{"id":838,"date":"2022-11-10T16:00:37","date_gmt":"2022-11-10T23:00:37","guid":{"rendered":"https:\/\/celj.cu.law\/?p=838"},"modified":"2022-11-10T16:00:37","modified_gmt":"2022-11-10T23:00:37","slug":"a-house-is-not-a-thyroid-analogy-issues-and-other-problems-for-plaintiffs-attempting-to-recover-in-the-tenth-circuit-under-the-price-anderson-act","status":"publish","type":"post","link":"https:\/\/celj.cu.law\/?p=838","title":{"rendered":"A House Is Not a Thyroid: Analogy Issues and Other Problems for Plaintiffs Attempting to Recover in the Tenth Circuit Under the Price Anderson Act"},"content":{"rendered":"

<\/a> I. Introduction<\/strong><\/p>\n

In Cook v. Rockwell International Corp.<\/em>, a class of property owners sought to recover damages under the Price Anderson Act (\u201cPAA\u201d) after a nuclear plant exposed their property to plutonium radiation.[2]<\/a><\/sup> Following a four-month trial and three weeks of deliberation, the jury awarded the class just over $926 million.[3]<\/a><\/sup> The Tenth Circuit subsequently remanded the case because, among other reasons, the plaintiffs did not show that exposure to nuclear radiation constituted damage to their property or that they were deprived of any use of their property.[4]<\/a><\/sup><\/p>\n

Under the PAA, a plaintiff can bring a suit arising from a \u201cpublic liability action\u201d if she can establish \u201closs of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or by-product material.\u201d[5]<\/a><\/sup> Once a plaintiff establishes a requisite injury, she must then prevail on her claim under substantive state law.[6]<\/a><\/sup><\/p>\n

This Note critiques the Tenth Circuit\u2019s current jurisprudence regarding property claims under the PAA through the ruling in Cook<\/em> for three reasons: (1) the plaintiffs did not raise, nor did the court address, relevant Tenth Circuit precedent regarding medical monitoring claims; (2) the court made an inapt analogy between bodily organs and houses that led to a ruling that inappropriately equated organs and real property; and (3) the Tenth Circuit construed the PAA\u2019s meaning of \u201closs of use of property\u201d too narrowly. Part I first examines the PAA in detail. It then discusses the Tenth Circuit\u2019s reasoning for remanding the case. Part II argues that if the plaintiffs in Cook<\/em> had argued relevant precedent, the outcome of the case might have been different. Part III argues that the court based much of its opinion on a faulty analogy equating \u201cbodily injury\u201d to \u201cdamage to property.\u201d Part IV argues that the Tenth Circuit misinterpreted the \u201closs of use of property\u201d language in the PAA. Finally, Part V concludes by arguing that even if the plaintiffs in Cook<\/em> should not have prevailed on their claim, the Tenth Circuit\u2019s ruling on the threshold elements of the PAA was too limited.<\/p>\n

<\/a><\/a> II. The PAA and Cook v. Rockwell<\/em><\/strong><\/p>\n

This Part first outlines the history of the PAA and its survival of a constitutional challenge. It then looks at the basic components of a PAA claim. It finally concludes with the facts of Cook<\/em> and why the Tenth Circuit remanded the case because of jury instruction inadequacies with regard to the \u201closs of or damage to property\u201d and \u201closs of use of property\u201d requirements of the PAA.<\/p>\n

<\/a><\/a> A. The Price Anderson Act<\/strong><\/p>\n

Congress passed the Atomic Energy Act of 1946, a precursor to the PAA, in reaction to World War II and the bombings of Hiroshima and Nagasaki. Realizing the potential of nuclear plants for energy production, Congress wanted to encourage nuclear energy.[7]<\/a><\/sup> In 1957 the Atomic Energy Act was amended to require the Atomic Energy Commission (\u201cAEC\u201d) to oversee licensure and private nuclear production.[8]<\/a><\/sup> While the AEC provided incentives to private companies to enter the nuclear energy business, many private entities were hesitant to invest in the nuclear industry for fear of extreme liability exposure given the unique nature of nuclear energy.[9]<\/a><\/sup><\/p>\n

In response to the private sector\u2019s reluctance, Congress passed the PAA to limit the liability that nuclear manufacturers could face in the event of a nuclear incident.[10]<\/a><\/sup> The PAA was passed with the dual purpose of encouraging development of nuclear energy and ensuring public safety. As the law currently stands, nuclear manufacturers are required to purchase the maximum insurance coverage that the private market allows.[11]<\/a><\/sup> In the event of a nuclear incident, once the coverage afforded by private insurance is exhausted, the government will indemnify the nuclear manufacturer in an amount not exceeding $500 million.[12]<\/a><\/sup><\/p>\n

In 1978, the PAA survived a constitutional challenge in Duke Power Co. v. Carolina Environmental Study Group, Inc.<\/em>[13]<\/a><\/sup> There, an environmental group and forty individuals living near a nuclear manufacturer sought declaratory judgment that the PAA is unconstitutional. The district court agreed and declared the PAA unconstitutional for two reasons. First, the district court held that the PAA violated the Due Process Clause of the Fifth Amendment because it allowed injuries without providing victims adequate compensation.[14]<\/a><\/sup> Second, the district court held that the PAA violated the Equal Protection Clause of the Fifth Amendment because it forced victims to bear the burden of injury while allowing society by and large to benefit from the development of nuclear power.[15]<\/a><\/sup> The Supreme Court invoked probable jurisdiction and reversed the district court\u2019s ruling. The Court ruled that the PAA provides an adequate substitute for common law or state tort remedies and thus does not violate the Due Process Clause of the Fifth Amendment.[16]<\/a><\/sup> Likewise, the Court ruled that Congress\u2019s reason for encouraging private production of nuclear energy justified the different treatment between those injured by nuclear incidents and those injured by other causes. The PAA, therefore, did not violate the equal protection component of the Fifth Amendment.[17]<\/a><\/sup><\/p>\n

In 1988, the PAA was amended to provide a \u201cpublic liability\u201d federal cause of action over \u201cnuclear incidents.\u201d[18]<\/a><\/sup> A \u201cpublic liability action\u201d is \u201cany suit asserting public liability.\u201d[19]<\/a><\/sup> A \u201cnuclear incident\u201d is defined as:<\/p>\n

[A]ny occurrence, including an extraordinary nuclear occurrence, within the United States causing, within or outside the United States, bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material.[20]<\/a><\/sup><\/p>\n

In passing this amendment, Congress intended to limit nuclear manufacturer liability to only the harms listed under 42 U.S.C. \u00a7 2014(q), the portion of the PAA that outlines the damages a plaintiff must show to bring a suit; however, \u201csubstantive rules for decision in such action shall be derived from the law of the State in which the nuclear incident involved occurs, unless such law is inconsistent with the provisions of such section.\u201d[21]<\/a><\/sup> This means that once a plaintiff has established a \u201cnuclear incident,\u201d she then presents her case under an appropriate theory of law under the state jurisdiction of where the incident occurred.<\/p>\n

To prevail on a claim brought under the PAA, plaintiffs must pass three hurdles. First, they must prove that a \u201cpublic liability action\u201d occurred, as defined by the PAA.<\/a>[22]<\/a><\/sup> Second, they must prove that the substantive state law, in the state where the incident occurred, is not inconsistent with the provisions of the PAA.[23]<\/a><\/sup> Finally, they must prevail under the law of the state where the \u201cnuclear incident\u201d occurred.[24]<\/a><\/sup><\/p>\n

A lawsuit brought under the PAA might proceed as follows: first, a plaintiff or plaintiff class has to prove a public liability action, such as \u201cdamage to property.\u201d To do so, a plaintiff might show that nuclear waste from a nuclear manufacturer spilled over onto her property, causing damage to the integrity of the structure. Second, after showing that one of the requisite harms occurred, a plaintiff must show that her claim is not inconsistent with the PAA.[25]<\/a><\/sup> Third, a plaintiff must prevail on her claim under the substantive state laws, such as a claim for nuisance, where the \u201cnuclear incident\u201d occurred.<\/p>\n

<\/a><\/a> B. Cook v. Rockwell International Corp.<\/strong><\/p>\n

Cook<\/em> was about a chemical manufacturing plant called Rocky Flats located near Denver, Colorado with a history of spilling nuclear waste. The plant was originally opened in the 1950s by the United States government to produce nuclear weapon components.[26]<\/a><\/sup> The Dow Chemical Company initially operated the facility, and later Rockwell International Corporation took over.[27]<\/a><\/sup> In 1989, the Environmental Protection Agency and the Federal Bureau of Investigation searched and ultimately closed the facility.[28]<\/a><\/sup> After the closure, Rockwell was charged with, and pleaded guilty to, certain environmental crimes.[29]<\/a><\/sup> Rocky Flats is now a wildlife refuge.[30]<\/a><\/sup><\/p>\n

In 1990, residents living within thirty miles east of Rocky Flats filed a federal class action lawsuit under the PAA alleging a \u201cpublic liability action\u201d against Dow Chemical Company and Rockwell International Corporation, seeking compensatory and punitive damages.[31]<\/a><\/sup> For a federal court to hear the claim, the plaintiff class alleged that trespass and nuisance claims under Colorado law occurred through \u201closs of or damage to property, or loss of use of property\u201d under the PAA.[32]<\/a><\/sup><\/p>\n

After fifteen years of pre-trial litigation, the United States District Court for the District of Colorado conducted a four-month jury trial.[33]<\/a><\/sup> The Tenth Circuit noted in regard to the jury instructions as follows:<\/p>\n

[T]he jury instructions did not require Plaintiffs to establish either an actual injury to their properties or a loss of use of their properties. With respect to the nuisance claims, the district court instructed the jury that Plaintiffs could establish Defendants\u2019 conduct interfered with the use and enjoyment of the class properties by proving Defendants\u2019 conduct exposed Plaintiffs to \u2018some increased risk of health problems\u2019 or caused conditions \u2018that pose a demonstrable risk of future harm to the Class Area.\u2019 As to Plaintiffs\u2019 trespass claims, the district court instructed the jury, \u2018Plaintiffs are not required to show that plutonium is present on the Class Properties at any particular level or concentration, that they suffered any bodily harm because of the plutonium or that the presence of plutonium on the Class Properties damaged these properties in some other way.\u2019[34]<\/a><\/sup><\/p>\n

The plaintiffs presented evidence that plutonium exposure\u2014at any level\u2014increases one\u2019s risk of cancer.[35]<\/a><\/sup> They did not present evidence as to how much plutonium exposure the property of the class was subject to, and they did not present evidence of actual, physical damage to plaintiff\u2019s property.[36]<\/a><\/sup><\/p>\n

The jury deliberated for three weeks, found for the plaintiff class, and awarded $176,850,340 in compensatory damages on the trespass claim and another $176,850,340 on the nuisance claim.[37]<\/a><\/sup> The jury also awarded $89,400,000 in punitive damages against Dow Chemical Company and $110,800,000 in punitive damages against Rockwell International Corporation. [38]<\/a><\/sup> Both parties appealed.<\/p>\n

The Tenth Circuit remanded the case on September 3, 2010 because the jury was not properly instructed about what constitutes a \u201cnuclear incident,\u201d a threshold element of all PAA claims.[39]<\/a><\/sup> In order to establish a \u201cnuclear incident\u201d under the PAA, the plaintiffs in this case could have shown either \u201closs of or damage to property\u201d or \u201closs of use of property.\u201d[40]<\/a><\/sup> The court held that the jury instructions did not properly instruct the jury as to whether the plaintiffs had established any of the requirements of 42 U.S.C. \u00a7 2014(q), and thus remanded the case.[41]<\/a><\/sup><\/p>\n

In supplemental briefing after the trial, the Cook<\/em> plaintiffs first argued that they needed only to assert that a \u201cpublic liability action\u201d occurred and that they did not have to prove it at trial.[42]<\/a><\/sup> The court rejected this argument by stating that if it adopted that construction of the PAA, any claim brought under the PAA would be indistinguishable from a state law claim.[43]<\/a><\/sup> Next, the court considered whether the plaintiff class had actually shown \u201closs of or damage to property\u201d or \u201closs of use of property.\u201d The Court found that the jury was improperly instructed on both possible threshold elements of the PAA.[44]<\/a><\/sup><\/p>\n

<\/a><\/a> 1. Loss of or Damage to Property<\/strong><\/p>\n

In determining whether a \u201cpublic liability action\u201d was actually shown at trial, rather than merely asserted, the court turned to its earlier decision in June v. Union Carbide Corp.<\/em> to begin its analysis.<\/p>\n

There, the Tenth Circuit held that the PAA bars medical monitoring suits\u2014cases where plaintiffs have not been injured but instead allege future injury\u2014because such claims do not rise to the level of \u201cbodily injury\u201d required by 42 U.S.C. \u00a7 2014(q).[45]<\/a><\/sup> The court stated as follows: \u201cIn our view, \u2018DNA damage and cell death,\u2019 which creates only a possibility of clinical disease, does not constitute a \u2018bodily injury\u2019 under the Price-Anderson Act.\u201d[46]<\/a><\/sup> The June<\/em> court also relied on the canon of statutory interpretation against superfluity.[47]<\/a><\/sup> The plaintiffs argued that the PAA should be interpreted so that every claim that satisfies state law would also meet the requirements of the PAA.[48]<\/a><\/sup> The court reasoned that if it adopted such a construction, \u201cbodily injury\u201d would impose no limit on claims, and would thus be superfluous.[49]<\/a><\/sup> It therefore rejected this argument.<\/p>\n

Returning to Cook<\/em>, the court analogized medical monitoring to \u201cdamage to property.\u201d[50]<\/a><\/sup><\/p>\n

Our characterization of \u2018damage to property\u2019 is informed by the analysis in June<\/em>, as the logic applies equally to the issue before us in this appeal. Just as an existing physical injury to one\u2019s body is necessary to establish \u2018bodily injury,\u2019 so too is an existing physical injury to property necessary to establish \u2018damage to property.\u2019 Without a demonstrable manifestation of injury, the presence of plutonium can, at best, only establish a risk of future damage to property. As this court indicated in June<\/em>, however, mere risk of future damage is insufficient.[51]<\/a><\/sup><\/p>\n

The plaintiffs argued that contamination by itself was enough to establish \u201cdamage to property.\u201d[52]<\/a><\/sup> The court dismissed this argument, stating that if Congress wanted to establish contamination as an element of the PAA, then the statute could have said \u201ccontamination\u201d in addition to \u201closs of or damage to property\u201d and \u201closs of use of property.\u201d[53]<\/a><\/sup><\/p>\n

Because the plaintiffs did not present evidence of \u201cactual damage\u201d to property other than a small but quantifiable amount of radiation, the court held that they had not met the threshold element of a \u201cnuclear incident\u201d under the PAA through \u201closs of or damage to property.\u201d[54]<\/a><\/sup><\/p>\n

<\/a><\/a> 2. Loss of Use of Property<\/strong><\/p>\n

The court next examined whether the plaintiffs established a \u201cnuclear incident\u201d through \u201closs of use of property.\u201d[55]<\/a><\/sup> Here, too, the court held that the jury instructions misstated the law.[56]<\/a><\/sup> The court began its analysis on the \u201closs of use of property\u201d element of the PAA by stating \u201cthat when the presence of radioactive materials creates a sufficiently high risk to health, a loss of use may in fact occur.\u201d[57]<\/a><\/sup> Rather than drawing a line for how much interference would constitute a loss of use, the court stated that a plaintiff has established the threshold injury requirement \u201cwhere the evidence indicates the property has been affected by the radioactive material to such an extent that an otherwise appropriate use of the property is lost.\u201d[58]<\/a><\/sup><\/p>\n

During the trial, however, the plaintiffs only presented evidence that exposure to plutonium in any degree produces health risks.[59]<\/a><\/sup> They did not present evidence that they were deprived of any specific use of their property.[60]<\/a><\/sup> Because the jury instructions did not require the plaintiffs to show any loss of specific use, the court held that the jury was not properly instructed on the plaintiffs\u2019 claim under the PAA.[61]<\/a><\/sup><\/p>\n

<\/a><\/a> III. The Cook<\/em> Plaintiffs Did Not Raise, and the Court Did Not Address, Relevant Tenth Circuit Precedent<\/strong><\/p>\n

This Part focuses on medical monitoring as a cause of action under the PAA because the Tenth Circuit treated \u201closs of or damage to property\u201d essentially the same as \u201cphysical injury\u201d by requiring actual, physical property damage\u2014in other words, the court applied the same reasoning to both personal and property torts. The Tenth Circuit ruled that \u201cfuture damage is insufficient\u201d to satisfy the jurisdictional requirements of the PAA for personal torts and that the same reasoning applies to property torts.[62]<\/a><\/sup><\/p>\n

This Part first outlines medical monitoring as a cause of action. It then addresses a line of cases in the Tenth Circuit brought under the PAA that relied on the reasoning of medical monitoring claims, starting with Building & Construction Department v. Rockwell International Corp.<\/em>, leading to June v. Union Carbide Corp.<\/em>, and ending with Cook v. Rockwell International Corp.<\/em> It then argues that if the plaintiffs in June<\/em> had argued for the application of the Tenth Circuit\u2019s reasoning in Building<\/em> to their case, then the plaintiffs in June<\/em> might have prevailed. Similarly, if the June<\/em> plaintiffs had prevailed, perhaps the plaintiffs in Cook<\/em> might have also prevailed. It finally argues that the holding in Building<\/em> should apply to Cook<\/em> because \u201cpersonal injury\u201d and \u201cphysical injury\u201d carry essentially the same meaning and should therefore be treated similarly.<\/p>\n

<\/a><\/a> A. Medical Monitoring as a Cause of Action<\/strong><\/p>\n

In Building & Construction Department v. Rockwell International Corp.<\/em>, a plaintiff class of employees brought a PAA claim, alleging medical monitoring as their cause of action under state law.[63]<\/a><\/sup> The court laid out the elements of a medical monitoring claim as requiring:<\/p>\n

1. Plaintiff was significantly exposed to a proven hazardous substance through the negligent actions of the defendant.<\/p>\n

2. As a proximate result of exposure, plaintiff suffers a significantly increased risk of contracting a serious latent disease.<\/p>\n

3. That increased risk makes periodic diagnostic medical examinations reasonably necessary.<\/p>\n

4. Monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial.[64]<\/a><\/sup><\/p>\n

But, ultimately, the court held that the plaintiffs\u2019 PAA claims were barred by the exclusivity portion of the Colorado Workmen\u2019s Compensation Act (the \u201cCWCA\u201d).[65]<\/a><\/sup><\/p>\n

It is generally agreed that medical monitoring claims first arose in the 1984 case Friends for All Children, Inc. v. Lockheed Aircraft Corp.<\/em> as a way for asymptomatic plaintiffs to recover for costs associated with diagnostic examinations.[66]<\/a><\/sup> In an oft-quoted statement, the United States District Court for the District of Columbia posed the following hypothetical to explain how tort law should treat plaintiffs that have not been physically injured, but nonetheless face serious costs associated with medical evaluations:<\/p>\n

Jones is knocked down by a motorbike which Smith is riding through a red light. Jones lands on his head with some force. Understandably shaken, Jones enters a hospital where doctors recommend that he undergo a battery of tests to determine whether he has suffered any internal head injuries. The tests prove negative, but Jones sues Smith solely for what turns out to be the substantial cost of the diagnostic examinations.[67]<\/a><\/sup><\/p>\n

The D.C. Circuit reasoned that even absent injury, Jones should be able to recover for costs associated by the negligent actions of Smith.[68]<\/a><\/sup> However, not all jurisdictions accept medical monitoring as a theory of recovery under all statutes.[69]<\/a><\/sup> The United States Supreme Court, for example, has rejected medical monitoring for claims brought under the Federal Employers\u2019 Liability Act.[70]<\/a><\/sup><\/p>\n

<\/a><\/a> B. The Medical Monitoring and the Price Anderson Act in the Tenth Circuit<\/strong><\/p>\n

The plaintiffs in Cook<\/em> should have argued that Building<\/em> was applicable and asked the Tenth Circuit to apply that reasoning to their case. Although it is impossible to predict precisely how the Tenth Circuit would have ruled if it had the benefit of additional arguments, the Cook<\/em> plaintiffs\u2019 case would likely have been stronger if they presented the holding in Building<\/em> to the Tenth Circuit.<\/p>\n

In Building<\/em>, the Tenth Circuit addressed whether medical monitoring claims for exposure to nuclear radiation qualify as a \u201cpersonal injury\u201d for the purposes of the CWCA.[71]<\/a><\/sup> The court held that medical monitoring was properly characterized as \u201cpersonal injury\u201d under the CWCA.[72]<\/a><\/sup> There, a group of then-current and former employees of Rocky Flats brought a medical monitoring suit against a Dow Chemical Company and Rockwell International Corporation, the same defendants as in Cook<\/em>.[73]<\/a><\/sup> In Building<\/em>, however, the plaintiffs were employees of the plant rather than property owners. Upon receiving the complaint, the defendants filed a motion to dismiss for failure to state a claim.[74]<\/a><\/sup> The motion to dismiss considered issues not raised in the pleadings, so the United States District Court for the District of Colorado treated it as a motion for summary judgment.[75]<\/a><\/sup> Finding that the medical monitoring claims were barred by the CWCA\u2019s exclusivity provision, the district court granted the defendants\u2019 motion for summary judgment.[76]<\/a><\/sup> The Tenth Circuit affirmed the district court\u2019s ruling.[77]<\/a><\/sup><\/p>\n

At the time of the ruling, the CWCA read:<\/p>\n

[L]iability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of such death of or personal injury to any such employee and accruing to any person are abolished except as provided in said articles.[78]<\/a><\/sup><\/p>\n

The plaintiffs argued, among other things, that a medical monitoring claim was not an action for \u201cpersonal injury,\u201d and thus their claim was not barred by the exclusivity provision of the CWCA.[79]<\/a><\/sup> The Tenth Circuit, in addressing the plaintiffs\u2019 argument, noted that the Colorado Supreme Court had interpreted the CWCA broadly by granting employers immunity from common law suits.[80]<\/a><\/sup> The Tenth Circuit then held that medical monitoring claims \u201carise primarily out of the risk of latent manifestation of physical injury from exposure to toxic substances and not out of some purely economic or property loss.\u201d[81]<\/a><\/sup><\/p>\n

Recall that the June<\/em> court held that medical monitoring claims did not satisfy the \u201cbodily injury\u201d requirement of the PAA.[82]<\/a><\/sup> However, the plaintiffs in June<\/em> did not raise, and thus the Tenth Circuit did not address, Building<\/em>\u2019s holding that medical monitoring claims qualified as \u201cpersonal injury\u201d under the CWCA.[83]<\/a><\/sup> The plaintiffs in June<\/em> should have argued that the reasoning set forth in Building<\/em>\u2014that medical monitoring qualified as \u201cpersonal injury\u201d\u2014applied to their case. If they could establish that medical monitoring qualifies as \u201cpersonal injury,\u201d it would be a small logical step to then reason that \u201cpersonal injury\u201d should constitute \u201cbodily injury.\u201d However, the holding in Building<\/em> was never raised in June<\/em>, and the Tenth Circuit did not have the opportunity to address whether \u201cpersonal injury\u201d could qualify as \u201cbodily injury\u201d for the purposes of the PAA.<\/p>\n

Moving forward to Cook<\/em>, there the Tenth Circuit did not have the opportunity to apply Building<\/em>\u2019s reasoning. Instead, the Cook<\/em> court relied on the language of June<\/em>:<\/p>\n

[T]he plaintiffs in June<\/em><\/a> claimed the defendants\u2019 uranium operations increased their risk of developing health problems and thus pursued medical monitoring claims. The district court determined medical monitoring claims do not involve a \u2018bodily injury\u2019 and dismissed the action. This court affirmed and held \u2018DNA damage and cell death\u2019 do not constitute a bodily injury in the absence of the manifestation of an actual disease or injury, despite the increased risk of developing disease in the future. In short, June<\/em><\/a> makes clear that only an existing physical injury constitutes \u2018bodily injury\u2019 under the PAA; the mere subclinical effects of radiation exposure are insufficient.[84]<\/a><\/sup><\/p>\n

The Tenth Circuit made its ruling in Cook<\/em>\u2014that exposure to radiation, without more, does not constitute \u201cdamage to property\u201d just as exposure to radiation, without more, does not constitute \u201cbodily injury\u201d\u2014without having the benefit of the analysis of Building<\/em> that exposure to radiation qualifies as \u201cpersonal injury\u201d under the CWCA. Perhaps Cook<\/em> might have come out differently if the Tenth Circuit had the benefit of using the holding in Building<\/em> in its analysis of June<\/em>.<\/p>\n

Even if the plaintiffs in June<\/em> had argued that the court should apply the Building<\/em> holding, it is not certain that the Tenth Circuit would have allowed the case to be tried before a jury; it is possible that the court could have found a way to distinguish between the cases for one reason or another. In Building<\/em>, for example, before the court conducted its analysis about the PAA, it was first tasked with interpreting the language of the CWCA.[85]<\/a><\/sup> Because the Colorado Supreme Court liberally construed the CWCA, the Tenth Circuit also liberally construed the meaning of \u201cpersonal injury\u201d and thus found medical monitoring suits to fit within that broad category of injuries.[86]<\/a><\/sup> Although the June<\/em> court did not face the issues brought up by the CWCA, if it had, the court might have ruled that medical monitoring claims did not constitute \u201cphysical injury\u201d absent any guidance from the Colorado Supreme Court requiring broad interpretation.<\/p>\n

The CWCA and the PAA, however, are more similar than they might seem at first glance: both are intended to limit liability. The CWCA and the PAA both seek to strike a balance between providing appropriate compensation for injured persons and limiting an employer\u2019s liability of being sued. If an employer qualifies as a \u201cstatutory employer\u201d as defined by the CWCA, \u201cthe responsible employer is granted immunity from common law negligence liability.\u201d[87]<\/a><\/sup> Part of the purpose of the PAA, likewise, is to limit the liability of nuclear manufacturers. Indeed, 42 U.S.C. \u00a7 2210 is titled \u201cIndemnification and limitation of liability.\u201d Nuclear manufacturers are required to pay the maximum amount that the private insurance market requires in premiums, and if a claim exceeds that amount, the federal government indemnifies the nuclear manufacturer for a certain amount exceeding what private insurance would cover.[88]<\/a><\/sup> Because the CWCA and the PAA both operate similarly, it makes sense to interpret them similarly.[89]<\/a><\/sup> However, since the plaintiffs in June<\/em> did not argue that the court should apply Building<\/em> and its interpretation of \u201cpersonal injury,\u201d it is impossible to say how the Tenth Circuit would have ruled.<\/p>\n

Although additional arguments might not have carried the day for the plaintiffs in Cook<\/em>, their case would likely have been stronger had they argued that the Building<\/em> reasoning should be applied to their case. Perhaps arguing that medical monitoring qualifies as \u201cpersonal injury\u201d for the purposes of the CWCA would have led the Tenth Circuit to find that medical monitoring qualifies as \u201cphysical injury\u201d under the PAA.<\/p>\n

<\/a><\/a> C. \u201cPersonal Injury\u201d and \u201cPhysical Injury\u201d Compared<\/p>\n

Beyond the language differences in the CWCA and the PAA, the Cook<\/em> court might also have distinguished June<\/em> because of the difference in language between \u201cpersonal injury\u201d and \u201cphysical injury.\u201d However, when the two phrases are analyzed, they essentially have the same meaning.<\/p>\n

\u201cPersonal\u201d is defined as, \u201cof, relating to, or affecting a particular person.\u201d[90]<\/a><\/sup> In contrast, \u201cphysical\u201d is defined as \u201cof or relating to natural science.\u201d[91]<\/a><\/sup> \u201cPhysical\u201d is also defined as \u201cof or relating to the body.\u201d[92]<\/a><\/sup> \u201cInjury\u201d is defined as \u201can act that damages or hurts.\u201d[93]<\/a><\/sup> It is also defined as a \u201cviolation of another\u2019s rights for which the law allows an action to recover damages.\u201d[94]<\/a><\/sup><\/p>\n

When the word \u201cinjury\u201d is combined with \u201cpersonal\u201d or \u201cphysical,\u201d the slight difference in meaning between the latter two is more or less taken away. \u201cPersonal injury\u201d can only mean a damage relating to a particular person. \u201cPhysical injury,\u201d likewise, can only mean damage to the body. Although the two words are technically different, they have the same essential meaning: both relate to damage that a person suffers. Because they carry essentially the same meaning, it does not make sense to treat them differently.<\/p>\n

Regardless of what would have happened had the Cook<\/em> court addressed the reasoning of the Building<\/em>–June<\/em> line of cases, it is impossible to ignore that the Tenth Circuit held that medical monitoring qualifies as \u201cpersonal injury\u201d in one case but not as \u201cbodily injury\u201d in another. If the plaintiffs in June<\/em> had argued this to the Tenth Circuit, perhaps the court would have treated medical monitoring claims differently in Cook<\/em>.<\/p>\n

<\/a><\/a> IV. The Court Made an Inapt Analogy between Bodily Organs and Houses<\/strong><\/p>\n

This Part discusses the Tenth Circuit\u2019s analogy comparing \u201cbodily injury\u201d in June<\/em> to \u201cdamage to property\u201d in Cook<\/em>. It first outlines the reasoning of the analogy and how the Tenth Circuit formulated its opinion. It then critiques the analogy as improperly equating houses to humans. Finally, it argues that by requiring physical damage to property, the court has mostly eliminated a potential plaintiff\u2019s use of \u201cdamage to property.\u201d<\/p>\n

<\/a><\/a> A. \u201cBodily Injury\u201d and \u201cDamage to Property\u201d<\/strong><\/p>\n

Aside from the fact that the plaintiffs in Cook<\/em> did not argue that the court should have applied the holding of Building<\/em> in June<\/em>, and then to their case as well, the Tenth Circuit\u2019s analogy of equating \u201cbodily injury\u201d to \u201cdamage to property\u201d further muddies the reasoning behind Cook<\/em>\u2019s holding.[95]<\/a><\/sup> Despite houses and humans being quite different, the Cook<\/em> court treated the two in the same way, and came to a conclusion that does not make logical sense.<\/p>\n

The court begins its analysis of \u201cdamage to property\u201d with the blanket statement that \u201c[o]ur characterization of \u2018damage to property\u2019 is informed by the analysis in June<\/em>, as the logic applies equally to the issue before us in this appeal.\u201d[96]<\/a><\/sup> Although radiation exposure to humans and houses certainly share some similarities, the court provided no justification as to exactly why the logic of its reasoning applies equally to \u201cbodily injury\u201d and \u201cdamage to property.\u201d<\/p>\n

The Tenth Circuit\u2019s analogy might be more appropriate if human bodies and houses could be harmed in precisely the same fashion. For example, take a human that is exposed to some amount of radiation and inevitably develops some disease at a time in the future. Now, take a residential home that is similarly exposed to the same amount of radiation, and at some time in the future part of its foundation cracks. Although the two entities were exposed to the same harm, the injuries are too distinct to equate to one another. Humans are much more fragile than houses\u2014houses can survive for hundreds of years and humans cannot. Humans do not have foundations that can crack, and residential homes do not have organs that can become diseased. Moreover, if two people are exposed to radiation in equal amounts, it is possible for one to develop a disease and the other to remain healthy. Likewise, it is possible that two homes exposed to equal amounts of radiation could experience different levels of damage. One home\u2019s foundation could crack, and another could be left undamaged.<\/p>\n

Aside from the harms to which humans and houses can be exposed, houses and humans are also drastically different in other ways. Houses are built\u2014people are not. Houses are a commodity to be bought and sold\u2014people are not. Houses are repaired, expanded, and demolished\u2014people are not. Furthermore, there are entirely different bodies of law that deal with property and people.[97]<\/a><\/sup> There are simply too many variables at play to suggest that \u201cbodily injury\u201d and \u201cdamage to property\u201d should be analyzed in the same way.<\/p>\n

Despite lacking justification for analyzing the two types of injuries the same, the court continued by stating as follows:<\/p>\n

Just as an existing physical injury to one\u2019s body is necessary to establish \u2018bodily injury,\u2019 so too is an existing physical injury to property necessary to establish \u2018damage to property\u2019. As this court indicated in June<\/em>, however, mere risk of future damage is insufficient. Rather, the physical damage must actually be manifest at the time the PAA claim is asserted.[98]<\/a><\/sup><\/p>\n

The court seems to suggest that in order to prove \u201cdamage to property,\u201d a plaintiff, or in this case a plaintiff class, must provide evidence of actual, physical damage to property, as opposed to \u201cmerely risk of future damage.\u201d Although the court does not provide what would constitute \u201cdamage to property,\u201d one can imagine that cracked foundations, chipped paint, or perhaps dying foliage might constitute actual physical damage. However, the plaintiffs in Cook<\/em> did not present evidence of actual physical damage.[99]<\/a><\/sup><\/p>\n

Admittedly, there is some appeal to the court requiring actual, physical damage to property in order to satisfy the jurisdictional element of the PAA for \u201cdamage to property.\u201d In the context of humans being exposed to nuclear radiation, other circuits have been hesitant to allow medical monitoring to constitute \u201cbodily injury\u201d for the purposes of the PAA. In Rainer v. Union Carbide Corp.<\/em>, the Sixth Circuit was faced with determining whether the Kentucky Supreme Court would equate \u201csubcellular damage\u201d with \u201cbodily injury.\u201d[100]<\/a><\/sup> Although the Kentucky Supreme Court had not ruled on the issue, the Rainer<\/em> court concluded that if the case were decided in Kentucky state court, then \u201csubcellular damage\u201d and \u201cbodily injury\u201d could not be equated.[101]<\/a><\/sup> Likewise, the Ninth Circuit refused to allow medical monitoring claims to go forward under the PAA in In re Berg Litigation<\/em>.[102]<\/a><\/sup> The In re Berg Litigation<\/em> court reasoned that absent a physical injury, the future risk of disease does not meet the jurisdictional requirements of the PAA.[103]<\/a><\/sup><\/p>\n

However, the Rainer<\/em> and In re Berg Litigation<\/em> courts both evaluated whether actual medical monitoring claims could be brought under the PAA. But the Cook<\/em> court determined whether or not exposure to radiation, although not amounting to actual, physical damage, could satisfy the \u201closs of or damage to property\u201d language. Cook<\/em> did not determine whether such exposure could satisfy the \u201cbodily injury\u201d language of the PAA. In other words, the Cook<\/em> court was not tasked with examining whether or not medical monitoring could qualify under the PAA; it was instead tasked with determining whether or not radiation to property could qualify, using medical monitoring as a metaphor to guide its analysis. The Cook<\/em> court treated damage to persons and damage to property in the same fashion, requiring actual physical damage to the plaintiffs\u2019 property.[104]<\/a><\/sup><\/p>\n

Although it might make sense initially to treat humans and buildings in a similar fashion, the two are just too different. Because of the differences between the two, they should not be treated the same.<\/p>\n

<\/a><\/a> B. Personal Torts and Property Torts<\/strong><\/p>\n

In addition to the differing types of harm that buildings and humans can experience, the types of torts that govern personal injuries and injuries to property also operate differently. Despite this difference, the Cook<\/em> court equated \u201cbodily injury\u201d with \u201cdamage to property,\u201d thus eviscerating any meaningful distinction between the two. Because personal torts and property torts are treated differently by the law, the reasoning behind the holding in Cook<\/em> makes even less logical sense.<\/p>\n

Personal torts and property torts often require different types of injuries for a plaintiff to prove a cause of action. For example, a plaintiff must show actual damage in negligence, products liability, and battery cases.[105]<\/a><\/sup> However, property torts are often treated differently. \u201cThe elements for the tort of trespass\u201d for example \u201care a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that property.\u201d[106]<\/a><\/sup> An injury is not required; one is liable for trespass whether or not harm occurs. Any intrusion on the land of someone else, absent a privilege, can give rise to a cause of action, even if that intrusion is beneficial or does not interfere with the owner\u2019s enjoyment of that land.[107]<\/a><\/sup> Indeed, the plaintiffs in Cook<\/em> succeeded on their trespass claim.<\/p>\n

Likewise, \u201cnuisance is predicated upon a substantial invasion of an individual\u2019s interest in the use and enjoyment of his property.\u201d[108]<\/a><\/sup> Nuisance claims can be an intentional invasion of a person\u2019s interest, a negligent invasion of a person\u2019s interests, or conduct that falls within the realm of strict liability.[109]<\/a><\/sup> As long as an action is unreasonable and substantial, any disturbance of a property that hinders enjoyment of that property can rise to a nuisance.[110]<\/a><\/sup> Although trespass requires no harm whatsoever, and nuisance requires a \u201csubstantial invasion of an individual\u2019s rights,\u201d nuisance does not require actual harm. \u201cSignificant harm,\u201d an admittedly amorphous concept, is more than a \u201cpetty annoyance,\u201d but does not have to amount to actual damage.\u201d[111]<\/a><\/sup> It is enough for a plaintiff to show a \u201creal and appreciable interference with [her] use or enjoyment of his land.\u201d[112]<\/a><\/sup> The plaintiffs in Cook<\/em> also prevailed on their nuisance claim. In sum, property torts and personal torts often require different harms to be actionable.<\/p>\n

Recall, however, that courts interpreting the PAA have been reluctant to completely substitute state law claims for threshold injuries.[113]<\/a><\/sup> The June<\/em> court was not persuaded by the plaintiffs\u2019 argument that any claim which satisfied state tort law should qualify as a \u201cpublic liability action\u201d under the PAA.[114]<\/a><\/sup> Likewise, the Cook<\/em> court was not persuaded that a plaintiff need only assert a \u201cpublic liability action\u201d instead of actually proving one.[115]<\/a><\/sup> However, the plaintiffs in Cook<\/em> are exactly the type of individuals that the PAA was meant to cover: people who have been injured by the actions of a nuclear manufacturer. They are not asserting that the nuclear manufacturer caused them emotional distress, nor are they asserting that they were victims of battery.[116]<\/a><\/sup> Those types of claims would clearly fall outside of what the PAA was meant to cover because they have nothing to do with nuclear manufacturing. Instead, the plaintiffs were asserting that they were damaged because of the presence of nuclear radiation on their properties, and property torts do not generally require actual damages. Although the plaintiffs put much stock in their argument that their properties were physically damaged by any amount of radiation, no matter how small that amount, they really had more of an argument to make based on the \u201closs of or damage to property, or loss of use of property\u201d language of the PAA.[117]<\/a><\/sup><\/p>\n

In short, the types of injuries that the plaintiffs asserted in Cook<\/em> fit the language of the PAA. \u201c[B]odily injury, sickness, disease, or death\u201d all appear to be injuries that would require actual damage, similar to the type of damage a plaintiff must show in negligence, battery, and products liability cases. \u201c[L]oss of or damage to property, or loss of use of property,\u201d in contrast, appears to fit more into the category of property torts that do not necessarily require actual damage. By equating \u201cbodily injury\u201d with \u201cdamage to property,\u201d the Cook<\/em> court takes away any distinction between the houses and humans and thus makes its ruling on the foundation of a faulty analogy.<\/p>\n

<\/a><\/a> V. The Tenth Circuit Misinterpreted, and the Plaintiffs Did Not Stress Enough, the \u201cLoss of Use of Property\u201d Language of the PAA<\/strong><\/p>\n

This Part examines a different approach that the Cook<\/em> plaintiffs could have taken to their PAA lawsuit\u2014through the \u201closs of use of property\u201d language in 42 U.S.C. \u00a7 2014(q). It first argues that the plaintiffs should have presented more evidence that their case satisfied the \u201closs of use of property\u201d element of the PAA. It finally argues that given the evidence that the plaintiffs did present at trial, perhaps they could have convinced the Tenth Circuit that they did meet the \u201closs of use of property\u201d language if they borrowed some arguments from insurance claim litigation.<\/p>\n

<\/a><\/a> A. The Cook Plaintiffs and Actual Use of Property<\/strong><\/p>\n

To prevent losing on appeal, the lawyers in Cook<\/em> should have argued that their clients\u2019 harms fit within the \u201closs of use of property\u201d language of the PAA. However, the plaintiffs\u2019 main strategy was to try their case under a nuisance theory in that any exposure to plutonium increases health risks; they did not focus on the threshold elements of a PAA claim.[118]<\/a><\/sup><\/p>\n

On appeal, the plaintiffs struggled to argue that their case satisfied the \u201closs of use of property\u201d language because the trial judge did not require them to make such a showing at trial.[119]<\/a><\/sup> With the facts that the plaintiffs did present at trial, the Tenth Circuit seemed more amenable to plutonium radiation qualifying as \u201closs of use of property\u201d rather than \u201cdamage to property\u201d:<\/p>\n

We agree that when the presence of radioactive materials creates a sufficiently high risk to health, a loss of use may in fact occur. For instance, a residential or business use may be lost due to an increased risk to health so high that no reasonable person would freely choose to live on or work at the property. Similarly, agricultural use may be lost where the soil can no longer produce crops that are safe for consumption due to the presence of the radioactive substance. In short, where the evidence indicates the property has been affected by the radioactive material to such an extent that an otherwise appropriate use of the property is lost, a plaintiff has established the threshold injury element of his PAA claim.[120]<\/a><\/sup><\/p>\n

The plaintiffs\u2019 expert witness only testified, however, that any exposure to plutonium increases health risks to some degree, not that the plaintiffs\u2019 property was exposed to enough radiation to meet any particular threshold.[121]<\/a><\/sup> The plaintiff class did not consist of any farmland that was deprived of use because of exposure to plutonium radiation, nor were any buildings deprived of a business use because of fear of exposure to radiation. The class mainly consisted of regular homeowners whose homes had been exposed to a small but quantifiable amount of radiation.<\/p>\n

In addition to not meeting the \u201csufficiently high risk to health\u201d requirement that the Tenth Circuit created out of whole cloth, the plaintiffs did not present any arguments that \u201closs of use of property\u201d actually occurred. Because the plaintiffs did not show any specific uses of which they were deprived, the Tenth Circuit held that they had not shown \u201closs of use of property.\u201d[122]<\/a><\/sup><\/p>\n

However, it might have been enough to meet the requirements of the PAA if the plaintiffs had merely argued that they were indeed deprived of a use\u2014any use at all\u2014of their property. Aside from the \u201csufficiently high risk to health\u201d threshold, the Tenth Circuit did not seem to create a very high burden when it comes to actual use: \u201c[W]here the evidence indicates the property has been affected by the radioactive material to such an extent that an otherwise appropriate use of the property is lost, a plaintiff has established the threshold injury element of his PAA claim.\u201d[123]<\/a><\/sup> Perhaps the plaintiffs could have argued that family members did not want to visit because of a fear of exposure to radiation. Or maybe they could have argued that they were deprived of a use of inviting their children\u2019s friends over to play. These are but two examples of such arguments; there could have been a myriad of other uses that might have met the Tenth Circuit\u2019s requirement of \u201cappropriate use\u201d had the plaintiffs brought them to the attention of the court.<\/p>\n

This analysis, of course, has the benefit of hindsight, and it might not have been an obvious argument to make at the time\u2014after all, the trial judge did not require them to make a showing of any particular loss of use. However, it seems rather intuitive that presenting arguments of actual loss of use to the court would probably have made the plaintiffs\u2019 case stronger on appeal.<\/p>\n

<\/a><\/a> B. Diminution of Property Value Plus Radiation Exposure<\/strong><\/p>\n

The Cook<\/em> court was unwilling to allow diminution of property value to establish \u201closs of use of property\u201d or \u201cdamage to property.\u201d[124]<\/a><\/sup> However, with the facts presented at trial, the plaintiffs might have satisfied the \u201closs of use of property\u201d requirement had they argued that the diminution of property values combined with the actual radiation on their property satisfied the \u201closs of use of property\u201d language. To do so, the plaintiffs might have drawn from another area of the law that deals with similar harms\u2014insurance claims\u2014and argued that the PAA should be treated similarly.<\/p>\n

Courts have repeatedly held that pure economic loss, such as a loss of investment, does not constitute \u201closs of use of tangible property.\u201d[125]<\/a><\/sup> In insurance claim litigation, parties often litigate what constitutes \u201closs of use of tangible property.\u201d In these sorts of suits, an investment firm will take out an insurance policy on real property, and that insurance policy will contain a provision covering damage to property. As part of that damage to property section, there will be a specific provision covering \u201closs of tangible use of property.\u201d Often times, something unexpected happens, such as a construction company going bankrupt or otherwise being unable to finish a project, and the investors are unable to recoup their investment. In these situations, the property will not have been physically harmed. Instead, the project gets put on hold because the construction company cannot finish. The investment firm will then bring an action alleging \u201closs of use of tangible property\u201d under the insurance agreement. The investment firm will argue that its economic loss of not being able to collect rents or sell the property is covered by the insurance policy. However, because actual harm, rather than economic loss, is usually not shown, the investment firm usually does not prevail in recovering for their loss.<\/p>\n

The homeowners in Cook<\/em>, in contrast, were not alleging mere economic damages. They were alleging actual damages in the form of a quantifiable amount of radiation on their properties. The insurance cases involving \u201closs of use of tangible property\u201d seem to suggest that if property has been physically damaged in addition to the owner being unable to sell it or realize profits from it, then that combination might satisfy \u201closs of use of tangible property\u201d for purposes of the insurance coverage.[126]<\/a><\/sup> Although a small amount of radiation and a diminution of property value were not, by themselves, enough to establish a \u201closs of use of property,\u201d perhaps the court might have been more amenable to an argument that the two combined would be enough. After all, the radiation caused the diminution in property value; the two are inextricably linked. If an insurance claimant would succeed on a claim for coverage for \u201closs of use of tangible property\u201d by alleging actual damage leading to an economic loss, the Cook<\/em> plaintiffs should have succeeded on \u201closs of use of property\u201d language by alleging actual radiation that leads to a diminution of property damage.<\/p>\n

However, this argument certainly has its limitations. Insurance contracts and the PAA are two very different bodies of law. As with the other arguments presented in this Note, the Tenth Circuit might not have been persuaded by this argument because of the differences between the two areas of the law. On the other hand, \u201closs of use of property\u201d and \u201closs of tangible use of property\u201d are relatively similar in language, and maybe the argument would have prevailed had it been presented to the court.<\/p>\n

<\/a><\/a> VI. Conclusion<\/strong><\/p>\n

This Note critiqued the current jurisprudence in the Tenth Circuit under the PAA through the ruling in Cook v. Rockwell International Corp.<\/em> for three reasons. First, in the Building<\/em>–June<\/em>–Cook<\/em> lines of cases, the plaintiffs in June<\/em> did not ask the court to apply the holding of Building<\/em>. The plaintiffs in Cook<\/em> also failed to present the Building<\/em> holding as an argument in their favor, and the Tenth Circuit ruled that medical monitoring did not qualify either as a \u201cphysical injury\u201d for purposes of the PAA or qualify as a \u201cpersonal injury\u201d for purposes of the CWCA. Second, the Cook<\/em> court started its analysis regarding \u201cdamage to property\u201d with a comparison to \u201cphysical injury.\u201d Houses are not affected by radiation from plutonium exposure in the same way that human organs are, and thus the court\u2019s analogy is inappropriate and its holding makes little sense. Finally, the court read \u201closs of use of property\u201d too narrowly.<\/p>\n

This argument does not suggest that the plaintiffs in Cook<\/em> should have prevailed on their claim. Even if the plaintiffs would have prevailed on the threshold elements of their PAA claim, they still faced several other problems. First, the defendants in the case argued that federal statutes and federal nuclear radiations preempted any state action that the plaintiffs brought. The Tenth Circuit remanded the case and ordered the defendants to show exactly which statute and regulations preempted state action. Second, under the substantive state tort claim element, the court ruled that the jury instructions did not properly instruct the jury on trespass law of Colorado. Third, the Cook<\/em> court ordered the district court to revisit whether or not the plaintiff class could be properly certified with regard to the threshold elements of the PAA as well as the substantive state tort law elements. Fourth, the Tenth Circuit also ruled that the jury instructions did not properly instruct the jury with regard to punitive damages. In short, the plaintiffs in Cook<\/em> were faced with many more problems than just meeting the threshold requirements of the PAA.<\/p>\n

This argument does suggest, however, that the Tenth Circuit\u2019s ruling on the threshold elements of a claim under the PAA was too limited. While it might be good public policy to limit the liability that a nuclear manufacturer could face given the occurrence of a nuclear event in order to encourage good, safe production of nuclear energy, the Tenth Circuit has been too limited in its jurisprudence surrounding the threshold elements of a suit brought under the PAA. The Tenth Circuit\u2019s interpretation of \u201closs of or damage to property, or loss of use of property\u201d has made it too difficult for plaintiffs to recover.<\/p>\n

    \n
  1. *J.D. Candidate, May 2014, University of Colorado Law School. I would like to thank my fianc\u00e9e Hillary Grady for her unwavering support and guidance. I would also like thank Ashley Palomaki and Luke Bonucci for their patience and understanding throughout my writing process. \u2191<\/a><\/li>\n
  2. .Cook v. Rockwell Int\u2019l Corp., 618 F.3d 1127 (10th Cir. 2010). \u2191<\/a><\/li>\n
  3. .Id<\/em>. at 1134. \u2191<\/a><\/li>\n
  4. .Id<\/em>. at 1142. \u2191<\/a><\/li>\n
  5. .42 U.S.C. \u00a7 2014(q), (hh) (2012). \u2191<\/a><\/li>\n
  6. .Id<\/em>. \u00a7 2014(hh). \u2191<\/a><\/li>\n
  7. .\u201cAtomic energy is capable of application for peaceful as well as military purposes. It is therefore declared to be the policy of the United States that (a) the development, use, and control of atomic energy shall be directed so as to make the maximum contribution to the general welfare, subject at all times to the paramount objective of making the maximum contribution to the common defense and security; and (b) the development, use, and control of atomic energy shall be directed so as to promote world peace, improve the general welfare, increase the standard of living, and strengthen free competition in private enterprise.\u201d 42 U.S.C. \u00a7 2011 (2012). \u2191<\/a><\/li>\n
  8. .Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 63 (1978). \u2191<\/a><\/li>\n
  9. .Id<\/em>. at 64. \u2191<\/a><\/li>\n
  10. .Id<\/em>. \u2191<\/a><\/li>\n
  11. .Id. <\/em>at 64\u201365. \u2191<\/a><\/li>\n
  12. .Id<\/em>. at 65. \u2191<\/a><\/li>\n
  13. .Duke Power Co.<\/em>, 438 U.S. 59. \u2191<\/a><\/li>\n
  14. .Id<\/em>. at 68. \u2191<\/a><\/li>\n
  15. .Id<\/em>. \u2191<\/a><\/li>\n
  16. .Id<\/em>. at 87. \u2191<\/a><\/li>\n
  17. .Id.<\/em> at 94. \u2191<\/a><\/li>\n
  18. .Pub. L. No. 100-408, (codified as amended at 42 U.S.C. \u00a7 2210(n)(2) (2012)). \u2191<\/a><\/li>\n
  19. .42 U.S.C. \u00a7 2014(hh) (2012). \u2191<\/a><\/li>\n
  20. .Id<\/em>. \u00a7 2014(q). \u2191<\/a><\/li>\n
  21. .Id<\/em>. \u00a7 2014(q), (hh). \u2191<\/a><\/li>\n
  22. .See <\/em>Nathan White, Note, Arguments Not Raised: How the Plaintiffs\u2019 Missed Opportunity Led to the Tenth Circuit\u2019s Decision in <\/em>June v. Union Carbide Corp., 2011 BYU L. Rev. 245, 249 (outlining how a claim under the PAA operates). \u2191<\/a><\/li>\n
  23. .See id<\/em>. at 250. \u2191<\/a><\/li>\n
  24. .Id<\/em>. \u2191<\/a><\/li>\n
  25. . For example, in In re Berg Litigation<\/em>, 293 F.3d 1127, 1132\u201333 (9th Cir. 2002), the court dismissed emotional distress as being inconsistent with the PAA. \u2191<\/a><\/li>\n
  26. .<\/em>Cook v. Rockwell Int\u2019l Corp.<\/em>, 618 F.3d 1127, 1133 (10th Cir. 2010). \u2191<\/a><\/li>\n
  27. .Id<\/em>. \u2191<\/a><\/li>\n
  28. .Id<\/em>. \u2191<\/a><\/li>\n
  29. .Id<\/em>. \u2191<\/a><\/li>\n
  30. .Id<\/em>.; see Rocky Flats Plant<\/em>, EPA, http:\/\/www2.epa.gov\/region8\/rocky-flats-plant-usdoe (last updated Oct., 2013) (describing the history of Rocky Flats). \u2191<\/a><\/li>\n
  31. .Cook<\/em>, 618 F.3d at 1133. \u2191<\/a><\/li>\n
  32. .Id<\/em>. at 1134. \u2191<\/a><\/li>\n
  33. .Id<\/em>. at 1133. \u2191<\/a><\/li>\n
  34. .Id<\/em>. at 1134. \u2191<\/a><\/li>\n
  35. .Id<\/em>. \u2191<\/a><\/li>\n
  36. .See id.<\/em> \u2191<\/a><\/li>\n
  37. .Id<\/em>. \u2191<\/a><\/li>\n
  38. .Id<\/em>. \u2191<\/a><\/li>\n
  39. .Id<\/em>. at 1142. \u2191<\/a><\/li>\n
  40. .See<\/em> 42 U.S.C. \u00a7 2014(q) (2012). \u2191<\/a><\/li>\n
  41. .Cook<\/em>, 618 F.3d at 1133, 1142. \u2191<\/a><\/li>\n
  42. .See id.<\/em> at 1139\u201340; see also <\/em>42 U.S.C. \u00a7 2014(hh) (2012) (a \u201cpublic liability action .\u00a0.\u00a0. means any suit asserting<\/em> public liability\u201d) (emphasis added). \u2191<\/a><\/li>\n
  43. .Cook<\/em>, 618 F.3d at 1140. \u2191<\/a><\/li>\n
  44. .Id<\/em>. at 1142. \u2191<\/a><\/li>\n
  45. .Id. <\/em>at 1139; see <\/em>discussion of medical monitoring suits infra<\/em> Part II.A. \u2191<\/a><\/li>\n
  46. .June v. Union Carbide Corp., 577 F.3d 1234, 1249 (10th Cir. 2009) (emphasis added). \u2191<\/a><\/li>\n
  47. .Id<\/em>. at 1250. \u2191<\/a><\/li>\n
  48. .Id<\/em>. \u2191<\/a><\/li>\n
  49. .Id. <\/em>at 1250. \u2191<\/a><\/li>\n
  50. .Cook<\/em>, 618 F.3d at 1140. \u2191<\/a><\/li>\n
  51. .Id.<\/em> (emphasis added). \u2191<\/a><\/li>\n
  52. .Id.<\/em> at 1140\u201341. \u2191<\/a><\/li>\n
  53. .See id.<\/em> at 1140. \u2191<\/a><\/li>\n
  54. .Id.<\/em> at 1142. \u2191<\/a><\/li>\n
  55. .Id.<\/em> at 1140. \u2191<\/a><\/li>\n
  56. .Id.<\/em> at 1142. \u2191<\/a><\/li>\n
  57. .Id.<\/em> at 1141. \u2191<\/a><\/li>\n
  58. .Id.<\/em> at 1142. \u2191<\/a><\/li>\n
  59. .Id.<\/em> \u2191<\/a><\/li>\n
  60. .Id.<\/em> \u2191<\/a><\/li>\n
  61. .Id.<\/em> \u2191<\/a><\/li>\n
  62. .Id.<\/em> at 1140. \u2191<\/a><\/li>\n
  63. .Building & Constr. Dep\u2019t v. Rockwell Int\u2019l Corp., 7 F.3d 1487, 1490 (10th Cir. 1993). \u2191<\/a><\/li>\n
  64. .Id.<\/em> at 1493 (quoting In re<\/em> Paoli R.R. Yard PCB Litig., 916 F.2d 829, 852 (3d Cir. 1990)). This is generally how other courts have laid out the cause of action. See <\/em>Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 823 (Cal. 1993) (en banc) (requiring \u201c(1) the significance and extent of the plaintiff’s exposure to the chemicals; (2) the relative toxicity of the chemicals; (3) the seriousness of the diseases for which plaintiff is at an increased risk; (4) the relative increase in the plaintiff’s chances of developing a disease as a result of the exposure, when compared to (a) plaintiff’s chances of developing the disease had he or she not been exposed, and (b) the chances of members of the public at large of developing the disease; and (5) the clinical value of early detection and diagnosis\u201d); Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 979 (Utah 1993) (requiring \u201c(1) exposure (2) to a toxic substance, (3) which exposure was caused by the defendant’s negligence, (4) resulting in an increased risk (5) of a serious disease, illness, or injury (6) for which a medical test for early detection exists (7) and for which early detection is beneficial, meaning that a treatment exists that can alter the course of the illness, (8) and which test has been prescribed by a qualified physician according to contemporary scientific principles\u201d). \u2191<\/a><\/li>\n
  65. .Building<\/em>, 7 F.3d at 1494; Building<\/em> is discussed in further detail infra<\/em> Part II.B.<\/em> \u2191<\/a><\/li>\n
  66. .746 F.2d 816 (D.C. Cir. 1984); see <\/em>Herbert L. Zarov et al., A Medical Monitoring Claim for Asymptomatic Plaintiffs: Should Illinois Take the Plunge?<\/em>, 12 DePaul J. Health Care L. 1, 18\u201319 (2009) (outlining medical monitoring as a cause of action). \u2191<\/a><\/li>\n
  67. .Friends for All Children<\/em>, 746 F.2d at 825. \u2191<\/a><\/li>\n
  68. .Id<\/em>. \u2191<\/a><\/li>\n
  69. .See <\/em>Lowe v. Phillip Morris USA, Inc., 183 P.3d 181 (Or. 2008) (rejecting medical monitoring as a cause of action because it does not require actual harm). \u2191<\/a><\/li>\n
  70. .Metro-N. Commuter R.R. Co. v. Buckley, 521 U.S. 424 (1997) (a pipefitter exposed to asbestos could not recover under a medical monitoring theory under the Federal Employers\u2019 Liability Act). \u2191<\/a><\/li>\n
  71. .<\/em>Building & Constr. Dep\u2019t v. Rockwell Int\u2019l Corp., 7 F.3d 1487, 1492 (10th Cir. 1993). The Colorado Workmen\u2019s Compensation Act has been amended. It is now titled the \u201cWorkers\u2019 Compensation Act of Colorado.\u201d Colo. Rev. Stat. Ann. \u00a7 8-40-101 (West 1990). However, since Building <\/em>was decided prior to the change of title, I will refer to the language of the law as the \u201cColorado Workmen\u2019s Compensation Act.\u201d \u2191<\/a><\/li>\n
  72. .Building<\/em>, 7 F.3d at 1493. \u2191<\/a><\/li>\n
  73. .Id<\/em>. at 1490. \u2191<\/a><\/li>\n
  74. .Id.<\/em> \u2191<\/a><\/li>\n
  75. .Id.<\/em> \u2191<\/a><\/li>\n
  76. .Id.<\/em> \u2191<\/a><\/li>\n
  77. .Id<\/em>. at 1496. \u2191<\/a><\/li>\n
  78. .Id<\/em>. at 1492\u201393 (emphasis added). \u2191<\/a><\/li>\n
  79. .Id<\/em>. at 1493. \u2191<\/a><\/li>\n
  80. .Id<\/em>. \u2191<\/a><\/li>\n
  81. .Id.<\/em> at 1494 (emphasis added). \u2191<\/a><\/li>\n
  82. .June v. Union Carbide Corp., 577 F.3d 1234, 1248\u201349 (10th Cir. 2009). \u2191<\/a><\/li>\n
  83. .See <\/em>White, supra <\/em>note 21 (arguing that failure of the plaintiffs to argue the holding in Building & Construction Department <\/em>to the Tenth Circuit could close the door on Tenth Circuit plaintiffs suing under the PAA). \u2191<\/a><\/li>\n
  84. .Cook v. Rockwell Int\u2019l Corp.<\/em>, 618 F.3d 1127, 1140 (10th Cir. 2010) (emphasis added) (citations omitted). \u2191<\/a><\/li>\n
  85. .Building<\/em>, 7 F.3d at 1492\u201393. \u2191<\/a><\/li>\n
  86. .Id<\/em>. at 1493. \u2191<\/a><\/li>\n
  87. .Finlay v. Storage Tech. Corp., 764 P.2d 62, 63 (Colo. 1988). \u2191<\/a><\/li>\n
  88. .42 U.S.C. \u00a7 2210(b)(1) (2012). \u2191<\/a><\/li>\n
  89. .See id<\/em>.; Colo. Rev. Stat. Ann. \u00a7 8-40-101 (West 1990). \u2191<\/a><\/li>\n
  90. .Merriam-Webster\u2019s Collegiate Dictionary 924 (11th ed. 2003). \u2191<\/a><\/li>\n
  91. .Id<\/em>. at 935. \u2191<\/a><\/li>\n
  92. .Id<\/em>. \u2191<\/a><\/li>\n
  93. .Id<\/em>. at 644. \u2191<\/a><\/li>\n
  94. .Id<\/em>. \u2191<\/a><\/li>\n
  95. .See<\/em> supra<\/em> Part II.<\/em> \u2191<\/a><\/li>\n
  96. .Cook v. Rockwell Int\u2019l Corp.<\/em>, 618 F.3d 1127, 1140 (10th Cir. 2010). \u2191<\/a><\/li>\n
  97. .See<\/em> infra <\/em>Part III.B. \u2191<\/a><\/li>\n
  98. .Cook<\/em>, 618 F.3d at 1140 (citations omitted). \u2191<\/a><\/li>\n
  99. .Id<\/em>. at 1141. \u2191<\/a><\/li>\n
  100. .Rainer v. Union Carbide Corp., 402 F.3d 608, 618 (6th Cir. 2005). \u2191<\/a><\/li>\n
  101. .Id<\/em>. at 622. Recall that under the PAA federal courts have jurisdiction but are required to apply state laws. Because the Kentucky Supreme Court had not ruled on the issue, the Sixth Circuit was tasked with predicting how the Kentucky Supreme Court would rule. \u2191<\/a><\/li>\n
  102. .In re <\/em>Berg Litig., 293 F.3d 1127, 1132\u201333 (9th Cir. 2002). \u2191<\/a><\/li>\n
  103. .Id<\/em>. \u2191<\/a><\/li>\n
  104. .See<\/em> supra<\/em> Part II. \u2191<\/a><\/li>\n
  105. .Id<\/em>; see <\/em>Restatement (Second) of Torts \u00a7 13 (1965) (stating that battery requires (1) an act intending to cause a harmful or offensive contact with a person or third person and (2) harmful contact directly or indirectly results). \u2191<\/a><\/li>\n
  106. .Hoery v. United States, 64 P.3d 214, 217 (Colo. 2003) (citations omitted); Restatement (Third) of Torts: Prod. Liab. \u00a7 1 (1998). \u2191<\/a><\/li>\n
  107. .Restatement (Second) of Torts \u00a7 7 cmt. a (1965). \u2191<\/a><\/li>\n
  108. .Hoery<\/em>, 64 P.3d at 218. \u2191<\/a><\/li>\n
  109. .Id<\/em>. \u2191<\/a><\/li>\n
  110. .W. Page Keeton et al., Prosser And Keeton On Torts 620 (5th ed. 1984). \u2191<\/a><\/li>\n
  111. .Restatement (Second) of Torts \u00a7 821F cmt. c (1979). \u2191<\/a><\/li>\n
  112. .Id<\/em>. \u2191<\/a><\/li>\n
  113. .Doing so would mean that any claim that satisfied state law would satisfy the threshold elements of the PAA. This interpretation would make the PAA essentially superfluous. See supra <\/em>Part I.B.1. \u2191<\/a><\/li>\n
  114. .See<\/em> supra <\/em>Part I. \u2191<\/a><\/li>\n
  115. .Id.<\/em> \u2191<\/a><\/li>\n
  116. .See<\/em> In re <\/em>Berg Litig., 293 F.3d 1127 (9th Cir. 2002). \u2191<\/a><\/li>\n
  117. .42 U.S.C. \u00a7 2014(q) (2012). \u2191<\/a><\/li>\n
  118. .Cook v. Rockwell Int\u2019l Corp.<\/em>, 618 F.3d 1127, 1141 (10th Cir. 2010). \u2191<\/a><\/li>\n
  119. .Id<\/em>. at 1142. \u2191<\/a><\/li>\n
  120. .Id<\/em>. at 1141\u201342. \u2191<\/a><\/li>\n
  121. .Id. <\/em>at 1142. \u2191<\/a><\/li>\n
  122. .Id<\/em>. \u2191<\/a><\/li>\n
  123. .Id<\/em>. at 1142 (emphasis added). \u2191<\/a><\/li>\n
  124. .Id<\/em>. at 1141 n.12. \u2191<\/a><\/li>\n
  125. .Hommel v. George, 802 P.2d 1156, 1158 (Colo. App. 1990) (\u201cWhile the loss of use of tangible property includes such property which has diminished in value or been made useless irrespective of any physical injury to the property, the phrase does not include mere economic damages in the nature of loss of investments, anticipated profits, and financial interests.\u201d) (internal citations omitted); Tschimperle v. Aetna Cas. & Sur. Co., 529 N.W.2d 421, 425 (Miss. Ct. App. 1995) (\u201c[T]he general rule is that loss of investment does not constitute damage to tangible property.\u201d) (internal citations omitted); L. Ray Packing Co. v. Commercial Union Ins. Co., 469 A.2d 832, 835 (Me. 1983) (\u201c[A] distinction must be drawn between loss of use of tangible property and loss of profits. While loss of use of tangible property does include tangible property which has been diminished in value or made useless irrespective of any physical injury to the property .\u00a0.\u00a0. it does not include mere economic damage in the nature of loss of investments, anticipated profits, and financial interests.\u201d). But see <\/em>Hartford Accident & Indem. Co. v. Case Found. Co., 294 N.E.2d 7 (Ill. App. Ct. 1973) (noting that the loss of use of tangible property might have been satisfied if plaintiff alleged actual damage to property which caused an economic loss). \u2191<\/a><\/li>\n
  126. .See <\/em>Hartford Accident & Indem. Co. v. Case Found. Co.<\/em>, 294 N.E.2d 7 (Ill. App. Ct. 1973). \u2191<\/a><\/li>\n<\/ol>\n","protected":false},"excerpt":{"rendered":"

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