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THE NATIONAL LAW JOURNAL
July 16, 2001
Uranium mill nuked for $16.3M
An earlier version of the case drew a $5M award.
By Gail Diane Cox
STAFF REPORTER
"THIS WILL WIPE the smile off Cotter’s face," winning attorney Suzelle M.
Smith said after a Denver jury awarded her clients $16.3 million on their claim
that Cotter Corp.’s uranium mill poisoned their community for 40 years.
The recent verdict will be roughly doubled because of prejudgment interest,
said Smith of Los Angeles’ Howarth & Smith. Also, U.S. District Judge Zita
Weinshienk must assess Cotter’s costs for lifelong medical monitoring for some
of the 32 plaintiffs.
Publicly, however, Cotter’s lead attorney remains undaunted. Immediately
after the verdict, John L. Watson of Denver’s Moye, Giles, O’Keefe, Vermeire &
Gorrell told reporters: "They will never see this money. We feel completely
confident that the 10th Circuit will overturn this verdict."
An earlier version of the case involving a $5 million award to a dozen of the
current plaintiffs was reversed and remanded. The problem, according to the
appellate panel, was a jury instruction that may have falsely implied that there
had already been a specific finding that Cotter had dumped wastes offsite.
At the core of the plaintiffs’ case is the contention that hazardous wastes
were negligently handled so that they damaged land surrounding the Canon City
site—and had contributed to physical injuries including cancer.
Cotter’s defense is that mill operations may have contaminated some ground
water in certain limited areas, but the concentration of materials to which
plaintiffs may have been exposed was so small that it presented no serious risk.
Dodge v. Cotter Corporation, 91-Z-1861.
The new award is not vulnerable, Smith asserted, "because the judge was quite
conservative. She allowed them 20 expert witnesses and she followed the remand
instructions very tightly." As part of what Smith called the judge’s caution,
she noted the jury was asked to make findings—and ruled against Cotter—as to
negligence in dumping as well as causation for each of two separate groups of
hazardous materials. Howarth & Smith’s work in uranium plant liability led to a
lowering of the standard of proof last year in the U.S. Court of Appeals for the
9th Circuit.
While the earlier, higher standard remains in effect in Colorado, Smith noted
the Dodge plaintiffs had the benefit of government findings of contamination
after Cotter’s mill was closed and designated a Superfund site in the 1980s.
Among those testifying in the current trial was Cotter’s president, Richard
Cherry. Under questioning by Don Howarth, who called him as an adverse witness,
Cherry acknowledged he did not know that the state and federal government had
charged Cotter with some 100 violations of environmental laws.
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