Cook, et al v. Rockwell Intl Corp

Filing 2351

ORDER REGARDING BRIEFING at ECF. DOCS. 2344 , 2345 , & 2350 . Plaintiffs may not litigate this case outside the PAA. Parties shall prepare a Joint Status Report discussing the most effective way to proceed that is consistent with this Order and the Tenth Circuit's mandate. The Joint Status Report is due on or before February 25, 2014. By Judge John L. Kane on 1/28/14. (mfiel, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 90-cv-00181-JLK
MERILYN COOK, et al.,
Plaintiffs,
v.
ROCKWELL INTERNATIONAL CORPORATION AND THE DOW CHEMICAL
COMPANY,
Defendants.

ORDER REGARDING BRIEFING at ECF. DOCS. 2344, 2345, & 2350
Kane, J.
A. Introduction
After holding a Status Conference to determine the contours of remand, I directed
the parties to brief the following two issues: “1) May a plaintiff who brings a PriceAnderson Act claim simultaneously pursue a freestanding state-law claim based on the
same facts?”; and “2) Does the existing jury verdict in this case support entry of this
Court’s judgment on Plaintiffs’ nuisance claim under Colorado law and diversity
jurisdiction?”
The answer to the first question is “no” and consequently I do not reach the second
question. I arrive at my conclusion with reluctance and sympathy for Plaintiffs. I remain
convinced that the Colorado jurors in this case correctly found Plaintiffs to have suffered
a nuisance under Colorado state-law based on the nuclear contamination for which
Defendants are responsible, but I have come to terms with the fact that the law, which I

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am bound to uphold, does not permit independent Colorado state-law claims based on
alleged radiation injury.1
Simply put, the Price-Anderson Act (“PAA” or “Act”) preempts state-law tort
claims arising from atomic energy production and establishes an exclusive federal
remedial scheme for such claims. Accordingly, a plaintiff who brings a PAA claim may
not pursue a freestanding state-law claim based on the same facts. The Tenth Circuit’s
conclusion that Plaintiffs’ proof was insufficient to satisfy the PAA’s injury requirement
does not mean that Plaintiffs are now free to pursue, outside the PAA, the same claims
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The Tenth Circuit did not find that a nuisance was established under state-law. Rejecting Restatement
(Second) of Torts § 821F cmt. f (1965), it held that “[t]he Colorado Supreme Court would not permit
recovery premised on a finding that an interference, in the form of anxiety or fear of health risks, is
‘substantial’ and ‘unreasonable’ unless that anxiety is supported by some scientific evidence.” Cook v.
Rockwell Int'l Corp., 618 F.3d 1127, 1132 (10th Cir. 2010). “To the extent Plaintiffs rely on anxiety from an
increased risk to their health as an interference with the use and enjoyment of their properties, that
anxiety must arise from scientifically verifiable evidence regarding the risk and cannot be wholly
irrational.” Id. Why I nonetheless think the jurors properly found a nuisance, however, is because there
was evidence scientifically verifying an increased health risk, and I believe that evidence informed the
jurors’ decision to find the claimed anxiety an unreasonable and substantial harm. The problem is that
the Tenth Circuit Opinion requires more than that the risk be scientifically verified; it also requires that the
risk be quantified:
Plaintiffs' experts merely testified that any exposure to plutonium whatsoever
increases the risk of health problems to some degree. Without an
accompanying estimate or calculation of the increased risk, however, this
evidence is insufficient to establish a loss of use under 42 U.S.C. § 2014(q).
Plaintiffs must instead prove that the particular level of risk created by
Defendants' conduct had the effect of actually depriving them of a specific use.
Id. at 1142 (first emphasis in the original; second emphasis added). I disagree and would not penalize
Plaintiffs for the fact that nuclear science is not yet advanced enough to assign a specific numeric value
to an increased health risk. I would not impose an arbitrary bright-line “particular level of risk” standard for
anxiety-based nuisance recovery, and I especially would not announce that there was to be a particular
level of risk standard and then not specify what that level is. Plaintiffs’ experts, whose testimony was not
challenged by Defendants on appeal, testified that, if inhaled, even one atom of plutonium could cause
cancer. Tr. 3639 (Goble); 5743-44 (Wing). Indeed, recognizing that plutonium can be extremely
dangerous, even in tiny quantities, the federal government has never promulgated any rules relating to
purported “permissible” amounts of plutonium in soil. Tr. 7549-50, 7590, 7644 (Defendants’ expert,
Frazier). For dozens of other similar facts about the dangerousness of plutonium, facts that were testified
to by both Plaintiffs’ and Defendants’ experts, I refer to ECF Doc. 2344, Ex. 1. These facts are sufficient
scientific verification for general acceptance in the scientific community and clearly enough to make
anxiety about exposure to plutonium contamination both predictable and reasonable.

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based on the same alleged radioactive releases. A failed PAA claim based on an alleged
nuclear incident is simply a failed claim, not a state-law claim in waiting.
B. Statutory Background
From its inception, nuclear power has been subject to a comprehensive federal
regulatory framework. The first piece of the framework was laid when Congress passed
the Atomic Energy Act of 1946, Act of Aug. 1, 1946, ch. 724, 60 Stat. 755, which
established a federal monopoly over the development of nuclear power. See Duke Power
Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 63 (1978) (“When Congress
passed the Atomic Energy Act of 1946, it contemplated that the development of nuclear
power would be a government monopoly.”). About a decade later Congress permitted
private sector involvement with passage of the Atomic Energy Act of 1954, Act of Aug.
30, 1954, ch. 1073, 68 Stat. 919 (the “1954 Act”).
The 1954 Act provided for “licensing of private construction, ownership, and
operation of commercial nuclear power reactors for energy production,” id., and “grew
out of Congress' determination that the national interest would be best served if the
Government encouraged the private sector to become involved in the development of
atomic energy for peaceful purposes under a program of federal regulation and
licensing.” Pacific Gas and Electric Co. v. State Energy Resources Conservation & Dev.
Comm'n, 461 U.S. 190, 207 (1983) (citing H.R.Rep. No. 2181, 83d Cong., 2d Sess., 1–11
(1954)). Despite the 1954 Act authorizing private nuclear energy participation, private
utilities were reluctant to enter the field, primarily because of “the risk of potentially vast
liability in the event of a nuclear accident.” See Duke Power, 438 U.S. at 64 (discussing
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that enormous potential liability is associated with nuclear accidents.) To address that
concern, Congress enacted the Price–Anderson Act of 1957(“PAA” or “Act”) “to protect
the public and to encourage the development of the atomic energy industry.” Pub. L. No.
85–256, § 1, 71 Stat. 576 (1957).
The Act restricted the civil liability of nuclear plant operators and provided federal
subvention to help pay damages caused by nuclear accidents. Id. The PAA has been
amended three times, most notably in 1988. The 1988 Amendments created federal
jurisdiction for public liability actions arising from nuclear incidents. 42 U.S.C. §
2014(hh). A “public liability action” is defined as “any suit asserting public liability”
based upon alleged exposure to “source, special nuclear, or byproduct material.” 42
U.S.C. § 2014(hh), (q). “Public liability” is defined, in part, as “any legal liability arising
out of or resulting from a nuclear incident or precautionary evacuation ...” 42 U.S.C. §
2014(w).
A “nuclear incident” is “any occurrence, ... within the United States causing, within or
without the United States, bodily injury, sickness, disease, or death, or loss of or damage
to property, ... arising out of or resulting from the radioactive, toxic, explosive, or other
hazardous properties of source, special nuclear, or byproduct material ....” 42 U.S.C. §
2014(q). Section 2014(hh) provides that “the substantive rules for decision of [a public
liability] action shall be derived from the law of the State in which the nuclear incident
involved occurs, unless such law is inconsistent with the provisions of section [2210].”
42 U.S.C. § 2014(hh).

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C. A “Public Liability Action” Under The PAA Is The Exclusive Cause Of
Action For Harm Allegedly Caused By Radioactive Releases From Rocky
Flats.
Defendants argue that Plaintiffs may not pursue a freestanding Colorado state-law
claim based on harm allegedly caused by radioactive releases from Rocky Flats because
the PAA completely preempts any such state-law claim.2 Plaintiffs make two primary
objections to this position, asserting first that Defendants have waived the argument and
second that finding the PAA to preempt state-law tort claims would violate due process. I
reject both arguments.
The PAA itself does not explicitly address the issue of claim preemption. But
every federal circuit, including the Tenth Circuit, to consider whether the PAA preempts
state causes of action for public liability arising out of or resulting from nuclear incidents
has concluded that it has. For example, in Nieman v. NLO, 108 F.3d 1546, 1547 (6th
Cir.1997), the plaintiff asserted various state-law claims based on allegations that a
discharge of uranium from a nuclear processing facility in Fernald, Ohio had damaged his
property. The Sixth Circuit affirmed the district court's dismissal of plaintiff's state-law
2

Although the Tenth Circuit recognizes four distinct types of preemption doctrines, see Devon Energy
Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1203 n.4 (10th Cir. 2012), Defendants focus
their energies on the application of so-called “complete” preemption. Because I ultimately conclude that
complete preemption does apply, I refrain from passing comment on the parties’ remarks surrounding
conflict preemption. For purposes of answering the question presented, the definitive query is whether
state-law claims are preempted; once preemption is found to apply, the type of preemption applicable
does no further work upon the answer. I also note that while it is the Tenth Circuit’s practice to distinguish
“field” preemption from “complete” preemption, see id., at least one circuit court has suggested that the
doctrines of field preemption and complete preemption are coterminous. See Stuart Weitzman, LLC v.
Microcomputer Res., Inc., 542 F.3d 859, 864 n. 4 (11th Cir. 2008) (noting that “complete preemption” is
“also called ‘field preemption’ ”). Similarly, secondary sources often treat the terms as substitutes. See,
e.g., 15 Moore's Federal Practice § 103.45[2] (“[I]n complete preemption cases, federal law so occupies
the field that any complaint alleging facts that come within the statute's scope necessarily ‘arise under’
federal law, even if the plaintiff pleads a state law claim only.” (Emphasis added)). This memorandum
adopts the Tenth Circuit’s distinction of the terms for its own prose, but occasionally will make use of case
law citations that refer to “field” preemption. Unless otherwise specified, “field” preemption in a citation
refers to what the Tenth Circuit considers “complete” preemption.

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trespass action, noting that the PAA had not merely created a new federal cause of action,
i.e. a public liability action, but that “a new federal cause of action supplants the prior
state cause of action.” Id. at 1549 (quoting O'Conner v. Commonwealth Edison Co., 13
F.3d 1090, 1100 (7th Cir.), cert. denied, 512 U.S. 1222 (1994)). “[t]he state law claims
cannot stand as separate causes of action. Nieman can sue under the Price–Anderson
Act, as amended, or not at all.” Id. at 1553 (emphasis added). The Tenth Circuit similarly
used bold language in Kerr–McGee Corp. v. Farley, 115 F.3d 1498, 1504 (10th Cir.1997)
to describe the preemptive effects of the PAA, calling the Act’s provisions “sweeping”
and stating that the 1988 Amendments “appear broad enough to create a federal forum for
any tort claim even remotely involving atomic energy production.”
The Ninth, Eleventh, Seventh, and Third Circuits agree. See In re Berg Litig., 293
F.3d 1127, 1132 (9th Cir.2002) (public liability action is plaintiff's “exclusive means” for
pursuing claims arising from a nuclear incident); Roberts v. Florida Power & Light Co.,
146 F.3d 1305, 1306 (11th Cir.1998) (“Congress passed the Price–Anderson
Amendments Act of 1988 ... creating an exclusive federal cause of action for radiation
injury.”); O'Conner, 13 F.3d at 1100, 1105 (“a new federal cause of action supplants the
prior state cause of action.... [S]tate regulation of nuclear safety, through either legislation
or negligence actions, is preempted by federal law.”); In re TMI Litig. Cases Consol. II,
940 F.2d 832, 854 (3d Cir.1991) (TMI II ) (“After the Amendments Act, no state cause of
action based upon public liability exists. A claim growing out of any nuclear incident is
compensable under the terms of the Amendments Act or it is not compensable at all.”)
(emphasis in original).
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Most defeatingly for Plaintiffs’ position, the Supreme Court has also held that the
PAA preempts state causes of action for public liability arising out of or resulting from
nuclear incidents. In El Paso Natural Gas Co. v. Neztsosie, the Supreme Court explained
that the exclusive remedial structure of the PAA was one:
in which a public liability action becomes a federal action, but one
decided under substantive state-law rules of decision that do not
conflict with the Price-Anderson Act, resembles what we have
spoken of as complete pre-emption doctrine, under which the preemptive force of a statute is so extraordinary that it converts an
ordinary state common-law complaint into one stating a federal
claim for purposes of the well-pleaded complaint rule.
Neztsosie, 526 U.S. at 484 n.6 (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 393
(1987))(internal quotation marks and citation omitted). I interpret the Supreme Court’s
choosing to describe the PAA’s structure as “resembling” complete preemption (as
opposed to “presenting” or some other word more directly expressing that the PAA is an
example of the complete preemption doctrine) as simply an acknowledgment that the
complete preemption of the PAA is unique for applying substantive state-law rules of
decision where they are not in conflict with the PAA. The typical complete preemption
framework applies only federal law. See Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 1
(2003)(explaining that complete preemption exists under the Labor Management
Relations Act, 1947 and the Employee Retirement Income Security Act of 1974 and that
these statutes provide the “exclusive cause[s] of action” and set forth the procedures and
remedies for the claims). In other words, in my view, Neztsosie stands for the proposition
that the PAA completely preempts state-law in terms of the vehicle for bringing a claim,
but does not necessarily preempt state substantive law in terms of the rules of decision.
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The weight of authority is so great and crystalline on this matter that Plaintiffs
voice no disagreement that the PAA preempts tort claims arising from nuclear incidents.
Instead, they argue their facts do not concern a “nuclear incident” and therefore that the
PAA does not apply at all.3 I am not persuaded. First, Plaintiffs’ argument ignores their
own allegations. Plaintiffs’ operative complaint includes allegations that their lawsuit is
a public liability action arising from a nuclear incident. Second Amended Complaint ¶¶
1, 3, 5, 96. Second, Plaintiffs already made this argument to the Tenth Circuit,
contending, as they do here, that they “also assert[] diversity jurisdiction,” and, therefore,
“[i]f plaintiffs’ trespass and nuisance claims do not arise out of a nuclear incident, they
must be independent state law tort claims” pursuable 28 U.S.C. § 1332. Pls.’ Supp. 10th
Cir. Br. at 10. The Tenth Circuit implicitly rejected this argument, never once hinting that
the claims could stand as independent state-law claims and instead giving this clear
instruction: “On remand, Plaintiffs will be tasked with producing additional evidence that
could support a jury's finding that a nuclear incident occurred, in the form of ‘loss of or
damage to property, or loss of use of property’ under 42 U.S.C. § 2014(q).” Cook, 618
F.3d at 1142.
As a district court judge, I am “bound to carry the mandate of the upper court into
execution” and may “not consider the questions which the mandate laid at rest.” Sprague
v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939) (citations omitted). I simply not pass
upon any issue that was “expressly or impliedly” disposed of on appeal. Procter &
3

Despite this premise serving as the building block of Plaintiffs’ argument, Plaintiffs do not cite any
authority holding that a plaintiff simultaneously may pursue a PAA claim and a state-law claim based on
the same facts.

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Gamble Co. v. Haugen, 317 F.3d 1121, 1126 (10th Cir. 2003)(emphasis added). Because
the Tenth Circuit expressly directed Plaintiffs to present evidence of a nuclear incident
and did not authorize their proposed alternative method of pursuing their claims as
independent state-law tort claims under 28 U.S.C. § 1332, I may not here endorse their
renewed pursuit of independent state-law tort claims.
In any event, I agree that allowing Plaintiffs simultaneously to litigate a
freestanding state-law claim based on the same facts as their PAA claim would
undermine the liability-limiting purpose of the PAA. See, e.g., Cook, 618 F.3d at 1145
n.20 (noting that “the state-law ‘interference with use’ [nuisance] standard presents a
lower threshold than the PAA’s ‘loss of use’ standard”); id. at 1140 (noting that one
purpose of the PAA amendments was “to limit recovery to the discrete group of injuries
enumerated in § 2014(q)”). Through the PAA, Congress struck a balance between
compensating the victims of nuclear incidents and fostering the development of nuclear
energy and technology. That balance is explicit in the PAA itself, where Congress found
that “[t]he development, utilization, and control of atomic energy for military and for all
other purposes are vital to the common defense and security,” and that the PAA was
necessary “[1] to protect the public and [2] to encourage the development of the atomic
energy industry.” 42 U.S.C. § 2012(a) & (i). See also Duke Power, 438 U.S. at 64
(quoting § 2012(i) in noting the “dual purpose” of the PAA). The PAA’s twin goals
express the intention that nuclear operators should not face the risk of crippling liability
without any of the protections of the PAA with regard to plaintiffs who claim injuries

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stemming from the hazardous properties of special nuclear material but allege those
injuries as state-law claims instead of as PAA claims.
The Ninth Circuit in In re Hanford rejected an argument similar to the one
Plaintiffs advance here. It held that, even though claims for medical monitoring were not
compensable under the PAA absent a present bodily injury, plaintiffs who claimed only
increased risk from an alleged nuclear incident could not pursue medical monitoring
claims in state court under a state-law theory:
The PAA is the exclusive means of compensating victims for any
and all claims arising out of nuclear incidents. Berg, 293 F.3d at
1132; In re TMI Litig., 940 F.2d at 854; see also 42 U.S.C. §
2014(hh), (w) (federal courts have jurisdiction over public liability
actions, defined as “any suit asserting . . . any legal liability arising
out of or resulting from a nuclear accident”) (emphasis added).
This result is consistent with Congress’s explicit intent in enacting
the 1988 Amendments and avoiding piecemeal litigation arising
from nuclear incidents. We therefore affirm the district court’s
exercise of jurisdiction over Plaintiffs’ medical monitoring claims
and its conclusion pursuant to our decision in Berg that they were
not compensable under the Act. The district court properly denied
Plaintiffs’ request for a remand to state court.
In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1003 (9th Cir. 2008).
That same reasoning applies in this case. Plaintiffs have alleged a nuclear incident
and the PAA is their exclusive remedy. Plaintiffs may or may not be able ultimately to
prove that they are among the persons who suffered bodily injury, property damage or
loss of use of property as a result of plutonium releases from Rocky Flats. If they cannot
prove one or more of these, however, it means they cannot meet their burden of proving
that they have suffered a form of damage compensable under the PAA, not that their
claim arises outside of the PAA. A failed PAA claim is a failed claim in toto; the failure
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of proof does not transform a PAA claim into a state-law claim that may be pursued
independent of the PAA.
1. Defendants Have Not Waived a Complete Preemption Argument
Plaintiffs assert Defendants “[n]ever raised a complete preemption argument,” and
thus have waived it. Pls.’ Br. at 18. This is incorrect. The record shows that Defendants
argued on appeal that “[t]he 1988 PAA amendments completely federalized this area of
the law by making a ‘public liability action’ under the PAA, 42 U.S.C. § 2014(w), ‘the
exclusive means of compensating victims for any and all claims arising out of nuclear
incidents.’” Defs.’ 10th Cir. Br. at 25 (quoting Hanford, 534 F.3d at 1009).
Plaintiffs next push for waiver by selectively quoting the Tenth Circuit as stating
that this action “does not involve complete preemption of state tort law,” Cook IX, 273 F.
Supp.2d at 1192 n. 12. Similarly, Plaintiffs quote the Tenth Circuit as “agree[ing] with
the district court that § 2014(hh) does not expressly preempt state law,” Pls.’ Br. at 18
(quoting Cook, 618 F.3d at 1143). These quotations come, however, from sections in
which the Tenth Circuit dealt only with the issue of whether “federal nuclear safety
standards . . . preempt state tort standards of care under the PAA,” Cook, 618 F.3d at
1142, not whether the PAA provides the exclusive remedy for claims arising, as alleged
here, from a nuclear incident and asserting public liability. The argument premised on
these quotes is irrelevant and confuses the question I posed—whether the PAA permits or
preempts freestanding state-law claims based on the same facts as the PAA claim—with
the entirely different question of whether PAA § 2014(hh) preempts state tort law
standards of care. The fact that PAA § 2014(hh) does not expressly preempt state tort
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law—and in fact uses state-law as the substantive rules for decision in PAA cases—is not
germane to the question of whether the PAA preempts freestanding state-law claims
based on the same facts as the PAA claim.
Plaintiffs similarly miss the mark in arguing that “[t]he Court of Appeals expressly
noted that Defendants did not advance a field preemption argument on appeal,” Pls.’ Br.
at 18 (citing Cook, 618 F.3d at 1143 n.16, 1144 n.19). They are again confusing two
distinct preemption issues. In the footnotes Plaintiffs cite, the Tenth Circuit was again
referring to preemption of state tort law duty of care by federal safety standards, whereas
the question here is whether the PAA completely preempts state claims arising out of
nuclear incidents. I hold that waiver is no bar to Defendants complete preemption
argument.

2. The PAA’s Exclusive Remedial Scheme Does Not Violate Due Process

Plaintiffs argue in their Opening Brief that the PAA violates their right of due process
to the extent it does not allow them to recover based on a scientifically unfounded risk of
harm. To begin, “it is not at all clear that the Due Process Clause in fact requires that a
legislatively enacted compensation scheme either duplicate the recovery at common law
or provide a reasonable substitute remedy.” Duke Power at 88. Even if it were clear, the
law has never suggested that an identical substitute remedy be afforded. What is required
is a “reasonable” substitute remedy, and the Supreme Court has straightforwardly opined
that the PAA “provide[s] a reasonably just substitute for the common-law or state tort law

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remedies it replaces.” Id. I find no merit in Plaintiffs’ due process arguments against
preemption and note that Plaintiffs do not renew this line of argument in their Reply.

D. Conclusion
For the reasons stated above, Plaintiffs may not litigate this case outside the PAA.
Parties shall prepare a Joint Status Report discussing the most effective way to proceed
that is consistent with this Order and the Tenth Circuit’s mandate. The Joint Status
Report is due on or before February 25, 2014.4

DATED:

January 28, 2014
BY THE COURT:
s/John L. Kane
John L. Kane, U.S. Senior District Judge

4

Because of the extraordinary length of this litigation, I suggest that both parties give serious
consideration to requesting a F.Civ.P. Rule 54 (b) certification of this Order.

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