Court reverses verdict in $926 million contamination lawsuit against Rocky Flats contractors

Court throws out $926 million Rocky Flats award

DENVER — A $926 million award to thousands of Colorado homeowners in a lawsuit involving plutonium contamination from a now-defunct nuclear weapons plant was thrown out Friday by a federal appeals court.

A three-judge panel also tossed the jury verdict in the case and ruled that homeowners failed to prove their properties were damaged or that they suffered bodily injury from plutonium that blew onto their properties from Rocky Flats northwest of Denver.

The 10th U.S. Circuit Court of Appeals in Denver ruled that the jury reached its decision in February 2006 on faulty instructions that incorrectly stated the law.

The judges wrote that under the law, the presence of plutonium on properties south of the plant, which closed in 1989 for safety and environmental reasons, at best shows only a risk — not actual damages to their health or properties.

“‘DNA damage and cell death’ do not constitute a bodily injury in the absence of the manifestation of an actual disease or injury,” the panel wrote, later adding: “Plaintiffs must necessarily establish that plutonium particles released from Rocky Flats caused a detectable level of actual damage.”

Decreased property values could not be counted as damage, the court ruled.

Marilyn Cook, whose name appears on the lawsuit, hadn’t seen the ruling Friday and declined to comment.

The lawsuit was filed in 1993.

A jury found that the contractors that operated the plant for the U.S. Department of Energy, Dow Chemical Co. and the former Rockwell International Corp., damaged properties downwind of the plant through negligence.

Chris Landau, the lead attorney for the contractors, and Steve Kelly, the lead attorney for the homeowner, did not immediately return messages.

Dow Chemical said in a prepared statement that, from the outset of the case 20 years ago, the company has claimed there was no harm to property owners or damage to property values.

“Dow’s position regarding the health effects has been supported by independent panels and state and federal governmental agencies including the Center for Disease Control, the Environmental Protection Agency, and the Colorado Department of Public Health and Environment,” the company said.

Among incidents documented at the plant that made nuclear triggers called “pits” for nuclear weapons starting in 1953, was the storage of plutonium contaminated barrels of solvents and waste oil that were stored outdoors until the late 1960s. Those barrels leaked and windstorms blew away some of the contaminated soil away, according to the state health department.

Taxpayers have paid the contractors’ legal bills and would have paid any penalties under Energy Department contracts indemnifying the companies.

Dow Chemical operated the Rocky Flats for the government from the 1950s until 1975; Rockwell ran it from 1975 until 1989.

The site has been remediated and converted into a national wildlife refuge.