In the News Law360

US Backs Reversal Of $1B Plutonium Ruling Against Dow

The nation's solicitor general told the U.S. Supreme Court on Thursday that federal law controls injury and property damage class claims brought against a nuclear plant operator following a radiation release, asking the court to let stand the reversal of a $1 billion judgment against Dow Chemical Co. and another company.

Solicitor General Donald Verrilli also said in an amicus curiae brief that plaintiffs bringing suit under the Price-Anderson Act must establish that their property was damaged beyond the mere presence of plutonium particles in order to collect damages.

A proposed class of more than 15,000 property owners is appealing a Tenth Circuit decision that reversed a ruling ordering Dow and the former Rockwell International Corp. to pay out nearly $1 billion for releasing plutonium particles onto property near the former Rocky Flats Nuclear Weapons Plant in Colorado. The high court asked Verrilli to weigh in on the case in October.

The property owners hold in their petition for certiorari that a so-called public liability action filed under Price-Anderson is controlled only by state law. Congress passed Price-Anderson in 1957 to limit the liability of private companies in the nuclear energy sector.

"That contention ... is at odds with the text, structure and purpose of the act," Verrilli said.

While Price-Anderson holds that the rules for a public liability action should be derived from state law, it maintains that those rules should be consistent with the goals of the act, according to the solicitor general.

"In light of the act's broader structure and purpose, it is not surprising that Congress would impose limitations on a federal cause of action beyond those that might otherwise exist under state tort law," Verrilli said.

The plaintiffs contended that they need only allege in good faith that a bodily injury or property damage occurred in order to allow for recovery in a public liability action, but the solicitor general disagreed.

"[E]ven assuming that [the law's] injury requirement pertains only to the court's jurisdiction, that would not relieve petitioners of the obligation to prove their jurisdictional allegations and thus to establish that they have suffered a specific injury," Verrilli said.

Verrilli also backed the Tenth Circuit's decision that the plaintiffs needed to show there was at least some physical injury to their property to bring a public liability action. Price-Anderson does not view property contamination without resulting damage or loss of use as an actionable harm, he said.

In any case, the Supreme Court should not review the case because the Tenth Circuit remanded it to the lower court and that court may bar the plaintiffs' claims based on the guidance from the Tenth Circuit, according to Verrilli.

An attorney for the plaintiffs declined to comment on the solicitor general's brief. An attorney for Dow and Rockwell was not immediately available for comment.

A federal jury found against Dow and Rockwell, which operated the plant for the government, in 2006. Four years later, the Tenth Circuit ruled that property owners' fears that leaked plutonium would damage their health was not a sufficient basis to award damages and that the jury had been improperly instructed as to the standard for damages.

The plaintiffs filed their petition for a writ of certiorari in May 2011, arguing that the Tenth Circuit's interpretation of the standard for damages was unreasonably high.

The plaintiffs are represented by Merrill G. Davidoff, David F. Sorensen, Jennifer E. MacNaughton and Caitlin G. Coslett of Berger & Montague PC, Gary B. Blum and Steven W. Kelly of Silver & DeBoskey PC, Marcy G. Glenn of Holland & Hart LLP, Jeffrey A. Lamken, Robert K. Kry, Martin V. Totaro and Kelly M. Falls of Molo Lamken LLP, and Louise M. Roselle, Paul M. De Marco and Jean M. Geoppinger of Waite Schneider Bayless & Chesley LPA.

Dow and Rockwell are represented by Christopher Landau, John K. Crisham, Philippa Scarlett and Douglas Kurtenbach of Kirkland & Ellis LLP.

The case is Cook et al. v. Rockwell International Corp. et al., case number 10-1377, in the Supreme Court of the United States.