Uproar on Flats ruling

Lawyer for Dow, Rockwell challenges jury's 8-2 votes

Karen Abbott, Rocky Mountain News

Published February 16, 2006 at midnight

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Lawyers on both sides of the Rocky Flats case agreed last month that only eight of the 10 jurors had to vote "yes" or "no" in order to reach a verdict, according to notes exchanged between the jurors and the judge.

But now a lawyer for defendants Dow Chemical Co. and Rockwell International Corp. is challenging the jury's 8-2 votes favoring the plaintiffs in the landmark class-action lawsuit.

The jury's verdict, announced Tuesday after a four-month trial, awarded almost $354 million to thousands of neighbors of the former Rocky Flats nuclear weapons plant.

Moments after the verdict was announced, attorney David Bernick asked to question the jurors and read the notes they took during their deliberations. He argued that, because one juror was excused during deliberations after she left the jury room in tears and said she didn't want to return, some jurors may have improperly bullied others into changing their votes.

Bernick argued that one vote could have altered the outcome.

The civil lawsuit did not require a 12-member jury or a unanimous verdict, but the parties had agreed in advance that the verdicts would require more than a simple majority. Jurors said in court afterward that though they were split 8-2 on some votes, they were unanimous on all the amounts they awarded to the plaintiffs.

Bernick filed a handwritten motion Tuesday for the jurors' notes to be preserved while lawyers argue over whether the deliberations should be investigated. Colorado U.S. District Judge John Kane so far has refused to release the jurors' names or let the lawyers question them. The jury was selected from voter registration rolls and driver's license rolls in northeastern Colorado.

A process for resolving that argument likely will be discussed Friday, when Kane has scheduled a telephone conference with the lawyers.

The telephone conference will be conducted in Kane's courtroom in the downtown Denver federal trial courthouse and will be open to the public.

Notes exchanged between the jurors and Kane during deliberations in January show that jurors weren't sure, after one of them left, how many had to vote one way or another in order to decide the numerous questions on the 30-page verdict form. Another juror had been excused earlier because of a family emergency.

"Do we still have to have 9 yes or no votes. Or is it 8 to 2 = 10 total jurors?" the jury asked in a handwritten note to Kane on Jan. 25.

Kane wrote back the same day: "I have consulted with counsel for the parties and the answer is 'Yes, eight (8) "yes or no" votes is enough' to reach agreement on any question before you."

Wanted: supplies, deli tray

The jurors also sent Kane at least 35 other notes during their 17 days of deliberations. Some asked for explanations of complicated legal rules. Others asked for help locating certain exhibits. Still others asked for office supplies or food and water.

"Request for supplies," said a note sent to Kane on Jan. 23. It listed "12 highlighters yellow, 12 highlighters other color, 2 sizes of stickie pads, paper clips, staplers."

"Please order deli tray for Monday," said another note.

"We need more notebooks," said a third.

A Jan. 30 note indicated hard work was under way: "8 Red Bull, 20 water, 2 boxes tissues," it requested.

By Feb. 6, the jurors were doing math. "We need calculator," their note said.

Four days later: "Can we please have 12 Red Bull 20 water."

Finally, on Feb. 13, "We have reached a verdict."

The jury decided that Dow and Rockwell sloppily handled radioactive plutonium at the plant, allowing the substance to pollute the neighbors' property and interfering with their use and enjoyment of what they owned.

Dow and Rockwell contended that they safely and properly handled the plutonium during the four decades of the weapons factory's operation and that only minuscule amounts - too small to harm anyone - ever escaped from the plant.

Loose ends to be sorted out

The dollar figures of the jury's awards to the plaintiffs for compensatory damages from Dow and Rockwell on trespass and nuisance claims, plus punitive damages from each of the two companies, totaled $554 million.

But Louise Roselle, a plaintiffs' attorney who was in the courtroom Tuesday, said the amounts listed on the verdict form cannot simply be added together.

The total is about $554 million, but the actual payments that will result are no more than about $354 million, she said.

"The actual number adds up to $554 million, because they awarded compensatory damages against Dow of $176 million and against Rockwell of $176 million, but we can't get double damages," said Roselle. "So, the actual compensatory number is really $176 million" - actually, about $176.9 million.

Additionally, Roselle explained, although the jury also awarded $200 million in punitive damages, they cannot exceed the compensatory damages under Colorado law.

Therefore, said Roselle, "The judge will probably reduce the punitive damages to $176 million" to match the compensatory damages figure.

As a result, Roselle said, she is considering the class-action plaintiffs' historic victory to be about a $354 million payday.

"There is still an issue on whether we can get pre-judgment interest, which would probably double or triple it," she said.

But Roselle could offer no timeline on when that issue would be addressed.

"There are obviously a lot of issues that will have to be sorted out," she said. "The defendants, I'm sure, will appeal."

Bernick was traveling to Chicago on Wednesday and could not be reached.

Other issues to be sorted out:

• How the money should be divided among the thousands of property owners in the area east of Rocky Flats that is affected by the verdict. Kane might appoint a special master or trustee to consider each person's claim.

People who think they might be entitled to a share of the verdict should contact the Denver law firm of Silver & DeBoskey, 303-399-3000, one of the firms representing the plaintiffs.

• Whether plaintiffs can receive interest on the verdict award.

• Whether plaintiffs can claim additional compensation for health effects.

• Whether a settlement might be reached to avoid further litigation.

Staff writer Charlie Brennan contributed to this report. abbottk@RockyMountainNews.com or 303-892-5188

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