

through their parents and next friends, Desiree Chrysler and

Daniel Chrysler; NORMAN PLATT, individually and as

personal representative of the Estate of Dorothy Platt;

BRUCE HADLEY; VIRGINIA HADLEY; SHAYLEE

HADLEY; KIM MYERS; SID MYERS; CASEY MYERS

and CHAD MYERS, minors, by and through their parents

and next friends, Kim Myers and Sid Myers.

Respondent

COTTER CORPORATION.

il

TABLE OF CONTENTS

CUIERES DEY CUMMOEEV EES 6 eee e tees eens

PARTIES TO THE PROCEEDING ...........

pp ee, Beare eres erarea

APPENDIX

Appendix A

Tenth Circuit Opinion, 2/11/00..........

Appendix B

District Court Final Judgment, 3/11/99 ....

Appendix C _

Tenth Circuit Order Denying Petition for

Rehearing and Suggestion For Rehearing En

Par eae er eee

iii

TABLE OF AUTHORITIES

CASES

Ashe v. Swenson,

er ee oo Se ees 5,6

Bates v. Union Oil Co. of California,

944 F.2d 647 (9th Cir. 1991) ............. 7

Berger Transfer & Storage v. Central States,

Ww Pension Fund,

85 F.3d 1374 (8th Cir. 1996) ............. 7

rawford-El v. Britton,

Se Ss oc Se pee Ge 3

193 F.3d 613 (3d Cir. 1999) ............. 10

K Ti ., Ltd. v. Carmichael,

Se er oe ok check: 3

McLendon v. Contin

908 F.2d 1171 (3d Cir. 1990)............. 7

arkl i ., Inc. Vv. :

GIP UM. TI ovo ek ven 4, 5, 8-10

Patrick v 1 T. ¥

641 F.2d 1192 (6th Cir. 1980) ............ 6

56 Fe Te Oe oi 5 ea 7

iv

ee

re PON I se 5s ak

Wi Di 1S} k Chemical Co..

M9 P.36 SET Ome Cor. 1908) i es

STATUTES AND RULES

ee errs Nee hs 6 5s ee SS

ee ne 5 6G ER SS

a a es RS

Supreme Court Rule 10(a), (c) .............000-

OTHER AUTHORITIES

Henry James, “The Art of Fiction”, in

Partial Portraits 395 (University of Michigan

hacesibe ee dhe sarees Cie EE Pe

William Shakespeare, The Taming of the Shrew,

act 1, sc. i, 1. 132-133 (Alfred Harbage ed.,

Wee TO i Fe oe eS a

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Tenth Circuit that gives rise to this petition is reported as

Dodge v. Cotter Corp., 203 F.3d 1190 (10" Cir. 2000). A

copy of the Opinion is included in the Appendix at Appendix

A at la-28a. The United States District Court for the District

of Colorado orde ed entry of final judgment on March 11,

1999, which is included in Appendix B at 29a-34a. The

United States Court of Appeals for the Tenth Circuit issued an

order denying the Petitions for Rehearing and Suggestions for

Rehearing En Banc on March 22, 2000, which is included in

Appendix C at 35a-37a.

JURISDICTION

The United States Court of Appeals for the Tenth

Circuit issued its Opinion on February 11, 2000. On

February 25, 2000, both Petitioners and Respondent filed

Petitions for Rehearing and Suggestions for Rehearing En

Banc, which the Tenth Circuit denied on March 22, 2000.

This Petition for Writ of Certiorari is filed within 90 days of

the denial of the Petition for Rehearing. This Court’s

jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

STATEMENT OF CASE

On February 11, 2000, the Tenth Circuit issued its

Opinion in this environmental contamination case, reversing

the Honorable Zita Weinshienk’s application of the doctrine

of collateral estoppel to preclude relitigation of one issue,

Defendant Cotter Corporation’s (“Cotter”) negligent operation

of its uranium mill. The trial court held that the same issue

was previously litigated before the same Court in a two-month

trial of 8 bellwether cases (out of over 500 consolidated

1

cases), based on the same operative facts. The Tenth Circuit

reversed the District Judge, and based thereon overturned the

jury verdicts in 14 cases that were tried in a six-week trial (14

of a consolidated group of 55 remaining on the docket),

previously confirmed by Judge Weinshienk.' App. A at 28a;

App. B at 29a-34a.

The Tenth Circuit made a “de novo” review of the

factual determination made by the trial judge presiding over

both groups of cases, stating that this was the standard for

claims barred under the doctrine of collateral estoppel. App.

A at 17a. It held that since the trial court’s determination of

the factual issue was not “unassailable,” (App. A at 20a) and

since there was no specific “agreement” by Defendant

memorialized on the record to be bound by the first jury’s

finding of negligence in the “test trials” (App. A at 24a), use

of collateral estoppel in the succeeding trials was error.

ARGUMENT FOR GRANTING THE WRIT

Henry James explained many years ago that all craft

and art derives considerable benefit from the exercise of

constraint by those reviewing it: “If we pretend to respect the

artist at all, we must allow him his freedom of choice, in the

face, in particular cases, of innumerable presumptions that the

choice will not fructify.” Henry James, “The Art of Fiction”,

in Partial Portraits 395 (University of Michigan Press 1970)

(1888). William Shakespeare warned with some candor that

' The District Court had jurisdiction over the original action

pursuant to 28 U.S.C. § 1331 and the doctrines of ancillary and

pendent jurisdiction. The case presented a federal question arising

under the Comprehensive Environmental Response, Compensation

and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq.

2

discretion has little to recommend it when we limit the choices

available by substituting our own views from a distance:

“There's small choice in rotten apples.” William

Shakespeare, The Taming of the Shrew, act 1, sc. i, 1. 132-

133 (Alfred Harbage ed., Viking Penguin Inc. 1977).

Members of this Court have made similar observations

in a variety of contexts. For example, Chief Justice Rehnquist

has written:

It is the district judges rather than appellate

judges like ourselves who have had the most

experience in managing cases in which an

official's intent is an element. Given the wide

variety of civil rights and “constitutional tort”

claims that trial judges confront, broad

discretion in the management of the factfinding

process may be more useful and equitable to all

the parties than the categorical rule imposed by

the Court of Appeals.

Crawford-El v. Britton, 523 U.S. 574, 600-601 (1998).?

? Justice Breyer has also written:

The court of appeals must anply an

abuse-of-discretion standard when it reviews the

trial court's decision to admit or exclude expert

testimony. That standard applies as much to the

trial court's decisions about how to determine

reliability as to its ultimate conclusion.

Kumho Tire Co., Lid. v. Carmichael, 526 U.S. 137, 138-139

(1999)(citation omitted).

The holding and reasoning of the Tenth Circuit in this

case is inconsistent with the “abuse of discretion,” or “clearly

erroneous” standard applied by other Federal Circuits and

required by this Court in

439 U.S. 322 (1979). Instead the Tenth Circuit establishes 2

“de novo” and “unassailable” standard of review for factual

findings necessary to the application of collateral estoppel that

substitutes the work of the appellate panel for that of the

District Judge handling the fact issues. The Tenth Circuit

ruling also adds a new legal requirement that defendant must

agree before an issue, once litigated before the same District

Judge, may be precluded against the same defendant. This is

also inconsistent with the approach of other Federal Circuits

and the offensive use of collateral estoppel for consistent case

management approved by this Court in Parklane.

This Court has recognized that the doctrine of

collateral estoppel is an important tool in maintaining cost

efficiency for both the Court system and the litigants. The

And Justice Rehnquist criticized the appellate court’s

absence of deference to the trial judge when the standard of review

is abuse of discretion in these words:

This is a classic instance in which the trial judge,

based on his own observation of the interchange,

is best able to determine whether the venireman

could properly discharge his duties as a juror...

I find no support in our case law for the utter

absence of deference paid to the trial court's

judgment in this case.

Texas v. Mead, 465 U.S. 1041, 1048 (1984).

system is becoming increasingly expensive, almost

prohibitively so, for both the taxpayers and the parties. The

public views the Courts as in crisis because of backlogs,

delays and inordinate costs of litigation. Committing factual

determinations and the scope of their application to the broad

discretion of the trial judge is one method this Court has

endorsed in managing the work of the Courts in an orderly

fashion, and in making justice more accessible to the public.

In Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322

(1979), the leading case on federal “offensive non mutual”

collateral estoppel, this Court set the standard for review of

the trial court’s application of the doctrine, namely that the

trial judge is given broad discretion. “We have concluded

that the preferable approach for dealing with these problems

in the federal courts is not to preclude the use of offensive

collateral estoppel, but to grant trial courts broad discretion to

determine when it should be applied.” Parklane at 331

(emphasis added).

In other cases, the Supreme Court has reversed lower

courts that refuse to apply collateral estoppel or give the

doctrine such restrictions that in practice it has no vitality.

For example, in Ashe v. Swenson, 397 U.S. 436 (1970), a

criminal case decided before Parklane, this Court stated that

collateral estoppel applies with the same force in criminal as

in civil cases. The Court reversed the trial court’s refusal to

apply collateral estoppel as a clear error, finding that applying

some restrictive test to the doctrine (as the Tenth Circuit did

here) was nothing less than a rejection of the rule:

“Collateral estoppel” is-an awkward phrase,

but it stands for an extremely important

principle in our adversary system of justice. It

means simply that when an issue of ultimate

5

fact has once been determined by a valid and

final judgment, that issue cannot again be

litigated between the same parties in any future

lawsuit...

The federal decisions have made clear that the

rule of collateral estoppel in criminal cases is

not to be applied with the hyper-technical and

archaic approach of a 19th century pleading

book, but with realism and rationality. Where

a previous judgment of acquittal was based

upon a general verdict, as is usually the case,

this approach requires a court to “examine that

record of a prior proceeding, taking into

account the pleadings, evidence, charge, and

other relevant matter, and conclude whether a

rational jury could have grounded its verdict

upon an issue other than that which the

defendant seeks to foreclose from

consideration.” The inquiry “must be set in a

practical frame and viewed with an eye to all

the circumstances of the proceedings.” Any

test more technically restrictive would, of

course, simply amount to a rejection of the rule

of collateral estoppel in criminal proceedings,

at least in every case where the first judgment

was _ based upon a general verdict of

Ashe v. Swenson, 397 U.S. 436, 443-444 (1970)(footnotes

omitted). A general verdict can also be used to preclude

relitigation of an issue in a civil trial. Patrick v. South

Central Bell Tel. Co., 641 F.2d 1192, 1198-1199 (6th Cir.

1980).

The Tenth Circuit’s review of factual findings for

collateral estoppel application “de novo” conflicts with other

Federal Circuits as well. For example, in Raytech Corp. v.

White, 54 F.3d 187 (3d Cir.1995), the trial court applied

collateral estoppel to preclude a defendant from relitigating an

issue. The Third Circuit held that under Parklane, “in

reviewing the district court's decision to apply offensive

collateral estoppel, we are bound by the abuse of discretion

standard.” Raytech at 190. Other Circuits have similarly

held that an abuse of discretion, not de novo, standard applies

to the fact-based determination that issues are the same under

collateral estoppel. See Winters _v. Diamond Shamrock

Chemical Co., 149 F.3d 387, 391-92 (Sth Cir. 1998); ——

Transfer v. Cen

Areas Pension Fund, 85 F.3d 1374, 1376 (8th Cir. 1996);

Bates v. Union Oil Co. of California, 944 F.2d 647, 651 (9th

Cir. 1991); McLendon v. Continental Can Co., 908 F.2d

1171, 1177 (3d Cir. 1990).°

> The issue addressed to this Court clearly fits well within

the guidelines set by this Court for granting a writ of certiorari.

Supreme Court Rule 10 directs that “[a] petition for a writ of

certiorari will be granted only for compelling reasons”, and sets

forth some of the factors that the Court considers, including the

following:

a United States court of appeals has entered a

decision in conflict with the decision of another

United States court of appeals on the sani2

important matter...or has so far departed from the

accepted and usual course of judicial

proceedings...as to call for an exercise of this

Court’s supervisory power;

Indeed, the Tenth Circuit itself paid lip service to the

broad discretion given the trial judge in deciding whether to

apply collateral estoppel under Parklane. The court states in

a footnote:

Assuredly, we are cognizant of the trial court’s

broad discretion and long involvement in the

two cases. Neither, however, trumps the legal

elements of the doctrine. Although the court

and counsel may know how an issue was

resolved, that understanding cannot be fully

superimposed onto the second jury without a

clear indication of what, in fact, the first jury

decided.

a United States court of appeals...has decided an

important federal question in a way that conflicts

with relevant decisions of this Court.

Supreme Court Rule 10(a), (c).

The ruling here presents a clear case of conflicts between the

Circuits, conflict with the relevant leading decision of this Court,

and the need for supervisory review in the important area of

managing dockets at the trial and appellate court level. The Tenth

Circuit has enunciated a rule that makes moot much of the detailed

and prudent management of the District Court as to its own case

load, and if permitted to stand, vastly expands the work of the

appellate courts to reamalyze factual details under a de novo

standard. The ruling needs to be reviewed because it wrongly

restricts what case management authority requires at the District

Court level and wrongly expands what is to be done at the Circuit

Court level.

App. A at 18a, n. 10.

Of course, it is exactly the trial court’s understanding

of how an issue was resolved that allows for the efficient

management of complex, multiple plaintiff consolidated

actions. A detailed undoing of the work of the District Judge

because it is not “unassailable” and under a de novo standard,

by those removed from the factual deveiopment, is the precise

antithesis of the broad discretion committed to the court

presiding over the trial of such facts. Thus, the head nod paid

to discretion by the Tenth Circuit in its footnote is never

reconciled and cannot be reconciled with its ruling supplanting

the trial court’s judgment on the factual issue with its own

judgments after de novo review of the record.

The Tenth Circuit’s review de novo to determine if the

finding of the same issue was an “unassailable finding” is not

deference to the trial court’s discretion; rather, it places on the

court below the burden of proving beyond doubt or

“assailability” that the factual issues were the same. In no

case is there authority for this rule and the Tenth Circuit cites

none. The ruling is contrary to Parklane, eviscerates the

“broad discretion” and “clearly erroneous” rule, and sets up

a stark conflict between the circuits supervised by this Court,

which will contribute to forum shopping in the filing of

complex cases. It turns on its head the whole fabric of sound

case management processes to which the doctrine of collateral

estoppel contributes, and which depends upon a vesting of the

exercise of sound judgment in the court dealing with the facts.

The Tenth Circuit’s rule also eliminates the benefits and

efficiencies to the federal court system of the “abuse of

discretion” standard. The appellate court may from time to

time want to wade in as initial decision-maker (despite being

a step removed from the factual record), but this duplication

of effort does not serve the goal of reasonable management of

9

a very crowded and backlogged judiciary. (The cases in this

consolidated group are over 10 years old, for example.)

Finally, the Tenth Circuit went further in its

misconstruing of collateral estoppel to hold that there is an

additional factor precluding its application, found in no case

authority and again contrary to Parklane and to the holdings

of other circuits. The court here held that the trial judge erred

in not giving “notice” to Defendant that an issue litigated in

the first trial would be precluded in the second trial against the

same defendant. App. A at 21a, 24a. Under Parklane, and

the other circuits, the fact that a defendant knows of pending

cases satisfies any “fairness” standard, so long as it has a full

opportunity to litigate the issue. Parklane at 332. The Tenth

Circuit went even further in abrogating this fairness standard

by holding that the defendant must “agree” that an issue once

litigated will be precluded in another trial. App. A at 24a.

The only case cited for this novel addition to collateral

estoppel is In re TMI Litigation, 193 F.3d 613 (3d Cir. 1999).

App. A at 23a-24a. TMI refused to apply collateral estoppel

‘against non party plaintiffs. Id. at 725-726. Of course this

entirely unremarkable proposition, for which TMI stands, is

utterly irrelevant here since the same defendant was a party to

the preceding lawsuit. The improper engrafting of this new

“notice” and “agreement” requirement to the routine

application of collateral estoppel also requires supervisory

intervention by this Court to achieve Federal uniformity of

approach.

CONCLUSION

The doctrine of collateral estoppel is important for

efficient management of the modern judicial system, as this

Court has recognized for some time. Parklane. As the system

becomes more expensive for the parties and the taxpayers,

10

appellate courts must exercise restraint so that they do not

appropriate the duties of the district court, even if they believe

they would have done the job differently.

The Tenth Circuit improperly substituted its own view

of the factual issue by conducting its review of the record

(App. A at 7a-l6a, 19a-23a) and reaching a different

conclusion than the trial judge who presided over the cases for

ten years, and for both trials. The court improperly rejected

the “broad discretion” standard in the context of a

determination by a respected District Judge who had presided

over two extremely lengthy trials and years of pretrial. It

replaced this standard with one of “de novo” review,

requiring “unassailability” of the court’s judgment below,

thus creating a conflict among the circuits and with the

authority of this Court, and adding a notice and consent

requirement to the established doctrine.

Accordingly, this Petition for Writ of Certiorari should

be granted.

Respectfully submitted,

/s/

DON HOWARTH, ESQ.

Counsel of Record

SUZELLE M. SMITH, ESQ.

HOWARTH & SMITH

800 Wilshire Boulevard

Suite 750

Los Angeles, California 90017

(213) 955-9400

Counsel for Petitioners

11

APPENDIX A

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

[Filed February 11, 2000]

Nos. 99-1178, 99-1199

JOSEPH DODGE, individually and )

as personal representative of the )

Estate of Thelma Dodge; )

ROCKY MOUNTAIN EQUESTRIAN )

CENTER, INC.; PATRICK SHANE )

DODGE; CONNIE DODGE; NATHAN _ )

DODGE, LESLIE DODGE, BRYAN )

DODGE, and PATRICK DODGE, )

minors, by and through their parents )

and next friends, Patrick Shane Dodge )

and Connie Dodge; YVONNE )

PEGARARO; NOAH WELCH, and )

JEREMIAH WELCH, minors, by and )

through their parent and next friend )

Yvonne Pegararo; RHONDA )

BUTSON; DANIEL SLANOVICH; )

GUS SLANOVICH; CHANDLER )

CREEK COMPANIES; DONALD LUNA; )

SONJA LUNA; BRETT LUNA; )

JAMES BLUE, individually and as )

la

Court of Appeals’ Opinion - 2/11/00

personal representative of the Estate of

Virginia Blue; EDNA BLUE;

RUSSELL JEWETT; BONITA JEWETT;

SHIRLEY BICKETT; JOHN BICKETT;

RICHARD JANITELL; RALPH

JANITELL; JOHN PINELL; EMMA

PINELL; JAMES L. TREAT; —

ASPEN TRUST; NARD CLAAR;

SARA CLAAR; RUTH QUICK

JOHNSON; MIKE HADLEY;

KATHERINE HADLEY; LINDA

JOHNSON; ALICIA JOHNSON

and BLAINE JOHNSON, minors by

and through their mother and next

friend Linda Johnson; JULIE ANN

WRIGHT; JENNIFER WRIGHT and

NICOLE WRIGHT, minors by and

through their mother Julie Ann Wright,

and CANON FARMS TRUST,

Plaintiffs,

DESIREE CHRYSLER; DANIEL

CHRYSLER; AUGUST CHRYSLER,

and CLAYTON CHRYSLER, minors, by

and through their parents and next friends,

Desiree Chrysler and Daniel Chrysler;

NORMAN PLATT, individually and as

personal representative of the Estate of

Dorothy Platt; BRUCE HADLEY;

VIRGINIA HADLEY; JACK HADLEY;

SHAYLEE HADLEY; KIM MYERS;

SID MYERS; CASEY MYERS and

CHAD MYERS, minors by and through

etl a a i i a i a a de a a a a

2a

tt iia ala er

Court of Appeals’ Opinion - 2/11/00

their parents and next friends Kim Myers

and Sid Myers,

Plaintiffs - Appellees and

Cross - Appellants,

COTTER CORPORATION,

Defendant - Appellant

)

)

)

)

)

VS. )

)

)

)

and Cross - Appellee. )

)

Appeal from the United States District Court

for the District of Colorado

(D.C. No. 91-Z-1861)

Before BALDOCK, PORFILIO, and MURPHY, Circuit

Judges

PORFILIO, Senior Circuit Judge.

OPINION

In 1958, Cotter Corporation, a subsidiary of the

Commonwealth Edison Company of Illinois, began operating

a uranium mill near Canon City, Colorado, extracting

uranium from ore by an alkaline leach process. The two types

of waste produced by that process, tailings, dust-like particles

of ore, and raffinate, liquid recovered from the uranium

extraction solutions, eventually contaminated the area,

including the semi-rural community of Lincoln Park, and

triggered its designation as a Superfund site on the EPA's

National Priority List. Subsequently, some five hundred

3a

Court of Appeals’ Opinion - 2/11/00

Lincoln Park residents filed an action under the

Comprehensive Environmental Response Compensation and

Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, the Price-

Anderson Act, 42 U.S.C. § 2210(n)(2), and Colorado law

alleging Cotter's negligent operation of the mill caused

damage to their health and property. After class certification

was denied, eight plaintiffs, selected for the first trial,

convinced a jury Cotter was negligent in operating the mill

but failed to establish its negligence caused their exposure to

hazardous materials which required future medical

monitoring.

Now before us is a second group of fourteen plaintiffs

who, armed with the first jury's finding of negligence,

established Cotter's negligence caused their physical injuries

- and were awarded monetary damages. Cotter assails the

judgment on numerous grounds, and plaintiffs cross-appeal.

Of the many issues Cotter raised, one predominates. After

careful review of this ponderous record, we conclude the

district court incorrectly applied the doctrine of offensive

collateral estoppel, precluding Cotter from litigating the issue

of negligence. For the single issue remaining in plaintiffs’

cross-appeal, whether the district court properly granted

summary judgment dismissal of their fear of cancer claim, we

reject the contention of error. We, therefore, reverse the

judgment and remand the action for retrial.

I. Background

The Cotter uranium mill (the Mill) occupies a 640-acre

site in south central Colorado, two and a half miles south of

Canon City. Lincoln Park, an unincorporated area, is a mile

and a half north of the Mill. The Arkansas River borders

4a

ba

Court of Appeals’ Opinion - 2/11/00

Lincoln Park's northern rim while Sand Creek and the

DeWeese Dye Ditch angle across its southern perimeters.

During its years of operation crushing ore into "yellowcake,"

a concentrated uranium,’ dry tailings were carried off-site by

winds. Liquids, recovered from the uranium extraction

solutions and stored in unlined ponds, leached into

groundwater beneath the Mill and flowed north toward

Lincoln Park along the Sand Creek channel.

As early as 1959, the Atomic Energy Commission

(AEC), which then regulated uranium production operations

at the Mill, notified Cotter of violations of the conditions of

its license. Annual violations of AEC standards of Protection

Against Radiation occurred through 1968 when the state of

Colorado (the State) took over responsibility from the AEC

for licensing radioactive materials. In the meantime, Cotter's

production rose from 50 tons of uranium a day in 1958 to

1200 tons a day in 1979, when the Siate relicensed the Mill.

In an effort to clean up the site, both the EPA and the

Colorado Department of Public Health and Environment

(Department) targeted the Mill's unlined storage ponds as a

primary source of the proliferation of such hazardous

substances as uranium, molybdenum, thorium, radium,

selenium, arsenic, and lead. By 1981, Cotter had closed eight

unlined ponds and constructed two new tailings facilities

sealed with an eighteen inch hypalon liner overlaid with six

—

' The Mill produced and shipped the yellowcake to

nuclear power plants in northern Illinois owned by Commonwealth

Edison, Cotter's parent company.

Sa

Court of Appeals’ Opinion - 2/11/00

inches of clay.” Later, Cotter added a clay barrier to the Sand

Creek Dam to prevent water flow from the Mill into Lincoln

Park. Despite these efforts, state inspections would reveal

tears in the ponds’ linings or violations of air emissions

standards. Although Cotter ceased operating the Mill in 1987.

the Department projected the clean-up would not be

completed until 2012.’

In 1983, after persistent and unabated violations, the

State sued Cotter in federal court for damages to natural

resources and clean-up of the contamination. State of

Colorado v. Cotter Corp., Case. No. 83-C-2389. In 1988, the

parties settled the matter by a Consent Decree which provided

a Remedial Action Plan (Plan). The Plan required the creation

of the Human Health Risk Assessment Panel (Panel) which

prepared a report in 1991 on the Lincoln Park Superfund Site

evaluating the health risks to the surrounding populations

from the Mill's off-site chemical releases. The Panel

quantified exposures to Mill-related chemicals in air, surface

water, sediment, ground water, soil, and different types of

locally raised food; measured the toxicity of the exposures;

and assessed the possible health risks based on those

evaluations. The Panel concluded "risks to humans were

generally low, especially when judged in comparison to

natural 'background' levels of mill-related metals in the

environment." However, the Panel excepted from that

conclusion a possible health concern in drinking ground water

“ These ponds, an integral part of the Mill operation and

site, are vast; one covers 91 acres; the other 44 acres.

> Cotter planned to resume operations in 1999.

6a

Court of Appeals’ Opinion - 2/11/00

"because of the presence of molybdenum (and, to a lesser

extent, uranium) in the water."

II. Boughton Trial

In 1989, some five hundred residents and property

owners living in Lincoln Park, Brookside, a community east

of the Mill, and Canon City (collectively, Lincoln Park) filed

suit in federal court. In an amended complaint, Lincoln Park

plaintiffs requested statutory relief under CERCLA and

sought damages exceeding $350 million for Cotter's

negligence, strict liability, nuisance, willful and wanton

conduct, outrageous conduct, trespass, and absolute liability.

In addition, plaintiffs requested damages and injunctive relief

for medical monitoring. Although plaintiffs sought class

certification, the district court held the action was not

maintainable under Fed- R. Civ. P. 23(a) because individual

issues predominated over common issues of law or fact. The

parties then agreed to the selection of eight bellwether

plaintiffs (Boughton plaintiffs) for the first trial.

The Boughton plaintiffs did not allege any physical

illnesses or injuries. Instead, they claimed they and their

property were exposed to hazardous substances from the

Cotter Mill and sought damages for trespass to real estate;

damages for nuisance; and medical monitoring based on

negligence. —

At the close of the evidence after a twenty-three day

trial, the court framed the issues for the jury to decide with

the parties' claims and defenses. It instructed the jury, in part,

"The plaintiffs claim that they and their properties have been

exposed to radioactive and hazardous contamination as a

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result of Cotter's milling operation. They assert that this

contamination has significantly increased their risk of health

problems, and that they are therefore entitled to medical

monitoring." Although the Boughton plaintiffs did not claim

their exposure to hazardous substances caused physical

injuries, they contended medical monitoring of the possible

adverse effects of the exposures was required. For Cotter's

theory of defense, the court told the jury,

Cotter admits that its operations have caused

some ground water contamination by

radioactive and molybdenum materials in

certain limited areas, but Cotter states that the

contamination has been and is now being

cleaned up pursuant to a government-

= supervised Remedial Action Plan. Cotter

claims that it did not engage in any conduct

nor breach any legal standard for which it

would be liable to plaintiffs.

The court then instructed the jury on negligence

tracking the language of the Colorado Civil Jury Instructions.

Instruction 25 provided:

The plaintiffs claim that Cotter was

negligent, and therefore plaintiffs are entitled

to medical monitoring.

Negligence means a failure to do an act

which a reasonably careful person or company

would do, or the doing of an act which a

reasonably careful person or company would

not do, under the same or similar

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circumstances to protect others from bodily

injury or property damage.

Even if statutes, ordinances or

regulations govern the actions of a person or

corporation, that person or corporation must

use reasonable care under the particular

circumstances and conditions prevailing.

Reasonable care is that degree of care

which a reasonably careful person or company

would use under the same or similar

circumstances.

The degree of care that constitutes

reasonable care increases in proportion to the

degree of risk associated with the particular

activity.

Instruction 26 set forth each of the elements the jury

had to find for the Boughton plaintiffs to succeed on the claim

of negligence for medical monitoring. It stated:

In order for any particular plaintiff to recover from

Cotter on his or her negligence claims for medical

monitoring, you must find that all of the following have been

proved as to that particular plaintiff:

i. that the particular plaintiff was significantly

exposed to a proven hazardous substance:

2. that Cotter was negligent;

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3. that Cotter's negligence was a cause of that

plaintiff's exposure;

4 that as a result of that exposure, the particular

plaintiff suffers a significantly increased risk of contracting a

serious latent disease;

5. that the significantly increased risk makes

periodic diagnostic medical examinations reasonably

necessary; and

6. that monitoring and testing procedures exist

which make the early detection and treatment of the disease

possible and beneficial.

The determination of which of the plaintiffs, if any,

are entitled to medical monitoring must be made

independently for each plaintiff.

If you find that a particular plaintiff has proved all six

of these propositions by a preponderance of the evidence, then

your verdict must be for that plaintiff on that plaintiff's

negligence claim for medical monitoring.

After five days of deliberation, the jury returned

separate special verdict forms* for each plaintiff making a

4

The special verdict form stated:

1. Was [plaintiff] significantly exposed to a proven

hazardous substance? (Yes or No)

2. Was defendant Cotter negligent? (Yes or No)

3. Was Cotter's negligence, if any, a cause of

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claim of negligence for medical monitoring, trespass, and

nuisance. There was no separate verdict form on which the

jury found Cotter was negligent under Instruction 25.

However, on each of the plaintiffs' "Negligence claim for

medical monitoring Special Verdict Form." the jury was

asked whether Cotter was negligent and found Cotter

negligent. For each Boughton plaintiff the jury also found

there was no exposure to hazardous substances making

reasonably necessary future medical monitoring or testing.°

After the verdicts were read, the jury asked the court,

"{[Cjould you explain about the other 500 plaintiffs? We

promise we never considered them during deliberation." The

court told them because it was impossible to try such a large

case, it was hoped that an initial bellwether trial might

provide some "indication helpful" to resolve the remaining

plaintiffs’ cases. The Boughton plaintiffs' appeal of the denial

[plaintiff's] exposure, if any? (Yes or No)

4. As a result of his exposure, if any, does [plaintiff]

suffer a significantly increased risk of contracting

a serious latent disease? (Yes or No)

3 Does this significantly increased risk, if any, make

periodic diagnostic medical examinations

reasonably necessary for [plaintiff]? (Yes or No)

6. Do monitoring and testing procedures exist which

make the early detection and treatment of the

disease possible and beneficial for [plaintiff]? (Yes

or No)

5 Three plaintiffs prevailed on nuisance claims; six

succeeded on their claims of trespass although only four were

awarded monetary damages. No non-economic or exemplary

damages were awarded.

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Court of Appeals’ Opinion - 2/11/00

of class certification and other issues was later rejected.

Boughton v. Cotter Corp., 65 F.3d 823, 828 (10th Cir. 1995).

Cotter did not cross appeal.

Ill. Dodge Trial

In the second trial, fourteen plaintiffs (collectively

here, Dodge), members of four Lincoln Park families, filed an

amended complaint which was virtually identical to the

complaint in Boughton I. Although the years of the alleged

negligence are slightly different,° the Dodge complaint alleged

verbatim Cotter's negligence rested on its breach of the "duty

to properly control and contain the radioactive and/or

hazardous materials," and "to prevent said radioactive and/or

hazardous materials and constituents from being released into

the air and allowed to migrate or leak into the groundwater,

surface water, rivers and soils in the vicinity." Further, the

complaints alleged the breach of the duty to control and

contain allowed "radioactive and/or hazardous materials to be

released into the air and allowing said radioactive material and

constituents to migrate or leak into the groundwater, surface

water, rivers and soil in the vicinity." The complaint listed the

same eleven “negligent acts and/or omissions" found in

Boughton.’

° Boughton I alleged 1958-present, and Dodge 1958 -

199i. Although the difference is readily explainable, the first

verdict did not indicate the time period or dates of Cotter's

negligence.

’ Paragraph 50 of both complaints stated:

These releases and contamination of the air,

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ground water, surface water, rivers and soil in the

vicinity of the facility and property were

proximately caused and their results aggravated by

the negligent acts and/or omissions of the

Defendants including, but not limited to, the

following:

(A) permitting the emissions, releases and

leaks of radioactive and/or hazardous materials

from the facility and property to occur;

(B) failing to determine where and how the

emissions, releases and leaks of radioactive and/or

hazardous materials occurred and in failing to

correct the problems to prevent further leakage and

emissions; )

(C) failing to provide adequate containment

of the radioactive and/or hazardous materials;

(D) failing to provide adequate air, surface

water, ground water, rivers and soil sampling

and/or monitoring to detect releases of radioactive

and/or hazardous materials;

(E) failing to take proper measurements of

particle sizes and emissions;

(F) failing to test incoming ores adequately

for the presence of hazardous or toxic materials;

(G) failing to timely and adequately warn

or otherwise notify Plaintiffs of such releases and

contamination and the effects thereof;

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The Dodge plaintiffs moved prior to trial for partial

summary judgment on the issues of negligence, trespass, and

nuisance, contending those issues were settled in Boughton,

and Cotter should be collaterally estopped from litigating

them in the second trial. The Dodge plaintiffs represented the

district court had "streamlined resolution of issues common to

all Lincoln Park residents by designating eight Bellwhether

[sic] plaintiffs in Boughton." They urged because the

Boughton jury finally adjudicated "the ultimate issues of

negligence, trespass and nuisance . . . [a]pplication of

collateral estoppel to these issues is the logical follow-up to

the Court's prior decisions, and accomplishes avoiding the

unnecessary expense of multiple litigation of the same issues,

(H) failing to take timely and adequately

remedial actions to contain and clean up such

contamination and to prevent recurring releases;

(I) failing to properly train and supervise

their employees to insure that the necessary

safeguards and procedures would be followed in

the event that any emissions, releases or leaks of

radioactive and/or hazardous materials from the

facility and property might occur;

(J) failing to comply with applicable

Federal and State laws, regulations, licenses or

orders;

(K) being negligent in the construction and

implementation of remedial measures for

containing releases from the tailing ponds and

operating facilities.

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Court of Appeals’ Opinion - 2/11/00

conserving judicial resources, and encouraging reliance on

judicial action." The Dodge plaintiffs relied on Parklane

Hosiery Co. v. Shore, 439 U.S. 322 (1979), contending they

had satisfied the four conditions for the offensive use of

collateral estoppel.

Cotter strenuously resisted the motion, arguing that

despite the virtually identical complaints, the first verdict was

not clear, fully obscuring which of the eleven asserted

grounds of negligence was found; which standard of care was

relied upon over the forty-year period of operation; and what

period of time Cotter acted negligently toward each plaintiff.

Key to its argument, it contended, was labeling the Boughton

I verdict a "special verdict," when, in fact, it was a general

verdict.

At the hearing on the motion,’ Dodge plaintiffs argued

that because collateral estoppel is an issue-specific doctrine,

its offensive use would insulate only the issue of negligence,

the breach of the duty of care, leaving questions of proximate

cause, damages, and affirmative defenses for the parties to

establish. Cotter countered instructing the jury that the court

had already found it was negligent was overwhelmingly

prejudicial in the face of the Dodge plaintiffs' claims for

punitive damages. Instead, Cotter urged the district court to

instruct the jury that judgment was entered in its favor against

plaintiffs for dismissal of the negligence claim for medical

monitoring, eliminating its need to introduce medical

* The hearing addressed only the issue of negligence, the

*<sit having already denied the motion on the issues of trespass and

nuisance.

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Court of Appeals’ Opinion - 2/11/00

monitoring or physical injury testimony. Cotter relied on

Pomeroy v. Waitkus, 517 P.2d 396 (Colo. 1973), in which the

Colorado Supreme Court held the application of collateral

estoppel was not appropriate to prevent the same defendant in

a second trial from litigating affirmative defenses not raised

in the first trial.

After hearing the arguments, the court ruled the "pure

issue of negligence" had been decided and would not be

relitigated, emphasizing the ruling did not affect liability,

proximate cause, the negligence of another party, or willful

and wanton conduct, all of which "certainly is going to be

litigated." At the close of five weeks of trial in Dodge, the

court then instructed the jury,

The Court already has determined that

defendant was negligent. The Court's

determination that the defendant was negligent

must not influence you in determining any of

the remaining issues in this case. As you will

be instructed further at the end of this case, a

finding of negligence is not a finding of

liability. You must still determine whether

defendant's negligence caused any of the

injuries or damages alleged by plaintiffs,

whether defendant's conduct constituted gross

negligence, and other issues that will affect the

liability, if any, of the defendant.

The jury returned verdicts in favor of plaintiffs and awarded

damages for physical injuries and diminution of the value of

their property on that same day of deliberations.

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IV. Collateral Estoppel

Cotter persists in contending the court improperly

afforded Dodge plaintiffs the benefit of a preclusive factual

finding which overwhelmingly prejudiced its ability to defend

the second action. Although Cotter overlays the primal

question of its negligence with the issue of causation and

damages” and ultimately urges we adopt a per se rule that

application of collateral estoppel is inappropriate in negligence

cases, we must agree that whatever the plaintiffs, trials, and

verdict forms were labeled, it is not possible to know the

compass of the Boughton I jury's finding of negligence. We

therefore hold the district court erred in giving that particular

issue preclusive effect.

We review the district court's entry of summary

judgment barring claims under the doctrine of collateral

estoppel de novo, construing the record in the light most

favorable to the non-moving party and drawing all inferences

in that party's favor. Gonzales v. Hernandez, 175 F.3d 1202,

1204 (10th Cir. 1999) (citation omitted); Meredith v. Beech

Aircraft Corp., 18 F.3d 890, 894 (10th Cir. 1994). We also

* Cotter aiso confuses the analysis under Fed. R. Civ. P.

23 with that for determining whether the first trial resolved the

question of negligence. The district court fully recognized collateral

estoppel is an issue preclusion doctrine and did not confound it with

questions of the various types of relief sought which formed the

basis of the denial of class certification. Further, Cotter's assertion

Dodge plaintiffs "could have opted to be plaintiffs in Boughton" is

specious, defying the record of opposing counsels' meeting with the

United States Magistrate Judge and selecting the plaintiffs for each

case.

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look to federal law to reach our conclusion. Orjias v.

Stevenson, 31 F.3d 995, 1010 (10th Cir. 1994). That is,

although the issue precluded, negligence, is a matter of state

law, the preclusive effect given in federal court to a prior

federal judgment is subject to federal law. Murdock v. Ute

Indian Tribe of Uintah & Ouray Reservation, 975 F.2d 683,

687 (10th Cir. 1992).

"When an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot

again be litigated between the same parties in any future

lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970).

Parklane Hosiery sanctioned the offensive use of collateral

estoppel, permitting a plaintiff to "foreclose the defendant

from litigating an issue the defendant has previously litigated

unsuccessfully in an action with another party." 439 U.S. at

326 n.4. Under Parklane, if the components of collateral

estoppel are satisfied, its benefits of economizing judicial

resources and lessening the burdens of relitigating identical

issues already decided, would be afforded a non-mutual

plaintiff provided defendant had previously had a full and fair

opportunity to litigate the issue. Importantly, the decision to

eliminate the mutuality requirement to permit the plaintiff

such a windfall was placed within the trial court's "broad

discretion." Jd. at 331."°

10 Assuredly, we are cognizant of the trial court's broad

discretion and long involvement in the two cases. Neither,

however, trumps the legal elements of the doctrine. Although the

court and counsel may know how an issue was resolved, that

understanding cannot be fully superimposed onto the second jury

without a clear indication of what, in fact, the first jury decided.

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PE YO eet oe —

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Court of Appeals’ Opinion - 2/11/00

In this Circuit, application of collateral estoppel

requires: (1) the issue previously decided is identical with the

one presented in the action in question, (2) the prior action

has been finally adjudicated on the merits, (3) the party

against whom the doctrine is invoked was a party, or in

privity with a party, to the prior adjudication, and (4) the

party against whom the doctrine is raised had a full and fair

opportunity to litigate the issue in the prior action. Murdock,

975 F.2d at 687 (citations omitted). The record copiously

establishes three of the four elements. However, the Boughton

I jury instructions, our blueprint for determining the

parameters of the first jury's verdict, sabotage the existence

of the first element.

As we previously noted, the Boughton I complaint

contained eleven specific allegations of negligence, providing

detail to the preceding three paragraphs alleging Cotter's

duty, breach of the duty, and "negligent acts and/or omissions

of the Defendants, including but not limited to" the catalog of

specific negligent acts. Nonetheless, the first jury was simply

instructed, in part, "negligence means a failure to do an act

which a reasonably careful person or company would

do. ...” The jury was not instructed on the specific duty,

allegedly breached. Nor did the verdict form specify what

negligent act formed the basis of the general finding of

negligence. Counsel for Dodge plaintiff would fill the gap by

stating that seven of the eleven specific counts of negligence

"explicitly refer to releases and the other 4 (E, F. I, and J)

clearly encompass them." Thus, she urges the Boughton trial

was about the release of contaminants and adds "on the special

verdict forms, the jury found that Cotter was negligent in

answering questions about medical monitoring." However, the

Boughton trial did not resolve whether the same released

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Court of Appeals’ Opinion - 2/11/00

contaminants in whatever directions or forms or times

amounted to negligent conduct as to each Dodge plaintiff with

a clear indication the parties intended to be bound for all

future proceedings by that finding.

Moreover, although seven of the eleven specific

allegations may refer in some respect to releases, another

alleges Cotter failed to test incoming ores; a second that

Cotter failed to provide a timely and adequate warning; and

a third that Cotter failed to properly train and supervise its

employees. Nonetheless, our concern is not that the jury did

not find negligence on one or more specific allegations, but

that the general finding under the negligence instruction fails

to identify what the jury found sustained by the evidence.

Thus, we cannot say as a matter of law the issue decided by

the first jury is identical to the issue in controversy in this

case. To attempt to cure that detect by labeling the first trial

a “bellwether,”'' or citing the pretrial order is to no avail.

The Boughton I jury's verdict does not assure an unassailable

finding that plaintiffs met their burden of proof that Cotter

breached a specific duty.

At oral argument, Dodge plaintiffs' counsel

represented the Boughton trial court clearly indicated it would

try the common issues for however many trials were

necessary. In response to the panel's request for every citation

to the record documenting the trial court's express intention

to try the issue of negligence as if it were an exemplar or class

action forvm, Dodge counsel submitted a supplemental

'! The dictionary states a bellwether is “one that takes the

lead.” Webster’s New International Dictionary (3d ed. 1993).

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Court of Appeals’ Opinion - 2/11/00

appendix including the Boughton complaint and jury

instructions; pretrial orders indicating the presence of the

issue of negligence; the special verdict forms; and a Dodge

jury instruction. None of the citations expressly establishes

the parties were on notice the first jury would decide the issue

of negligence as a matter of law for all succeeding trials. For

example, Dodge counsel prefaces inclusion of Boughton jury

instruction 3, in part, to establish "the 8 Cases Were

Bellwether Cases or Sample Cases Because It Would be

Impractical to Try the 500 Boughton cases Separately ."

However, the jury instruction stated, after listing the names

of the parties:

In actuality, more than 500 plaintiffs have filed

this action. Because it would not be practical

to conduct more than 500 separate trials, or

even one trial involving more than 500

plaintiffs, the parties and the Court decided to

designate certain plaintiffs as sample plaintiffs,

or "bellwether plaintiffs," and to /imit this trial

2 to their claims. . . . You should make no

inferences from the Court's selection, and you

are not to speculate or consider the extent to

which these plaintiffs' claims may or may not

represent those of the remaining plaintiffs,

since those claims are not before you.

(italics added). Thus, there is no indication in the record

before us that the parties understood the first trial would

decide specific issues to bind subsequent trials.

In contrast, we would note Instruction 14 on trespass

in Boughton I, an issue the district court did not collaterally

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Court of Appeals’ Opinion - 2/11/00

estop from retrial. That instruction read:

For a plaintiff to recover on a claim of

trespass, each of the following elements must

be present:

1. that plaintiff holds title or a

possessory interest in the property at the time

of the alleged trespass;

2. the defendant sets in motion a force

which, in the usual course of events, will

damage that plaintiff's property; and

3. any entry upon, under or above the

surface of that plaintiffs real estate without

permission or invitation.

If you find that a particular plaintiff has

failed to prove any of these propositions by a

preponderance of the evidence, then your

verdict must be for Cotter on that plaintiffs

trespass claim.

On the other hand, if you find that a

particular plaintiff has proved ali three of these

propositions by a preponderance of the

evidence, then your verdict must be for that

plaintiff on that plaintiff's trespass claim.

The instruction told the jury it must find each etement on a

claim of trespass by a preponderance of the evidence, a

standard of proof explained in Instruction 4. Despite the

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greater specificity of the instruction, the trial court refused to

allow those findings to collaterally estop Cotter from proving

trespass in Dodge. Counsel, however, further argues because

the Boughton I jury found "in favor of each Plaintiff on their

claims for trespass, so clearly the Boughton jury found that

Cotter had released contaminants into the Lincoln Park area."

However, we cannot transpose a general finding that

substances were released under another theory of recovery to

bar Cotter from contesting the range of its conduct and duties

as alleged in a second action to determine its liability.

To place our concerns in a larger context, we would

note Jn re TMI Litigation, 193 F.3d 613 (3d Cir. 1999),

which involved the personal injury claims of over 2,000 area

residents arising out of the 1979 nuclear reactor accident at

Three Mile Island. In that case, the district court adopted a

plan for a "mini-trial" suggested by plaintiffs. The plan called

for an "initial mini-trial of the claims of twelve typical’

plaintiffs, half chosen by plaintiffs and half chosen by

defendants." Jd. at 627. The mini-trial would focus on

plaintiffs’ "ability to demonstrate that they were exposed to

doses of radiation sufficient to cause their neoplasms." Jd. at

623. The parties then clearly agreed to proceed on an "All

Plaintiffs" basis, extending the results of the mini-trial to bind

nonparticipants. “A contrary intention or result would

obviate all benefits of having consolidated the many separate

actions," the district court stated. /d. at 628.

To establish causation, plaintiffs relied on several

experts who testified about the dose of radiation released into

the environment and then correlated the dose to plaintiffs’

injuries. When the district court excluded the dose exposure

testimony under Daubert, it then held its Daubert ruling

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would bind all of the other non-trial plaintiffs. Analyzing this.

ruling under Fed. R. Civ. P. 42(b), the basis for consolidating

all of the cases, the Third Circuit found applying the summary

judgment ruling from the trial plaintiffs to the non-trial

plaintiffs implicated substantive rights protected by the

Seventh Amendment and improperly extended the doctrine of

collateral estoppel/issue preclusion. /d. at 725-26. Despite the

array of arguments-for efficiency and streamlining the trial

process in the face of a single nuclear accident, the Third

Circuit reversed the extension of summary judgment applied

to non-trial plaintiffs.

TMI must remind us to focus on what was actually

litigated and who should be bound and benefit from those

results. That concern must override arguments about

inconsistent results and time-consuming relitigation of the

same issue. If the parties intended to bind subsequent

litigation with the results of prior test trials, the record must

clearly memorialize that agreement. Their failure to do that

here leaves important substantive rights at the mercy of trial

tactics.

We therefore reverse the district court's grant of

partial summary judgment, fully mindful of the impact of the

conclusion on this already protracted and voluminous case. If

Boughton I was to have been the test case in plaintiffs’ effort

to establish this toxic tort, greater care to assure the jury was

properly instructed and the verdict forms were clear was

essential to establish results impervious to relitigation.'*

'2 Obviously, this conclusion moots the remaining issues

raised in the cross-appeals. However, because the question of

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V. Fear of Cancer- 99-1199

The district court granted Cotter's motion for

summary judgment on Dodge plaintiffs’ claim for damages for

emotional distress caused by their increased fear of cancer. In

their cross-appeal, Dodge plaintiffs contend the ruling was

error. Because the ruling represents a final judgment

appropriate for review under 28 U.S.C. § 1291, it, unlike the

other issues mooted by our disposition, remains viable. We

review the district court’s order granting summary judgment

de novo, applying the same standard of Fed. R. Civ. P. 56(c)

as did the district court. Roe v. Cheyenne Mountain

Conference Resort, Inc., 124 F.3d 1221, 1235 (10th Cir.

1997). In this process, we draw all inferences in the non-

movant's favor and analyze Colorado law afresh. Mares v.

ConAgra Poultry Co., 971 F.2d 492, 496 (10th Cir. 1992).

To survive summary dismissal of this claim, Dodge

plaintiffs argued their exposures to hazardous materials caused

a range of physical conditions: bony growths. cataracts,

expert testimony is likely to recur, we would be remiss not to

indicate our concern that the district court vigilantly make detailed

findings to fulfill the gatekeeper role crafted in Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579 ( 1993). Given the

novelty of the medical causation theory here linking exposure to

molybdenum with osteoarthritis and bony exostoses, it is essential

that by specific findings of record the trial court assures the expert

testimony offered by both sides is relevant and reliable, and the

"particular opinion is based on valid reasoning and reliable

methodology." Kannankeril v. Terminix Int'l, Inc., 128 F.3d 802,

806 (3d Cir. 1997). Finally, all outstanding motions are denied as

moot.

\

\

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Court of Appeals’ Opinion - 2/11/00

headaches and irritability, to name a few. They contended

these physical injuries met a threshold for recovery under

Towns v. Anderson, 579 P.2d 1163, 1164-65 (Colo. 1978),

which abolished the physical impact requirement in negligence

cases for emotional distress and permitted a plaintiff who is

subjected to an unreasonable risk of bodily harm because of

another's negligence to recover upon proof of "the internal

operation of fright or other emotional disturbance." Jd. at

1164, quoting Restatement (Second) of Torts § 436(2).

Having met this requirement with the evidence of an array of

manifestations of physical injuries, Dodge plaintiffs, relying

on Boryla v. Pash, 960 P.2d 123 (Colo. 1998), then

contended Colorado law recognized their right to recover

damages for their resulting objective fear of developing

cancer.

The district court rejected the argument, observing

Dodge plaintiffs offered no evidence of an objectively

reasonable chronic, continuing physical manifestation to

support their fear of an increased risk of cancer as required by

Towns and Boryla.’’ Dodge plaintiffs now argue the court

misapplied Colorado's ‘’‘physical impact' rule, which gives

inference to the genuineness of Plaintiffs’ fears so as to permit

the jury to consider damages." We disagree.

In Boryla, plaintiff sought non-economic damages for

emotional distress including the fear of an increased risk of

'? At the continued hearing on the motion on July 16,

1998, the court stated, "I doubt if we're going to have any claims

for fear of cancer. I just don't see that we have sufficient material

or sufficient showing for that."

26a

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the recurrence of her cancer as a consequence of her

physician's failure to promptly diagnose her breast cancer.

960 P.2d at 123. Reversing the Court of Appeals’ granting

defendant a new trial, the Colorado Supreme Court rested its

discussion on what it believed was a clear distinction between

fear of cancer cases arising from a medical malpractice setting

and those involving toxic torts.'* It stated, "In cases where

the plaintiff demonstrates that her cancerous condition

physically worsened as a result of the delayed diagnosis, the

plaintiff has demonstrated a sufficient physical injury to

permit the recovery of emotional distress damages." Jd. at

128. In contrast, the court noted a toxic tort case required a

different standard because "the plaintiff has yet to experience

the onset of cancer," id., but believes the particular exposure

makes him vulnerable to that increased risk. "5

'* The court cited the discussion in Potter v. Firestone Tire

& Rubber Co., 863 P.2d 795 (Cal. 1993), which recognized

significant policy concerns about the "staggering" impact of "an

unrestricted plaintiff class" with fears of cancer. In those Cases, the

California court held, the jury may consider whether "it is more

likely than not that the plaintiff will develop the cancer in the future

due to the toxic exposure," as a threshold for recovery. Id. at 816.

° Defendant physician relied on Potter, which set forth a

higher standard for recovery for fear of cancer damages in toxic

tort Cases, requiring "in the absence of a present physical injury or

illness, damages for fear of cancer may be recovered only if the

plaintiff pleads and proves that (1) as a result of the defendant's

negligent breach of a duty owed to the plaintiff, the plaintiff is

exposed to a toxic substance which threatens cancer; and (2) the

plaintiff's fear stems from a knowledge, corroborated by reliable

medical or scientific opinion, that it is more likely than not that the

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The Colorado Supreme Court concluded, "For these

reasons, traditional negligence principles which focus on

proximate cause as well as the reasonableness of the plaintiff's

fear are sufficient to evaluate fear of cancer claims in medical

malpractice claims." Thus, Boryla was a medical malpractice

case, and the court expressly limited its analysis and holding

to that arena. /d.

Dodge plaintiffs, however, would extend the analysis

to embrace their toxic tort claim, equating the manifestation

of certain acute conditions with a permanent objective injury

leading to an increased risk of cancer. In the absence of any

indication the Colorado Supreme Court would permit such an

expansion, we decline to do so. Nor is it necessary here. At

a minimum, Dodge plaintiffs failed to set forth any evidence

that they suffer from a chronic objective condition caused by

their increased risk of developing cancer to permit their

recovery for emotional distress damages. Although counsel

would sweep every physical manifestation plaintiffs alleged

under this mantle to satisfy Boryla, its efforts are misplaced.

Summary judgment was therefore appropriate on the claim.

We therefore REVERSE and REMAND the case for

a new trial. However, we AFFIRM the order granting

summary judgment on the fear of cancer claim.

plaintiff will develop the cancer in the future due to the toxic

exposure." /d. at $16. Defendant sought to import this "more likely

than not" standard into his medical malpractice case.

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District Court Amended Judgment - 3/11/99

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

[Filed March 11, 1999]

No. 91-Z-1861

NORMAN PLATT, individually and as

personal representative of the Estate of

DOROTHY PLATT: BRUCE

HADLEY; VIRGINIA HADLEY;

JACK HADLEY; SHAYLEE HADLEY:

SID MYERS; KIM HADLEY MYERS;

CASEY MYERS; CHAD MYERS;

DANIEL CHRYSLER; DESIREE

DODGE CHRYSLER; CLAYTON

CHRYSLER; and AUGUST CHRYSLER,

Plaintiffs,

VS.

THE COTTER CORPORATION, and

COMMONWEALTH EDISON

COMPANY.

Defendants.

ee ee ee et er a GP Se ar ir Sar Sa Sa Kor als Ge cn

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District Court Amended Judgment - 3/11/99

AMENDED JUDGMENT

This matter was tried, as to the above plaintiffs only,

on June 15, 1998, through June 24, 1998, and continued on

June 29, 1998, through July 2, 1998, and continued on July

6, 1998, through July 15, 1998, before a jury of eight duly

sworn to try the issues herein, the Honorable Zita L.

Weinshienk, Judge, presiding. The trial proceeded to

conclusion and the jury rendered its Special Verdict Forms as

follows:

zs

That the negligence of defendant Cotter

Corporation (Cotter), which had already been

determined by the Court, caused injuries,

damages, and losses to plaintiffs Norman Platt,

whose claims include claims for the death of

Dorothy Platt, Bruce Hadley, Virginia Hadley,

Jack Hadley, Shaylee Hadley, Sid Myers, Kim

Hadley Myers, Casey Myers, Chad Myers,

Daniel Chrysler, and Desiree Dodge Chrysler.

That neither the New Jersey Zinc Smelter, nor

the Western Energy Power Company were

negligent or at fault.

That neither the New Jersey Zinc Smelter, nor

the Western Energy Power Company caused

the piaintiffs' claimed injuries.

That no damages were incurred by the

plaintiffs for non-economic losses or injuries,

excluding any damages for physical

impairment or disfigurement.

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District Court Amended Judgment - 3/11/99

>

That plaintiff Norman Platt is entitled to

damages for economic losses, excluding any

damages for physical impairment or

disfigurement in the amount of $24,100.00.

That the total amount of damages incurred by

the plaintiffs for physical impairment or

disfigurement are as follows:

Norman Platt $75,900.00

Bruce Hadley 23,000.00

Virginia Hadley 40,008.00

(physical impairment only)

Jack Hadley 203,800.00

Kim Hadley Myers 145,600.00

Casey Myers 254,300.00

(physical impairment only)

Chad Myers 249,300.00

(physical impairment only)

Daniel Chrysler 100,000.00

Desiree Dodge Chrysler 167,300.00

That defendant Cotter was 100% negligent and

said negligence was a cause of plaintiffs'

injuries, damages, and losses.

In favor of plaintiffs on their claims for

medical monitoring.

That defendant Cotter trespassed on the

property of plaintiffs Norman Platt, Bruce

Hadley, Virginia Hadley, Jack Hadley,

Shaylee Hadley, Sid Myers, and Kim Hadley

. |

District Court Amended Judgment - 3/11/99

Myers and awarded damages for said trespass

as follows:

Norman Platt $49,000.00

Bruce Hadley 38,500.00

Virginia Hadley 38,500.00

Jack Hadley 3,850.00

Shaylee Hadley 3,850.00

Sid Myers 21,700.00

Kim Hadley Myers 21,700.00

10. That beyond a reasonable doubt the injuries

caused by Cotter were attended by

circumstances of fraud, malice, or willful and

wanton conduct, and awarded punitive

damages for its conduct as follows:

Norman Platt $149,000.00

Bruce Hadley 61,500.00

Virginia Hadley 78,508.00

Jack Hadley 207,650.00

Shaylee Hadley 3,850.00

Sid Myers 21,700.00

Kim Hadley Myers 167,300.00

Casey Myers 254,300.00

Chad Myers 249,300.00

Daniel Chrysler 100,000.00

Desiree Dodge Ciiysler 167,300.00

The Court determines that there is no just reason for

delay, and expressly directs that judgment enter pursuant to

Fed. R.Civ. P. 54(b). It is therefore,

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District Court Amended Judgment - 3/11/99

ORDERED that judgment is entered in favor of:

Norman Platt in the amount of $298,000.00; Bruce Hadley in

the amount of $123,000.00; Virginia Hadley in the amount of

$157,016.00; Jack Hadley in the amount of $415,300.00;

Shaylee Hadley in the amount of $7,700.00: Sid Myers in the

amount of $43,400.00; Kim Hadley Myers in the amount of

$334,600.00; Casey Myers in the amount of $508,600.00;

Chad Myers in the amount of $498,600.00: Daniel Chrysler

in the amount of $200,000.00; and Desiree Dodge Chrysler

in the amount of $334,600.00 and against defendant Cotter as

to all plaintiffs. It is

FURTHER ORDERED that a judgment requiring

medical monitoring in favor of all plaintiffs and against

defendant Cotter is entered in the amount of $301,939 to be

placed in a trust or an escrow account. It is

FURTHER ORDERED that a judgment covering pre-

judgment interest shall enter in favor of: Norman Platt in the

amount of $194,272.00; Bruce Hadley in the amount of

$85,937.00; Virginia Hadley in the amount of $1 12,122.00;

Jack Hadley in the amount of $316,099.00; Shaylee Hadley

in the amount of $2,328.00; Sid Myers in the amount of

$28,478.00; Kim Myers in the amount of $252,644.00; Casey

Myers in the amount of $173,778.00; Chad Myers in the

amount of $170,362.00; Daniel Chrysler in the amount of

$111,194.00; Desire Chrysler in the amount of $186,028.00

and against defendant Cotter as to all plaintiffs. It is

FURTHER ORDERED that plaintiffs shall have their

costs totalling $11,001.00, to be divided among plaintiffs. It

is

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District Court Amended Judgment - 3/11/99

FURTHER ORDERED that post-judgment interest

shall accrue at the legal rate of 5.413% per annum. It is

FURTHER ORDERED that a stay of execution will

enter on condition that a bond is posted by defendant in the

amount of $5,301,507, within thirty days.

DATED at Denver, Colorado, this // day of March,

1998.

BY THE COURT:

/s/

ZITA L. WEINSHIENK,

Senior Judge

United States District Court

34a

APPENDIX C

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

[Filed March 22, 2000]

Nos. 99-1178, 99-1199

JOSEPH DODGE, individually and

as personal representative of the

Estate of Thelma Dodge;

ROCKY MOUNTAIN EQUESTRIAN

CENTER, INC.; DESIREE CHRYSLER;

DANIEL CHRYSLER; AUGUST

CHRYSLER, AND CLAYTON

CHRYSLER, minors, by and through

their parents and next friends, Desiree

Chrysler and Daniel Chrysler;

PATRICK SHANE DODGE; CONNIE

DODGE; NATHAN DODGE, LESLIE

DODGE, BRYAN DODGE, and

PATRICK DODGE, minors, by and

through their parents and next friends,

Patrick Shane Dodge and Connie Dodge;

YVONNE PEGARARO; NOAH

WELCH, and JEREMIAH WELCH,

minors, by and through their parent and

next friend Yvonne Pegararo; RHONDA

35a

Court of Appeals’ Order - 3/22/00

BUTSON; DANIEL SLANOVICH; GUS)

SLANOVICH; CHANDLER CREEK )

COMPANIES; DONALD LUNA; )

SONJA LUNA; BRETT LUNA; JAMES __)

BLUE, individually and as personal )

representative of the Estate of Virginia )

Blue; EDNA BLUE; NORMAN PLATT, _)

individually and as personal )

representative of the Estate of Virginia )

Blue; EDNA BLUE; NORMAN PLATT, )

individually and as personal )

representative of the Estate of Dorothy )

Platt; RUSSELL JEWETT; BONITA )

JEWETT; SHIRLEY BICKETT; JOHN _)

BICKETT; RICHARD JANITELL; )

RALPH JANITELL; JOHN PINELL; )

EMMA PINELL; JAMES L. TREAT; )

ASPEN TRUST; NARD CLAAR; SARA )

CLAAR; RUTH QUICK JOHNSON; )

BRUCE HADLEY; VIRGINIA )

HADLEY; MIKE HADLEY; )

KATHERINE HADLEY; JACK )

HADLEY; SHAYLEE HADLEY; )

KIM MYERS; SID MYERS; CASEY )

MYERS and CHAD MYERS, minors by _)

and through their parents and next friends )

Kim Myers and Sid Myers; LINDA )

JOHNSON; ALICIA JOHNSON and )

BLAINE JOHNSON, minors by and )

through their mother and next friend )

Linda Johnson; JULIE ANN )

WRIGHT; JENNIFER WRIGHT and )

NICOLE WRIGHT, minors by and )

36a

Court of Appeals’ Order - 3/22/00

through their mother Julie Ann Wright,

and CANON FARMS TRUST,

Plaintiffs - Appellees,

COTTER CORPORATION,

)

)

)

)

vs. ‘ )

)

)

Defendant - Appellant. )

)

ORDER

Filed March 22, 2000

Before PORFILIO, BALDOCK, and MURPHY, Circuit

Judges.

Appellant’s, as well as the Appellees’ petition for

rehearing are denied.

The petitions for rehearing en banc were transmitted

to all of the judges of the court who are in regular active

service as required by Fed. R. App. P. 35. As no member of

the panel and no judge in regular active service on the court

requested that the court be polled, the petitions are also

denied.

Entered for the Court

PATRICK FISHER

Clerk of Court

/s/

Deputy Clerk

37a