Citations
- 564 F. Supp. 2d 1189
Full opinion text
MEMORANDUM OPINION AND ORDER ON PENDING MOTIONS
KANE, District Judge.
On February 14, 2006, the jury returned a verdict in the class trial on Plaintiffs’ trespass and property claims finding for Plaintiffs and against Defendants on both claims and awarding Plaintiffs compensatory and exemplary damages. This matter is now before me on Defendants’ renewed motion for judgment as a matter of a law pursuant to Rule 50(b) and their motion for new trial or, in the alternative, for remittitur of damages pursuant to Rule 59. For the reasons stated below, I deny both motions.
Both parties have also submitted motions directed at putting the claims and issues decided in the course of the class trial in a posture for immediate appeal. Upon consideration of their competing proposals, I have determined that final judgment on the claims decided in the class trial shall be entered pursuant to Federal Rule of Civil Procedure 54(b). The substance of the final judgment and related plan of allocation to be entered is set out in Section III below.
Discussion
I. Defendants’ Renewed Motion for Judgment as a Matter of Law
Defendants moved for judgment as a matter of law under Rule 50(a) at the close of Plaintiffs’ case and again at the close of evidence. I review Defendants’ latest Rule 50 motion under the same standard as their previous motions.
Under Rule 50, judgment as a matter of law in favor of Defendants is warranted “only if the evidence points but one way and is susceptible to no reasonable inferences supporting [Plaintiffs].” Snyder v. City of Moab, 354 F.3d 1179, 1184 (10th Cir.2003); see Fed.R.Civ.P. 50(a). In making this determination, I must view the evidence and any inferences to be drawn from it most favorably to the Plaintiffs, as the non-moving party. Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10 th Cir.1999), overruled on other grounds, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). I also must “refrain from weighing the evidence, passing on the credibility of witnesses or substituting [my] judgment for that of the jury.” Brown v. Wal-Mart Stores, Inc., 11 F.3d 1559, 1563 (10 th Cir.1993); see Baty, 172 F.3d at 1241.
I denied Defendants’ first and second Rule 50 motions based on my determination that, viewing the evidence and all reasonable inferences therefrom in the light most favorable to Plaintiffs, there was a sufficient basis for a reasonable jury to find for Plaintiffs on each of the issues identified by Defendants in their motions. In their most recent Rule 50 motion, Defendants seek judgment on the same issues as in their previous motions relying on much the same arguments as before. Having carefully considered these renewed arguments and Plaintiffs’ response under the standard for decision stated above, I again find that there was a legally sufficient evidentiary basis for a reasonable jury to find for Plaintiffs on each of the issues challenged by Defendants. Accordingly, I deny Defendants’ Renewed Motion for Judgment as a Matter of Law.
II. Defendants’ Motion for New Trial and Alternative Motion for Remitti-tur of Damages
Defendants have also moved pursuant to Rule 59(a) for the jury’s verdicts to be set aside and a new trial ordered based on alleged inconsistencies and excesses in the jury’s verdicts and other alleged errors committed before, during and after trial. In the alternative, Defendants seek remi-tittur of the jury’s compensatory and exemplary damages verdicts.
Rule 59 of the Federal Rules of Civil Procedure provides that a court may grant a new trial after a jury trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(A). Granting a new trial is only appropriate, however, where the claimed error substantially and adversely affects the rights of a party. See Sanjuan v. IBP, Inc., 160 F.3d 1291, 1297 (10 th Cir.1998); Fed.R.Civ.P. 61. The burden of showing an error having this prejudicial effect rests on the party seeking the new trial. See Streber v. Hunter, 221 F.3d 701, 736 (5 th Cir.2000); Clarksville-Montgomery County Sch. Sys. v. U.S. Gypsum Co., 925 F.2d 993, 1002 (6th Cir.1991); see generally 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure Civil § 2803, at 47 (2d ed. 1995 & Supp. 2007) (collecting cases). The decision of whether to grant a new trial rests within the sound discretion of the district court. See Shugart v. Cent Rural Elec. Co-op., 110 F.3d 1501, 1506 (10 th Cir.1997); York v. Am. Tel. & Tel. Co., 95 F.3d 948, 958 (10 th Cir.1996). While federal law governs the procedural aspects of a motion for new trial or remittitur, state law sets the substantive standards in this action, see 42 U.S.C. § 2014(hh); Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 426-39, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996), except to the extent that a federal constitutional challenge is raised.
Defendants devote nearly three-fourths of their voluminous Rule 59 motion to rearguing my decisions to proceed with a class trial, to admit certain lay and expert evidence, to reject certain of Defendants’ proposed jury instructions and overrule their objections to other instructions, and to deny Defendants’ multiple motions for mistrial. Each of the challenged decisions was reached after reasoned consideration of extensive written and/or oral argument from both parties. After careful review of Defendants’ most recent arguments regarding these matters, I find no basis for reconsidering these decisions. Accordingly, I deny Defendants’ motion for new trial based on the claimed errors in my previous decisions.
The remainder of Defendants’ arguments for new trial are based on alleged inconsistencies or excesses in the jury’s compensatory and exemplary damages verdicts. I examine each of these arguments in turn, as well as Defendants’ alternative motion for remittitur of damages.
A. Request for New Trial Based on Alleged Inconsistencies in the Jury’s Damages Verdicts
Defendants assert a new trial is required because the jury’s answers to the damages interrogatories in the jury verdict form are inconsistent in various respects. In order for a new trial to be ordered on this basis, Defendants must “show that any verdict inconsistency demonstrates either confusion or abuse on the jury’s part.” Domann v. Vigil, 261 F.3d 980, 983 (10 th Cir.2001) (internal quotation omitted). Special interrogatory answers that are “irreconcilably inconsistent” because they are “logically incompatible” indicate such jury confusion or abuse of power. See Loughridge v. Chiles Power Supply Co., 431 F.3d 1268, 1275 (10 th Cir.2005). In determining whether there is any inconsistency meeting this standard, I “must accept any reasonable view of the case that makes the jury’s answers consistent,” and consider the verdict in light of the instructions given to the jury, among other factors. Id. (internal quotations omitted).
The jury answers challenged by Defendants are not “logically incompatible” or even inconsistent. Far from indicating that the jury was confused or abused its power in determining damages, these answers indicate a diligent effort by the jury to follow the instructions they received regarding determination of damages. Defendants’ complaints, as a result, are more properly directed to the jury instructions and verdict form than to any inconsistency in the jury’s verdicts.
There is no inconsistency, for example, in the jury’s determination of identical compensatory damages for the trespass and nuisance claims. The jury was instructed to determine any compensatory damages resulting from a trespass or nuisance committed by the Defendants separately, and informed that the court would apply the rule prohibiting multiple recovery of the same damages when it issued judgment on the jury’s verdict. Notice of Final Jury Instructions (Doc. 2121) [hereinafter “Final Jury Instructions”], No. 3.26 (“Multiple Recovery Prohibited”). Following this and other instructions and the corresponding interrogatories in the verdict form, the jury found both Defendants liable on both theories of liability and determined that the aggregate damages to the Class on each claim were $176,850,340. Jury Verdict Form (Doc. 2117) at 15, 24. All concede, and I found following the jury’s verdict, see 2/14/06 Tr. at 10800-01, that these responses reflect the jury’s determination that Defendants’ proven trespass and nuisance caused the same damages: a reduction in the aggregate value of the Class Properties of $176,850,340.
The damages verdicts on each claim reflect the jury’s determination that the Defendants’ trespass and nuisance each bore the requisite causal relationship to the entire diminution in value suffered by the Class Properties. This determination is consistent with the evidence presented indicating that some conduct by each Defendant contributed to both the continuing trespass and nuisance, and with authority recognizing that the same conduct can contribute to liability under both theories. See, e.g., Borland v. Sanders Lead Co., 369 So.2d 523, 527 (Ala.1979) (“trespass and nuisance are separate torts for the protection of different interest invaded,” but “the same conduct on the part of a defendant may, and often does, result in actionable invasion of both interests.”). It is also consistent with the evidence presented on damages and with the jury instructions and legal rule setting the same measure of damages for both types of tortious invasions. See Final Jury Instructions, No. 3.22; Restatement (Second) of Torts § 930(3)(b) (1979) (measure of damages for continuing tortious invasions of land is the decrease in the value of land caused by the prospect of invasion continuing). There is, therefore, no inconsistency in the jury’s answers concerning the aggregate damages to the Class caused by the Defendants’ continuing trespass and nuisance. Defendants’ concern about multiple recovery of the same damages will, as I stated in the relevant jury instruction and when the jury’s verdict was announced, be addressed in the final judgment on the jury’s verdict.
Nor is there any inconsistency in the jury’s allocation of fault in the verdict form between Dow and Rockwell for their trespass and nuisance. Under the evidence presented, the jury could reasonably apportion fault differently between the Defendants for the trespass through contamination of the Class Properties and for the Defendants’ unreasonable and substantial interference in the use and enjoyment of these Properties as found in the nuisance claim. In particular, the jury’s apportionment to Dow of 90% fault for the trespass and 30% for the nuisance and to Rockwell of 10% fault for the trespass and 70% fault for the nuisance is reasonable and consistent under the evidence presented.
Defendants’ attempt to create an inconsistency in the verdict by characterizing the jury’s apportionment of fault as an allocation of loss causation or damages is unavailing. Colorado’s pro rata liability statute required that the jury separately determine the total damages sustained by Plaintiffs and the percentage “fault” attributable to each Defendant. Colo.Rev.Stat. § 13-21-111.5(2). The jury instruction for the latter determination is titled “Apportioning Fault Between the Defendants.” Final Jury Instructions, No. 3.19A. This instruction and the corresponding interrogatories in the verdict form are modeled on language approved by the Colorado Supreme Court for this jury determination. See Colo. Jury Instructions (Fourth) Civ. §§ 9:29-9:29B. The jury followed these instructions and apportioned fault for the trespass and for the nuisance between the Defendants. It is the duty of the Court, not the jury, to prorate each Defendant’s liability based on the jury’s allocation of fault between them. See Lira v. Davis, 832 P.2d 240, 242 (Colo.1992) (after jury determines total compensatory damages, court applies pro rata liability statute and enters judgment against each defendant for compensatory damages “apportioned in accordance with the percentage of fault attributable to that defendant” found by the jury). The jury was not charged with determining loss allocation and did not do so.
It appears Defendants’ true complaint here is not that the jury’s apportionment of fault on the two claims is irreconcilably inconsistent but rather that the jury’s answers in the verdict form did not sufficiently fix the compensatory damages to be awarded against each Defendant. In fact, the jury made the factual findings on compensatory damages that were required of it, leaving to the Court the task of applying the rule against multiple recovery and the pro rata liability statute. As described in Section III, this task is readily accomplished without disregarding any of the jury’s factual findings or engaging in speculation regarding what the jury actually determined. As a result, there is no cause for a new trial on the ground that the jury did not make sufficient findings for judgment on compensatory damages to be entered against each Defendant.
I also note that Defendants’ complaints about what they perceive as the jury’s uncertain allocation of compensatory damages between them is of little practical significance if, as Defendants have maintained throughout this action, they are both fully indemnified here by the U.S. Department of Energy (DOE) pursuant to their contracts to operate Rocky Flats Nuclear Weapons Plant for the federal government. That the DOE has controlled the joint defense of its indemnitees may also explain Defendants’ failure throughout the long history of this action to raise the comparative fault of the other as a defense or to take other action to protect their interests as against the other, even when invited to do so by this Court. Thus, while I find no inconsistency in the jury’s allocation of fault between the Defendants as required by the jury instructions and Colorado law, I also am dubious that any error on this point would substantially and adversely affect either Defendant’s rights as a result of their joint indemnification by the DOE and their or the DOE’s apparent decision not to protect the interests of each Defendant against the other in this action.
Defendants also claim that inconsistencies in the jury’s determination of exemplary damages require a new trial. Specifically, they contend the jury’s award of these damages is irreconcilably inconsistent with its determination of compensatory damages, because the total amount of exemplary damages awarded exceeds the amount of compensatory damages found by the jury. This result is internally inconsistent, Defendants argue, because it violates the jury instructions and Colorado’s statutory cap on exemplary damages awards.
Defendants’ complaint does not state an inconsistency in the jury’s verdicts, but rather a claimed “violation” in the jury’s determination of exemplary damages. Even if Defendants were correct that the jury “violated” the jury instructions or the statutory cap on exemplary damages as claimed, this would not be cause for a new trial. Resolution of this issue would require no more than a judicial adjustment of the exemplary damages award in entering judgment in accordance with Colorado law. See Lira, 832 P.2d at 246 (applying Colorado exemplary damages statute to limit amount of jury’s exemplary damage award to amount of compensatory damages due after pro rata apportionment); see also id. (remanding for entry of judgment consistent with opinion, rather -than for new trial, after determining that jury’s award of exemplary damages exceeded statutorily permitted amount).
In fact, Defendants are incorrect that the jury’s exemplary damages award violated Instruction No. 3.27, and its direction that any exemplary damages “you award may not be more than the amount you awarded as actual damages against the Defendant or Defendants.” From the jury’s perspective, its verdict assessed compensatory damages of $353.7 million, the sum of the $176.8 million in actual damages it found on the trespass claim and on the nuisance claim, with the result that the sum of exemplary damages awarded against Dow and Rockwell, $200.2 million, did not exceed the amount of compensatory damages stated in the verdict. It is only upon application of the prohibition on multiple recovery to the jury’s compensatory damages determinations, a task reserved for the court under Instruction No. 3.26, that the total amount of compensatory damages due from Defendants, $176.8 million, becomes less than the aggregate exemplary damages determined by the jury.
Further, for the reasons stated in Section III below, I find the jury’s exemplary damages awards against each Defendant do not exceed Colorado’s statutory cap on exemplary damages. See infra Section III.B.l.
B. Request for New Trial or Remitti-tur Based on Excessive Compensatory and Exemplary Damages
Defendants assert a new trial or remitti-tur is also required because the jury’s compensatory and exemplary damages determinations are excessive on one or more grounds. I review each of Defendants’ contentions in turn.
1. Compensatory damages award
I begin with Defendants’ contention that the jury’s compensatory damages determinations must be set aside because they are clearly unsupported by the evidence. As support for this contention, Defendants incorporate the legal and evidentiary arguments asserted in support of their Renewed Motion for Judgment as a Matter of Law (Doc. 2220).
Under both Colorado and federal law, a jury’s determination of damages is inviolate unless the damages award is so excessive or inadequate “as to shock the judicial conscience.” Higgs v. Dist. Court, 713 P.2d 840, 860-61 (Colo.1985) Dodoo v. Seagate Tech., Inc., 235 F.3d 522, 531 (10th Cir.2000); Palmer v. City of Monticello, 31 F.3d 1499, 1508 (10th Cir,1994). If the trial court determines the damages award is excessive under this test, then it may reduce or remit the jury’s damages verdict by the amount of the damages found to be excessive, or, alternatively, set aside the verdict and order a new trial on damages alone if the plaintiff refuses to accept the remittitur. Higgs, 713 P.2d at 861; Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 703 F.2d 1152, 1168 (10 th Cir.1981); see Mason v. Texaco, Inc., 948 F.2d 1546, 1560 (10th Cir.1991). If, however, the court finds further that the damages awarded are so excessive as to raise “an irresistible inference” that “passion, prejudice, corruption or other improper cause invaded the trial,” then the court must order a new trial on all issues because it is impossible to determine the degree to which these factors affected the jury generally and therefore influenced the determination of liability. Higgs, 713 P.2d at 861; Malandris, 703 F.2d at 1168; see Mason, 948 F.2d at 1560.
I find the jury’s compensatory damages verdicts are not excessive. The question of what damages, if any, were caused by Defendants’ wrongful conduct was vigorously litigated at trial. Plaintiffs presented ample evidence, including both expert and lay witness testimony, that, if credited, established the fact and amount of compensatory damages caused by this conduct. Defendants countered with their own array of expert and lay witness testimony that, if credited by the jury, would have caused it to find that no actual damages had resulted from any trespass or nuisance committed by Defendants. The jury’s compensatory damages determination, therefore, turned on its assessment of conflicting evidence and the credibility of the parties’ numerous experts and other witnesses. After several weeks of deliberations, the jury returned a verdict assessing $176.8 million in compensatory damages on each claim, some $70 million less than the $248 million in compensatory damages Plaintiffs had requested the jury find on each claim based on the evidence before it. See 1/18/06 Tr. at 10,350 (trespass), 10,352 (nuisance). Having considered the evidence presented and the jury’s verdicts, I find the jury’s determination of compensatory damages is neither against the weight of the evidence nor otherwise a shock to this judicial conscience. As a result, I find neither a new trial nor remit-titur is warranted on the ground the compensatory damages verdicts are excessive under the evidence presented.
Defendants next contend the jury’s determinations of compensatory damages must be set aside and a new trial ordered because these determinations improperly include damages to properties that were not owned by Class members on January 30, 1990, the date this action was filed. This contention invokes my Order of May 17, 2005 (Doc. 1338) [hereinafter “May 2005 Order”], which was one of a series of pretrial orders delineating the issues to be tried and decided in the class trial.
In the May 2005 Order, I addressed a number of issues, including whether and how compensatory damages would be addressed in the class trial. See May 2005 Order at 14-20. Based on the parties’ extensive submissions on the subject, I ruled that while liability for the entire Class would be determined in the class trial, the only compensatory damages to be tried would be damages caused by the prospect of any proven trespass or nuisance continuing indefinitely, as set forth in Restatement § 930(3)(b). Id. at 15. As relevant here, this Restatement section provides that the measure of damages for such “future” or “prospective invasions” is “the decrease in the value of the land caused by the prospect of the continuance of the invasion measured at the time when the injurious situation became complete and comparatively enduring.” Id.
Restatement § 930 further provides that a property owner injured by a continuing tortious invasion, such as the trespass and nuisance found here by the jury, may elect to recover this type of damage for continuing tortious invasions if “it appears that the invasions will continue indefinitely.” Restatement § 930(1) (cited in May 2005 Order at 15). In this case, Plaintiffs elected to seek damages for the decrease in property values caused by Defendants’ continuing tortious invasions on January 30, 1990, when they filed suit seeking to recover these damages on behalf of a Class defined as persons owning property in the Class Area as of June 7, 1989. See May 2005 Order at 15-16; Order re: Instruction No. 3.28 (Doc. 2064) at 1-8 (regarding application of Restatement § 930(1) and § 930(3)(b) to this action). Whether this election is valid depends (in part) on Plaintiffs’ subsequent demonstration of if and when it appeared that Defendants’ wrongful invasions “will continue indefinitely.” See Restatement § 930(1).
An additional consideration here is that some number of Class members, reportedly representing approximately 10% of the Class Properties, sold the property they owned in the Class Area between the June 7, 1989 date used to define the Class and January 30, 1990, when Plaintiffs filed this suit and elected to recover prospective damages on the Class’s behalf. As a result, these Class members could not participate in the election to recover prospective damages that occurred upon the filing of this action.
Based on this consideration and others stated in the May 2005 Order, I declared in that Order that the Class would be divided into two subclasses for purposes of determining the “prospective damages” that could be recovered for any continuing trespass or nuisance found by the jury at the class trial. The first subclass, which I will refer to as the “Prospective Damages Subclass” or just the “Damages Subclass,” consists of all Class members who owned property in the Class Area on January 30, 1990 or the date on which the jury, pursuant to Restatement § 930(1), found that Defendants’ continuing tortious invasions would continue indefinitely, whichever was later. May 2005 Order at 15. This subclass, I found, was authorized to recover damages for these prospective or future tortious invasions, that is, the decrease in the value of their Class Properties, as provided in Restatement § 930(3)(b). Id. at 15-16. I further found that “[t]he compensatory damages, if any, to be awarded to this subclass, will be determined based on the jury’s findings in the class trial.” Id. at 16 (emphasis added). I stated that the availability and means of determining any compensatory damages due to the second subclass, consisting of all other Class members, would be decided at some point after the class trial. Id.
Defendants now argue that the jury’s assessment of compensatory damages at the class trial was improper and must be set aside because the jury was instructed to determine the decrease in value of the Class Properties as a whole, without distinguishing between properties corresponding to the two subclasses set out in the May 2005 Order.
I find no merit to Defendants’ argument for two reasons. First, assuming that the jury should not have been instructed to determine the aggregate decrease in value for all Class Properties, Defendants failed to object to this instruction and, in fact, actively sought for the jury to be instructed in just this manner at the close of trial. The relevant background here is that after considering the parties’ briefing and proposed instructions on the jury’s determination of damages at the class trial, I prepared instructions directing the jury to determine the aggregate decrease in the value of properties within the Class Area and percentage decrease in property values, if any, caused by any continuing trespass and/or nuisance by one or both Defendants. See Final Jury Instructions, Nos. 3.20-3.23. As is my practice, I provided these and other substantive instructions to the parties and the jury before opening arguments began, with notice that the instructions would be revised if necessary as the trial progressed. See generally Mem. Op. re: Jury Instructions (Doc. 2205) at 3 & n. 4 (describing jury instruction process). Neither party objected at this time to the instructions directing the jury to assess any decrease in property values for all properties in the Class Area.
Near the end of trial, I directed the parties to submit any proposed revisions to the jury instructions of record and a proposed jury verdict form. Defendants submitted extensive proposed revisions and objections to these instructions, including those regarding determination of compensatory damages. Defendants did not, however, object to the compensatory damages instructions on the ground that they improperly failed to limit the jury’s damages determination to the decrease in value of Class Properties owned by members of the Damages Subclass. To the contrary, Defendants requested that the key damages instruction, No. 3.22 (“Measure of Actual Damages”) be revised to emphasize and reemphasize that the jury was to decide any decrease in value for “all of’ the properties in the Class Area. See Defs.’ Proposed Changes to Prelim. Jury Instructions (Doc. 1958), Ex. A at 89-92 (requesting that “all” be inserted before every reference to properties in the Class Area). Defendants also submitted proposed jury verdict forms that required the jury to determine compensatory damages for all Class Properties, using the same language as in their proposed revisions to Instruction No. 3.22. See Defs.’ Proposed Jury Verdict Forms (Doc. 1963), Exs. A & B at 3-4, 5-6 (asking whether Plaintiffs proved Defendants’ trespass or nuisance “caused the actual value of all of the Class Properties to be less than what the value of these properties would have been” but for the trespass or nuisance). Nor did Defendants object to the final jury instructions and verdict form on the ground that they failed to limit the jury’s compensatory damages determination to the Damages Subclass. In short, Defendants did nothing from the initial presentation of the jury instructions at the start of trial through the end of trial to call this alleged error to my attention, and, in fact, invited this approach by pressing for damages to be determined for “all of’ the properties in the Class Area.
The second difficulty with Defendants’ argument here is that the jury instructions, the verdict form and the jury’s verdict on compensatory damages, are not, in fact, at odds with the plan for deciding compensatory damages set forth in the May 2005 Order. In this Order I held that: (1) damages for prospective invasions, ie., any decrease in property value caused by Defendants’ continuing tortious invasions, would be decided at the class trial; (2) per Restatement § 930(1), only Class members who owned property within the Class Area on the later of January 30, 1990, when this action was filed, or the date on which the jury found it appeared the tortious invasions would continue indefinitely, were entitled to recover damages for prospective invasions; and (3) any damages for prospective invasions to be awarded to this subclass would “be determined based on the jury’s findings in the class trial.” May 2005 Order at 15-16. Pursuant to the jury instructions and verdict form, the jury at the class trial made all of the findings necessary to award damages to the Damages Subclass under this plan.
First, the jury was directed to decide whether it appeared on or before January 30, 1990, or on some other date, that the trespass or nuisance by Dow or Rockwell would continue indefinitely. See Final Jury Instructions, No. 3.28. The jury found that this condition existed on or before January 30,1990. See Jury Verdict Form at 28-29. Pursuant to Restatement § 930(1) and the May 2005 Order, this determination establishes that the right to recover prospective damages existed on January 30, 1990, when the election to seek these damages was made by the filing of this action, and thereby defines the “Prospective Damages Subclass” entitled to recover these damages as the Class members who owned properties in the Class Area on this date. From this jury finding, identification of the members of this subclass and their corresponding properties within the Class Area is a ministerial task to be accomplished as part of the damages allocation plan based on county real estate records. See infra Section III.B.
Second, the jury was asked to and did determine any decrease in the value of all properties in the Class Area caused by any continuing trespass or nuisance by Defendants, and, as directed, expressed their findings by property category (residential properties, commercial properties and vacant land) and in the aggregate and by percentage. See Final Jury Instructions, No. 3.23; Jury Verdict Form at 15, 24. As described in Section III below, these factual findings are sufficient to allocate the aggregate damages found by the jury to individual Class Properties based on county property records. This allocation can be applied to properties owned by members of the Prospective Damages Subclass as well as those owned by the second subclass. The compensatory damages to be awarded and distributed to the Prospective Damages Subclass, therefore, can be readily determined from the jury’s verdict, just as contemplated by the May 2005 Order, and no additional factual findings by the jury are required. As a result, even if Defendants had preserved a right to object to the jury’s verdict because it determined prospective damages for all Class Properties, no grounds would exist for setting aside the jury’s compensatory damages verdict and ordering a new trial on this basis.
Defendants next contend that a new trial is required because the jury was not instructed to determine the exact date on which the injurious situation caused by Defendants became complete and comparatively enduring or that it must limit its damages assessment to properties owned by Class members on this date. This contention suffers from a number of flaws, beginning with its misreading of the Restatement. Restatement § 930(3)(b) does not, as Defendants assert, require that damages for prospective invasions be “awarded” as of a specific date. See Defs.’ Mem. in Supp. of Mot. for New Trial (Doc. 2225) at 20; Defs.’ Reply in Supp. of Mot. for New Trial (Doc. 2249) at 5. Rather, it states clearly that when an injured party is empowered to and does elect to recover damages for continuation of an invasion into the future, such as occurred here, these damages are to be “measured” at the “time” when the injurious situation became complete and comparatively enduring. Restatement § 930(3)(b). This is precisely what the jury was instructed to do, see Final Jury Instructions, No. 3.22, and what it did do, see Jury Verdict Form at 15, 24.
Nor can Defendants be heard to complain at this late date about this supposed error in the jury instructions and verdict form. Although the Defendants made many challenges to the instructions and verdict form presented to the jury, nowhere did they assert that the jury’s deliberations and verdict on compensatory damages must be limited to Class members who owned their Class Property on a specific date the jury determined the injurious situation caused by Defendants became complete and comparatively enduring. To the contrary, as described earlier, Defendants affirmatively pressed near the close of trial for instructions directing the jury to determine compensatory damages for “all of the Class Properties” and to measure any “diminution in all Class property values” as of the time the injurious situation caused by Defendants became complete and comparatively enduring. See Defs.’ Proposed Changes to Prelim. Jury Instructions (Doc. 1958), Ex. A at 89-92. In this same submission, they also did not request that the jury be directed to decide a specific date on which this condition came into existence, and made no argument that this finding was required for any reason. See id., Ex. A at 91, 93 (requesting only that jury be instructed to determine whether injurious situation became complete and comparatively enduring at all, before being asked to decide whether it became so during the time period alleged by Plaintiffs).
Defendants did include a question on this point in their January 11, 2006 proposed jury verdict form, but they offered no objection or rationale for requesting that the “CCE date” be specifically determined, and instead represented (consistent with my order) that their proposed verdict form was prepared in view of the current jury instructions. Defs.’ Proposed Jury Verdict Forms (Doc. 1963) at 1 n. 1. Those instructions (as well as Defendants’ proposed revisions to them) did not require such a finding. Nor did Defendants assert in connection with this proposed interrogatory, or otherwise, that the jury was required to limit its damages assessment to Class members who owned Class Properties on this date. As a result, Defendants did not make the specific objection to the jury instructions and verdict form necessary to assert the error now claimed. See Bitler, 391 F.3d at 1127-28 (objecting party must make position “abundantly clear” and state grounds in terms that are “obvious, plain or unmistakable”) (citations and internal quotations omitted).
I find no greater merit in Defendants’ contention that the jury’s verdict on compensatory damages must be set aside “to account for Class Members who decline to accept an easement on their properties.” Defs.’ Mem. in Supp. of Mot. for New Trial (Doc. 2225) at 22. This contention is raised for the first time in Defendants’ post-trial motions and is thus subject to waiver for the same reasons stated above.
This untimely objection also elevates a comment to Restatement § 930(3)(b) and dicta in a prior decision in this case to a rule of law that, Defendants insist, requires that a formal easement be granted and recorded for each Class property that authorizes Defendants’ continuing trespass and nuisance on it. Based on this premise, Defendants further assert the verdict must be set aside because some Class members may refuse to grant or accept the necessary easement. Defendants, who provide no other authority for the alleged easement requirement, read too much into both of the cited statements.
The referenced Restatement comment discusses an injured party’s right to elect to be compensated “once and for all” for an indefinitely continuing invasion. Restatement § 930 cmt. b. It concludes that “[t]he exercise of the power of election, followed by satisfaction of a judgment for damages for prospective invasions, confers an easement or privilege to continue the invasions thus paid for in advance.” Id. In Cook X, I referred to this concept in even more summary fashion, noting that if the Class prevailed in its election to recover for prospective damages, satisfaction of its judgment would confer “an easement” for the tortious invasions to continue without payment of additional compensation. See Cook v. Rockwell Int’l Corp. (“Cook X”), 358 F.Supp.2d 1003, 1013-14 (D.Colo.2004). Other courts have used the terms “license,” “grant,” “consent” or waiver to refer to this concept. See Severt v. Beckley Coals, Inc., 153 W.Va. 600, 170 S.E.2d 577, 582-83 (1969) (license or grant); Slater v. Shell Oil Co., 58 Cal.App.2d 864, 137 P.2d 713, 715-16 (1943) (consent and waiver); Strange v. Cleveland, C, C. & St. L. Ry. Co., 245 Ill. 246, 91 N.E. 1086, 1038 (1910) (consent). No doubt other courts and commentators have described this concept in other terms and by reference to other legal theories as well.
No matter the term or language used, the common principle behind all of these expressions is that damages for continuation of a tortious invasion into the future can only be demanded and received once, and that satisfaction of a judgment for such damages precludes successors to the affected properties from recovering these same damages. Cf. Severt, 170 S.E.2d at 583 (once future damages are recovered “there can be no second recovery for [the nuisance’s] continuance;” internal quotation omitted). Thus, the governing rule here is the familiar doctrine of res judicata or claim preclusion. Application of that doctrine to the judgment in this action does not require or rely on some formal or theoretical process based on the grant or acceptance of an easement or like interest by members of the Class.
Defendants’ concern that successive owners of the Class Properties, as nonparties to this action, will not be bound by this judgment is belied by the general rule that a successor to an interest in property that is the subject of a pending or completed action at the time of transfer is bound by the judgment to the same degree as the parties. See Restatement (Second) of Judgments §§ 43-44 (1982 & Supp.2007). As a practical matter, I also think it is highly unlikely that any persons who have acquired or may acquire property in the Class Area since the commencement of this action will be inspired by the example of this long and hard-fought suit to bring their own claims for continuation of the invasion against Defendants. Were any to do so, Defendants are fully capable of defending their interests in such a suit by, among other things, asserting the satisfaction of judgment in this case as a defense. The conveyance of an easement is not required for this purpose, and none is required by the cited Restatement comment or any prior decision in this case.
Defendants also argue the jury’s verdict on compensatory damages must be set aside because its determination of aggregate Class damages improperly includes Class members who suffered no damages or less than average damages. This is a reprise of arguments previously made by Defendants in support of their long-standing objections to a class trial of any kind on compensatory damages. I have considered and rejected these arguments on numerous occasions before, during and after trial, see, e.g., May 2005 Order at 19-20; Mem. Op. re: Jury Instructions (Doc. 2205) at 62-65, and Defendants provide no grounds for me to reconsider these decisions.
Finally, Defendants assert the jury’s compensatory damages verdict must be set aside or reduced, because the jury improperly included damages incurred by Class members who previously released their claims against Defendants. The only Class members cited by Defendants in this regard are Charles and Perry McKay, who in the mid-1980’s executed a release of certain claims against Defendants in settlement of McKay v. United States and related litigation, 540 F.Supp. 519 (D.Colo. 1982) (collectively “the Church litigation”).
Although Defendants have been aware for many years that the McKays were members of the Class in this action, they do not point to any instance in the pretrial planning process or during trial in which they asserted a defense based on the release of claims by the McKays or any other Class member or otherwise raised the issue of such releases in connection with the damages sought by Plaintiffs. Nor do Defendants identify any instance in which they requested a jury instruction or verdict form question on this subject or objected to the Court’s jury instructions or verdict form on this basis. In fact, this contention should have been raised before trial, see, e.g., Mem. and Order of Feb. 12, 2001 (Doc. 1176) at 10 (requiring Defendants to state each defense to Plaintiffs’ claims they intended to try); Order of Sept. 11, 2003 (Doc. 1212) at 2 (requiring parties to specify all claims and defenses to be tried); or (assuming the issue was preserved for trial) through the presentation of evidence regarding the McKays’ release and property holdings in the Class Area and argument that compensatory damages should be reduced as a result. Defendants did none of these things and may not now assert that their failure to present this issue requires a new trial or a reduction in the jury’s compensatory damages verdicts.
2. Exemplary damages awards
Defendants argue that the jury’s determination of exemplary damages is excessive and must be set aside because it is not supported by the evidence, is unconstitutional, is not permitted by the Price-Anderson Act and/or is improper as a result of Defendants’ alleged compliance with standards. If these arguments are not successful, Defendants request that I exercise my discretion under Colorado law to disallow or reduce the jury’s exemplary damages verdict because the exemplary damages will not have a deterrent effect on Defendants or others. After careful consideration of these arguments, I find they present no basis for vacating or reducing the jury’s verdict.
Sufficiency of the evidence
Defendants’ challenge in this motion to the sufficiency of the evidence to support the jury’s exemplary damages award constitutes another after-the-fact challenge to the court’s instructions to the jury on this subject. In connection with Plaintiffs’ claim for exemplary damages, I instructed the jury, as pertinent here, that it could only award exemplary damages against Dow or Rockwell if it found beyond a reasonable doubt that the company’s conduct in committing the trespass and/or nuisance was “willful and wanton.” Final Jury Instructions, No. 3.27; Jury Verdict Form at 26-27. “Willful and wanton” conduct was defined as “an act or omission purposefully committed by the Defendant in question, who must have realized that the conduct was dangerous, and which conduct was done heedlessly and recklessly, either without regard to the consequences, or without regard to the rights and safety of others, particularly the Plaintiff Class.” This language is drawn almost verbatim from the standard Colorado Jury Instruction on this subject, see Colo. Jury Instructions (Fourth) Civ. § 9:30; see also id., § 5:3, Notes on Use (directing that Instruction 9:30 be used to define “willful and wanton” in instruction on exemplary damages), which itself closely tracks the definition for this term provided in Colorado’s exemplary damages statute. See Colo.Rev.Stat. § 13-21-102(1)(b) (defining “willful and wanton conduct”). There was ample evidence supporting the jury’s award of exemplary damages against both Dow and Rockwell under this standard.
Defendants now contend, however, that Colorado law required Plaintiffs to prove something more before exemplary damages could be awarded against them: that each Defendant had an “evil intent” or “wrongful motive” or acted with the purpose of injuring the Plaintiffs. Because Plaintiffs failed to prove this element beyond a reasonable doubt, Defendants assert, the jury’s award of exemplary damages is contrary to law and must be set aside.
Defendants cite to no instance in which they proposed that the jury be instructed that “evil intent,” “wrongful motive” or their equivalent was part of Plaintiffs’ burden of proof, or objected that the Court’s instructions to the jury did not include this requirement. In fact, Defendants’ own proposed instruction defining “willful and wanton conduct” is functionally the same as the instruction ultimately given. Compare Defs.’ Submission of Phase III Jury Instructions (Doc. 1271) at 66 (Proposed Damages Instruction No. 3.15) with Final Jury Instructions, No. 3.27. Defendants’ challenge to the instruction on Plaintiffs’ burden of proof is, therefore, untimely at minimum. See Fed.R.Civ.P. 51(c), (d).
If Defendants had made a timely objection on this basis, it would have been overruled. In Colorado, exemplary damages are only available pursuant to Colo.Rev. Stat. § 13-21-102. See Tri-Aspen Constr. Co. v. Johnson, 714 P.2d 484, 485 (Colo. 1986). The primary authority Defendants cite in support of this statute requiring proof of “evil intent” or “wrongful motive,” the just referenced Tri-Aspen decision, considered an earlier version of this statute, one that d did not include the term “willful and wanton conduct” or the statutory definition of this term employed in the jury instructions in this case. Instead, Colorado’s exemplary damages statute at the time of the Tri-Aspen decision authorized an award of exemplary damages when the injury complained of was attended by “circumstances of fraud, malice or insult, or a wanton and reckless disregard of the injured party’s rights and feelings.” See id. at 486 (quoting applicable statute). The Colorado Legislature amended Colo. Rev.Stat. § 13-21-102 shortly after this decision to delete “or insult, or a wanton and reckless disregard of the injured party’s rights and feelings” from the statute and replace it with the current “or willful and wanton conduct.” 1986 Colo. Sess. Laws 675 (H.B.1197), § 1. It also added a new provision defining “willful and wanton conduct” at this time. Id. It is this statutory provision, and not the Tri-Aspen court’s discussion of the prior statute and case law interpreting it, that governed the jury’s determination of exemplary damages in this action.
Even if this were not the case, the Tri-Aspen decision still fails to support Defendants’ argument. The Colorado Supreme Court declared in Tri-Aspen that an award of exemplary damages under the prior statute was justified if the plaintiff proved beyond a reasonable doubt that the defendant acted with evil intent and with the purpose of injuring the plaintiff or with a wanton and reckless disregard of the plaintiffs rights. See 714 P.2d at 486; see also id. at 488 (claim for exemplary damages requires proof that the defendant “acted with an evil intent or wrongful motive or created and then purposefully disregarded a substantial risk of harm”) (emphasis added, internal citation omitted). The court also specifically disapproved language from a prior Colorado decision, relied upon by Defendants, that incorporated the concept of “wrongful motive” into the definition of “wanton and reckless disregard.” Id. at 486 n. 3 (rejecting this “more demanding requirement”). As a result, even if Tri-Aspen and related authority regarding the meaning of “wanton and reckless disregard” is relevant to the current Colorado exemplary damages statute and its definition of “willful and wanton conduct,” it does not support Defendants’ contention that “evil motive” or “wrongful purpose” must be proved to establish this conduct and to recover exemplary damages.
Constitutionality
Defendants’ assertion that the jury’s exemplary damages verdicts are unconstitutional fares no better. A punitive damages award is unconstitutional if it is “grossly excessive” in relation to a State’s legitimate interests in punishing unlawful conduct and deterring its repetition. BMW of N. Am. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). To determine whether this is the case, the court must determine if the defendant received “fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.” Id. at 574, 116 S.Ct. 1589; United Int’l Holdings, Inc. v. Wharf (Holdings) Ltd., 210 F.3d 1207, 1232 (10 th Cir.2000). Three factors guide analysis of whether adequate notice was provided: (1) the degree of reprehensibility of the defendant’s conduct; (2) the ratio of the punitive damages award to the actual or potential harm inflicted on the plaintiff; and (3) a comparison of the punitive damages award with the civil or criminal penalties that could be imposed for comparable misconduct. Wharf, 210 F.3d at 1232; see BMW, 517 U.S. at 574-75, 116 S.Ct. 1589. The absence of one of these guideposts, however, is not determinative of whether the defendant received adequate notice of the magnitude of the punitive damages award that could be imposed for its misconduct,. Wharf, 210 F.3d at 1233.
As to the first guidepost, the Supreme Court has noted a number of factors that bear on the reprehensibility of the defendant’s conduct and whether the nature of that conduct provided the defendant with adequate notice of the punitive damages that could be awarded against it. These factors include: whether any physical harm resulted from the conduct, BMW, 517 U.S. at 576, 116 S.Ct. 1589; if the harm was only economic, whether it was done intentionally through' affirmative acts of misconduct or was suffered by a financially vulnerable target, id.; whether the defendant acted intentionally or with reckless disregard for the health and safety of others, id; whether the defendant’s misconduct was repeated, id. at 577, 116 S.Ct. 1589; whether the harm suffered resulted from some form of malice, trickery or deceit as opposed to mere accident, State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003); and whether the conduct risked harm to many as opposed to a few, Philip Morris USA v. Williams, — U.S. -, 127 S.Ct. 1057, 1065, 166 L.Ed.2d 940 (2007).
Viewed in the light most favorable to Plaintiffs and the jury’s verdict, the evidence in this case shows the presence of a number of the factors the Supreme Court has identified as indicating reprehensible conduct that would provide a defendant with notice of the magnitude of punitive damages that could be awarded against it. The harm involved was not purely economic, but rather physical contamination of Class members’ properties and substantial interference with Class members’ right to use and enjoy their properties. There was ample evidence that the conduct by each Defendant that caused this harm was intentional and/or undertaken with conscious disregard of the Class members’ health and safety. Defendants’ misconduct affected approximately 15,000 individual properties and hence thousands of landowners, who suffered a decrease in the value of properties that oftentimes represented their single largest economic asset. Defendants’ misconduct was not the result of a single incident, but rather a series of incidents and also routine practices over decades of operating Rocky Flats, some of which were attended by circumstances of dishonesty, subterfuge and deceit. All of these factors indicate Defendants’ conduct was reprehensible to a degree that should have put Defendants on notice of the magnitude of punitive damages that could be awarded against them.
As for the ratio of punitive damages to the actual or potential harm, that ratio is capped by statute at one-to-one for each defendant, far below the ratios that have raised constitutional concerns. See, e.g., BMW, 517 U.S. at 582, 116 S.Ct. 1589 (500 to 1 ratio); State Farm, 538 U.S. at 424-25, 123 S.Ct. 1513 (finding 145 to 1 ratio of constitutional concern and stating “single-digit multipliers are more likely to comport with due process”).
As for the final guidepost noted by the Supreme Court, it is difficult to predict what amount of civil and criminal penalties could be assessed against each Defendant for comparable misconduct. While the federal environmental laws can impose very substantial fines against corporations that knowingly or improperly release or dispose of hazardous substances, see, e.g., 33 U.S.C. § 1319(c), (d) (authorizing criminal fines of up to $50,000/day for knowing violations and civil penalties of up to $25, 000/day for violations of the Clean Water Act); 42 U.S.C. § 6928(d), (g) (authorizing criminal penalties of up to $50,000/day for knowing violations and civil penalties of up to $25,000/day for violations of RCRA’s hazardous waste management requirements), the many instances of misconduct considered by the jury cannot be easily compared to the various environmental statutes that might apply. The difficulty in making this comparison, however, or even the possible existence of a disparity between the potentially available fines and the amount of exemplary damages awarded here, does not compel the conclusion that the jury’s exemplary damages awards are unconstitutional. As the Tenth Circuit has noted, the comparison between available civil and criminal penalties and an exemplary damages award “is only one of the indicators of whether a defendant is on notice of the magnitude of the award that may be imposed based on the defendant’s misconduct.” Wharf, 210 F.3d at 1233. The Colorado exemplary damages statute, Colo.Rev.Stat. § 13-21-102, puts a defendant on notice that exemplary damages may be imposed in an amount up to the actual harm caused. Wharf, 210 F.3d at 1233 (discussing § 13—21—102(1)(a)). This notice, combined with the magnitude of actual harm caused by Defendants’ misconduct and the reprehensible nature of that conduct, provided the Defendants with fair notice of the severity of the penalty that might be imposed. The jury’s exemplary damages awards were not, therefore, unconstitutional under the standard enunciated in BMW and Wharf.
In their reply in support of their Rule 59 motion, Defendants raise an additional, entirely new challenge to the constitutionality of the exemplary damages award in this action: that Instruction No. 3.27 is unconstitutional under Philip Morris USA v. Williams, — U.S.-, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007) because it defines “willful and wanton conduct” in part as “conduct that was done heedlessly and recklessly, either without regard to the consequences, or without regard to the rights and safety of others, particularly the Plaintiff Class.” The reference to “the rights and safety of others,” Defendants argue, renders this instruction and the exemplary damages awards based on it unconstitutional because, under Philip Morris, a jury may not consider harm to others in deciding whether to impose punitive damages. Defs.’ Reply (Doc. 2249) at 25-26.
The reference to “the rights and safety of others” in Instruction No. 3.27 is a quotation from the definition of “willful and wanton conduct” provided in Colorado’s exemplary damages statute. Colo. Rev.Stat. § 13-21-102(1)(b) Defendants are thus inviting me to hold this statute unconstitutional, an invitation that I decline. I do not read Philip Morris as broadly as Defendants, and do not agree that either Instruction No. 3.27 or the evidence and argument at trial created a significant risk that the jury based its exemplary damages determination on a desire to punish Defendants for causing injury to anyone not before the court. Cf. Philip Morris, 127 S.Ct. at 1065 (when the evidence or argument presented raises a “significant” risk that the jury will seek to punish the defendant for causing harm to others, the court should, upon request, take action to protect against this risk). The jury’s exemplary damages determination was not unconstitutional on this or any other basis.
Discretion to disallow or reduce exemplary damages awards
I also decline Defendants’ invitation that I exercise my discretion under Colo.Rev.Stat. § 13-21-102(2) to disallow or reduce the jury’s exemplary damages awards. This provision authorizes the court to reduce an exemplary damages award “to the extent that: (a) The deterrent effect of the damages has been accomplished; or (b) The conduct which resulted in the award has ceased; or (c) The purpose of such damages has otherwise been served.” Id. While Defendants’ operation of the Rocky Flats plant has obviously ceased, the effects of their conduct there, the continuing trespass and nuisance found by the jury, has not. I also cannot agree with Defendants that the deterrent effect of the damages has been accomplished or the purposes of the damages has been served. At minimum, the damages award will deter Defendants and other corporations that presently or may in the future operate hazardous manufacturing facilities from managing their facilities and the risks they pose in the manner that led to the trespass and nuisance the jury found was committed here.
Compliance with standards
Defendants also contend the jury’s exemplary damages awards must be set aside as a result of their compliance with “applicable standards” during their operation of Rocky Flats. I disagree. The only legal authority Defendants cite in support of this contention, Alley v. Gubser Development Co., 785 F.2d 849 (10 th Cir.1986), held only that a manufacturer’s mere use of wood products containing formaldehyde, in a manner consistent with prevailing industry practice and without evidence that the manufacturer knew or should have known of the potential harm that could result, was not enough to sustain an exemplary damages award in an action arising from exposure to formaldehyde gas released from these products. Id. at 856. This holding does not establish a legal rule that exemplary damages are barred whenever a defendant shows it has complied with industry practice or “applicable standards.”
In addition, even if such a rule existed, the jury heard extensive evidence from which it could have found Defendants’ conduct violated any reasonable standard of industrial care. Further, Defendants do not specify the “standards” with which they allegedly complied, and the jury was not asked to and did not make any findings that the Defendants complied with standards. In fact, the jury heard evidence from which it could have concluded Defendants did not comply with some potentially applicable standards and/or that the environmental monitoring that Defendants conducted was not designed or implemented in a manner that would allow Defendants’ compliance with environmental standards to be determined. In short, there is no basis for setting aside the jury’s exemplary damages awards on the basis of Defendants’ alleged compliance with standards.
Price-Anderson Act
Defendants’ final challenge to the exemplary damages awards, that they are barred by the 1988 Amendments to the Price-Anderson Act, has been considered and rejected on multiple occasions in this action and need not be addressed again. See, e.g., Cook v. Rockwell Int’l Corp. (“Cook IX”), 273 F.Supp.2d 1175, 1211-12 (D.Colo.2003); Cook v. Rockwell Int’l Corp. (“Cook I ”), 755 F.Supp. 1468, 1479-81 (D.Colo.1991).
C. Remittitur of Damages
As an alternative to their motion for new trial, Defendants request remittitur of the jury’s compensatory and exemplary damages awards. Remittitur is the process by