Excerpts from Judge Kane's Order

Consulting in the Public Interest

Excerpts from Judge Kane's Order granting
class certification in the Rocky Flats litigation


MERILYN COOK, et al., Plaintiffs,

v.

ROCKWELL INTERNATIONAL CORPORATION, a Delaware Corporation,

and

THE DOW CHEMICAL COMPANY, a Delaware Corporation, Defendants.

Civil Action No. 90-K-181

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

October 8, 1993, Decided

October 8, 1993, Filed

DISPOSITION: [**1] IT IS ORDERED THAT Plaintiffs' motion for class certification is GRANTED.
COUNSEL: For Plaintiffs: Bruce H. DeBoskey, Esq.; Silver & DeBoskey; Denver, CO.
For Rockwell, Defendant: Franklin D. Kramer, Esq.; Shea & Gardner; Washington, DC.
For Dow Chemical, Defendant: Mark S. Lillie, Esq.; Kirkland & Ellis, DC Box 09.

JUDGES: KANE, JR.

OPINION BY: JOHN L. KANE, JR.

OPINION: [*380] ORDER REGARDING CLASS CERTIFICATION

KANE, J.

This case is before me on plaintiffs' motion to certify two classes, a medical monitoring class and a property class pursuant to Fed. R. Civ. P. 23. Certification for the medical monitoring class is sought under Rule 23(b)(2) or, in the alternative, under Rule 23(b)(3). Certification of the property class' damage claims is requested solely under Rule 23(b)(3).

...

Additionally, plaintiffs are required to justify the definitions of the classes. As noted in Boggs: "Although the class definition is subject to refinement based upon further development of the record, there should be some evidence at this stage of the case that plaintiffs' definition is reasonable. This requires an examination of plaintiffs' evidence of the dispersion of hazardous emissions." Id. at 61-62. [**14] In his declaration, plaintiffs' expert, Dr. Jan Beyea, acknowledges that "these estimates of dose and exposure are preliminary and are likely to be refined and adjusted as further information is obtained during the course of discovery" (Decl. Dr. Jan Beyea, p. 4). Defendants' argument against the estimates is not focused on the fact of dispersion of hazardous radioactive and non-radioactive substances, but on the amount and effect of dispersion of such substances. Defendants, relying on their experts' declarations, argue that the dispersion of the materials to class members attributable to the plant are minimal and not significant enough to cause either a reasonable risk of health effects or any loss of property value.

Although these amounts are perceived by defendants as minimal, it appears that persons living within the medical monitoring area, i.e. the plutonium and VOC dose or exposure contours, and properties located within the property class area, i.e. the plutonium contour as defined by plaintiffs, can [*384] reasonably be said to have been exposed to some hazardous radioactive and non-radioactive materials originating inside the boundaries of Rocky Flats. These persons can thereby [**15] be differentiated from more distant members of the public. This is unlike Daigle v. Shell Oil Co., where the court found that plaintiffs had "failed to identify any logical reason ... for drawing the boundaries where they did." 133 F.R.D. 600, 603 (D. Colo. 1990). Individual members of the classes still will be required to submit evidence concerning their particularized damage claims in the trial on the merits of the action. Therefore, I find that plaintiffs' choice of the plutonium and VOC contours to define class members bears a reasonable relationship to the evidence of record at this point, and that the definitions of both the medical monitoring class and the property class are sufficiently definite to permit analysis of the Rule 23 factors governing class certification.

...

I find that the named plaintiffs adequately represent the interest of the class as a whole and that the requirements of Rule 23(a)(4) have been satisfied.

...

IT IS ORDERED THAT Plaintiffs' motion for class certification is GRANTED.

Dated this 8th day of October, 1993 at Denver, Colorado.

JOHN L. KANE, JR., U.S. SENIOR DISTRICT COURT JUDGE

Please also see Dr. Beyea's Affidavit supporting this motion.



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