The Twenty-Seven Years’ War

Two Berger & Montague attorneys on Rocky Flats, one of the longest cases in U.S. history

Published in 2017 Pennsylvania Super Lawyers — June 2017

On June 6, 1989, FBI agents raided Rocky Flats Plant, a nuclear weapons facility 40 minutes northwest of Denver, in Jefferson County, Colorado, based on allegations of unsafe operating conditions and environmental contamination. 

The following January, homeowners near the plant filed complaints—against the Dow Chemical Co., which operated the facility from 1952 to 1975, and Rockwell International Corp., which ran it from 1975 until 1989—under the Price-Anderson Act, a federal law governing nuclear liability issues, and the common law of Colorado relating to trespass and nuisance. 

“Enough plutonium was left on the plant property that the pollution continued to waft into the neighborhood and, frankly, in our view, continues to waft into the neighborhood today,” says Merrill Davidoff, who served as lead counsel in Cook v. Rockwell International Corp. “Plutonium has a half-life of 24,000 years.”

Davidoff’s firm, Berger & Montague, was brought on in late 1989 to aid local counsel, thanks to its rep in environmental class action cases. Little did Davidoff know he would be working on the case for nearly three decades.

“I think Judge John Kane has observed that the court file in Colorado is the largest court file in the history of that court,” he says. “I mean, there were just repeated motions—hundreds and hundreds of repetitive motions over the same thing, again and again and again.”

The class was certified in October 1993 and the case moved slowly from the start. Between 1993 and 2005, Davidoff’s team and the defense participated in a marathon of discovery and pre-trial maneuvering. In 1995, after a week-long bench trial against the Department of Energy, Judge Kane held the DOE in contempt for “stonewalling the discovery,” Davidoff says, calling it “a scorched-earth defense.

“[They had] an extremely tough litigation style, and they were backed by the DOE in legal fees and costs,” he adds. “It was a very hard-fought case, and feelings get stirred up in that kind of a situation.”

In October 2005, the trial finally began at the U.S. District Court for the District of Colorado. It lasted four months and involved 41 witnesses, over 600 exhibits and five class representatives for approximately 13,000 class members who owned property in the area on June 7, 1989.

“Many of our experts were just concerned scientists,” says Davidoff. “They were paid, obviously, but these were people who testified because they were concerned about what went on at Rocky Flats and the way the government had treated the neighbors of the plant.”

David Sorensen, a managing shareholder at Berger & Montague who was Davidoff’s co-counsel on the case, still remembers the closing argument. “After the defendants responded, Merrill gave a closing rebuttal, which I thought was just phenomenal,” he says. “It was limited to an hour, and the lead defense lawyer kept jumping up [to protest]. And, finally, Judge Kane said, ‘That’s enough!’”

Davidoff adds: “I think David would probably agree that I was the slug-it-out guy.”

In February 2006, the jury awarded the plaintiffs $200 million in punitive damages and $177 million in compensatory damages under the Price-Anderson Act. The defense appealed and, in 2010, the 10th Circuit Court of Appeals ruled in its favor and vacated the class-action certification.

The Berger & Montague team was also dealing with a personal tragedy at the time. 

“I had a co-counsel, Peter Nordberg—he was my second chair at the time,” says Davidoff. “He was a tremendous lawyer that we all admired and, a month after the first oral argument before the 10th Circuit, he suddenly passed away. That was a difficult moment in the case for us, but we still had to pull ourselves together.”

In 2011, the attorneys filed a petition for writ of certiorari to the U.S. Supreme Court, hoping it would review the 10th Circuit Court’s ruling. The request was denied. 

The case then returned to the District Court of Colorado, where it was ruled that the plaintiffs’ nuisance claims were preempted by the Price-Anderson Act and that the plaintiffs could recover damages only under the Act.

In 2014, Davidoff appealed the District Court’s ruling to the 10th Circuit, arguing before then-Judge Neil Gorsuch for reinstatement of the original judgment. For him, it was among the best moments of the entire case. “I realized that he had read everything—everything. And that he was meticulously prepared, and was giving us a fair hearing,” he says.

Judge Gorsuch ruled in Davidoff’s favor and, in June 2015, the District Court ruling was reversed. The plaintiffs then filed a motion at District Court in an attempt to re-certify the class action. 

Meanwhile, they began settlement discussions, which lasted seven months. On May 18, 2016, a breakthrough: The parties reached a $375 million settlement.

Sorensen calls it the most amazing turnaround he’s ever seen; Davidoff stresses not giving up was the key to getting class members their compensation.

The final details aren’t wrapped up quite yet, however: A hearing for the final approval of the settlement with Judge Kane was scheduled for April 28, 2017, after this issue went to press. If that goes according to plan, Davidoff expects class member payments will finally begin in late 2017 or early 2018. 

“We had class representatives that stuck with this case for 27 years, and came to every day of the trial,” he says. “I can’t imagine having a better group.”

After almost three decades, it’ll finally be in the books. “I’m 55 years old,” adds Sorensen. “This case has been about half of my life.”

 


 

Timeline

June 1989 - FBI agents raid Rocky Flats Plant 

January 1990 - Homeowners near the plant file complaints

October 1993 - Class action status is certified

July 1995 - Week-long bench trial against the DOE

November 1995 - DOE is ruled in contempt of court

October 2005 - Four-month trial begins at U.S. District Court for the District of Colorado

February 2006 - Jury awards plaintiffs $177 million in compensatory damages

September 2010 - 10th Circuit Court of Appeals vacates judgment

January 2014 - District Court rules plaintiffs can recover damages only under Price-Anderson Act 

June 2015 - District Court ruling is reversed at 10th Circuit Court of Appeals

May 2016 - $375 million settlement is reached

April 2017 - Hearing for final approval of settlement

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