$350 million verdict upheld in Rocky Flats case

Judge tacks on interest in suit by plant's neighbors

By John C. Ensslin, Rocky Mountain News (Contact)

Published May 20, 2008 at 9 p.m.
Updated May 21, 2008 at 8:34 a.m.

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A federal judge has upheld a jury verdict of $350 million against the former operators of the defunct Rocky Flats nuclear plant in a class-action lawsuit brought by the plant's neighbors.

Judge John Kane affirmed the February 2006 verdict in a 73-page ruling released Tuesday and tacked on 8 percent interest compounded annually dating back to the time the suit was filed in January 1990.

A lawyer for the plaintiffs said that works out to more than $900 million for some 15,000 property owners in the judgment against Dow Chemical Co. and Rockwell International Corp.

"We're very pleased to have a ruling from Judge Kane on these issues and look forward to an end to this long, long process," said Steven Kelly, a lawyer for the property owners.

At least one of the original group of five neighbors who brought the suit has died.

Their suit charged that contamination from the nuclear plant lowered their property values and constituted a trespass and a nuisance that prevented them from using and enjoying their property.

Despite the victorious ruling, some plaintiffs didn't want to talk about the lawsuit that has dragged on 18 years since its filing.

"We're not commenting on it at all. In fact, you needn't call back," the wife of William Schierkolk, 76 of Arvada, said today. She declined to give her name.

Both sides cautioned that the case is far from over and certainly will go now to the 10th Circuit Court of Appeals.

"There are some very extreme problems that have plagued this case and undermined its viability," said David Bernick, a Chicago lawyer representing Rockwell and Dow. "What this means is that all of these problems now can be aired for the first time before the Court of Appeals."

Bernick said he was "somewhat surprised" that it took Kane 15 months after the jury's verdict to issue his judgment.

In his ruling, Kane also noted it was time for the case to go to the appellate court.

"This action has been pending now for 18 years," he wrote. "The parties, and especially the members of the Plaintiff Class, deserve as speedy a resolution as is possible under the Federal Rules."

Lawyers for Rockwell and Dow contended that a harmless, minuscule amount of plutonium escaped from the plant.

Rockwell pleaded guilty in 1992 to 10 federal environmental crimes, including five felonies, and paid a $18.5 million fine.

Lawyers for Rockwell and Dow had sought to overturn the jury's verdict, arguing that it was inconsistent and exceeded a cap on punitive damages.

But Kane rejected those arguments, finding that the verdict was consistent with the instructions that had been given to the jury. He also found that the damages were "not excessive."

"Defendants' misconduct was not the result of a single incident," Kane wrote, "but rather a series of incidents and also routine practices over decades of operating Rocky Flats, some of which were attended by circumstances of dishonesty, subterfuge and deceit."

He also rejected a defense argument that the neighbors were not entitled to interest on the judgment because the verdict had included a Consumer Price Index adjustment.

The judge outlined a plan in which a court-appointed claims administrator would oversee distribution of the judgment.

But he stayed his order until the defense has time to file an appeal.

• May 21, 2008

  8:19 a.m.

  Suggest removal

  Ottis writes:

  It would be helpful, for those of us who are not familiar with this story, if the article included the "where?" or "who/what/when/where/why." Where do the people live who are suing - county, town or neighborhoods? Where was Rocky Flats? It could be just a couple of sentences.

• May 21, 2008

  8:20 a.m.

  Suggest removal

  jacka writes:

  Trial lawyer scores huge, what his cut again?

• May 21, 2008

  9:46 a.m.

  Suggest removal

  mikeb80602 writes:

  previous Rocky story:
  http://www.rockymountainnews.com/drmn...

  Rocky Flats Plant:
  http://en.wikipedia.org/wiki/Rocky_Fl...

• May 21, 2008

  12:03 p.m.

  Suggest removal

  HolierThanThou writes:

  You could take X-rays with what these companies refer to as a "harmless minuscule amount of plutonium". The mix includes other radioactive isotopes such as americium, polonium, and uranium.

  These "harmless" amounts of plutonium and its oxides are also flammable. They spontaneously ignite if they are allowed to accumulate in the presence of air. This caused fires in building 771 in 1957 and buildings 776 and 777 in 1969. The radioactivity released by these incidents was easily detectable in Denver.

  Engineers warned management of these hazards only to be ignored or fired. Finally, the whistle-blowing got so loud and persistent that the FBI started investigating in the late 1980s. They found them incinerating waste and venting the exhaust to atmosphere. For that, Rockwell suffered an 18 million dollar slap on the wrist.

  What's missing in all these cases are punishments for the executive management. These were the decision makers who injured the health of workers and neighbors making huge profits off their own criminally negligent conduct.

  We need a speedy process. China has one. We should stop importing their cheap goods and try using what works well for them. Executives and owners of companies that kill people and act irresponsibility are sometimes tracked down, tried, and shot within an hour of their conviction. Now that's justice. Jerking people around in court for 18 years is a pathetic excuse.

• May 21, 2008

  1:45 p.m.

  Suggest removal

  westminsternative writes:

  HolierThanThou - You are absolutely correct in you assessment.
  We as community will be dealing with Rocky Flats for Generations to come. As someone who lost a friend at 25, and lived in the West Arvada area to a rare form of cancer that would normally only afflict young children, it truly makes you wonder.
  It wasn’t until college during an environmental sciences class that I really understood the effects of Rocky Flats on the area. I still find it hard to believe that they have allowed the building of homes and communities in areas that used to come up to the fence line of the facility. I don’t care what studies were done during the development of the area; it can’t be safe to live that close to some place that had plutonium ash spread all over the property.

• May 21, 2008

  4:31 p.m.

  Suggest removal

  Darling writes:

  If split evenly, after lawyer's fees, each property owner will get $33,333.33.

  That's less than they'd get on unemployment for 18+ years.

  It's a sad state of affairs when a large corporation can drag on litigation until the plaintiffs just die off.

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