Dodge v. Cotter Corporation

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 11 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JOSEPH DODGE, individually and as
personal representative of the Estate of
Thelma Dodge; ROCKY MOUNTAIN
EQUESTRIAN CENTER, INC.;
PATRICK SHANE DODGE; CONNIE
DODGE; NATHAN DODGE, LESLIE
DODGE, BRYAN DODGE, and
PATRICK DODGE, minors, by and
through their parents and next friends,
Patrick Shane Dodge and Connie Dodge;
YVONNE PEGARARO; NOAH
WELCH, and JEREMIAH WELCH,
minors, by and through their parent and
next friend Yvonne Pegararo; RHONDA
BUTSON; DANIEL SLANOVICH; GUS
SLANOVICH; CHANDLER CREEK
COMPANIES; DONALD LUNA;
SONJA LUNA; BRETT LUNA; JAMES
BLUE, individually and as personal
representative of the Estate of Virginia
Blue; EDNA BLUE; RUSSELL
JEWETT; BONITA JEWETT; SHIRLEY
BICKETT; JOHN BICKETT; RICHARD
JANITELL; RALPH JANITELL; JOHN
PINELL; EMMA PINELL; JAMES L.
TREAT; ASPEN TRUST; NARD
CLAAR; SARA CLAAR; RUTH QUICK
JOHNSON; MIKE HADLEY;
KATHERINE HADLEY; LINDA
JOHNSON; ALICIA JOHNSON and
BLAINE JOHNSON, minors by and
through their mother and next friend
Linda Johnson; JULIE ANN WRIGHT;
JENNIFER WRIGHT and NICOLE
WRIGHT, minors by and through their
mother Julie Ann Wright, and CANON
FARMS TRUST,

Plaintiffs,

DESIREE CHRYSLER; DANIEL
CHRYSLER; AUGUST CHRYSLER,
and CLAYTON CHRYSLER, minors, by
and through their parents and next friends,
Desiree Chrysler and Daniel Chrysler;
NORMAN PLATT, individually and as
personal representative of the Estate of
Dorothy Platt; BRUCE HADLEY;
VIRGINIA HADLEY; JACK HADLEY;
SHAYLEE HADLEY; KIM MYERS;
SID MYERS; CASEY MYERS and
CHAD MYERS, minors by and through
their parents and next friends Kim Myers
and Sid Myers,

Plaintiffs - Appellees and
Cross - Appellants,

v.
Nos. 99-1178, 99-1199
COTTER CORPORATION,

Defendant - Appellant and
Cross - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 91-Z-1861)

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John L. Watson (Marsha M. Piccone, W. David Byassee, and Mark T. Barnes with him
on the briefs), Freeborn & Peters, Denver, Colorado, for Defendant-Appellant.

Suzelle M. Smith (Don Howarth with her on the briefs), Howarth & Smith, Los Angeles,
California, for Plaintiffs-Appellees.

Before BALDOCK, PORFILIO, and MURPHY, Circuit Judges.

PORFILIO, Senior Circuit Judge.

In 1958, Cotter Corporation, a subsidiary of the Commonwealth Edison Company

of Illinois, began operating a uranium mill near Canon City, Colorado, extracting uranium

from ore by an alkaline leach process. The two types of waste produced by that process,

tailings, dust-like particles of ore, and raffinate, liquid recovered from the uranium

extraction solutions, eventually contaminated the area, including the semi-rural

community of Lincoln Park, and triggered its designation as a Superfund site on the

EPA’s National Priority List. Subsequently, some five hundred Lincoln Park residents

filed an action under the Comprehensive Environmental Response Compensation and

Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, the Price-Anderson Act, 42 U.S.C.

§ 2210(n)(2), and Colorado law alleging Cotter’s negligent operation of the mill caused

damage to their health and property. After class certification was denied, eight plaintiffs,

selected for the first trial, convinced a jury Cotter was negligent in operating the mill but

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failed to establish its negligence caused their exposure to hazardous materials which

required future medical monitoring.

Now before us is a second group of fourteen plaintiffs who, armed with the first

jury’s finding of negligence, established Cotter’s negligence caused their physical injuries

and were awarded monetary damages. Cotter assails the judgment on numerous grounds,

and plaintiffs cross-appeal. Of the many issues Cotter raised, one predominates. After

careful review of this ponderous record, we conclude the district court incorrectly applied

the doctrine of offensive collateral estoppel, precluding Cotter from litigating the issue of

negligence. For the single issue remaining in plaintiffs’ cross-appeal, whether the district

court properly granted summary judgment dismissal of their fear of cancer claim, we

reject the contention of error. We, therefore, reverse the judgment and remand the action

for retrial.

I. Background

The Cotter uranium mill (the Mill) occupies a 640-acre site in south central

Colorado, two and a half miles south of Canon City. Lincoln Park, an unincorporated

area, is a mile and a half north of the Mill. The Arkansas River borders Lincoln Park’s

northern rim while Sand Creek and the DeWeese Dye Ditch angle across its southern

perimeters. During its years of operation crushing ore into “yellowcake,” a concentrated

uranium,1 dry tailings were carried off-site by winds. Liquids, recovered from the

1
The Mill produced and shipped the yellowcake to nuclear power plants in
(continued...)

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uranium extraction solutions and stored in unlined ponds, leached into groundwater

beneath the Mill and flowed north toward Lincoln Park along the Sand Creek channel.

As early as 1959, the Atomic Energy Commission (AEC), which then regulated

uranium production operations at the Mill, notified Cotter of violations of the conditions

of its license. Annual violations of AEC standards of Protection Against Radiation

occurred through 1968 when the state of Colorado (the State) took over responsibility

from the AEC for licensing radioactive materials. In the meantime, Cotter’s production

rose from 50 tons of uranium a day in 1958 to 1200 tons a day in 1979, when the State

relicensed the Mill.

In an effort to clean up the site, both the EPA and the Colorado Department of

Public Health and Environment (Department) targeted the Mill’s unlined storage ponds as

a primary source of the proliferation of such hazardous substances as uranium,

molybdenum, thorium, radium, selenium, arsenic, and lead. By 1981, Cotter had closed

eight unlined ponds and constructed two new tailings facilities sealed with an eighteen

inch hypalon liner overlaid with six inches of clay.2 Later, Cotter added a clay barrier to

the Sand Creek Dam to prevent water flow from the Mill into Lincoln Park. Despite

these efforts, state inspections would reveal tears in the ponds’ linings or violations of air

1
(...continued)
northern Illinois owned by Commonwealth Edison, Cotter’s parent company.

These ponds, an integral part of the Mill operation and site, are vast; one covers
2

91 acres; the other 44 acres.

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emissions standards. Although Cotter ceased operating the Mill in 1987, the Department

projected the clean-up would not be completed until 2012.3

In 1983, after persistent and unabated violations, the State sued Cotter in federal

court for damages to natural resources and clean-up of the contamination. State of

Colorado v. Cotter Corp., Case. No. 83-C-2389. In 1988, the parties settled the matter by

a Consent Decree which provided a Remedial Action Plan (Plan). The Plan required the

creation of the Human Health Risk Assessment Panel (Panel) which prepared a report in

1991 on the Lincoln Park Superfund Site evaluating the health risks to the surrounding

populations from the Mill’s off-site chemical releases. The Panel quantified exposures to

Mill-related chemicals in air, surface water, sediment, ground water, soil, and different

types of locally raised food; measured the toxicity of the exposures; and assessed the

possible health risks based on those evaluations. The Panel concluded “risks to humans

were generally low, especially when judged in comparison to natural ‘background’ levels

of mill-related metals in the environment.” However, the Panel excepted from that

conclusion a possible health concern in drinking ground water “because of the presence

of molybdenum (and, to a lesser extent, uranium) in the water.”

II. Boughton Trial

In 1989, some five hundred residents and property owners living in Lincoln Park,

Brookside, a community east of the Mill, and Canon City (collectively, Lincoln Park)

Cotter planned to resume operations in 1999.
3

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filed suit in federal court. In an amended complaint, Lincoln Park plaintiffs requested

statutory relief under CERCLA and sought damages exceeding $350 million for Cotter’s

negligence, strict liability, nuisance, willful and wanton conduct, outrageous conduct,

trespass, and absolute liability. In addition, plaintiffs requested damages and injunctive

relief for medical monitoring. Although plaintiffs sought class certification, the district

court held the action was not maintainable under Fed. R. Civ. P. 23(a) because individual

issues predominated over common issues of law or fact. The parties then agreed to the

selection of eight bellwether plaintiffs (Boughton plaintiffs) for the first trial.

The Boughton plaintiffs did not allege any physical illnesses or injuries. Instead,

they claimed they and their property were exposed to hazardous substances from the

Cotter Mill and sought damages for trespass to real estate; damages for nuisance; and

medical monitoring based on negligence.

At the close of the evidence after a twenty-three day trial, the court framed the

issues for the jury to decide with the parties’ claims and defenses. It instructed the jury,

in part, “The plaintiffs claim that they and their properties have been exposed to

radioactive and hazardous contamination as a result of Cotter’s milling operation. They

assert that this contamination has significantly increased their risk of health problems, and

that they are therefore entitled to medical monitoring.” Although the Boughton plaintiffs

did not claim their exposure to hazardous substances caused physical injuries, they

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contended medical monitoring of the possible adverse effects of the exposures was

required. For Cotter’s theory of defense, the court told the jury,

Cotter admits that its operations have caused some ground water
contamination by radioactive and molybdenum materials in certain limited
areas, but Cotter states that the contamination has been and is now being
cleaned up pursuant to a government-supervised Remedial Action Plan.
Cotter claims that it did not engage in any conduct nor breach any legal
standard for which it would be liable to plaintiffs.

The court then instructed the jury on negligence tracking the language of the

Colorado Civil Jury Instructions. Instruction 25 provided:

The plaintiffs claim that Cotter was negligent, and therefore
plaintiffs are entitled to medical monitoring.

Negligence means a failure to do an act which a reasonably careful
person or company would do, or the doing of an act which a reasonably
careful person or company would not do, under the same or similar
circumstances to protect others from bodily injury or property damage.

Even if statutes, ordinances or regulations govern the actions of a
person or corporation, that person or corporation must use reasonable care
under the particular circumstances and conditions prevailing.

Reasonable care is that degree of care which a reasonably careful
person or company would use under the same or similar circumstances.

The degree of care that constitutes reasonable care increases in
proportion to the degree of risk associated with the particular activity.

Instruction 26 set forth each of the elements the jury had to find for the Boughton

plaintiffs to succeed on the claim of negligence for medical monitoring. It stated:

In order for any particular plaintiff to recover from Cotter on his or
her negligence claims for medical monitoring, you must find that all of the
following have been proved as to that particular plaintiff:

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 1. that the particular plaintiff was significantly exposed to a proven
hazardous substance;

2. that Cotter was negligent;

3. that Cotter’s negligence was a cause of that plaintiff’s exposure;

4. that as a result of that exposure, the particular plaintiff suffers a
significantly increased risk of contracting a serious latent disease;

5. that the significantly increased risk makes periodic diagnostic
medical examinations reasonably necessary; and

6. that monitoring and testing procedures exist which make the early
detection and treatment of the disease possible and beneficial.

The determination of which of the plaintiffs, if any, are entitled to
medical monitoring must be made independently for each plaintiff.

If you find that a particular plaintiff has proved all six of these
propositions by a preponderance of the evidence, then your verdict must be
for that plaintiff on that plaintiff’s negligence claim for medical monitoring.

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 After five days of deliberation, the jury returned separate special verdict forms4 for

each plaintiff making a claim of negligence for medical monitoring, trespass, and

nuisance. There was no separate verdict form on which the jury found Cotter was

negligent under Instruction 25. However, on each of the plaintiffs’ “Negligence claim for

medical monitoring Special Verdict Form,” the jury was asked whether Cotter was

negligent and found Cotter negligent. For each Boughton plaintiff the jury also found

there was no exposure to hazardous substances making reasonably necessary future

medical monitoring or testing.5 After the verdicts were read, the jury asked the court,

“[C]ould you explain about the other 500 plaintiffs? We promise we never considered

them during deliberation.” The court told them because it was impossible to try such a

large case, it was hoped that an initial bellwether trial might provide some “indication

The special verdict form stated:
4

1. Was [plaintiff] significantly exposed to a proven hazardous substance?
(Yes or No)
2. Was defendant Cotter negligent? (Yes or No)
3. Was Cotter’s negligence, if any, a cause of [plaintiff’s] exposure, if any?
(Yes or No)
4. As a result of his exposure, if any, does [plaintiff] suffer a significantly
increased risk of contracting a serious latent disease? (Yes or No)
5. Does this significantly increased risk, if any, make periodic diagnostic
medical examinations reasonably necessary for [plaintiff]? (Yes or No)
6. Do monitoring and testing procedures exist which make the early detection
and treatment of the disease possible and beneficial for [plaintiff]? (Yes or
No)
5
Three plaintiffs prevailed on nuisance claims; six succeeded on their claims of
trespass although only four were awarded monetary damages. No non-economic or
exemplary damages were awarded.

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helpful” to resolve the remaining plaintiffs’ cases. The Boughton plaintiffs’ appeal of the

denial of class certification and other issues was later rejected. Boughton v. Cotter

Corp., 65 F.3d 823, 828 (10th Cir. 1995). Cotter did not cross appeal.

III. Dodge Trial

In the second trial, fourteen plaintiffs (collectively here, Dodge), members of four

Lincoln Park families, filed an amended complaint which was virtually identical to the

complaint in Boughton I. Although the years of the alleged negligence are slightly

different,6 the Dodge complaint alleged verbatim Cotter’s negligence rested on its breach

of the “duty to properly control and contain the radioactive and/or hazardous materials,”

and “to prevent said radioactive and/or hazardous materials and constituents from being

released into the air and allowed to migrate or leak into the groundwater, surface water,

rivers and soils in the vicinity.” Further, the complaints alleged the breach of the duty to

control and contain allowed “radioactive and/or hazardous materials to be released into

the air and allowing said radioactive material and constituents to migrate or leak into the

groundwater, surface water, rivers and soil in the vicinity.” The complaint listed the same

eleven “negligent acts and/or omissions” found in Boughton.7

6
Boughton I alleged 1958-present, and Dodge 1958 -1991. Although the
difference is readily explainable, the first verdict did not indicate the time period or dates
of Cotter’s negligence.
7
Paragraph 50 of both complaints stated:

These releases and contamination of the air, ground water, surface water,
(continued...)

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(...continued)
7

rivers and soil in the vicinity of the facility and property were proximately
caused and their results aggravated by the negligent acts and/or omissions
of the Defendants including, but not limited to, the following:

(A) permitting the emissions, releases and leaks of radioactive and/or
hazardous materials from the facility and property to occur;

(B) failing to determine where and how the emissions, releases and
leaks of radioactive and/or hazardous materials occurred and in failing to
correct the problems to prevent further leakage and emissions;

(C) failing to provide adequate containment of the radioactive and/or
hazardous materials;

(D) failing to provide adequate air, surface water, ground water,
rivers and soil sampling and/or monitoring to detect releases of radioactive
and/or hazardous materials;

(E) failing to take proper measurements of particle sizes and
emissions;

(F) failing to test incoming ores adequately for the presence of
hazardous or toxic materials;

(G) failing to timely and adequately warn or otherwise notify
Plaintiffs of such releases and contamination and the effects thereof;

(H) failing to take timely and adequately remedial actions to contain
and clean up such contamination and to prevent recurring releases;

(I) failing to properly train and supervise their employees to insure
that the necessary safeguards and procedures would be followed in the
event that any emissions, releases or leaks of radioactive and/or hazardous
materials from the facility and property might occur;

(J) failing to comply with applicable Federal and State laws,
regulations, licenses or orders;
(continued...)

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 The Dodge plaintiffs moved prior to trial for partial summary judgment on the

issues of negligence, trespass, and nuisance, contending those issues were settled in

Boughton, and Cotter should be collaterally estopped from litigating them in the second

trial. The Dodge plaintiffs represented the district court had “streamlined resolution of

issues common to all Lincoln Park residents by designating eight Bellwhether [sic]

plaintiffs in Boughton.” They urged because the Boughton jury finally adjudicated “the

ultimate issues of negligence, trespass and nuisance . . . [a]pplication of collateral

estoppel to these issues is the logical follow-up to the Court’s prior decisions, and

accomplishes avoiding the unnecessary expense of multiple litigation of the same issues,

conserving judicial resources, and encouraging reliance on judicial action.” The Dodge

plaintiffs relied on Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), contending they

had satisfied the four conditions for the offensive use of collateral estoppel.

Cotter strenuously resisted the motion, arguing that despite the virtually identical

complaints, the first verdict was not clear, fully obscuring which of the eleven asserted

grounds of negligence was found; which standard of care was relied upon over the forty-

year period of operation; and what period of time Cotter acted negligently toward each

7
(...continued)
(K) being negligent in the construction and implementation of
remedial measures for containing releases from the tailing ponds and
operating facilities.

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plaintiff. Key to its argument, it contended, was labeling the Boughton I verdict a

“special verdict,” when, in fact, it was a general verdict.

At the hearing on the motion,8 Dodge plaintiffs argued that because collateral

estoppel is an issue-specific doctrine, its offensive use would insulate only the issue of

negligence, the breach of the duty of care, leaving questions of proximate cause,

damages, and affirmative defenses for the parties to establish. Cotter countered

instructing the jury that the court had already found it was negligent was overwhelmingly

prejudicial in the face of the Dodge plaintiffs’ claims for punitive damages. Instead,

Cotter urged the district court to instruct the jury that judgment was entered in its favor

against plaintiffs for dismissal of the negligence claim for medical monitoring,

eliminating its need to introduce medical monitoring or physical injury testimony. Cotter

relied on Pomeroy v. Waitkus, 517 P.2d 396 (Colo. 1973), in which the Colorado

Supreme Court held the application of collateral estoppel was not appropriate to prevent

the same defendant in a second trial from litigating affirmative defenses not raised in the

first trial.

After hearing the arguments, the court ruled the “pure issue of negligence” had

been decided and would not be relitigated, emphasizing the ruling did not affect liability,

proximate cause, the negligence of another party, or willful and wanton conduct, all of

The hearing addressed only the issue of negligence, the court having already
8

denied the motion on the issues of trespass and nuisance.

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which “certainly is going to be litigated.” At the close of five weeks of trial in Dodge, the

court then instructed the jury,

The Court already has determined that defendant was negligent. The
Court’s determination that the defendant was negligent must not influence
you in determining any of the remaining issues in this case. As you will be
instructed further at the end of this case, a finding of negligence is not a
finding of liability. You must still determine whether defendant’s
negligence caused any of the injuries or damages alleged by plaintiffs,
whether defendant’s conduct constituted gross negligence, and other issues
that will affect the liability, if any, of the defendant.

The jury returned verdicts in favor of plaintiffs and awarded damages for physical injuries

and diminution of the value of their property on that same day of deliberations.

IV. Collateral Estoppel

Cotter persists in contending the court improperly afforded Dodge plaintiffs the

benefit of a preclusive factual finding which overwhelmingly prejudiced its ability to

defend the second action. Although Cotter overlays the primal question of its negligence

with the issue of causation and damages9 and ultimately urges we adopt a per se rule that

application of collateral estoppel is inappropriate in negligence cases, we must agree that

whatever the plaintiffs, trials, and verdict forms were labeled, it is not possible to know

9
Cotter also confuses the analysis under Fed. R. Civ. P. 23 with that for
determining whether the first trial resolved the question of negligence. The district court
fully recognized collateral estoppel is an issue preclusion doctrine and did not confound it
with questions of the various types of relief sought which formed the basis of the denial
of class certification. Further, Cotter’s assertion Dodge plaintiffs “could have opted to be
plaintiffs in Boughton” is specious, defying the record of opposing counsels’ meeting
with the United States Magistrate Judge and selecting the plaintiffs for each case.

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the compass of the Boughton I jury’s finding of negligence. We therefore hold the

district court erred in giving that particular issue preclusive effect.

We review the district court’s entry of summary judgment barring claims under the

doctrine of collateral estoppel de novo, construing the record in the light most favorable

to the non-moving party and drawing all inferences in that party’s favor. Gonzales v.

Hernandez, 175 F.3d 1202, 1204 (10th Cir. 1999) (citation omitted); Meredith v. Beech

Aircraft Corp., 18 F.3d 890, 894 (10th Cir. 1994). We also look to federal law to reach

our conclusion. Orjias v. Stevenson, 31 F.3d 995, 1010 (10th Cir. 1994). That is,

although the issue precluded, negligence, is a matter of state law, the preclusive effect

given in federal court to a prior federal judgment is subject to federal law. Murdock v.

Ute Indian Tribe of Uintah & Ouray Reservation, 975 F.2d 683, 687 (10th Cir. 1992).

“When an issue of ultimate fact has once been determined by a valid and final

judgment, that issue cannot again be litigated between the same parties in any future

lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970). Parklane Hosiery sanctioned the

offensive use of collateral estoppel, permitting a plaintiff to “foreclose the defendant from

litigating an issue the defendant has previously litigated unsuccessfully in an action with

another party.” 439 U.S. at 326 n.4. Under Parklane, if the components of collateral

estoppel are satisfied, its benefits of economizing judicial resources and lessening the

burdens of relitigating identical issues already decided, would be afforded a non-mutual

plaintiff provided defendant had previously had a full and fair opportunity to litigate the

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issue. Importantly, the decision to eliminate the mutuality requirement to permit the

plaintiff such a windfall was placed within the trial court’s “broad discretion.” Id. at

331.10

In this Circuit, application of collateral estoppel requires: (1) the issue previously

decided is identical with the one presented in the action in question, (2) the prior action

has been finally adjudicated on the merits, (3) the party against whom the doctrine is

invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party

against whom the doctrine is raised had a full and fair opportunity to litigate the issue in

the prior action. Murdock, 975 F.2d at 687 (citations omitted). The record copiously

establishes three of the four elements. However, the Boughton I jury instructions, our

blueprint for determining the parameters of the first jury’s verdict, sabotage the existence

of the first element.

As we previously noted, the Boughton I complaint contained eleven specific

allegations of negligence, providing detail to the preceding three paragraphs alleging

Cotter’s duty, breach of the duty, and “negligent acts and/or omissions of the Defendants,

including but not limited to” the catalog of specific negligent acts. Nonetheless, the first

jury was simply instructed, in part, “negligence means a failure to do an act which a

Assuredly, we are cognizant of the trial court’s broad discretion and long
10

involvement in the two cases. Neither, however, trumps the legal elements of the
doctrine. Although the court and counsel may know how an issue was resolved, that
understanding cannot be fully superimposed onto the second jury without a clear
indication of what, in fact, the first jury decided.

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reasonably careful person or company would do . . . .” The jury was not instructed on the

specific duty allegedly breached. Nor did the verdict form specify what negligent act

formed the basis of the general finding of negligence. Counsel for Dodge plaintiffs

would fill the gap by stating that seven of the eleven specific counts of negligence

“explicitly refer to releases and the other 4 (E, F, I, and J) clearly encompass them.” Thus,

she urges the Boughton trial was about the release of contaminants and adds “on the

special verdict forms, the jury found that Cotter was negligent in answering questions

about medical monitoring.” However, the Boughton trial did not resolve whether the

same released contaminants in whatever directions or forms or times amounted to

negligent conduct as to each Dodge plaintiff with a clear indication the parties intended to

be bound for all future proceedings by that finding.

Moreover, although seven of the eleven specific allegations may refer in some

respect to releases, another alleges Cotter failed to test incoming ores; a second that

Cotter failed to provide a timely and adequate warning; and a third that Cotter failed to

properly train and supervise its employees. Nonetheless, our concern is not that the jury

did not find negligence on one or more specific allegations, but that the general finding

under the negligence instruction fails to identify what the jury found sustained by the

evidence. Thus, we cannot say as a matter of law the issue decided by the first jury is

identical to the issue in controversy in this case. To attempt to cure that defect by labeling

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the first trial a “bellwether,”11 or citing the pretrial order is to no avail. The Boughton I

jury’s verdict does not assure an unassailable finding that plaintiffs met their burden of

proof that Cotter breached a specific duty.

At oral argument, Dodge plaintiffs’ counsel represented the Boughton trial court

clearly indicated it would try the common issues for however many trials were necessary.

In response to the panel’s request for every citation to the record documenting the trial

court’s express intention to try the issue of negligence as if it were an exemplar or class

action forum, Dodge counsel submitted a supplemental appendix including the Boughton

complaint and jury instructions; pretrial orders indicating the presence of the issue of

negligence; the special verdict forms; and a Dodge jury instruction. None of the citations

expressly establishes the parties were on notice the first jury would decide the issue of

negligence as a matter of law for all succeeding trials. For example, Dodge counsel

prefaces inclusion of Boughton jury instruction 3, in part, to establish “the 8 Cases Were

Bellwether Cases or Sample Cases Because It Would be Impractical to Try the 500

Boughton cases Separately.” However, the jury instruction stated, after listing the names

of the parties:

In actuality, more than 500 plaintiffs have filed this action. Because it
would not be practical to conduct more than 500 separate trials, or even one
trial involving more than 500 plaintiffs, the parties and the Court decided to
designate certain plaintiffs as sample plaintiffs, or “bellwether plaintiffs,”

11
The dictionary states a bellwether is “one that takes the lead.” Webster’s New
International Dictionary (3d ed. 1993).

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 and to limit this trial to their claims . . . . You should make no inferences
from the Court’s selection, and you are not to speculate or consider the
extent to which these plaintiffs’ claims may or may not represent those of
the remaining plaintiffs, since those claims are not before you.

(italics added). Thus, there is no indication in the record before us that the parties

understood the first trial would decide specific issues to bind subsequent trials.

In contrast, we would note Instruction 14 on trespass in Boughton I, an issue the

district court did not collaterally estop from retrial. That instruction read:

For a plaintiff to recover on a claim of trespass, each of the following
elements must be present:

1. that plaintiff holds title or a possessory interest in the property at
the time of the alleged trespass;

2. the defendant sets in motion a force which, in the usual course of
events, will damage that plaintiff’s property; and

3. any entry upon, under or above the surface of that plaintiff’s real
estate without permission or invitation.

If you find that a particular plaintiff has failed to prove any of these
propositions by a preponderance of the evidence, then your verdict must be
for Cotter on that plaintiff’s trespass claim.

On the other hand, if you find that a particular plaintiff has proved
all three of these propositions by a preponderance of the evidence, then your
verdict must be for that plaintiff on that plaintiff’s trespass claim.

The instruction told the jury it must find each element on a claim of trespass by a

preponderance of the evidence, a standard of proof explained in Instruction 4. Despite

the greater specificity of the instruction, the trial court refused to allow those findings to

collaterally estop Cotter from proving trespass in Dodge. Counsel, however, further

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argues because the Boughton I jury found “in favor of each Plaintiff on their claims for

trespass, so clearly the Boughton jury found that Cotter had released contaminants into

the Lincoln Park area.” However, we cannot transpose a general finding that substances

were released under another theory of recovery to bar Cotter from contesting the range of

its conduct and duties as alleged in a second action to determine its liability.

To place our concerns in a larger context, we would note In re TMI Litigation,

193 F.3d 613 (3d Cir. 1999), which involved the personal injury claims of over 2,000 area

residents arising out of the 1979 nuclear reactor accident at Three Mile Island. In that

case, the district court adopted a plan for a “mini-trial” suggested by plaintiffs. The plan

called for an “initial mini-trial of the claims of twelve ‘typical’ plaintiffs, half chosen by

plaintiffs and half chosen by defendants.” Id. at 627. The mini-trial would focus on

plaintiffs’ “ability to demonstrate that they were exposed to doses of radiation sufficient

to cause their neoplasms.” Id. at 623. The parties then clearly agreed to proceed on an

“All Plaintiffs” basis, extending the results of the mini-trial to bind non-participants. “A

contrary intention or result would obviate all benefits of having consolidated the many

separate actions,” the district court stated. Id. at 628.

To establish causation, plaintiffs relied on several experts who testified about the

dose of radiation released into the environment and then correlated the dose to plaintiffs’

injuries. When the district court excluded the dose exposure testimony under Daubert, it

then held its Daubert ruling would bind all of the other non-trial plaintiffs. Analyzing

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this ruling under Fed. R. Civ. P. 42(b), the basis for consolidating all of the cases, the

Third Circuit found applying the summary judgment ruling from the trial plaintiffs to the

non-trial plaintiffs implicated substantive rights protected by the Seventh Amendment and

improperly extended the doctrine of collateral estoppel/issue preclusion. Id. at 725-26.

Despite the array of arguments for efficiency and streamlining the trial process in the face

of a single nuclear accident, the Third Circuit reversed the extension of summary

judgment applied to non-trial plaintiffs.

TMI must remind us to focus on what was actually litigated and who should be

bound and benefit from those results. That concern must override arguments about

inconsistent results and time-consuming relitigation of the same issue. If the parties

intended to bind subsequent litigation with the results of prior test trials, the record must

clearly memorialize that agreement. Their failure to do that here leaves important

substantive rights at the mercy of trial tactics.

We therefore reverse the district court’s grant of partial summary judgment, fully

mindful of the impact of the conclusion on this already protracted and voluminous case.

If Boughton I was to have been the test case in plaintiffs’ effort to establish this toxic

tort, greater care to assure the jury was properly instructed and the verdict forms were

clear was essential to establish results impervious to relitigation.12

Obviously, this conclusion moots the remaining issues raised in the cross-
12

appeals. However, because the question of expert testimony is likely to recur, we would
be remiss not to indicate our concern that the district court vigilantly make detailed
(continued...)

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 V. Fear of Cancer – 99-1199

The district court granted Cotter’s motion for summary judgment on Dodge

plaintiffs’ claim for damages for emotional distress caused by their increased fear of

cancer. In their cross-appeal, Dodge plaintiffs contend the ruling was error. Because the

ruling represents a final judgment appropriate for review under 28 U.S.C. § 1291, it,

unlike the other issues mooted by our disposition, remains viable. We review the district

court’s order granting summary judgment de novo, applying the same standard of Fed. R.

Civ. P. 56(c) as did the district court. Roe v. Cheyenne Mountain Conference Resort,

Inc., 124 F.3d 1221, 1235 (10th Cir. 1997). In this process, we draw all inferences in the

non-movant’s favor and analyze Colorado law afresh. Mares v. ConAgra Poultry Co.,

971 F.2d 492, 496 (10th Cir. 1992).

To survive summary dismissal of this claim, Dodge plaintiffs argued their

exposures to hazardous materials caused a range of physical conditions: bony growths,

cataracts, headaches and irritability, to name a few. They contended these physical

injuries met a threshold for recovery under Towns v. Anderson, 579 P.2d 1163, 1164-65

(...continued)
12

findings to fulfill the gatekeeper role crafted in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). Given the novelty of the medical causation
theory here linking exposure to molybdenum with osteoarthritis and bony exostoses, it is
essential that by specific findings of record the trial court assures the expert testimony
offered by both sides is relevant and reliable, and the “particular opinion is based on
valid reasoning and reliable methodology.” Kannankeril v. Terminix Int’l, Inc., 128
F.3d 802, 806 (3d Cir. 1997). Finally, all outstanding motions are denied as moot.

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(Colo. 1978), which abolished the physical impact requirement in negligence cases for

emotional distress and permitted a plaintiff who is subjected to an unreasonable risk of

bodily harm because of another’s negligence to recover upon proof of “the internal

operation of fright or other emotional disturbance.” Id. at 1164, quoting Restatement

(Second) of Torts § 436(2). Having met this requirement with the evidence of an array of

manifestations of physical injuries, Dodge plaintiffs, relying on Boryla v. Pash, 960 P.2d

123 (Colo. 1998), then contended Colorado law recognized their right to recover damages

for their resulting objective fear of developing cancer.

The district court rejected the argument, observing Dodge plaintiffs offered no

evidence of an objectively reasonable chronic, continuing physical manifestation to

support their fear of an increased risk of cancer as required by Towns and Boryla.13

Dodge plaintiffs now argue the court misapplied Colorado’s “‘physical impact’ rule,

which gives inference to the genuineness of Plaintiffs’ fears so as to permit the jury to

consider damages.” We disagree.

In Boryla, plaintiff sought non-economic damages for emotional distress including

the fear of an increased risk of the recurrence of her cancer as a consequence of her

physician’s failure to promptly diagnose her breast cancer. 960 P.2d at 123. Reversing

the Court of Appeals’ granting defendant a new trial, the Colorado Supreme Court rested

13
At the continued hearing on the motion on July 16, 1998, the court stated, “I
doubt if we’re going to have any claims for fear of cancer. I just don’t see that we have
sufficient material or sufficient showing for that.”

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its discussion on what it believed was a clear distinction between fear of cancer cases

arising from a medical malpractice setting and those involving toxic torts.14 It stated, “In

cases where the plaintiff demonstrates that her cancerous condition physically worsened

as a result of the delayed diagnosis, the plaintiff has demonstrated a sufficient physical

injury to permit the recovery of emotional distress damages.” Id. at 128. In contrast, the

court noted a toxic tort case required a different standard because “the plaintiff has yet to

experience the onset of cancer,” id., but believes the particular exposure makes him

vulnerable to that increased risk.15

The Colorado Supreme Court concluded, “For these reasons, traditional negligence

principles which focus on proximate cause as well as the reasonableness of the plaintiff’s

14
The court cited the discussion in Potter v. Firestone Tire & Rubber Co., 863
P.2d 795 (Cal. 1993), which recognized significant policy concerns about the
“staggering” impact of “an unrestricted plaintiff class” with fears of cancer. In those
cases, the California court held, the jury may consider whether “it is more likely than not
that the plaintiff will develop the cancer in the future due to the toxic exposure,” as a
threshold for recovery. Id. at 816.
15
Defendant physician relied on Potter, which set forth a higher standard for
recovery for fear of cancer damages in toxic tort cases, requiring “in the absence of a
present physical injury or illness, damages for fear of cancer may be recovered only if the
plaintiff pleads and proves that (1) as a result of the defendant’s negligent breach of a
duty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens
cancer; and (2) the plaintiff’s fear stems from a knowledge, corroborated by reliable
medical or scientific opinion, that it is more likely than not that the plaintiff will develop
the cancer in the future due to the toxic exposure.” Id. at 816. Defendant sought to
import this “more likely than not” standard into his medical malpractice case.

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fear are sufficient to evaluate fear of cancer claims in medical malpractice claims.” Thus,

Boryla was a medical malpractice case, and the court expressly limited its analysis and

holding to that arena. Id.

Dodge plaintiffs, however, would extend the analysis to embrace their toxic tort

claim, equating the manifestation of certain acute conditions with a permanent objective

injury leading to an increased risk of cancer. In the absence of any indication the

Colorado Supreme Court would permit such an expansion, we decline to do so. Nor is it

necessary here. At a minimum, Dodge plaintiffs failed to set forth any evidence that they

suffer from a chronic objective condition caused by their increased risk of developing

cancer to permit their recovery for emotional distress damages. Although counsel would

sweep every physical manifestation plaintiffs alleged under this mantle to satisfy Boryla,

its efforts are misplaced. Summary judgment was therefore appropriate on the claim.

We therefore REVERSE and REMAND the case for a new trial. However, we

AFFIRM the order granting summary judgment on the fear of cancer claim.

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