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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 824

## Text

preme Court, U.&
FILED

992025 JUN 1 5 on

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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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Court of Appeals’ Opinion - 2/11/00

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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Court of Appeals’ Opinion - 2/11/00

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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Court of Appeals’ Opinion - 2/11/00

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

10a

a

Court of Appeals’ Opinion - 2/11/00

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.

lla

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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Court of Appeals’ Opinion - 2/11/00

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;

13a

Court of Appeals’ Opinion - 2/11/00

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.

l4a

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
*

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

33a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_0897%3A1. Public record. Not legal advice.