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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. Barneswith himon 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 Companyof Illinois, began operating a uranium mill near Canon City, Colorado, extractinguranium from ore by an alkaline leach process. The two types of waste produced by thatprocess, tailings, dust-like particles of ore, and raffinate, liquid recovered from theuranium extraction solutions, eventually contaminated the area, including the semi-ruralcommunity of Lincoln Park, and triggered its designation as a Superfund site on theEPA's National Priority List. Subsequently, some five hundred Lincoln Park residentsfiled an action under the Comprehensive Environmental Response Compensation andLiability Act (CERCLA), 42 U.S.C. §§a9601-9675, the Price-Anderson Act, 42 U.S.C. §a2210(n)(2), and Colorado law alleging Cotter's negligent operation of the millcauseddamage 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 butfailed to establish its negligence caused their exposure to hazardous materials whichrequired future medical monitoring.
Now before us is a second group of fourteen plaintiffs who, armed with the firstjury's finding of negligence, established Cotter's negligence caused their physicalinjuries and were awarded monetary damages. Cotter assails the judgment on numerousgrounds, and plaintiffs cross-appeal. Of the many issues Cotter raised, one predominates. After careful review of this ponderous record, we conclude
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the district court incorrectlyapplied the doctrine of offensive collateral estoppel, precluding Cotter from litigating theissue of negligence. For the single issue remaining in plaintiffs' cross-appeal, whetherthe district court properly granted summary judgment dismissal of their fear of cancerclaim, we reject the contention of error. We, therefore, reverse the judgment and remandthe action for retrial.
I. Background
The Cotter uranium mill (the Mill) occupies a 640-acre site in south centralColorado, two and a half miles south of Canon City. Lincoln Park, an unincorporatedarea, is a mile and a half north of the Mill. The Arkansas River borders Lincoln Park'snorthern rim while Sand Creek and the DeWeese Dye Ditch angle across its southernperimeters. During its years of operation crushing ore into "yellowcake, " a concentrateduranium, dry tailings were carried off-siteby winds. Liquids, recovered from theuranium extraction solutions and stored in unlined ponds, leached into groundwaterbeneath the Mill and flowed north toward Lincoln Park along the Sand Creek channel.
As early as 1959, the Atomic Energy Commission (AEC), which then regulateduranium production operations at the Mill, notified Cotter of violations of the conditionsof its license. Annual violations of AEC standards of Protection Against Radiationoccurred through 1968 when the state of Colorado (the State) took over responsibilityfrom the AEC for licensing radioactive materials. In the meantime, Cotter's productionrose from 50 tons of uranium a day in 1958 to 1200 tons a day in 1979, when the Staterelicensed the Mill.
In an effort to clean up the site, both the EPA and the Colorado Department ofPublic Health and Environment (Department) targeted the Mill's unlined storage pondsas 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 eighteeninch hypalon liner overlaid with six inches of clay. Later, Cotter added a clay barrier tothe Sand Creek Dam to prevent water flow from the Mill into Lincoln Park. Despitethese efforts, state inspections would reveal tears in the ponds' linings or violations of airemissions standards. Although Cotter ceased operating the Mill in 1987, the Departmentprojected the clean-up would not be completed until 2012.
In 1983, after persistent and unabated violations, the State sued Cotter in federalcourt for damages to natural resources and clean-up of the contamination. State ofColorado v. Cotter Corp Case. No. 83-C-2389. In 1988, the parties settled thematterby a Consent Decree which provided a Remedial Action Plan (Plan). The Plan requiredthe creation of the Human Health Risk Assessment Panel (Panel) which prepared a reportin 1991 on the Lincoln Park Superfund Site evaluating the health risks to the surroundingpopulations from the Mill's off-site chemical releases. The Panel quantified exposures toMill-related chemicals in air, surface water, sediment, ground water, soil, and differenttypes of locally raised food; measured the toxicity of the exposures; and assessed thepossible health risks based on those evaluations. The Panel concluded "risks to humanswere generally low, especially when judged in comparison to natural 'background' levelsof mill-related metals in the environment. "However, the Panel excepted from thatconclusion a possible health concern in drinking ground water "because of the
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presenceof 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)filed suit in federal court. In an amended complaint, Lincoln Park plaintiffs requestedstatutory relief under CERCLA and sought damages exceeding $350 million for Cotter'snegligence, strict liability, nuisance, willful and wanton conduct, outrageous conduct, trespass, and absolute liability. In addition, plaintiffs requested damages and injunctiverelief for medical monitoring. Although plaintiffs sought class certification, the districtcourt held the action was not maintainable under Fed. R. Ci v. P. 23(a) because individualissues predominated over common issues of law or fact. The parties then agreed to theselection of eight bellwether plaintiffs (Boughtonplaintiffs) forthe first trial.
The Boughton plaintiffs did not allege any physicalillnesses or injuries. Instead, they claimed they and their property were exposed to hazardous substances from theCotter Mill and sought damages for trespass to real estate; damages for nuisance; andmedical monitoring based on negligence.
At the close of the evidence after a twenty-three day trial, the court framed theissues 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 toradioactive and hazardous contamination as a result of Cotter's milling operation. Theyassert 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 contended medical monitoring of the possible adverse effects of the exposures wasrequired. For Cotter's theory of defense, the court told the jury,
Cotter admits that its operations have caused some ground watercontamination by radioactive and molybdenum materials in certain limitedareas, but Cotter states that the contamination has been and is now beingcleaned up pursuant to a government-supervised Remedial Action Plan. Cotter claims that it did not engage in any conduct nor breach any legalstandard for which it would be liable to plaintiffs.
The court then instructed the jury on negligence tracking the language of theColorado Civil Jury Instructions. Instruction 25 provided:
The plaintiffs claim that Cotter was negligent, and thereforeplaintiffs are entitled to medical monitoring.
Negligence means a failure to do an act which a reasonably carefulperson or company would do, or the doing of an act which a reasonablycareful person or company would not do, under the same or similarcircumstances to protect others from bodily injury or property damage.
Even if statutes, ordinances or regulations govern the actions of aperson or corporation, that person or corporation must use reasonable careunder the particular circumstances and conditions prevailing.
Reasonable care is that degree of care which a reasonably carefulperson or company would use under the same or similar circumstances.
The degree of care that constitutes reasonable care increases inproportion 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. Itstated:
In order for any particular plaintiff to recover from Cotter on his orher negligence claims for medical monitoring, you must find that all of thefollowing have
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been proved as to that particular plaintiff:
1. that the particular plaintiff was significantly exposed to a provenhazardous 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 asignificantly increased risk of contracting a serious latent disease;
5. that the significantly increased risk makes periodic diagnosticmedical examinations reasonably necessary; and
6. that monitoring and testing procedures exist which make theearly detection and treatment of the disease possible and beneficial.
The determination of which of the plaintiffs, if any, are entitled tomedical monitoring must be made independently for each plaintiff.
If you find that a particular plaintiff has proved all six of thesepropositions by a preponderance of the evidence, then your verdict must befor that plaintiff on that plaintiff's negligence claim for medicalmonitoring.
After five days of deliberation, the jury returned separate special verdict forms foreach plaintiff making a claim of negligence for medical monitoring, trespass, andnuisance. There was no separate verdict form on which the jury found Cotter wasnegligent under Instruction 25. However, on each of the plaintiffs' "Negligence claimfor medical monitoring Special Verdict Form, " the jury was asked whether Cotter wasnegligent and found Cotter negligent. For each Boughton plaintiff the jury also foundthere was no exposure to hazardous substances making reasonably necessary futuremedical monitoring or testing. After theverdicts were read, the jury asked the court, "Could you explain about the other 500 plaintiffs? We promise we never consideredthem during deliberation. "The court told them because it was impossible to try such alarge case, it was hoped that an initial bellwether trial might provide some "indicationhelpful" to resolve the remaining plaintiffs' cases. The Boughton plaintiffs' appeal ofthe denial of class certification and other issues was later rejected. Boughton v. CotterCorp 65 F. 3d 823 828 (10th Cir. 1995). Cotter did not cross appeal.
III. DodgeTrial
In the second trial, fourteen plaintiffs (collectively here, Dodge), members of fourLincoln Park families, filed an amended complaint which was virtually identical to thecomplaint in Boughton I. Although the years of the allegednegligence are slightlydifferent, the Dodge complaint alleged verbatim Cotter's negligence rested onits breachof 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 beingreleased into the air and allowed to migrate or leak into the
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groundwater, surface water, rivers and soils in the vicinity. "Further, the complaints alleged the breach of the duty tocontrol and contain allowed "radioactive and/or hazardous materials to be released intothe air and allowing said radioactive material and constituents to migrate or leak into thegroundwater, surface water, rivers and soil in the vicinity. "The complaint listed thesame eleven "negligent acts and/or omissions" found in Boughton.
The Dodge plaintiffs moved prior to trial for partialsummary judgment on theissues of negligence, trespass, and nuisance, contending those issues were settled in Boughton, and Cotter should be collaterally estopped fromlitigating them in the secondtrial. The Dodge plaintiffs represented the district court had"streamlined resolution ofissues common to all Lincoln Park residents by designating eight Bellwhether sicplaintiffs in Boughton. "They urged because the Boughton jury finally adjudicated "theultimate issues of negligence, trespass and nuisance . . . application of collateralestoppel to these issues is the logical follow-up to the Court's prior decisions, andaccomplishes 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), contendingthey had satisfied the four conditions for the offensive use of collateral estoppel.
Cotter strenuously resisted the motion, arguing that despite the virtually identicalcomplaints, the first verdict was not clear, fully obscuring which of the eleven assertedgrounds of negligence was found; which standard of care was relied upon over the forty-yearperiod of operation; and what period of time Cotter acted negligently toward eachplaintiff. 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, Dodge plaintiffs argued that because collateralestoppel is an issue-specific doctrine, its
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offensive use would insulate only the issue ofnegligence, the breach of the duty of care, leaving questions of proximate cause, damages, and affirmative defenses for the parties to establish. Cotter counteredinstructing the jury that the court had already found it was negligent was overwhelminglyprejudicial 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 favoragainst plaintiffs for dismissal of the negligence claim for medical monitoring, eliminating its need to introduce medical monitoring or physical injury testimony. Cotterrelied on Pomeroy v. Waitkus, 517 P.2d 396 (Colo. 1973), inwhich the ColoradoSupreme Court held the application of collateral estoppel was not appropriate to preventthe same defendant in a second trial from litigating affirmative defenses not raised in thefirst trial.
After hearing the arguments, the court ruled the "pure issue of negligence" hadbeen 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 ofwhich "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. TheCourt's determination that the defendant was negligent must not influenceyou in determining any of the remaining issues in this case. As you will beinstructed further at the end of this case, a finding of negligence is not afinding of liability. You must still determine whether defendant'snegligence caused any of the injuries or damages alleged by plaintiffs, whether defendant's conduct constituted gross negligence, and other issuesthat will affect the liability, if any, of the defendant.
The jury returned verdicts in favor of plaintiffs and awarded damages for physicalinjuries 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 thebenefit of a preclusive factual finding which overwhelmingly prejudiced its ability todefend the second action. Although Cotter overlays the primal question of its negligencewith the issue of causation and damages andultimately urges we adopt a per se rule thatapplication of collateral estoppel is inappropriate in negligence cases, we must agree thatwhatever the plaintiffs, trials, and verdict forms were labeled, it is not possible to knowthe compass of the Boughton I jury's finding of negligence. Wetherefore hold thedistrict court erred in giving that particular issue preclusive effect.
We review the district court's entry of summary judgment barring claims underthe doctrine of collateral estoppel de novo, construing the record in the light mostfavorable 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 tofederal law to reach our conclusion. Orjias v. Stevenson, 31 F. 3d995, 1010 (10th Cir. 1994). That is, although the issue precluded, negligence, is a matter of state law, thepreclusive effect given in federal court to a prior federal judgment is subject to federallaw. Murdock v. Ute
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Indian Tribe of Uintah & OurayReservation, 975 F.2d 683 687(10th Cir. 1992).
"When an issue of ultimate fact has once been determined by a valid and finaljudgment, that issue cannot again be litigated between the same parties in any futurelawsuit. "Ashe v. Swenson, 397 U.S. 436 443 (1970). Parklane Hosiery sanctioned theoffensive use of collateral estoppel, permitting a plaintiff to "foreclose the defendantfrom litigating an issue the defendant has previously litigated unsuccessfully in an actionwith another party. "439 U.S. at 326 n. 4. Under Parklane, if thecomponents ofcollateral estoppel are satisfied, its benefits of economizing judicial resources andlessening the burdens of relitigating identical issues already decided, would be afforded anon-mutual plaintiff provided defendant had previously had a full and fair opportunity tolitigate the issue. Importantly, the decision to eliminate the mutuality requirement topermit the plaintiff such a windfall was placed within the trial court's "broad discretion. "Id. at 331.
In this Circuit, application of collateral estoppel requires: (1) the issue previouslydecided is identical with the one presented in the action in question, (2) the prior actionhas been finally adjudicated on the merits, (3) the party against whom the doctrine isinvoked was a party, or in privity with a party, to the prior adjudication, and (4) the partyagainst whom the doctrine is raised had a full and fair opportunity to litigate the issue inthe prior action. Murdock, 975 F.2d at 687 (citations omitted). The record copiouslyestablishes three of the four elements. However, the Boughton I jury instructions, ourblueprint for determining the parameters of the first jury's verdict, sabotage the existenceof the first element.
As we previously noted, the Boughton I complaintcontained eleven specificallegations of negligence, providing detail to the preceding three paragraphs allegingCotter'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 firstjury was simply instructed, in part, "negligence means a failure to do an act which areasonably careful person or company would doa. . . . "The jury was not instructed on thespecific duty allegedly breached. Nor did the verdict form specify what negligent actformed the basis of the general finding of negligence. Counsel for Dodge plaintiffswould 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 ofcontaminants and adds "onthe special verdict forms, the jury found that Cotter was negligent in answering questionsabout medical monitoring. "However, the Boughton trial did notresolve whether thesame released contaminants in whatever directions or forms or times amounted tonegligent conduct as to each Dodge plaintiff with a clearindication the parties intendedto be bound for all future proceedings by that finding.
Moreover, although seven of the eleven specific allegations may refer in somerespect to releases, another alleges Cotter failed to test incoming ores; a second thatCotter failed to provide a timely and adequate warning; and a third that Cotter failed toproperly train and supervise its employees. Nonetheless, our concern is not that the jurydid not find negligence on one or more specific allegations, but that the general findingunder the negligence instruction fails to identify what the jury found sustained by theevidence. Thus,
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we cannot say as a matter of law the issue decided by the first jury isidentical to the issue in controversy in this case. To attempt to cure that defect bylabeling the first trial a "bellwether, " orciting the pretrial order is to no avail. The Boughton I jury's verdict does not assure an unassailable findingthat plaintiffs met theirburden of proof that Cotter breached a specific duty.
At oral argument, Dodge plaintiffs' counsel representedthe Boughton trial courtclearly 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 trialcourt's express intention to try the issue of negligence as if it were an exemplar or classaction forum, Dodge counsel submitted a supplemental appendixincluding the Boughton complaint and jury instructions; pretrial ordersindicating the presence of theissue of negligence; the special verdict forms; and a Dodge juryinstruction. None of thecitations expressly establishes the parties were on notice the first jury would decide theissue of negligence as a matter of law for all succeeding trials. For example, Dodge counsel prefaces inclusion ofBoughton jury instruction 3, in part, to establish"the 8Cases Were Bellwether Cases or Sample Cases Because It Would be Impractical to Trythe 500 Boughton cases Separately. "However, the juryinstruction stated, after listingthe names of the parties:
In actuality, more than 500 plaintiffs have filed this action. Because itwould not be practical to conduct more than 500 separate trials, or even onetrial involving more than 500 plaintiffs, the parties and the Court decided todesignate certain plaintiffs as sample plaintiffs, or "bellwether plaintiffs, "and to limit this trial to their claims . . . . You should make no inferencesfrom the Court's selection, and you are not to speculate or consider theextent to which these plaintiffs' claims may or may not represent those ofthe remaining plaintiffs, since those claims are not before you.
(italics added). Thus, there is no indication in the record before us that the partiesunderstood 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 thedistrict court did not collaterally estop from retrial. That instruction read:
For a plaintiff to recover on a claim of trespass, each of the followingelements 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 estatewithout permission or invitation.
If you find that a particular plaintiff has failed to prove any of thesepropositions by a preponderance of the evidence, then your verdict must befor Cotter on that plaintiff's trespass claim.
On the other hand, if you find that a particular plaintiff has provedall three of these propositions by a preponderance of the evidence, thenyour 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 apreponderance of the evidence, a standard of proof explained in Instruction 4. Despitethe greater specificity of the instruction, the trial court refused to allow those findings tocollaterally estop Cotter from proving trespass in Dodge. Counsel, however, furtherargues because the Boughton I jury found "in favor of eachPlaintiff on their claims fortrespass, so clearly the Boughton jury found that Cotter had released contaminants intothe Lincoln Park
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area. "However, we cannot transpose a general finding that substanceswere released under another theory of recovery to bar Cotter from contesting the range ofits 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 TMILitigation, 193 F. 3d 613 (3d Cir. 1999), which involved the personal injury claims of over 2, 000area residents arising out of the 1979 nuclear reactor accident at Three Mile Island. Inthat case, the district court adopted a plan for a "mini-trial" suggested by plaintiffs. Theplan called for an "initial mini-trial of the claims of twelve 'typical' plaintiffs, halfchosen by plaintiffs and half chosen by defendants. "Id. at 627. The mini-trial wouldfocus on plaintiffs' "ability to demonstrate that they were exposed to doses of radiationsufficient to cause their neoplasms. "Id. at 623. The parties thenclearly agreed toproceed on an "All Plaintiffs" basis, extending the results of the mini-trial to bindnon-participants. "A contrary intention or result would obviate all benefits of havingconsolidated the many separate actions, " the district court stated. Id. at 628.
To establish causation, plaintiffs relied on several experts who testified about thedose 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, itthen held its Daubert ruling would bind all of the other non-trialplaintiffs. Analyzingthis ruling under Fed. R. Ci v. P. 42(b), the basis for consolidating all of the cases, theThird Circuit found applying the summary judgment ruling from the trial plaintiffs to thenon-trial plaintiffs implicated substantive rights protected by the Seventh Amendmentand improperly extended the doctrine of collateral estoppel/issue preclusion. Id. at 725-26. Despite the array of arguments for efficiency and streamlining thetrial process in theface of a single nuclear accident, the Third Circuit reversed the extension of summaryjudgment applied to non-trial plaintiffs.
TMI must remind us to focus on what was actuallylitigated and who should bebound and benefit from those results. That concern must override arguments aboutinconsistent results and time-consuming relitigation of the same issue. If the partiesintended to bind subsequent litigation with the results of prior test trials, the record mustclearly memorialize that agreement. Their failure to do that here leaves importantsubstantive rights at the mercy of trial tactics.
We therefore reverse the district court's grant of partial summary judgment, fullymindful 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 toestablish this toxictort, greater care to assure the jury was properly instructed and the verdict forms wereclear was essential to establish results impervious to relitigation.
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 fearofcancer. In their cross-appeal, Dodge plaintiffs contend the rulingwas error. Because theruling represents a final judgment appropriate for review under 28 U.S.C. §a1291, it, unlike the other
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issues mooted by our disposition, remains viable. We review the districtcourt's order granting summary judgment de novo, applying the same standard of Fed. R. Ci v. P. 56(c) as did the district court. Roe v. Cheyenne Mountain ConferenceResort, Inc 124 F. 3d 1221 1235 (10th Cir. 1997). In this process, we draw allinferences in thenon-movant's favor and analyze Colorado law afresh. Mares v. ConAgra PoultryCo971 F.2d 492 496 (10th Cir. 1992).
To survive summary dismissal of this claim, Dodge plaintiffs argued theirexposures to hazardous materials caused a range of physical conditions: bony growths, cataracts, headaches and irritability, to name a few. They contended these physicalinjuries met a threshold for recovery under Towns v. Anderson, 579 P.2d 1163, 1164-65(Colo. 1978), which abolished the physical impact requirement in negligence cases foremotional distress and permitted a plaintiff who is subjected to an unreasonable risk ofbodily harm because of another's negligence to recover upon proof of "the internaloperation of fright or other emotional disturbance. "Id. at 1164, quoting Restatement(Second) of Torts §a436(2). Having met thisrequirement with the evidence of an arrayof manifestations of physical injuries, Dodge plaintiffs, relying on Boryla v. Pash, 960P.2d 123 (Colo. 1998), then contended Colorado law recognized their right to recoverdamages for their resulting objective fear of developing cancer.
The district court rejected the argument, observing Dodge plaintiffs offered noevidence of an objectively reasonable chronic, continuing physical manifestation tosupport their fear of an increased risk of cancer as required by Towns and Boryla. 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 toconsider damages. "We disagree.
In Boryla, plaintiff sought non-economic damages foremotional distressincluding the fear of an increased risk of the recurrence of her cancer as a consequence ofher 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 SupremeCourt rested its discussion on what it believed was a clear distinction between fear ofcancer cases arising from a medical malpractice setting and those involving toxic torts. It stated, "In cases where the plaintiff demonstrates that her cancerous conditionphysically worsened as a result of the delayed diagnosis, the plaintiff has demonstrated asufficient physical injury to permit the recovery of emotional distress damages. " Id. at128. 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 butbelieves the particularexposure makes him vulnerable to that increased risk.
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The Colorado Supreme Court concluded, "For these reasons, traditionalnegligence principles which focus on proximate cause as well as the reasonableness ofthe plaintiff's fear are sufficient to evaluate fear of cancer claims in medical malpracticeclaims. "Thus, Boryla was a medical malpractice case, and thecourt expressly limited itsanalysis and holding to that arena. Id.
Dodge plaintiffs, however, would extend the analysis toembrace their toxic tortclaim, equating the manifestation of certain acute conditions with a permanent objectiveinjury leading to an increased risk of cancer. In the absence of any indication theColorado Supreme Court would permit such an expansion, we decline to do so. Nor is itnecessary here. At a minimum, Dodge plaintiffs failed to setforth any evidence that theysuffer from a chronic objective condition caused by their increased risk of developingcancer to permit their recovery for emotional distress damages. Although counsel wouldsweep 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 casefor a new trial. However, we AFFIRM the order granting summary judgment on the fear of cancer claim.
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Notes: 1. The Mill produced and shipped theyellowcake to nuclear power plants innorthern Illinois owned by Commonwealth Edison, Cotter's parent company. 2. These ponds, an integral part of the Milloperation and site, are vast; one covers91 acres; the other 44 acres. 3. Cotter planned to resume operations in 1999. 4. The special verdict form stated:1. Was plaintiff significantly exposed to a proven hazardous substance?
(Yes or No) Was defendant Cotter negligent? (Yes or No) Was Cotter's negligence, if any, a cause of plaintiff's exposure, if any? (Yes or No) As a result of his exposure, if any, does plaintiff suffer a significantlyincreased risk of contracting a serious latent disease? (Yes or No) Does this significantly increased risk, if any, make periodic diagnosticmedical examinations reasonably necessary for plaintiff? (Yes or No) Do monitoring and testing procedures exist which make the early detectionand treatment of the disease possible and beneficial for plaintiff? (Yes orNo) 5. Three plaintiffs prevailed on nuisance claims; six succeeded on their claims oftrespass although only four were awarded monetary damages. No non-economic orexemplary damages were awarded. 6. Boughton I alleged 1958-present, and Dodge 1958 -1991. Although thedifference is readily explainable, the first verdict did not indicate the time period or datesof Cotter's negligence. 7. Paragraph 50 of both complaints stated:These releases and contamination of the air, ground water, surface water, rivers and soil in the vicinity of the facility and property were proximatelycaused and their results aggravated by the negligent acts and/or omissionsof the Defendants including, but not limited to, the following:
(A) permitting the emissions, releases and leaks of radioactiveand/or hazardous materials from the facility and property to occur;
(B) failing to determine where and how the emissions, releases andleaks of radioactive and/or hazardous materials occurred and in failing tocorrect the problems to prevent further leakage and emissions;
(C) failing to provide adequate containment of the radioactiveand/or hazardous materials;
(D) failing to provide adequate air, surface water, ground water, rivers and soil sampling and/or monitoring to detect releases of radioactiveand/or hazardous materials;
(E) failing to take proper measurements of particle sizes andemissions;
(F) failing to test incoming ores adequately for the presence ofhazardous or toxic materials;
(G) failing to timely and adequately warn or otherwise notifyPlaintiffs of such releases and contamination and the effects thereof;
(H) failing to take timely and adequately remedial actions to containand clean up such contamination and to prevent recurring releases;
(I) failing to properly train and supervise their employees to insurethat the necessary safeguards and procedures would be followed in theevent that any emissions, releases or leaks of radioactive and/or hazardousmaterials from the facility and property might occur;
(J) failing to comply with applicable Federal and State laws, regulations, licenses or orders;
(K) being negligent in the construction and implementation ofremedial measures for containing releases from the tailing ponds andoperating facilities. 8. The hearing addressed only the issue ofnegligence, the court having alreadydenied the motion on the issues of trespass and nuisance. 9. Cotter also confuses the analysis under Fed. R. Ci v. P. 23 with that fordetermining whether the first trial resolved the question of negligence. The district courtfully recognized collateral estoppel is an issue preclusion doctrine and did notconfoundit with questions of the various types of relief sought which formed the basis of thedenial of class certification. Further, Cotter's assertion Dodge plaintiffs "could haveopted to be plaintiffs in Boughton" is specious, defying the record ofopposing counsels'meeting with the United States Magistrate Judge and selecting the plaintiffs for eachcase. 10. Assuredly, we are cognizant of the trialcourt's broad discretion and longinvolvement in the two cases. Neither, however, trumps the legal elements of thedoctrine. Although the court and counsel may know how an issue was resolved, thatunderstanding cannot be fully superimpose'd onto the second jury without a clearindication of what, in fact, the first jury decided. 11. The dictionary states a bellwether is "onethat takes the lead. "Webster's NewInternational Dictionary (3d ed. 1993). 12. Obviously, this conclusion moots theremaining issues raised in the cross-appeals. However, because the question of expert testimonyis likely to recur, we wouldbe remiss not to indicate our concern that the district court vigilantly make detailedfindings to fulfill the gatekeeper role crafted in Daubert v. Merrell DowPharmaceuticals, Inc 509 U.S. 579 (1993). Given the novelty of the medical causationtheory here linking exposure to molybdenum with osteoarthritis and bony exostoses, it isessential that by specific findings of record the trial court assures the expert testimonyoffered by both sides is relevant and reliable, and the "particular opinion is based onvalid reasoning and reliable methodology. "Kannankeril v. Terminix Int'l, Inc 128F.3d 802, 806 (3d Cir. 1997). Finally, all outstanding motions are denied as moot. 13. At the continued hearing on the motionon July 16, 1998, the court stated, "Idoubt if we're going to have any claims for fear of cancer. I just don't see that we havesufficient material or sufficient showing for that. " 14. The court cited the discussion in Potter v. Firestone Tire & RubberCo 863P.2d 795 (Cal. 1993), which recognized significant policy concerns about the"staggering" impact of "an unrestricted plaintiff class" with fears of cancer. In thosecases, the California court held, the jury may consider whether "it is more likely than notthat the plaintiff will develop the cancer in the future due to the toxic exposure, " as athreshold for recovery. Id. at 816. 15. Defendant physician relied on Potter, which set forth a higher standard forrecovery for fear of cancer damages in toxic tort cases, requiring "in the absence of apresent physical injury or illness, damages for fear of cancer may be recovered only if theplaintiff pleads and proves that (1) as a result of the defendant's negligent breach of aduty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatenscancer; and (2) the plaintiff's fear stems from a knowledge, corroborated by reliablemedical or scientific opinion, that it is more likely than not that the plaintiff will developthe cancer in the future due to the toxic exposure. "Id. at 816. Defendant sought toimport this "more likely than not" standard into his medical malpractice case. Notes: 1. The Mill produced and shipped theyellowcake to nuclear power plants innorthern Illinois owned by Commonwealth Edison, Cotter's parent company. 2. These ponds, an integral part of the Milloperation and site, are vast; one covers91 acres; the other 44 acres. 3. Cotter planned to resume operations in 1999.4. The special verdict form stated:
Was plaintiff significantly exposed to a proven hazardous substance? (Yes or No) Was defendant Cotter negligent? (Yes or No) Was Cotter's negligence, if any, a cause of plaintiff's exposure, if any? (Yes or No) As a result of his exposure, if any, does plaintiff suffer a significantlyincreased risk of contracting a serious latent disease? (Yes or No) Does this significantly increased risk, if any, make periodic diagnosticmedical examinations reasonably necessary for plaintiff? (Yes or No) Do monitoring and testing procedures exist which make the early detectionand treatment of the disease possible and beneficial for plaintiff? (Yes orNo) 5. Three plaintiffs prevailed on nuisance claims; six succeeded on their claims oftrespass although only four were awarded monetary damages. No non-economic orexemplary damages were awarded.6. Boughton I alleged 1958-present, and Dodge 1958 -1991. Although thedifference is readily explainable, the first verdict did not indicate the time period or datesof Cotter's negligence.
7. Paragraph 50 of both complaints stated:
These releases and contamination of the air, ground water, surface water, rivers and soil in the vicinity of the facility and property were proximatelycaused and their results aggravated by the negligent acts and/or omissionsof the Defendants including, but not limited to, the following:
(A) permitting the emissions, releases and leaks of radioactiveand/or hazardous materials from the facility and property to occur;
(B) failing to determine where and how the emissions, releases andleaks of radioactive and/or hazardous materials occurred and in failing tocorrect the problems to prevent further leakage and emissions;
(C) failing to provide adequate containment of the radioactiveand/or hazardous materials;
(D) failing to provide adequate air, surface water, ground water, rivers and soil sampling and/or monitoring to detect releases of radioactiveand/or hazardous materials;
(E) failing to take proper measurements of particle sizes andemissions;
(F) failing to test incoming ores adequately for the presence ofhazardous or toxic materials;
(G) failing to timely and adequately warn or otherwise notifyPlaintiffs of such releases and contamination and the effects thereof;
(H) failing to take timely and adequately remedial actions to containand clean up such contamination and to prevent recurring releases;
(I) failing to properly train and supervise their employees to insurethat the necessary safeguards and procedures would be followed in theevent that any emissions, releases or leaks of radioactive and/or hazardousmaterials from the facility and property might occur;
(J) failing to comply with applicable Federal and State laws, regulations, licenses or orders; (K) being negligent in the construction and implementation ofremedial measures for containing releases from the tailing ponds andoperating facilities. 8. The hearing addressed only the issue ofnegligence, the court having alreadydenied the motion on the issues of trespass and nuisance. 9. Cotter also confuses the analysis under Fed. R. Ci v. P. 23 with that fordetermining whether the first trial resolved the question of negligence. The district courtfully recognized collateral estoppel is an issue preclusion doctrine and did notconfoundit with questions of the various types of relief sought which formed the basis of thedenial of class certification. Further, Cotter's assertion Dodge plaintiffs "could haveopted to be plaintiffs in Boughton" is specious, defying the record ofopposing counsels'meeting with the United States Magistrate Judge and selecting the plaintiffs for eachcase. 10. Assuredly, we are cognizant of the trialcourt's broad discretion and longinvolvement in the two cases. Neither, however, trumps the legal elements of thedoctrine. Although the court and counsel may know how an issue was resolved, thatunderstanding cannot be fully superimposed onto the second jury without a clearindication of what, in fact, the first jury decided. 11. The dictionary states a bellwether is "onethat takes the lead. "Webster's NewInternational Dictionary (3d ed. 1993). 12. Obviously, this conclusion moots theremaining issues raised in the cross-appeals. However, because the question of expert testimonyis likely to recur, we wouldbe remiss not to indicate our concern that the district court vigilantly make detailedfindings to fulfill the gatekeeper role crafted in Daubert v. Merrell DowPharmaceuticals, Inc 509 U.S. 579 (1993). Given the novelty of the medical causationtheory here linking exposure to molybdenum with osteoarthritis and bony exostoses, it isessential that by specific findings of record the trial court assures the expert testimonyoffered by both sides is relevant and reliable, and the "particular opinion is based onvalid reasoning and reliable methodology. "Kannankeril v. Terminix Int'l, Inc 128F.3d 802, 806 (3d Cir. 1997). Finally, all outstanding motions are denied as moot. 13. At the continued hearing on the motionon July 16, 1998, the court stated, "Idoubt if we're going to have any claims for fear of cancer. I just don't see that we havesufficient material or sufficient showing for that. "14. The court cited the discussion in Potter v. Firestone Tire & RubberCo 863P.2d 795 (Cal. 1993), which recognized significant policy concerns about the"staggering" impact of "an unrestricted plaintiff class" with fears of cancer. In thosecases, the California court held, the jury may consider whether "it is more likely than notthat the plaintiff will develop the cancer in the future due to the toxic exposure, " as athreshold for recovery. Id. at 816.
15. Defendant physician relied on Potter, which set forth a higher standard forrecovery for fear of cancer damages in toxic tort cases, requiring "in the absence of apresent physical injury or illness, damages for fear of cancer may be recovered only if theplaintiff pleads and proves that (1) as a result of the defendant's negligent breach of aduty owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatenscancer; and (2) the plaintiff's fear stems from a knowledge, corroborated by reliablemedical or scientific opinion, that it is more likely than not that the plaintiff will developthe cancer in the future due to the toxic exposure. "Id. at 816. Defendant sought toimport this "more likely than not" standard into his medical malpractice case.
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