$926M Verdict Vacated|in Nuclear Liability Case

     (CN) – The 10th Circuit overturned a $926 million award for the owners of property near the now-defunct Rocky Flats Nuclear Weapons Plant in Colorado, citing inadequate jury instructions.

     A class of property owners in the Denver area sued Dow Chemical Co. and Rockwell International Corp. in 1990 for trespass and nuisance, claiming the plant released radioactive plutonium particles onto their properties from 1952 to 1989.
     The plutonium exposure allegedly increased the plaintiffs’ risk of developing cancer.
     After a four-month trial, a jury ruled for the property owners, and the district court awarded them just over $926 million, including punitive damages.
     The verdict had been based on violations of the Price-Anderson Act, which allows plant owners to be held liable for a “nuclear incident” – in this case, the release of plutonium particles.
     On appeal, Rockwell and Dow Chemical argued that the federal judge failed to instruct the jury that, in order to find the companies liable, the plaintiffs had to establish that a “nuclear incident” occurred, and that this incident caused their injuries.
     But the plaintiffs were never required to — and never did — establish that they could no longer use their property due to the increased health risks of radioactive plutonium, the court said.
     “Plaintiffs’ experts merely testified that any exposure to plutonium whatsoever increases the risk of health problems to some degree,” Judge Michael Murphy wrote (emphasis in original). “Without an accompanying estimate or calculation of the increased risk, however, this evidence is insufficient to establish a loss of use.”
     Because the jury was not properly instructed on this “essential element” of the PAA claim, the court set aside the verdict and remanded.
     Judge Murphy added that the success of the trespass claim hinges on whether the plaintiffs can prove “actual physical damage to their properties.”
     The federal government had hired Dow to build nuclear weapons components at Rocky Flats from 1952 to 1975. Rockwell operated the plant from 1975 until it was shut down in 1989, following a search by the FBI and the Environmental Protection Agency.
     Rockwell ultimately pleaded guilty to environmental crimes at the site, and the area is now a wildlife refuge.
     The plaintiffs’ properties lie within a 30-square-mile area east of Rocky Flats.

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