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Dodge v. Cotter Corp.

ELR Citation: 30 ELR 20345
Nos. Nos. 99-1178, -1199, 203 F.3d 1190/50 ERC 1075/(10th Cir., 02/11/2000)

The court holds that a district court incorrectly applied the doctrine of offensive collateral estoppel, thereby precluding the owner of a uranium mill from litigating the issue of negligence, in a case brought by a group of nearby residents who claimed that the owner's negligent operation of the mill caused damage to their health and property. Several residents wanted to bring a class action against the owner, but because their class certification was denied, each group was forced to bring separate actions. In the first suit, a jury found the owner negligent. In the second case, the district court ruled on summary judgment that the first jury decided the pure issue of negligence, and, therefore, that the issue would not be relitigated.

The court first holds that the district court erred in giving preclusive effect to the first jury's finding of negligence. The jury's verdict does not assure an unassailable finding that the plaintiffs in the first case met their burden of proof that the owner breached a specific duty. The jury was not instructed on the specific duty allegedly breached, and the verdict form did not specify what negligent act formed the basis of the general finding of negligence. The issue decided by the first jury, therefore, cannot, as a matter of law, be considered identical to the issue of negligence in the second case. Moreover, there is no indication that the parties understood that the first trial would decide specific issues to bind subsequent trials. The court next holds, however, that the district court properly dismissed the residents' claim for damages for emotional distress caused by their increased fear of cancer. The residents failed to set forth any evidence that they suffer from a chronic objective condition caused by their increased risk of developing cancer to permit their recovery for emotional distress damages. The court, therefore, reverses and remands the case for a new trial, but affirms the district court's order granting the mill owner's motion for summary judgment on the fear of cancer claim.

Counsel for Plaintiffs
Suzelle M. Smith
Howarth & Smith
800 Wilshire Blvd., Ste. 750, Los Angeles CA 90017
(213) 955-9400

Counsel for Defendant
John L. Watson
Freeborn & Peters
950 17th St., Ste. 2600, Denver CO 80202
(303) 628-4200

Before Baldock and Murphy, JJ.