McDaniel et al v. United States of America et al

Filing 608

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson granting and denied in part re (469 in 1:17-cv-00710-WJ-SCY, 424 in 1:18-cv-00744-WJ-KK, 1475 in 1:18-md-02824-WJ) MOTION Weston Solutions, Inc.'s Motion for Part ial Summary Judgment to Dismiss the Bellwether Allen Plaintiffs' and McDaniel Plaintiffs' Claims for Noneconomic Damages. Related document(s): (1475 in 1:18-md-02824-WJ, 469 in 1:17-cv-00710-WJ-SCY, 424 in 1:18-cv-00744-WJ-KK) MOTI ON Weston Solutions, Inc.'s Motion for Partial Summary Judgment to Dismiss the Bellwether Allen Plaintiffs' and McDaniel Plaintiffs' Claims for Noneconomic Damages.. Associated Cases: 1:18-md-02824-WJ, 1:17-cv-00710-WJ-SCY, 1:18-cv-00744-WJ-KK (bap)

Case 1:17-cv-00710-WJ-SCY Document 608 Filed 08/11/22 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
IN RE: GOLD KING MINE RELEASE
IN SAN JUAN COUNTY, COLORADO,
ON AUGUST 5, 2015
This Document Relates to:

No. 1:18-md-02824-WJ

No. 17-cv-710-WJ-SCY
No. 18-cv-744-WJ-KK

MEMORANDUM OPINION AND ORDER
GRANTING IN PART WESTON SOLUTIONS, INC.'S MOTION FOR PARTIAL
SUMMARY JUDGMENT TO DISMISS THE BELLWETHER ALLEN PLAINTIFFS'
AND McDANIEL PLAINTIFFS’ CLAIMS FOR NONECONOMIC DAMAGES
Weston moves for partial summary judgment on all claims for noneconomic damages
asserted by the bellwether Allen Plaintiffs and the McDaniel Plaintiffs. See Motion for Partial
Summary Judgment to Dismiss the Allen Plaintiffs' and McDaniel Plaintiffs' Claims for
Noneconomic Damages at 3, Doc. 1475, filed March 7, 2022 ("Motion").

Environmental

Restoration and the Federal Parties joined in Weston's Motion. See Doc. 1482, filed March 7,
2022; Doc. 1495, filed March 7, 2022.
Special Master Hon. Alan C. Torgerson used a hybrid bellwether selection approach to
select a discovery pool so that depositions may be taken in a timely, efficient, and effective manner
stating:
Bellwether plaintiffs are often used in mass tort multi-district litigation ... In this
case, there are approximately 301 Allen Plaintiffs and 15 McDaniel Plaintiffs ...
The primary goal in any bellwether selection process is to employ a method of
selection for both discovery and bellwether trials that provides meaningful
information that is regarded by both sides as representative and that can be
extrapolated to the plaintiff group as a whole. The purpose of any bellwether
process is to allow the parties to reach a settlement of the individual plaintiffs'
claims.
Order at 1-2, Doc. 475, filed February 26, 2020.

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There are two categories of noneconomic damages which are discussed below: (i) damages
for annoyance and discomfort; and (ii) damages for emotional distress. Before the selection and
depositions of the bellwether Plaintiffs, the Court, in a ruling on a motion to dismiss, struck the
Allen Plaintiffs' claims for emotional distress and deferred ruling on whether the Allen Plaintiffs
claims for annoyance and discomfort can proceed. See Doc. 182 at 8, filed May 31, 2019 (noting
that Colorado law distinguishes emotional distress damages from damages for annoyance and
discomfort). The Allen Plaintiffs later filed a notice clarifying the scope of their personal injury
claims stating they claim damages for "loss of enjoyment, annoyance, discomfort, and
inconvenience" and for "the intangible, subjective, noneconomic losses, including the loss of peace
of mind based on their fear that contaminants could be present in their food, their fields and the
perceived stigma attached to their crops, food and land." Doc. 954, filed December 7, 2020.
Colorado Law Regarding Non-Economic Damages
Under Colorado law:
The goal of tort damages is to compensate the injured landowner “for any and all
losses that result from the conduct for which the defendant is liable, including the
loss of the use of the property, if any, and any separate injuries in the nature of
discomfort, annoyance or physical illness.” Board of Cnty. Comm'rs v. Slovek, 723
P.2d 1309, 1318 (Colo.1986). The Slovek court explained that the subjective “use
value” of the property to the owner or occupant may be a distinct and separate
component of the property damage. Id. “An owner should be allowed to recover for
any interference with or loss of this ‘use value’ that results from another's tortious
action if that loss can be satisfactorily demonstrated in concrete terms.” Id. If
“reasonable and competent evidence” is presented about “personal injury to the
landowner in the form of discomfort and annoyance, [including] sickness,”
compensation should be awarded. Id. (citing Restatement (Second) of Torts § 929
cmt. e (1979)).
....
After Webster, a division of this court clarified that the Slovek principles apply to
any tort action “involving damages for injury to real property” where “the fact
finder is required to determine, as nearly as possible, the actual loss suffered by the
property owner.” Hawley v. Mowatt, 160 P.3d 421, 424 (Colo.App.2007).

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Hendricks v. Allied Waste Transp., Inc., 282 P.3d 520, 524-525 (Colo. App. 2012) (emphasis in
original).
Damages available on trespass and nuisance claims can include not only diminution
of market value or costs of restoration and loss of use of the property, but also
discomfort and annoyance to the property owner as the occupant. Board of County
Commissioners v. Slovek, 723 P.2d 1309 (Colo.1986); Burt v. Beautiful Savior
Lutheran Church, 809 P.2d 1064 (Colo.App.1990).
We recognize that annoyance and discomfort by their very nature include a mental
or emotional component, and that some dictionary definitions of these terms
include the concept of distress. Nevertheless, the “annoyance and discomfort” for
which damages may be recovered on nuisance and trespass claims generally refers
to distress arising out of physical discomfort, irritation, or inconvenience caused by
odors, pests, noise, and the like. See Staley v. Sagel, 841 P.2d 379 (Colo.App.1992)
(affirming damages on nuisance claim based on effects of dust, smell, and waste
disposal from neighboring hog farm); Burt v. Beautiful Savior Lutheran Church,
supra (damages on trespass claim included loss of use of basement and discomfort
and annoyance caused by smell in the home following water damage); Miller v.
Carnation Co., 39 Colo.App. 1, 564 P.2d 127 (1977) (damages for annoyance and
discomfort caused by flies and rodents from neighboring poultry ranch); see also
Krebs v. Hermann, 90 Colo. 61, 6 P.2d 907 (1931) (plaintiff entitled to injunction
on nuisance claim against kennel where offensive odors and barking dogs deprived
him and his family of sleep).
Our cases have permitted recovery for annoyance and discomfort damages on
nuisance and trespass claims while at the same time precluding recovery for “pure”
emotional distress. See Slovek v. Board of County Commissioners, 697 P.2d 781
(Colo.App.1984) (holding that damages for annoyance and discomfort were
available on trespass claim, but that recovery for emotional distress was not
available where there was no allegation of negligent infliction of emotional distress
or outrageous conduct), aff'd, 723 P.2d 1309 (Colo.1986); Calvaresi v. National
Development Co., 772 P.2d 640 (Colo.App.1988) (in action for tortious injury to
land, plaintiffs were entitled to put on evidence to establish discomfort, annoyance,
physical illness, and loss of use and enjoyment of property, but were not entitled to
recover damages for emotional distress).
Courts in other jurisdictions have held that the general rule barring recovery for
emotional distress without accompanying physical injury applies to nuisance and
trespass claims. See Maddy v. Vulcan Materials Co., 737 F.Supp. 1528
(D.Kan.1990) (no recovery for emotional distress on trespass and nuisance claims);
Coddington v. Staab, 716 So.2d 850 (Fla.App.1998) (damages for emotional or
mental harm were outside the scope of damages for trespass); see also Boughton v.
Cotter Corp., 65 F.3d 823 (10th Cir.1995) (under Colorado law, unfounded fears

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of cancer were not compensable as annoyance and discomfort damages on nuisance
and trespass claims).
....
we conclude that plaintiffs' testimony regarding their emotional distress should not
have been admitted.
Webster v. Boone, 992 P.2d 1183, 1185-1187 (Colo. App. 1999); Hawley v. Mowatt, 160 P.3d 421,
426 (Colo. App. 2007) (annoyance and discomfort damages generally do not include recovery for
“pure” emotional distress annoyance and discomfort damages generally do not include recovery
for “pure” emotional distress).
Summary Judgment
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “There is a genuine issue of
material fact if a rational jury could find in favor of the nonmoving party on the
evidence presented.” Fassbender v. Correct Care Sols., LLC, 890 F.3d 875, 882
(10th Cir. 2018) (quotations omitted).
“The movant bears the initial burden of making a prima facie demonstration of the
absence of a genuine issue of material fact ....” Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 670 (10th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The movant may carry this burden “by
‘showing’—that is, pointing out to the district court—that there is an absence of
evidence to support the nonmoving party's case.” Celotex, 477 U.S. at 325, 106
S.Ct. 2548. The burden then shifts to the nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256, 106
S.Ct. 2505.
When applying this standard, courts “view the evidence and draw all reasonable
inferences therefrom in the light most favorable to the party opposing summary
judgment.” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148
(10th Cir. 2000).
In re Rumsey Land Co., LLC, 944 F.3d 1259, 1270-71 (10th Cir. 2019); Valdez v. United Food &
Commercial Workers Union Local 7, 122 Fed.Appx. 443, 445 (10th Cir. 2005) ("The mere
existence of a scintilla of evidence in support of the nonmovant's position is insufficient to create

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a dispute of fact that is genuine; an issue of material fact is genuine only if the nonmovant presents
facts such that a reasonable jury could find in favor of the nonmovant").
Plaintiffs' Claims for Non-Economic Damages
Plaintiffs' claims for noneconomic damages include claims for emotional distress. Weston
cites several depositions of the bellwether Allen Plaintiffs and the McDaniel Plaintiffs where
Plaintiffs state the Gold King Mine Release caused them to: (i) become depressed; (ii) worry; (iii)
be scared of the water; (iv) not trust the water; (v) become stressed; (vi) suffer mentally and
spiritually; (vii) worry about getting cancer; and (viii) become sad. See Motion at 5-12. Some of
the Plaintiffs cried because the Release contaminated the river. See id.
Plaintiffs' claims for noneconomic damages also include claims for annoyance and
discomfort. The Allen Plaintiffs cite several depositions of the bellwether Allen Plaintiffs where
Plaintiffs state the Gold King Mine Release caused them to: (i) haul water for livestock and crop
irrigation; (ii) limit their consumption of water; (iii) sell their livestock; (iv) be unable to grow
crops for religious ceremonies; and (v) purchase food instead of relying on the crops they grew.
See Allen Plaintiffs' Response at 10-24, Doc. 1552, filed April 8, 2022. Some of the Allen Plaintiffs
stated that the Release interfered with their hobbies and religious activities. See id.
The Allen Plaintiffs took no position on Weston's facts regarding claims by the McDaniel
Plaintiffs. The McDaniel Plaintiffs joined in the Allen Plaintiffs' Response stating:
The McDaniel Plaintiffs do not dispute the raw facts ## 31-37 that were cherry
picked from the McDaniel Plaintiffs' depositions. However, none of the cited facts
prevent the McDaniel Plaintiffs from an award of non-economic damages, which
as more fully described in the response joined hereto, are not dependent on physical
injury or mental health counseling, Defendant's attempt at mischaracterizing those
damages notwithstanding.
Doc. 1586, filed April 20, 2022.
Emotional Distress Damages
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The Court grants Weston's Motion for summary judgment on the bellwether Allen Plaintiffs
and McDaniel Plaintiffs' claims that seek compensation for emotional distress. See Webster v.
Boone, 992 P.2D 1183, 1185-1186 (Colo. App. 1999) ("Our cases have permitted recovery for
annoyance and discomfort damages on nuisance and trespass claims while at the same time
precluding recovery for “pure” emotional distress").
Annoyance and Discomfort Damages
The Court denies Weston's Motion for summary judgment to the extent it seeks dismissal
of annoyance and discomfort damages asserted by the bellwether Allen Plaintiffs and McDaniel
Plaintiffs. See Motion at 3 (stating Weston "moves for partial summary judgment on all claims
for noneconomic damages asserted by the group of bellwether Allen Plaintiffs and McDaniel
Plaintiffs"). Several of the bellwether Allen Plaintiffs testified that they suffered annoyance and
discomfort due to the Release, such as hauling water for livestock, irrigation and domestic use,
and interference with hobbies and religious activities.
Weston argues that the "individual plaintiffs' claimed non-economic damages are not
recoverable because they do not arise from any physical interference with their use of property."
Motion at 18-19 (emphasis in original) (citing cases where there was physical damage to the
property). Under Colorado law, an individual can recover damages for the annoyance and
discomfort arising out of physical discomfort, irritation or inconvenience without physical injury
to their property. See Webster v. Boone, 992 P.2d at 1185-86 ("the annoyance and discomfort for
which damages may be recovered on nuisance and trespass claims generally refers to distress
arising out of physical discomfort, irritation or inconvenience caused by odors, pests, noise, and
the like") (citing cases where odors, flies and rodents, or barking dogs on neighboring properties
caused discomfort and distress); see also Hendricks v. Allied Waste Transp., Inc., 282 P.3d at 524-

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525 (“[a]n owner should be allowed to recover for any interference with or loss of this ‘use value’
that results from another's tortious action if that loss can be satisfactorily demonstrated in concrete
terms”) (emphasis added). The Court will allow Plaintiffs' annoyance and discomfort claims to
proceed because Plaintiffs have alleged that tortious actions at the Gold King Mine interfered with
Plaintiffs' use and enjoyment of their properties by preventing them from using San Juan River
water for irrigation and livestock purposes.
Time Limit on Annoyance and Discomfort Claims
The Court denies Weston's request that non-economic damages for loss of use of property
be confined to the 2015 growing season. See Motion at 16-20. Weston set forth the following
facts:
2. On August 15, 2015, the State of New Mexico lifted its restrictions on use of the San
Juan River other than a recommendation to “catch and release” fish caught in the
stream. The “catch and release” restriction was lifted on September 4, 2015. See Ex.1,
The State of New Mexico’s Objections and Responses to Federal Parties’ First Set of
Requests for Admission to New Mexico, Requests for Admission 54-55.
....
4. By October 22, 2015, the Navajo Nation “determined that, based on the information
currently available to it as well as assurances from the U.S. EPA, the San Juan River is
now safe to use for both irrigation and livestock purposes.” At that time, the Navajo
Nation lifted agricultural use restrictions for the remaining chapters. See Ex. 3, Dep.
Ex. Becker – 466.

Motion at 4. Weston argues:
The individual plaintiffs’ claimed non-economic damages are not recoverable because
they do not arise from any physical interference with their use of property. Whatever
loss of or interference with the use of property, if any, that the individual plaintiffs
suffered due to the spill was limited in duration. The restrictions on use of the San Juan
River for irrigation, livestock watering, and other purposes were lifted for all individual
plaintiffs by the beginning of the 2016 irrigation season, if not sooner. UMFs 1-4. Any
longer interference with use was not due to any lingering physical impediment. Rather,
any continuing disuse of plaintiffs’ property was due to plaintiffs’ personal choice to
delay resumption of their use of the San Juan River due to subjective apprehension or
worry about potential continuing effects of the spill....

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Ultimately, the individual plaintiffs seek compensation for their emotional trauma,
feelings of loss, and worry following the spill. These damages are unrelated to any loss
of use of their properties due to the Gold King Mine spill and relate instead entirely to
their subjective reaction to the spill. Colorado tort law affords no recovery in this
situation. The noneconomic damages must be dismissed.

Motion at 19-20.
Plaintiffs argue that their annoyance and discomfort continued after the water use
restrictions were lifted in 2015:
There are also ample disputed material facts showing that the physical interference to
Plaintiffs' property lasted well beyond the time the use restrictions were lifted,
including the fact that many Plaintiffs did not resume irrigating their property multiple
years after the Gold King Mine blowout (“Blowout”) (and some still do not irrigate
due to fear of contamination or inability to restore their farming operations due to lack
of income).
....
These cases establish that Plaintiffs are permitted to recover noneconomic damages for
as long as the jury finds that they lost use of their property and experienced annoyance
and discomfort. Further, Plaintiffs’ testimony demonstrates that their noneconomic
damages continued well beyond the dates the use restrictions were lifted and even
continue to present day. See DMFs 6-30. “The rule is well settled that one may not
recover damages for an injury which he might by reasonable precautions or exertions
have avoided. What constitutes a ‘reasonable’ precaution is for the trier of fact to
determine upon the evidence.” Valley Dev. Co. v. Weeks, 364 P.2d 730, 733 (Colo.
1961) (en banc) (internal quotation marks and citation omitted). Thus, the extent of
“reasonable” precaution is a disputed question of fact for the jury to determine, not a
question of law that can properly be addressed through summary judgment based on
the dates of various government restrictions. Weston’s labeling of Plaintiffs’ decisions
[to] not use water as nothing more than “personal choice,” Motion at 17-18, is overly
simplistic and improperly infers that their decisions were not reasonable. See Anderson,
477 U.S. at 255 (inferences at this stage all inferences must be drawn in Plaintiffs’
favor). Weston’s characterization also ignores or minimizes the unique and intimate
relationship Plaintiffs have with the River. Plaintiffs explained their personal
relationship with the river and testified that they were afraid to consume the crops or
feed their family and friends the crops because they worried the food was poisoned.
See DMFs 6-30. It is undisputed that Plaintiffs’ access to water was disrupted due to
the Blowout and the question about the appropriate temporal scope of the resulting
annoyance and disturbance damages is one for a jury. See Valley, 364 P.2d at 733.
Response at 33-35. Plaintiffs state "there are disputed material facts regarding the continuing trespass
and nuisance and the long-term health effects from the Blowout" and "incorporate by reference
Plaintiffs’ Response to Weston’ Trespass Motion (see Dkt. 1539 at 7-8, DMF 4, 6, filed 04/04/22) and

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the Navajo Nation’s Response to the NN Torts Motion (see Dkt. 1549 at 3-7, DMF 2, filed 04/04/22)
that outlines in detail the ongoing harm to the water quality of the River and discusses the River as a
deity." Response at 8. Plaintiffs have cited to portions of the record that indicate: (i) "Aluminum

and dissolved lead ... continue to exceed [NNEPA standards for] aquatic and wildlife chronic
criteria in the years after 2015;" (ii) "high-flow events in 2019 carried larger concentrations of
metals through the lower Animas River and into the San Juan river than were seen in pre-Spill
data;" (iii) "The Spring 2016 snowmelt caused '27 exceedances of NNEPA domestic water supply
and primary and second human contact for total lead." Doc. 1549 at 9, filed April 4, 2022.
Weston has not met its initial burden of making a prima facie demonstration of the absence
of a genuine issue of material fact because it has not cited to portions of the record showing that
the Release did not affect the water quality of the San Juan River after the 2015 growing season.
Plaintiffs have cited portions of the record indicating that the Release impacted water quality in
2016 and 2019.
Use of the San Juan River
The Court grants Weston's request to dismiss the Allen Plaintiffs' claims "for noneconomic
damages related to loss of use of, or harm to, the San Juan River." Reply at 8, filed April 22, 2022.
Weston contends:
The Allen Plaintiffs cannot recover non-economic damages stemming from alleged
harm to the San Juan River. Plaintiffs’ AMFs are replete with references to the loss of
use of the San Juan River. See, e.g., Resp. at ¶¶ 2, 7, 8, 10, 12-13, 16-17, 19, 22-23,
and 28. But the San Juan River is not real property belonging to any individual plaintiff.
See 22 NAVAJO CODE § 1103 (“the Navajo Nation is the owner of the full equitable
title to all of the waters of the Navajo Nation.”); N.M. Const. art. XVI, § 2; NMSA
1978 § 72-1-1 (all natural watercourses in the State of New Mexico belong to the
public). No Allen Plaintiff has a property interest in the river.
Consequently, the Allen Plaintiffs’ claims for loss of use of the San Juan River for
fishing (Resp. at ¶¶ 8, 16-17, 19, 23, and 28), swimming (Resp. at ¶¶ 12, 16-17,19, and
22-23), camping (Resp. at ¶ 17), or direct watering of livestock (Resp. at ¶¶ 13 and 22)
are not based upon harm to their real property and therefore are not recoverable.

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Likewise, Plaintiffs’ claims of disturbance and annoyance in the form of anxiety about
the potential contamination of the river or spiritual harm to the deity of the San Juan
River, no matter how genuinely held, are not recoverable as property damages because
they do not have a property interest in the river itself.
Reply at 7-8.
The Allen Plaintiffs argue that:
Damages are available based on a change in the environment that annoys and disturbs
religious activities. In Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U.S. 317,
330 (1883), the Supreme Court affirmed annoyance and disturbance damages awarded
to a church for its private nuisance claim based on excessive noise and smoke and from
the defendant on an adjoining property; the defendant’s noise was so loud that it
disrupted the members’ religious activities. Id. at 319. The Supreme Court found that
the church “was entitled to recover because of the inconvenience and discomfort
caused to the congregation assembled.” Id. at 330.
Response at 39. The United States Supreme Court stated that the rule regarding liability for annoyance
and discomfort that applies to individuals also applies to corporations and that the church "was entitled
to recover because of the inconvenience and discomfort caused to the congregation." Baltimore &
P.R. Co. v. Fifth Baptist Church, 108 U.S. 317, 330, 335 (1883). The decision by the United States
Supreme Court in 1883 did not state that the individual church members were entitled to recover for
annoyance and discomfort. The Allen Plaintiffs have not cited any Colorado law which would allow
the Allen Plaintiffs to recover damages for annoyance and discomfort arising from Plaintiffs' loss of
use of real property that is not owned by the Allen Plaintiffs. See Response at 39-40.

The Court dismisses the Allen Plaintiffs’ claims for noneconomic damages related to loss of
use of, or harm to, the San Juan River. "Damages available on trespass and nuisance claims can
include not only diminution of market value or costs of restoration and loss of use of the property,
but also discomfort and annoyance to the property owner as the occupant." Webster v. Boone, 992
P.2d 1183, 1185-1187 (Colo. App. 1999) (emphasis added).

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IT IS ORDERED that Weston Solutions, Inc.'s Motion for Partial Summary Judgment to
Dismiss the Allen Plaintiffs' and McDaniel Plaintiffs' Claims for Noneconomic Damages,
Doc. 1475, filed March 7, 2022, is GRANTED in part and DENIED in part as follows:
(i)

The Court dismisses the Allen Plaintiffs' and McDaniel Plaintiffs' claims for
emotional distress.

(ii)

The Court denies Weston's request to dismiss the Allen Plaintiffs' and McDaniel
Plaintiffs' claims for annoyance and discomfort damages.

(iii)

The Court denies Weston's request to dismiss the Allen Plaintiffs' and McDaniel
Plaintiffs' claims for annoyance and discomfort damages arising after the 2015
growing season.

(iv)

The Court dismisses the Allen Plaintiffs’ claims for noneconomic damages related to
loss of use of, or harm to, the San Juan River.

________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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