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One year ago this Valentine’s Day, a jury returned a verdict in favor of a class of 13,000 homeowners whose land had been contaminated with plutonium released from the former Rocky Flats nuclear weapons site outside Denver. After a four-month trial and 17 days of deliberations, the jury of four men and six women found both defendants-The Dow Chemical Co. and Rockwell International Corp.-liable under theories of trespass and nuisance, and awarded $354 million in compensatory and $200 million in punitive damages. We and our firm, Berger & Montague, were lead counsel for the plaintiffs in the case, Cook v. Rockwell Int’l Corp., filed 17 years ago in January 1990. With trial assistance from local counsel Silver & DeBoskey of Denver, and Waite, Schneider, Bayless & Chesley of Cincinnati, the team overcame fierce resistance from an unrelenting defense underwritten by the government by presenting powerful, though sometimes complicated, evidence in an understandable manner-sometimes using the defendants’ own experts and evidence to undermine their case. The verdict was the largest to date in Colorado and marked the first time that punitive damages were awarded against former operators of one of the nation’s aging, contaminated nuclear weapons sites. The class representatives-including Merilyn Cook, who lent her name to the case-stuck with the case for 17 years, testified at trial and were in court every day. Besting Goliath The case is not finished-judgment has not yet been entered and the appellate process has not begun-but the verdict still represents an historic David-and-Goliath victory in a protracted legal battle involving a notorious former nuclear weapons complex. We are prohibited by local court rule from contacting the jurors, and so we cannot know for sure what led to their verdict. From our perspective, certain points-both macro and micro-stand out. The defendants-represented by 1,000-plus-lawyer Chicago-based Kirkland & Ellis-argued that everything was known about Rocky Flats. They also argued that “science” had concluded that, although some plutonium surely had escaped from Rocky Flats and settled on the plaintiffs’ land, it was of no consequence or concern. The defendants seemed to want the jurors to have faith in official government “standards” for radiation exposure-a series of ever-changing numbers built on sometimes controversial science-and a series of highly paid experts, including a Nobel Prize winner, who tried to convince them that plutonium contamination couldn’t have harmed property values near the plant. From our vantage, the defendants appeared to be asking the jury to trust the Official Story. We tried, over the course of four months, to show the jury that this trial was an unprecedented opportunity for them to examine the truth about Rocky Flats-created during the Cold War and shrouded in official secrecy-in public. And that much of the defense they were hearing was merely another cover-up, another effort to suppress and spin the facts. We presented what we considered compelling evidence of the defendants’ recklessness in handling some of the most dangerous materials known, but we also acknowledged that certain facts-precisely how much plutonium got out, exactly what health risk it poses-were not only not known, but unknowable; this was a state of uncertainty for which, again in our view, the defendants bore responsibility. We thus tried not to overstate our case, nor to promise the jury evidence or testimony that we could not produce. Rocky Flats opened in 1952, about 16 miles northwest of Denver, and produced plutonium “triggers” for nuclear weapons until 1989, when the FBI raided the plant as part of an investigation into possible environmental crimes. The plant is owned by the U.S. Department of Energy (DOE), and was operated under contract from 1952 to 1975 by The Dow Chemical Co., and from 1975 to 1989 by Rockwell International Corp. To induce private companies, such as Dow and Rockwell, to operate nuclear plants, Congress passed the Price-Anderson Act, which, among other things, indemnified private operators against potential damages awards, as well as legal fees and expenses. See 42 U.S.C. 2210. Hence, although Dow and Rockwell were the defendants in our case, all their legal costs (exceeding $60 million) were being paid by the DOE. Grand jury investigation The FBI raid set off a multiyear grand jury investigation, which ended-some say prematurely-in 1992, when Rockwell pleaded guilty to five felony and five misdemeanor violations of environmental laws, and paid an $18.5 million fine. The plea deal incensed the grand jurors, who reportedly had wanted to issue a number of individual indictments. The former grand jurors even began a highly publicized legal fight-which continues to this day-to obtain permission to talk about the evidence they heard and the conclusions they reached. We filed our case in January 1990, seeking property damages and medical monitoring for people living near Rocky Flats, whose properties had been contaminated with plutonium and other hazardous substances released from the plant. The defendants’ indemnitor, the DOE, controlled most of the millions of pages of documents-many classified-relevant to operations at Rocky Flats and the litigation. As U.S. District Judge John L. Kane of Colorado (under)stated in 1993, in the one of more than a dozen published opinions in the case so far, the “discovery history of this case is not pretty.” Cook v. Rockwell Int’l Corp., 147 F.R.D. 237, 240 (D. Colo. 1993).
MODERN JURY Nuclear win was years in the making. It really does pay to make a good first impression with jurors. Reason is nice, but subconscious cues often decide cases. Spotting, and winning over, jurors with axes to grind.

The court certified two classes (for medical monitoring and for property damages), 151 F.R.D. 378, but the discovery picture got even uglier, and in 1995, after a four-day bench trial, the court held the DOE in contempt for violating discovery orders and withholding many thousands of documents. Cook v. Rockwell Int’l Corp., 907 F. Supp. 1460 (D. Colo. 1995). The defendants used the seemingly inexhaustible funds of the DOE to file wave upon wave of motions, including Daubertattacks on every line of proposed testimony of all of our experts, repeated motions to dismiss and for summary judgment, and motions for class decertification (which succeeded regarding the medical-monitoring class, leaving only the property class claims for trial). These tactics, combined with reassignments of the case among three different district court judges, delayed trial for years, until October 2005. At trial, we needed to counter the defendants’ argument that “science”-as the defendants portrayed it-had given Rocky Flats a clean bill of health. The defendants presented the leader of an allegedly neutral scientific team that had studied Rocky Flats, but we showed that this witness was another highly paid defense expert, whose claims of neutrality and certainty did not stand up. Although both plaintiffs and defendants employ highly paid expert witnesses, in this case some of our experts donated their fees to their universities, and another declined payment for work at trial because he was then working for a DOE contractor. The defendants employed an array of experts, including a Nobel Prize winner in economics, who attacked our evidence on property damages. However, this same witness testified-on redirect by defense counsel trying to deflect the issue of money-that, “If you ask me, you know: Is litigation shaded in favor of large corporations? That’s another question. You probably don’t want me to go into that.” The spontaneous laughter in the courtroom sealed the point. We presented evidence that Dow had knowingly placed thousands of leaking, rusty barrels-each filled with plutonium-laced waste-outside for a decade. Plutonium leaked out and was blown onto class members’ properties. Defense counsel told the jury at the outset that Dow and Rockwell would take “responsibility” for any mistakes-but they then sought to excuse even this egregious conduct by claiming that their plutonium monitors were indicating that the plutonium flying off site was below “standards.” What was the jury to make of these “standards”? In a significant pretrial ruling, the court had held that, while the defendants could present evidence about official standards and about whether Dow and Rockwell had complied with them, such standards did not pre-empt our clients’ claims, which remained governed by Colorado state law. Cook v. Rockwell Int’l Corp., 273 F. Supp. 2d 1175 (D. Colo. 2003). This scholarly decision resulted from a thorough analysis of the Price-Anderson Act and pre-emption doctrine, as well as a key Supreme Court case, Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). Dubious “standards” We concluded that the jury needed to learn more about the standards and measurements than the defendants would tell them. We presented documents and testimony, for example, that by 1950-before Rocky Flats opened and before the first federal numerical radiation standard was enacted-the standard of “ALARA” was well established. “ALARA” stands for “As Low As Reasonably Achievable.” It means that-because radioactive materials such as plutonium are highly dangerous, but also because much remains unknown about their precise effects on human beings-all radiation exposures and releases should be kept “as low as reasonably achievable.” In sum, the jury was asked the familiar question of whether the defendants had acted reasonably. We presented testimony and evidence that much of the scientific and epidemiological research into the health effects of plutonium exposure was controlled or influenced by the DOE itself-the same agency ultimately responsible for paying for legal fees and claims from radiation exposure at Rocky Flats and many other nuclear sites nationwide. Furthermore, the jury learned that the measurements the defendants touted were often unreliable and simply nonexistent for certain time periods and locations. We also presented evidence of massive amounts of plutonium-more than a ton-that reportedly had entered Rocky Flats, but then had gone missing-plutonium referred to as “material unaccounted for.” The defendants thus wound up arguing that their measurements of plutonium should be trusted down to the tiniest fraction of a gram, despite their inability to account for thousands of pounds of the same material. In short, we needed to provide the jury with a factual foundation for concluding that the defendants’ “standards” defense was only the beginning of the story, and that there were rational reasons to distrust the defendants’ numbers. Mini-summations Much of the evidence was complex. Two features of the trial that, we believe, were particularly helpful to the jury were a summary expert video presentation, and the use of “mini-summations.” The former was a half-hour videotape of one of our testifying experts, summarizing testimony from his two expert reports. The tape featured animation depicting plutonium contamination of the air and water, news footage about nuclear plants and internal Rocky Flats plant footage of plutonium processing. The expert was available in court for cross-examination, as were other experts who collaborated and contributed to the tape, and the tape itself had been provided to the defendants years before, along with the written reports. The court concluded that the tape, which brought together many complicated concepts in one 30-minute package, would aid the jury. We agreed. Both sides used demonstratives and graphics throughout the trial. Mini-summations also proved quite useful. At the end of most weeks, each side was granted a half-hour or so to summarize key evidence of the prior week and preview forthcoming testimony. These mini-closings not only helped the jurors to understand the case as it progressed, but also helped us. They forced us to focus and make decisions-What was the most important part of the last four days? Why are we presenting these two witnesses next week?-and gave both sides insights into their opponents’ strategies, strengths and weaknesses as the case progressed. Also of great help were the extensive pretrial proceedings devoted to the substance and form of the jury instructions. The court had made plain to the parties its view that the evidence and issues should be presented to the jury in understandable form-not through oversimplification, but via careful and orderly presentation. An important step was to arrive at a clear statement of the issues that the jury was to decide. To that end, the parties submitted proposed instructions and objections well in advance of trial, in phases devoted to particular issues, such as trespass, nuisance and damages. Disputed issues were briefed and argued. By trial, the instructions had been mostly finalized. Counsel therefore were able, as the trial proceeded, to relate the evidence and testimony (and their mini-summations) to specific language in the instructions. As we say, the case is not over until it’s over, but through our jury system, a group of ordinary Colorado citizens was provided an historic opportunity to examine Dow’s and Rockwell’s conduct at Rocky Flats, and its impact on their fellow citizens.

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