Cook v. Rockwell International Corporation
- Click here to view the Settlement information.
- Click here to view the Order preliminarily approving the Settlement.
- More information about the Settlement is available at www.RockyFlatsSettlement.com.
Berger Montague has served as lead class counsel and lead trial counsel in what is considered one of the longest running cases in the United States, filed in 1990. Plaintiffs allege that Rocky Flats, a former nuclear weapons facility formerly operated by Dow Chemical Co. and Rockwell International Corp., dispersed plutonium and contaminated 30 square miles of property around the facility. Plaintiffs pursued claims of trespass and nuisance claims under Colorado state law and the federal Price-Anderson Act, passed in 1957 and relating to nuclear power and the hazards of radioactive materials.
In February 2006, the firm won a $554 million jury verdict on behalf of thousands of property owners whose homes were exposed to plutonium or other toxins. Judgment in the case was entered by the court in June 2008 which, with interest, totaled $926 million (with proceedings now continuing on appeal). Recognizing this tremendous achievement, the Public Justice Foundation bestowed its prestigious Trial Lawyer of the Year Award for 2009 on Mr. Davidoff, Mr. Sorensen and the entire trial team for their “long and hard-fought” victory against “formidable corporate and government defendants.” The jury verdict in that case was vacated on appeal, and proceedings are continuing in the district court.
In 2015, on a second trip to the Tenth Circuit Court of Appeals, Plaintiffs secured a victory in Merilyn Cook et al. v. Rockwell International Corporation et al., with the case being sent back to the district court.
The decision by the Tenth Circuit Court of Appeals provides the first clear guidance by any court of appeals that the Price Anderson Act as amended in 1988, after the infamous accident at Three Mile Island, was never intended to, and does not, destroy all state law claims, but preserves them. Writing the majority opinion, Tenth Circuit Court of Appeals then-judge, now Justice, Neil Gorsuch wrote: “In two separate appeals spanning many years the defendants have identified no lawful impediment to the entry of a state law nuisance judgment on the existing verdict. They have shown no preemption by federal law, no error in the state law nuisance instructions, no mandate language specifically precluding this course. No other error of any kind is even now alleged.” Then-judge Gorsuch also praised Class Counsel’s successful “judicial jiu jitsu” in litigating the case through the second appeal.
Click here to view the full opinion.
The decision also paves the way for entry of judgement based upon the special jury verdict handed down on Valentine’s Day, 2006 when a Colorado federal jury found against Dow and Rockwell after a 4-month trial led by Berger Montague Managing Shareholder Merrill Davidoff, co-trial counsel and fellow Managing Shareholder David F. Sorensen, and the late shareholder Peter Nordberg, and supported by attorneys Jenna McNaughton, Caitlin Coslett and Ellen Noteware.
Just before competing petitions for certiorari were to be decided by the Supreme Court, a settlement of $375 million was announced on May 19, 2016. The settlement received final approval on April 28, 2017. During the final fairness hearing, Judge Kane expressed “great admiration for the excellence of counsel that significantly exceeds the standards and expectations of professional competence…Class counsel have worked tirelessly over 27 years to achieve the ground-breaking settlement I am approving today.”