Civil litigation firm Berger & Montague has secured a $375 million settlement in an environmental tort case that began when its claim was first filed 27 years ago. On April 28, 2017, Cook et al. v. Rockwell International Corp. et al., was settled in the United States District Court for the District of Colorado. The case centered on plutonium releases from the former Rocky Flats nuclear weapons site near Denver. Homeowners alleged that plutonium releases from the site contaminated their property and filed suit in January 1990 against The Dow Chemical Company and Rockwell International Corporation, which managed the plant from 1952 to 1989 for the United States Department of Energy.   

“We are very pleased with the final approval,” said Berger & Montague Chairman Merrill G. Davidoff, Chairman in a statement on his firm’s site. Davidoff was lead trial counsel for the plaintiffs in the four-month trial held from October 2005 to February 2006. In 2006, Mr. Davidoff and his team won a jury verdict on behalf of thousands of class members. Compensatory damages as found by the jury were $177 million. Judgment in the case was entered by the Court in June 2008, including interest and punitive damages.

The case took on a life of its own for years after the initial damages were awarded, which included a District Court dismissal. But a second appeal to the Tenth Circuit, the Court of Appeals in 2015 found that plaintiffs’ state law nuisance cause of action was not preempted by the federal Price-Anderson Act, and that plaintiffs could pursue a state law nuisance judgment based on the existing verdict. That precedent-setting decision was written by newly-appointed Supreme Court Justice Neil Gorsuch, who was judge of that court at the time.  

The proposed class settlement for $375 million was reached in 2016 and will return to class members’ recoveries in excess of the compensatory damages found by 2006, even after fees and costs to class counsel.