Cook v. Rockwell International Corporation

Full title: MERILYN COOK, et al., Plaintiffs, v. ROCKWELL INTERNATIONAL CORPORATION…

Court: United States District Court, D. Colorado

Date published: Dec 7, 2006

Civil Action No. 90-cv-00181-JLK (D. Colo. Dec. 7, 2006)

Opinion

Civil Action No. 90-cv-00181-JLK.

December 7, 2006

MEMORANDUM OPINION REGARDING JURY INSTRUCTIONS

JOHN KANE, Senior District Judge

This memorandum opinion addresses the process and proposals that resulted in the final jury instructions in the property damages trial in this class action.¹ The relevant background to this opinion is as follows:

1 This memorandum opinion is one of four opinions issued today addressing various motions and disputes that were decided before, during and after completion of the class trial. See Mem. Op. re: Daubert Mots. and Mots. in Limine; Mem. Op. re: Defs.' Theory of Plutonium Removal Through Real Estate Development; Order on Defs.' Second Renewed and New Mot. for Mistrial. I opted to issue all of these opinions at one time rather than as they were completed because some of them address related issues and because I wanted to ensure that the parties had all relevant opinions in hand before they filed any final motions in this case. See generally Mem. Op. re: Daubert Mots. and Mots. in Limine at 3-5 (Dec. 7, 2006).

Background

In July 2003, I issued an opinion pursuant to Rules 16 and 23(d) to identify and narrow the issues to be tried in the property class trial.² See Cook v. Rockwell Int'l Corp. ("Cook IX"), 273 F. Supp. 2d 1175 (D. Colo. 2003); see also Fed.R.Civ.P. 16 23(d). Because the parties continued to disagree on many of the basic components of the trial, I issued several follow-up decisions seeking to define further its scope and the issues to be tried. See Order (Doc. 1220) [hereinafter "April 2004 Order"]; Order (Doc. 1235) [hereinafter "May 2004 Order"]. I also ordered the parties to prepare proposed jury instructions to assist in this process. April 2004 Order at 24-25; May 2004 at 15-16.

2 For information regarding the nature of the property class claims and the challenges in bringing these claims to trial, see Cook IX, 273 F. Supp. 2d at 1178-79, Order (Doc. 1235) at 1-4, 10-11 (May 28, 2004), and Memorandum Opinion and Order in Advance of February 28, 2001 Hearing (Doc. 1176) at 3-9.

As required by these decisions, the parties filed proposed instructions on Plaintiffs' trespass and nuisance claims, affirmative defenses, damages and general trial matters in the summer and early fall of 2004.³ Each side's instructions continued to present starkly different versions of the issues to be tried, and each side objected to virtually every substantive instruction proposed by the other. The parties' submissions also raised additional substantive issues, some of which the parties addressed in supplemental briefing at my direction. In addition, I held several conferences at which I heard argument on jury instruction issues.

3 Record citations to these and the parties' subsequent proposed jury instructions are included in the discussion that follows. A chronology of all of the parties' submissions containing proposed instructions and revisions is also set forth in Attachment A to this opinion.

In December 2004, I issued an order and related memorandum opinion addressing the parties' proposed instructions regarding the trespass claims and associated affirmative defenses. See Order re: Proposed Trespass Instructions (Doc. 1311) [hereinafter "Trespass Instructions Order"]; Cook v. Rockwell Int'l Corp. ("CookX"), 358 F. Supp. 2d 1003 (D. Colo. 2004). Included in these rulings were instructions I prepared for these claims based on the parties' submissions, relevant authority and my practice of providing the jury with as clear an explanation as possible regarding the factual issues to be decided and the relevant legal standards. Trespass Instructions Order at 1-2, 7 Attach. A. I also permitted the parties to submit further briefing on several issues relating to the trespass instructions I had prepared. See id. at 3, 8-9.

Early in 2005 I set the property class claims for trial beginning in October, 2005. Order (Doc. 1325). Subsequently, in May 2005, I issued an order resolving the majority of the disputes raised by the parties' competing instructions on Plaintiffs' nuisance claims and on damages. See Order on Scheduling and Jury Instruction Issues (Doc. 1338) [hereinafter "May 2005 Order"]. I did not issue instructions on these matters at this time.

Over the following months, the parties briefed and argued a number of motions in limine and Daubert motions that raised additional matters relevant to the jury instructions. See generally Mem. Op. re: Daubert Mots. Mots. in Limine (Dec. 7, 2006). At my direction, the parties also provided updated statements of their theories of the case. See Pls.' Statement of Claims (Doc. 1419); Defs.' Theories of the Case (Doc. 1420). Following my rulings on the motions in limine and Daubert motions, I permitted the parties to propose additional jury instructions on matters addressed in these rulings and on certain other issues. Both parties responded by submitting supplemental proposed instructions.

Based on these submissions by the parties, the law of the case and relevant authority, I prepared a complete set of jury instructions in advance of trial that, as is my standard practice, I provided to the parties and to the jury before opening arguments began. See Fed.R.Civ.P. 51(b)(3) (authorizing instruction any time after trial begins). These instructions are attached to this memorandum opinion. See infra Attach. B (Jury Instructions dated Oct. 12, 2005) [hereinafter "Start of Trial Instructions"].⁴ As is also my practice, I informed the parties and the jury that these instructions would be revised if necessary as the trial progressed. See, e.g., Oct. 11, 2005 Trial Tr. at 428.

4 I provided the parties with most of these instructions on October 7, so that they could be used in preparation for opening arguments scheduled to begin on October 11, and provided them with the remainder on October 10. I read the jury Sections 1 and 3 of the instructions (general and substantive instructions) immediately before Plaintiffs began their opening argument, see Oct. 11, 2005 Trial Tr. at 426-73, and provided each juror with a complete set of the instructions in writing at that time. The jurors received a new set of written instructions the next day that corrected several typographical errors in the original, October 11 version. See id. at 426-27 (notifying jury of corrections). The corrected instructions are dated October 12, 2005 and are the Start of Trial Instructions referred to herein and set forth in Attachment B to this opinion.

The parties proposed a number of additional and revised instructions during the course of the four and a half month trial. Most were submitted in response to my direction near the close of trial that the parties submit any proposed revisions to the jury instructions of record in time for me to consider them before instructing the jury for the final time. See Order on Jury Instruction Submissions (Doc. 1929). Defendants filed extensive proposed revisions and objections to these instructions, and Plaintiffs filed more limited proposed revisions and objections.

In response to these proposed revisions and objections and my own final review of the jury instructions, I made mostly minor revisions to fifteen of the fifty-one instructions of record. The final jury instructions incorporating these revisions and four new instructions added during or at the close of trial were provided to the parties and the jury in written form before closing arguments began on January 18, 2006.⁵ I read these instructions to the jury on January 20, just before the jurors began their deliberations. Both parties filed objections to these instructions, in which they incorporated their previously filed proposed instructions, revisions and objections.⁶

5 New Instruction Nos. 2.2AA, 2.2A, 2.2B and 3.19A were provided to the jury during and/or at the end of trial. An additional instruction, No. 4.6, was provided to the jury after it began deliberations. The following instructions were revised at the end of trial sua sponte or in response to submissions from the parties: Instruction Nos. 1.4, 1.9, 2.2, 2.3, 2.5, 2.7, 3.1, 3.5, 3.7, 3.9, 3.12, 3.17, 3.22, 4.2, 4.5. These new and revised instructions, with additions and deletions from the Start of Trial Instructions shown, are set forth in Attachment C to this opinion.

6 Defendants asserted a handful of new objections to the Final Instructions at the close of trial. See Defs.' Objs. to Jury Instructions and Verdict Form (Doc. 2015) at 4; Defs.' Objs. to Additional and Revised Jury Instructions (Doc. 2023). I reviewed the new objections identified by Defendants before instructing the jury for the final time and found they did not warrant further changes to the instructions.

The final set of jury instructions in this action are of record, see Notice of Final Jury Instructions (Doc. 2121) [hereinafter "Final Instructions"], as is the Verdict Form. See Jury Verdict Form (Doc. 2117). As noted, most of the Final Instructions are identical to or substantially the same as the Start of Trial Instructions. Unless otherwise specified, therefore, references or citations in this opinion to the instructions I prepared refer to both the Start of Trial and Final Instructions.

Preparation of the jury instructions required me to decide a number of additional legal issues raised by the parties' competing proposals and objections. Although my decisions on these issues were inherent in the instructions I prepared and provided to the jury, I write here to provide a more complete record of these decisions and my rulings on the specific instructions proposed by the parties before, during and at the close of trial.⁷ I first address the parties' proposed instructions on trespass, nuisance and damages, and then their other disputed instructions and the jury verdict form and related instructions.

7 I informed the parties when I issued the Start of Trial Instructions and at other points that I intended to document my jury instruction rulings in this written opinion, as I had done with respect to the parties' first proposed trespass instructions. See Trespass Instructions Order.

The Parties' Proposed Jury Instructions and Revisions

I. Instructions on Trespass Claims

I set out my rulings on the parties' initial proposed trespass instructions and my intended instructions on the trespass claims in December 2004. See Trespass Instructions Order. Defendants submitted additional arguments and proposed revisions to the trespass instructions before trial, and both parties proposed revisions to the trespass instructions near the close of trial. My rationale for ruling on these proposals, as incorporated in the instructions I provided to the jury at the start and end of trial, see Start of Trial and Final Instructions, Nos. 3.2-3.5, is set forth below.

A. Defendants' Responses to the Court's December 2004 Trespass Instructions

1. Causation instruction ⁸

8 This discussion pertains to Instruction No. 3.18 (causation) in the Start of Trial and Final Instructions. This instruction was designated as No. 3.14 in the Trespass Instructions Order.

Defendants proposed that the trespass instructions include a paragraph, drawn from a standard Colorado jury instruction for negligence claims, that relieved them of liability if the jury found an intervening cause. See Defs.' Submission of Trespass Jury Instructions (Doc. 1245) at 15-16 (proposed Instruction No. 5, citing Colo. Jury Instructions (Fourth) Civ. § 9:20 (2004)). In my December 2004 order, I directed Defendants to identify the facts and law supporting this proposed instruction. Trespass Instructions Order at 3.

Defendants responded that an intervening cause instruction was warranted with respect to the trespass claim because plutonium contamination in the Class Area resulted solely from three especially intense windstorms in January 1969 that blew plutonium-contaminated soil from the 903 pad area of Rocky Flats to the Class Area. They further asserted they had submitted sufficient evidence supporting these allegations to warrant the instruction. See Defs.' Mem. re: Facts Evidence Warranting Intervening Cause Instruction (Doc. 1316) [hereinafter "Defs.' Mem. re: Intervening Cause Instruction"]. Plaintiffs disputed that an intervening cause instruction was warranted under trespass law or the evidence proffered by Defendants.

I determined that an intervening cause instruction was not warranted for the trespass claims and therefore did not include Defendants' proposed language on this point in my instruction to the jury on causation. See Instruction No. 3.18.⁹ I reached this conclusion for two reasons. First, Defendants failed to demonstrate that an intervening cause as defined in Colorado's standard jury instructions is a defense to liability for trespass under Colorado law. The concept of intervening cause is part of the framework for determining proximate cause for negligent conduct. See, e.g., White v. Caterpillar, Inc., 867 P.2d 100, 109 (Colo.Ct.App. 1994); Ayala v. United States, 846 F. Supp. 1431, 1441 (D. Colo. 1993); see also Restatement (Second) of Torts § 441 (1965) (defining intervening cause as one that produces harm to another after the defendant has committed a negligent act or omission and identifying rules for determining whether the intervening cause "prevents the actor's antecedent negligence from being a legal cause" of another's harm). Under Colorado law, trespass is not grounded in negligence, see Burt v. Beautiful Savior Lutheran Church, 809 P.2d 1064, 1067 (Colo.Ct.App. 1990), but rather is a strict liability tort for which proximate causation is established by proof that the defendant intentionally undertook an activity or activities that in the usual course of events caused the trespass. See In re Hoery, 64 P.3d 214, 217-18 (Colo. 2003); Trespass Instructions Order at 3-5. Defendants did not identify any Colorado authority recognizing intervening cause as a defense to trespass, and the Restatement makes no mention of such a defense in its discussion of the tort of trespass.¹⁰ Accordingly, I found no legal basis for instructing the jury that Defendants could avoid liability for any trespass that resulted "in the usual course of events" from their activities if they demonstrated the existence of an intervening cause as defined in Colorado's standard negligence instructions.

9 I reached the same conclusion with respect to Defendants' request for an intervening causation instruction for the nuisance claims. See infra Section II.B (regarding Defendants' proposed nuisance Instruction No. 11).

10 Defendants represented in their reply brief that the Tenth Circuit had affirmed a district court's instruction regarding intervening cause on a trespass claim. See Defs.' Reply re: Intervening Cause Instruction at 2 (citing Scheufler v. General Host Corp., 126 F.3d 1261, 1267-68 (10^th Cir. 1997) (applying Kansas law)). This is not correct. The instruction at issue in Scheufler concerned a nuisance claim. See 126 F.3d at 1267.

Second, even if proof of an intervening cause could defeat a trespass claim under Colorado law, Defendants failed to demonstrate there was competent evidence supporting such an instruction. An intervening cause is an action by a third party or other force that relieves the defendant of liability by breaking the chain of causation. See, e.g., Ayala, 846 F. Supp. at 1441. The chain of causation is only deemed broken, however, if the intervening cause was not reasonably foreseeable. Id.; Jones v. Caterpillar Tractor Co., 701 P.2d 84, 86 (Colo.Ct.App. 1984).

Defendants argued this requirement was satisfied because virtually all plutonium contamination in the Class Area resulted from three unforeseeable wind events in January 1969 that blew plutonium-contaminated soil from the 903 pad. Defendants characterized these wind events as unusual, unprecedented and therefore not reasonably foreseeable because they included gusts exceeding 100 miles per hour.

The evidence submitted by Defendants did not support these assertions. Even the report excerpts cited by Defendants acknowledged that the 903 pad was not the exclusive source of off-site plutonium contamination. See Defs.' Mem. re: Intervening Cause Instruction at 2-3 Ex. 1. Nor did this evidence link releases from the 903 pad to three distinct wind events, but rather identified at least 24 high wind events in 1968-69 that contributed to the release of plutonium from the site. Id., Ex. 1. One report provided by Defendants further stated that even "under routine meteorological conditions, wind-driven suspension of [plutonium-contaminated] particles [from the 903 pad] occurred on a relatively constant basis." Defs.' Reply re: Intervening Cause Instruction (Doc. 1323), Ex. 3 at VIII-12.

The authors of the various reports submitted by Defendants also identified high wind events as any wind event with gusts greater than 40 miles an hour. See id., Ex. 5 at III-2. Anyone who lives along the Colorado Front Range knows wind events of this magnitude are quite common in the vicinity of Rocky Flats. I do not need to take judicial notice of this fact because Defendants' proffered evidence on the intervening cause issue included a history of Boulder-area wind events from 1966 to 1995 demonstrating that wind events featuring gusts exceeding 60, 80, or even 100 miles per hour occur regularly in this area. Defs.' Mem. re: Intervening Cause Instruction, Ex. 1 (NOAA storm data); see also id., Ex. 2. Finally, none of the various report excerpts produced by Defendants characterized any of the wind events they studied as unusual or unprecedented in any way. Accordingly, I found Defendants had not presented sufficient evidence to support an intervening cause instruction based on unforeseeably high winds in the Rocky Flats area.

In finalizing the instruction on causation (Instruction No. 3.18) before trial, I also deleted language that had been included in the corresponding instruction in the Trespass Instructions Order (No. 3.14 in the attachment to that order) because the standard Colorado jury instruction on causation did not include it. See Colo. Jury Instructions (Fourth) § 9:18.

2. Stipulations

The trespass instructions I prepared in December 2004 included certain stipulations based on the parties' submissions and representations to the court. In the Trespass Instructions Order, I directed any party objecting to these stipulations: (1) to explain why the cited source of the stipulation was not conclusive; and (2) to identify the evidence the party intended to present at trial to dispute the challenged stipulation. Trespass Instructions Order at 7-8. Defendants responded by objecting to two of the three stipulations I had included: that "Plaintiffs and other class members owned property in the Class Area as of June 7, 1989;" and that "Plutonium from the Rocky Flats plant has been deposited on the Class Properties and continues to be present there." See Defs.' Objs. to Identification of Stipulated Facts (Doc. 1315) [hereinafter "Defs.' Objs. to Stipulated Facts"].

Defendants objected to the first stipulation to the extent that "other class members" referred to holders of non-possessory interests in Class Area properties such as mortgage holders. This objection was unwarranted because I had previously severed claims made on behalf of individuals owning mortgagee or other security interests from the class trial. See May 2004 Order at 15. The definition of the "Class" for purposes of this trial provided in the subsequently prepared "Statement of the Case" instruction, see Instruction No. 1.1, reflected this ruling and addressed this concern.

The second stipulation to which Defendants objected had two components: (1) that plutonium from Rocky Flats had been deposited on Class Properties at some point in time; and (2) that plutonium from Rocky Flats continues to be present there.¹¹ Both components were based on statements by defense counsel at the July 22, 2004 hearing in this action. See Trespass Instructions Order at 8; July 22, 2004 Tr. at 31-32. These statements were consistent with other statements by Defendants in open court both before and after objecting to this proposed stipulation. See July 28, 2005 Hr'g Tr. (Doc. 1434) at 112-15; June 25, 1999 Tr. (Doc. 1133) at 19-21.

11 "Class Properties" were defined as properties in the Class Area owned by Class members as of June 7, 1989. See Trespass Instructions Order at 7.

Defendants' initial objections to this stipulation did not dispute its first component, that plutonium from Rocky Flats was deposited on Class Properties, but rather focused on the second component, that plutonium continues to be present there. Defs.' Objs. to Stipulated Facts at 2-5. Defendants' theory and evidence disputing the latter proposition were based on newly submitted declarations by Peter Elzi and defense expert Dr. F. Ward Whicker to the effect that development in parts of the Class Area had disturbed plutonium-contaminated soil there. Id. Exs. 4, 5. When Plaintiffs pointed out quite accurately that evidence of soil disturbance was not the same as evidence of soil removal, Defendants submitted additional declarations from Mr. Elzi and Dr. Whicker stating that certain properties in the Class Area had been stripped of all plutonium-contaminated soil in the course of their development.¹² See Defs.' Reply re: Objs. to Stipulated Facts (Doc. 1330), Exs. 3, 5.

12 I subsequently excluded Dr. Whicker's 2005 declarations upon Plaintiffs' motion. See Sept. 13, 2005 Hr'g Tr. (Doc. 1443) at 9; Mem. Op. re: Daubert Mots. and Mots. in Limine, Section II.B.1 (Dec. 7, 2006).

Defendants also argued in their objections that they were not bound by their counsel's statements admitting the continuing presence of plutonium in the Class Area and/or that their counsel's statements did not have this meaning. Defs.' Objs. re: Stipulated Facts at 5. I was not persuaded by these arguments. Nonetheless, I decided to permit this issue to be tried after considering Defendants' prior statements in the light most favorable to them and doing the same with respect to the evidence Defendants asserted they would present at trial to dispute the continuing presence of plutonium in certain developed portions of the Class Area. Mr. Elzi's supplemental declaration that plutonium-contaminated soil had been completely removed from certain Class Properties was critical to this decision, which I reached with reluctance given Defendants' prior statements disclaiming any need to try the issue of continuing contamination. I determined, however, to give Defendants the benefit of the doubt in this regard.¹³

13 Defendants ultimately did not present Mr. Elzi or other competent evidence on this point at trial, which caused this issue to reemerge at the close of trial as described in a separate memorandum opinion entered this date. See Mem. Op. re: Defs.' Theory of Plutonium Removal Through Real Estate Development (Dec. 7, 2006).

In accordance with these determinations, I revised the trespass instructions to delete the stipulation regarding the deposition and continuing presence of Rocky Flats plutonium in the Class Area, and instead instructed the jury in the introductory "Statement of the Case" instruction that "Defendants admit that plutonium from Rocky Flats is present in the Class Area but dispute that it is located throughout this area." Instructions No. 1.1. I further revised the trespass instructions to state that Plaintiffs had the burden of proving that "Plutonium from Rocky Flats is present on the Class Properties." Instruction No. 3.2. The instructions defined "Class Properties" as the properties owned by Class members in the Class Area. Id.

B. Defendants' Other Pretrial Trespass Arguments and Proposals

1. Pretrial arguments

In arguments to the court in connection with their Daubert motions and other motions in limine, and again in their August 2005 statement of their case, Defendants raised certain other issues relating to the jury instructions on the trespass claim. These arguments ignored my prior rulings and none warranted changes to the trespass instructions I had prepared.

First, Defendants asserted that the issues to be decided at trial included whether any plutonium from Rocky Flats present on Class members' properties was tangible or intangible and also whether it had caused significant and substantial physical damage to these properties. Defs.' Theories of Case (Doc. 1420) at 2-3. I had previously considered and rejected these same contentions in both Cook IX and the Trespass Instructions Order. See Cook IX, 273 F. Supp. 2d at 1201; Trespass Instructions Order at 5-6. These prior rulings were reflected in the instructions I prepared for the trespass claims in December 2004, see Trespass Instructions Order, Attach. A at 2-4 (Nos. 3.11, 3.12), and in my instructions to the jury at trial. Instructions No. 3.2 (elements of trespass), 3.3 (presence of plutonium).

Defendants further requested before trial that the jury "be provided with guidance as to what magnitude of an invasion is required for a trespass to be actionable." Defs.' Theories of Case at 3 n. 2. This request assumed an affirmative answer to a question I had already answered several times in the negative. Under Colorado law, a trespass by means of a physical invasion of property, such as I had held was at issue in this case, does not require a showing of a certain magnitude of invasion to be actionable. See Cook IX, 273 F. Supp. 2d at 1201 (citing Hoery, 64 P.3d at 221-222); Trespass Instructions Order at 5-6. Defendants' protestations in the months before trial that this issue remained to be decided ignored these prior rulings.

2. Proposed supplemental trespass instruction

Proposed Supplemental Trespass Instruction No. 1 (significance of invasion) (submitted September 23, 2005): In this proposed supplemental instruction, Defendants requested that the jury be instructed that because plutonium is not perceptible to the senses, plutonium contamination on the Class properties would not constitute a trespass unless it was "of such a magnitude as to impose a significant physical impact on the property or its users." See Defs.' Am. Submission of Supplemental Jury Instructions (Doc. 1455), Ex. A at 17. Defendants asserted this instruction was required to fill "a gap" in my prior rulings regarding the elements of Plaintiffs' trespass claim. Id. There was no gap in these rulings. This proposed instruction contradicted my prior rulings in Cook IX and the Trespass Instructions Order, as described above, and was rejected for this reason.

C. Parties' Proposed Revisions to Trespass Instructions at End of Trial

1. Plaintiffs' Proposed Revisions ¹⁴ Instruction Nos. 3.2 to 3.4 (elements of trespass claims): Near the close of trial, Plaintiffs proposed that I revise each of these instructions to direct the jury that it need not find that the trespassory invasion continued to the time of trial. The basis for this proposal was Plaintiffs' contention that § 930 of the Restatement (Second) of Torts only required them to demonstrate that there was no reason to believe as of the time suit was filed that the injurious situation would terminate at any definite time in the future. See Pls.' Proposed Revions to Jury Instructions (Doc. 1978), Ex. A, Nos. 3.2-3.4. I do not concur with this reading of Restatement § 930 for the reasons stated in my subsequent order on a related jury instruction issue. See Order re: Instruction No. 3.28 (Doc. 2064) at 9-10 (Jan. 27, 2006). Accordingly, I rejected Plaintiffs' proposed revisions to these instructions.

14 These proposed revisions were submitted in Plaintiffs' Proposed Revisions to Jury Instructions (Doc. 1978), filed January 13, 2006.

Instruction No. 3.5 (matters not relevant to trespass claim): In addition to a clarifying, non-substantive change to the last paragraph of this instruction, Plaintiffs proposed that I add a new paragraph instructing the jury that Defendants had not presented evidence that any plutonium deposited in the Class Area had been removed by them or any other person. See Pls.' Proposed Revisions to Jury Instructions, Ex. A, No. 3.5. This proposed revision was directed at Defendants' theory that Rocky Flats plutonium deposited in the Class Area had been removed from some Class Properties through development activities, as was made clear by the related motion Plaintiffs filed seeking judgment as a matter of law on this theory. I treated this motion as a motion to exclude this theory from the jury's consideration, granted it, and revised Instruction No. 3.5 in accordance with this decision. The background and reasoning for this decision and my denial of Defendants' subsequent motions to reconsider it and revised Instruction No. 3.5 are too lengthy to be included here and therefore are set forth in a separate opinion issued this date. See Mem. Opinion re: Defs.' Theory of Plutonium Removal Through Real Estate Development (Dec. 7, 2006).

2. Defendants' proposed revisions ¹⁵ Instruction Nos. 3.2 through 3.4 (elements of trespass claims): Defendants proposed that I insert nine references in these three instructions emphasizing that the jury make its findings with respect to the Class as a whole. This concept was already present in the jury instructions. See, e.g., Instruction No. 1.1 (statement of the case and description of the Class); Instruction No. 3.2 (defining "Class Properties" as the properties owned by the Class). To eliminate any possibility of confusion, however, I added language to Instruction No. 3.1 (introduction to Plaintiffs' claims) specifically directing the jury that Plaintiffs were required to prove their trespass and nuisance claims for the Class as a whole. See Final Instructions, No. 3.1. This revision adequately addressed Defendants' concern and eliminated any need for the further revisions Defendants sought on this point here and elsewhere in the final instructions.

15 Unless otherwise noted, these proposed revisions were submitted in Defendants' Proposed Changes to Preliminary Jury Instructions (Doc. 1958), filed January 10, 2006.

Instruction No. 3.2 (elements of trespass claims): Defendants' additional proposed revision to the last paragraph of this instruction repeated matters already covered by this and other instructions and was therefore unnecessary. See, e.g., Instruction Nos. 1.4 1.5 (evidence), 1.8 (burden of proof), 3.2 (elements of trespass claims).

Instruction No. 3.3 (presence of plutonium): Most of Defendants' proposed revisions to this instruction were again based on their contention that the physical intrusion of plutonium onto Class Properties did not constitute a trespass under Colorado law unless it caused some additional actual and substantial damages to these properties. This contention was first rejected in 2003, and again in December, 2004. See Cook IX, 273 F. Supp. 2d at 1199-1201; Trespass Instructions Order at 5-6. Defendants' final attempt to insert this contention into the case, based on the same authority they advanced in 2003 and 2004, was also rejected.

Instruction Nos. 3.4 (continuing trespass): Defendants proposed that this instruction be revised to direct the jury that Plaintiffs must not only prove that it appears that plutonium will continue to be present on Class Properties indefinitely, but also that the activities that caused this contamination were themselves continuing. I rejected this proposal because it was contrary to Colorado law holding that the cessation or continuance of the conduct that caused a trespass is immaterial to deciding whether a continuing trespass exists. See Hoery, 64 P.3d 214 at 221. What is material to determining whether contamination is a continuing trespass is whether the contamination remains on the plaintiff's property, see id., and whether it appears it will be there indefinitely, see Restatement (Second) of Torts § 930 (1979) [hereinafter "Restatement"]. Defendants' proposed revisions were inconsistent with both authorities.

Instruction No. 3.5 (matters not relevant to trespass claim): I rejected Defendants' request that I delete the first paragraph of Instruction No. 3.5 because this paragraph accurately reported the Colorado Supreme Court's holding in Hoery that a continuing trespass may exist even though the conduct that originally caused the invasion has ceased. See 64 P.3d at 221.

I denied Defendants' January 19 motion to strike the second paragraph of this instruction, which directed the jury that Class members' actual or constructive knowledge of plutonium contamination when they purchased their Class property was irrelevant to determining trespass liability, for the reasons stated in my order of the same date. See Order (Doc. 2024) (denying Defs.' Mot. to Strike Portion of Jury Instruction No. 3.5 (Doc. 2019)).

My reasons for rejecting Defendants' objections to Instruction No. 3.5 as revised to address Defendants' theory of plutonium removal through development are too lengthy to be stated here and therefore are set forth in a separate memorandum opinion entered this date. See Mem. Op. re: Defs.' Theory of Plutonium Removal Through Real Estate Development (Dec. 7, 2006). See also supra Section I.C.1 (regarding Plaintiffs' proposed revisions to Instruction No. 3.5).

D. Defendants' Proposed Revision to Trespass Instructions During Jury Deliberations

On January 24, 2006, on the second full day of deliberations, the jury sent out a note asking for a definition of the word "intentionally" as used in the statement of the second element of Plaintiffs' trespass claims, see Instruction No. 3.2, and also asking whether the definition was the same as "intentional" as used and defined in connection with Plaintiffs' nuisance claims. I informed the parties of this note and that I intended to answer "no," the definitions were not the same, that Colorado law did not require Plaintiffs to prove that Defendants intended to commit a trespass, see, e.g., Bittersweet Farms, Inc. v. Zimbelman, 976 P.2d 326, 329 (Colo.Ct.App. 1998); Colo. Jury Instructions (Fourth) Civ. § 18:1 n. 4, and that "intentionally" in the context of the trespass claim meant just what was stated in Instruction No. 3.2: that one or both Defendants must have intended to commit act or acts that in the usual course of events resulted in the trespass. See Hoery, 64 P.3d at 217; Colo. Jury Instructions (Fourth) Civ. § 18:1 n. 5; Trespass Instructions Order at 3-5 (discussing Hoery and other Colorado law).

The Defendants took the jury's question as an opportunity to seek revision of Instruction No. 3.2. In an "emergency motion" and accompanying letter requesting an immediate hearing, Defendants requested that the jury be instructed according to the Colorado Supreme Court's "verbatim" and "critical" direction in Hoery that "intentionally" means an act "done with knowledge that it will to a substantial certainty result in entry of the foreign matter." Defs.' Mot. re: Jury's Note (Doc. 2050).¹⁶ The language cited by Defendants, however, was not a verbatim holding from Hoery, or part of the court's holding on this issue at all. Instead, it was a quotation from a comment to the Restatement (Second) of Torts § 158(a), which the Hoery court cited as indirect support for its actual holding, which, as reported in Instruction No. 3.2 and the answer to the jury's question, is that "[a] landowner who sets in motion a force which, in the usual course of events, will damage property of another" is liable for trespass. Hoery, 64 P.3d at 217.¹⁷ In addition, Defendants' emergency motion failed to mention that I had ruled on this precise issue in December, 2004, in response to a proposed jury instruction by Defendants that included the same "substantial certainty" language they sought to insert in this instruction during the jury's deliberations. See Trespass Instructions Order at 3-5. Defendants' renewed and misleading arguments on this point added nothing to my previous analysis and were rejected.

16 Although Defendants' motion contains some language disclaiming any intent to change Instruction No. 3.2, the thrust of their letter, motion and oral argument was for precisely this result.

17 Defendants reported in their letter to the court requesting an emergency hearing on this issue that the "verbatim language" from Hoery is as follows:

Under Colorado law, a defendant who sets in motion a force which, in the usual course of events, will damage property of another is guilty of a trespass on such property. It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter.

Letter from J. Tangren, Counsel for Defendants, to the Hon. John L. Kane (Jan. 25, 2006). The actual quotation from Hoery is:

A landowner who sets in motion a force which, in the usual course of events, will damage property of another is guilty of a trespass on such property. Miller v. Carnation Co., 33 Colo. App. 62, 68, 516 P.2d 661, 664 (1973) (citing Fairview Farms, Inc. v. Reynolds Metals Co., 176 F.Supp. 178 (D. Or. 1959); see also Restatement (Second) of Torts § 158(a) cmt. i ("It is enough that an act is done with knowledge that it will to a substantial certainty result in entry of the foreign matter.")

Hoery, 64 P.3d at 217. Use of the " see also" citation identifies the Restatement comment as additional source material that less directly supports the court's statement of its "usual course of events" standard. See The Bluebook: A Uniform System of Citation R. 1.2(a), at 46 (Columbia Law Review Ass'n et al. eds., 18^th ed. 2005).

II. Instructions on Nuisance Claims

Both parties submitted proposed instructions and jury verdict forms regarding Plaintiffs' nuisance claims in August, 2004. Objections and argument regarding these instructions continued into the fall. After my May 2005 decision resolving the major issues presented by these instructions, both parties submitted supplemental proposed nuisance instructions before trial, and proposed revisions to the Start of Trial nuisance instructions during and/or at the close of trial.

My rulings on the parties' proposed nuisance instructions and revisions were conveyed in the May 2005 Order and the instructions I prepared and provided to the parties and the jury at the start and close of trial. The rationale for these rulings, to the extent not previously conveyed, is set out below. These rulings were based on the common law of private nuisance declared by the Colorado courts, as informed by the Restatement (Second) of Torts and other relevant authority consistent with Colorado law.

Colorado nuisance law, however, as is the case in virtually all jurisdictions, is not always clear and consistent. This is not unexpected or intended as any criticism of the Colorado courts, because nuisance law has long been recognized as notoriously contingent and difficult to define. It has been called a "quagmire,"¹⁸ and an "impenetrable jungle" full of "vagueness, uncertainty and confusion."¹⁹ Justice Blackmun once observed that "one searches in vain . . . for anything resembling a principle in the common law of nuisance." Lucas v. South Carolina Coastal Comm'n, 505 U.S. 1003, 1055 (1992) (Blackmun, J., dissenting).

18 John E. Bryson Angus MacBeth, Public Nuisance, the Restatement (Second) of Torts, and Environmental Law, 2 Ecology L.Q. 241, 241 (1972).

19 W. Page Keeton et al., Prosser Keeton on the Law of Torts § 86, at 616, 617 (5th ed. 1984).

Nonetheless, to instruct a jury meaningfully on a nuisance claim, a judge must do his best to search for and find the common law principles and rules governing the claim, and to present those principles and rules to a lay jury in a form it can follow. Given the abundance of vague and sometimes contradictory authority in nuisance law, this was not an easy task in this action, which because of its nature, see, e.g., May, 2005 Order at 3-4, and the obdurate positions taken by the parties, required a more complete and coherent definition of these principles and rules than is often the case. It is, for example, one thing to state the general Colorado rule that a plaintiff asserting a claim for private nuisance must prove an interference with the use and enjoyment of property was "substantial and unreasonable," or the rule that an "unreasonable" interference is one in which the gravity of the harm outweighs the utility of the conduct causing it, see, e.g., Public Serv. Co. v. Van Wyk, 27 P.3d 377, 391 (Colo. 2001), but quite another to define what this means, especially in a manner that a lay jury can understand and apply, when the parties ascribe such different meanings to these terms.

As described below, the parties' proposed instructions on such matters for the most part were too general and vague to be useful, or attempted to limit the relevant inquiry in a manner that, while occasionally having some basis in Colorado case law or the Restatement, ignored other equally binding or persuasive authority that required the jury to engage in a broader review. The jury instructions I prepared for the nuisance claims, Instruction Nos. 3.6 to 3.17, were based on a thorough review of Colorado nuisance law, the Restatement nuisance provisions relied upon by the Colorado courts and related authority. They were intended to provide the jury with a more complete, consistent and tailored statement of the law governing Plaintiffs' nuisance claims than was proposed by either party. See Elbel v. United States, 364 F.2d 127, 134 (10^th Cir. 1966) (judge cannot fulfill duty to guide, direct and assist the jury with "mere abstract statements of legal definitions," but rather must "fairly and impartially state the issues and applicable law in logical sequence and in the common speech of man"). A. Plaintiffs' Proposed Nuisance Instructions ²⁰ No. 1 (elements of nuisance): I rejected this proposed instruction regarding the elements of Plaintiffs' nuisance claims in favor of an instruction I prepared, Instruction No. 3.6, which incorporates the concepts and some of the language proposed by Plaintiffs but in the easier-to-follow format used in Colorado's standard civil jury instructions for stating the elements of a claim. See, e.g., Colo. Jury Instructions (Fourth) Civ. § 18:1 (trespass claim). Instruction No. 3.6 also states elements of the nuisance claim omitted from Plaintiffs' proposed instruction, namely that Plaintiffs must prove Defendants acted either intentionally or negligently in causing the nuisance, see, e.g., Cook IX, 273 F. Supp. 2d at 1202, and that the nuisance will apparently continue indefinitely, as required for Plaintiffs to prove a continuing nuisance for which they may recover damages in the form of diminution in market value. See Cook X, 358 F. Supp. 2d at 1013; Restatement § 930(1).

20 Unless otherwise noted, these proposed instructions were submitted in Plaintiffs' Proposed Nuisance Jury Instructions and Jury Verdict Form, submitted August 6, 2004.

Instruction No. 3.6 and related Instruction Nos. 3.10-3.12 include the requirement that Plaintiffs prove that any interference caused by Defendants' intentional or negligent conduct was unreasonable. This requirement is based on the Colorado Supreme Court's statement in Public Service Co. v. Van Wyk, 27 P.3d 377, 391 (Colo. 2001), that "[t]o maintain a successful nuisance claim, a plaintiff must establish that the defendant has unreasonably interfered with the use and enjoyment of her property." Van Wyk, 27 P.3d at 391. This statement is in accord with other more general statements in Colorado case law that an interference must be unreasonable to constitute a nuisance.²¹ See, e.g., Allison v. Smith, 695 P.2d 791, 794 (Colo.Ct.App. 1984); Lowder v. Tina Marie Homes, Inc., 601 P.2d 657, 658 (Colo.Ct.App. 1979).

21 I note, however, that in its most recent delineation of the elements of nuisance under Colorado law, the Colorado Supreme Court did not include the requirement that the invasion of the plaintiff's interest in the use and enjoyment of his property be unreasonable. See Hoery, 63 P.3d at 218 (stating only that the invasion must be substantial). No party, however, argued that this decision did away with the "unreasonableness" element of a nuisance claim stated in Van Wyk and other, earlier Colorado decisions.

The difficulty with addressing this requirement is that in Van Wyk, the Colorado high court also stated quite clearly, based on § 822 of the Restatement (Second) of Torts, that proof of unreasonableness is only required for interference caused by intentional conduct, and is not an element of a nuisance claim premised on negligent, reckless or abnormally dangerous conduct. See Van Wyk, 27 P.3d at 391 (citing Restatement § 822). See also Restatement § 822 (actor who causes interference with another's use and enjoyment of property is liable for private nuisance if the interference "is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities."); id. § 822 cmt. c ("A person is subject to liability for an intentional invasion when his conduct is unreasonable under the circumstances of the particular case, and he is subject to liability for an unintentional invasion when his conduct is negligent, reckless or abnormally dangerous."). Plaintiffs alleged here that Defendants interfered with Class members' use and enjoyment of property through both intentional and negligent conduct. Accordingly, one of the questions presented by this instruction regarding the elements of nuisance under Colorado law was which statement by the Van Wyk court regarding the "unreasonableness" requirement to follow in a case that includes allegations of interference caused by intentional and negligent conduct.²²

22 The Restatement explains that the concept of unreasonableness as used in nuisance law was developed only to establish liability for intentional interferences, because general principles of liability already existed for unintentional conduct that harmed another's interests, including the interest in the use and enjoyment of property. See Restatement § 822, cmt. g; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 87, at 624-25 (5^th ed. 1984) (noting their discussion of nuisance, including its "unreasonableness" requirement, applies only to interferences resulting from intentional as opposed to negligent or abnormally dangerous conduct). The conduct at issue in Van Wyk was intentional. 27 P.3d at 391-92.

After reviewing applicable authorities, I decided to instruct the jury that Plaintiffs must prove the alleged interference was "unreasonable," without making a distinction between interference caused by intentional conduct, negligent conduct or some combination of the two. This conclusion was based in part on the difficulty the jury would face in a case such as this, in which the alleged nuisance may have resulted from a combination of intentional conduct and negligent conduct, if it had to apply an unreasonableness standard to the portion of the interference resulting from one type of conduct but not the other. More importantly, however, as the Restatement authors indicated, the standard for finding negligent conduct is very similar to the balancing test employed in Restatement § 826 for determining whether an intentional interference with use and enjoyment of property is unreasonable. See Restatement § 822 cmt. k; id. § 828 cmt. c. The Colorado Supreme Court has adopted this balancing test, which weighs the gravity of the harm against the utility of the conduct that caused the harm, as the standard for determining whether an interference with the use and enjoyment of property is "unreasonable." See Van Wyk, 27 P.3d at 391 (citing Restatement § 826). Accordingly, directing the jury to determine whether any proven interference is unreasonable using this balancing test, even with respect to an interference that may be caused by negligent conduct or some combination of negligent and intentional conduct, is not necessarily inconsistent with the Restatement or Van Wyk's recitation of Restatement § 822, but rather is merely redundant in some respects. Cf. Pestey v. Cushman, 788 A.2d 496, 506 (Conn. 2002) (concluding on this basis that while Restatement language does not make point clearly, a showing of unreasonableness is an essential element of a private nuisance action based on negligent conduct). Finally, directing the jury in this manner is in accord with the Colorado Supreme Court's unequivocal statement that "[t]o maintain a successful nuisance claim, a plaintiff must establish that the defendant has unreasonably interfered with the use and enjoyment of her property." Van Wyk, 27 P.3d at 391.

No. 2 (interference defined): I rejected this proposed instruction in favor of the instruction I prepared, Instruction No. 3.7 (interference defined), based on Plaintiffs' subsequent narrowing of the forms of interference they allege Defendants caused, and my ruling in the May 2005 Order regarding which of Plaintiffs' proffered forms of interference were capable of resolution on a class-wide basis. See May 2005 Order at 3-11. Instruction No. 3.7 defines this element of Plaintiffs' nuisance claim by specifying and explaining the forms of interference the jury may consider in deciding whether either Defendant has interfered with Class members' use and enjoyment of property.

No. 3 (interference and contamination): I adopted Instruction No. 3.7 (interference defined) in lieu of this instruction because it is a more complete statement of what could constitute an actionable interference in this case.

In preparing Instruction No. 3.7, I rejected Plaintiffs' proposed language suggesting that contamination alone can constitute interference with the use and enjoyment of property for the reasons stated in the May 2005 Order at 9-11.

No. 4 (interference and health risk): I rejected this proposed instruction in favor of Instruction No. 3.7 (interference defined), which is generally consistent with this proposed instruction but provides clearer direction on what might constitute an actionable interference in this case.

No. 5 (conduct element): I rejected this proposed instruction in favor of an instruction I prepared, Instruction No. 3.13, which more fully defines the conduct element of Plaintiffs' nuisance claim and reflects my subsequent ruling that the activities alleged to have caused the nuisance are not ultrahazardous activities subjecting Defendants to strict liability. See May 2005 Order at 11-14.

In preparing Instruction No. 3.13, I overruled Defendants' objection that Plaintiffs had waived the right to claim nuisance based on intentional conduct. Although Defendants are correct that Plaintiffs failed to note this issue in the December 2003 Status Report, I found no prejudice in allowing Plaintiffs to try it in connection with their nuisance claims because it had long been part of these claims and was also at issue in connection with Plaintiffs' trespass claims.

No. 6 (intentional conduct): I rejected this proposed instruction in favor of Instruction No. 3.14, which I prepared, because Instruction No. 3.14 more closely follows the Colorado Supreme Court's definition of intentional conduct in Van Wyk. See 27 P.3d at 394, 395; see also Restatement § 825 cmt. d. No. 7A (ordinary negligence): I rejected this proposed instruction in favor of Instruction No. 3.15 (defining negligent conduct), which I based in part on Plaintiffs' alternate proposed negligence instruction, No. 7B.

No. 7B (negligence — inherently dangerous activity): I accepted this proposed instruction subject to revisions I made to conform it to Plaintiffs' theory of the case, see Pls.' Statement of Claims (Doc. 1419) at 3-4 (nuisance claim premised on risk posed by plutonium and other hazardous substances), and the standard Colorado jury instruction defining an inherently dangerous activity and the corresponding standard of care. See Colo. Jury Instructions (Fourth) Civ. § 9:7 n. 1 (2002). The instruction I prepared is Instruction No. 3.15.

Defendants' objections to Plaintiffs' proposed instruction were overruled. As Defendants acknowledge, the concept of inherently dangerous activity, requiring the highest degree of care, is distinct from the concept of ultrahazardous activity triggering strict liability. See Defs.' Objs. to Pls.' Nuisance Jury Instructions at 55 (Aug. 6, 2004); Bennett v. Greeley Gas Co., 969 P.2d 754, 764 (Colo.Ct.App. 1998). Thus, my determination that Plaintiffs had failed to demonstrate that the activities in question were ultrahazardous and thus subject to strict liability, see May 2005 Order at 11-14, was not determinative of whether these activities were inherently dangerous.

Whether an activity is inherently dangerous and subject to the higher standard of care is a question of law to be determined by the court. Imperial Distr. Servs., Inc. v. Forrest, 741 P.2d 1251, 1254 (Colo. 1987). The higher standard applies only when: (1) the activity in question is inherently dangerous; (2) the defendant possesses expertise in dealing with the activity; and (3) the general public would not be able to recognize or guard against the potential danger. See id. at 1255-56; Melton v. Larrabee, 832 P.2d 1069, 1072 (Colo.Ct.App. 1992); Mannhard v. Clear Creek Skiing Co., 682 P.2d 64, 65-66 (Colo.Ct.App. 1983). "It is only where all minds concur that the defendant is engaged in an activity that poses a high risk of injury to others that the court, as a matter of law, may instruct the jury to hold the defendant to the highest standard of care." Imperial Dist., 741 P.2d at 1255. Applying this standard, the Colorado courts have found that activities including the transmission of electricity and the sale of propane gas are inherently dangerous activities to which the higher standard of care applies. See Federal Ins. Co. v. Public Serv. Co., 570 P.2d 239 (Colo. 1977); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 587-89 (Colo. 1984); see also Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671, 683 (Colo. 1985) (discussing Federal Ins. Co. and Blueflame Gas).

Upon consideration of the criteria stated by the Colorado Supreme Court, I found the activities underlying Plaintiffs' trespass and nuisance claims were inherently dangerous activities to which the higher standard of care applied. Inherently dangerous activities are activities that "by their very nature create a danger to the public that otherwise does not exist." Mannhard, 682 P.2d at 66. It is beyond dispute that the generation, use, storage and disposal of plutonium and other hazardous materials in the course of nuclear weapons production constitute inherently dangerous activities under this test. There should also be no question that Defendants possessed expertise in dealing with plutonium and these other dangerous substances and that the general public had no means to recognize or guard against their potential danger. Accordingly, the higher standard of care applies to these activities, and the jury was so instructed in Instruction No. 3.15 (defining negligent conduct). No. 8 (res ipsa loquitur): I rejected this proposed instruction because Plaintiffs failed to demonstrate it was appropriate given, among other things, the variety of conduct Plaintiffs alleged was responsible for the alleged nuisance.

No. 9 (ultra-hazardous activity): I rejected this proposed instruction for the reasons stated in the May 2005 Order at 11-14.

No. 10 (unreasonable interference defined): I rejected this proposed instruction because it was an incomplete statement of what constitutes an unreasonable interference under Colorado law and the Restatement provisions on which the Colorado Supreme Court has relied in defining unreasonable interference. See Van Wyk, 27 P.3d at 391 (citing Restatement § 826). The instructions I prepared on this issue in lieu of this instruction are Instruction Nos. 3.10 to 3.12.

Defendants objected to the concept stated by Plaintiffs in this proposed instruction, which is that harm without compensation may be unreasonable. I overruled this objection and included this concept as one of the factors to be considered by the jury in deciding the utility of Defendants' conduct. See Instruction No. 3.12 (utility of conduct). I made this determination based on the Restatement and other authorities recognizing that in a nuisance action for damages,²³ "the legal utility of the activity [causing the nuisance] may also be greatly reduced by the fact that the actor [is causing the nuisance] without compensating his neighbors for the harm done to them." Restatement (Second) of Torts § 826 cmt. e; id. § 822 cmt. d ("It may be reasonable to continue an important activity if payment is made for the harm it is causing but unreasonable to initiate or continue it without paying."); id. cmt. g (stating, in connection with the rules for determining when an interference with use and enjoyment of property is unreasonable, that "[l]iability for damages is imposed in those cases in which the harm or risk to one is greater than [a person] ought to be required to bear under the circumstances, at least without compensation."); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 88, at 629 (5^th ed. 1984) [hereinafter " Prosser Keeton"] (unreasonable interference may be found when it was unreasonable for defendant to act as it did without paying for the harm inflicted).

23 The Restatement and others have noted that the determination of whether an interference is unreasonable is different in a nuisance action seeking damages as opposed to one seeking injunctive relief, and that much confusion has resulted from the failure of courts to recognize this difference. See, e.g., Restatement § 822 cmt. d; W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 88A at 631-32 (5^th ed. 1984).

Other courts employing the Restatement's balancing test for determining whether an interference is unreasonable in the context of an action for damages have recognized this factor, see, e.g., Pestey, 788 A.2d at 508 ("Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated."); Walsh v. Town of Stonington Water Pollution Control Auth., 736 A.2d 811, 819-20 (Conn. 1999) (the utility of the conduct weighed under the balancing test stated in Restatement § 826 includes both the general activity and what is done about its consequences), and numerous other courts have recognized and applied the general principle that, in a nuisance action for damages, a useful and important activity may be unreasonable if no compensation is paid for even the relatively small harm that it causes. See, e.g., Rattigan v. Wile, 841 N.E.2d 680, 686 (Mass. 2006); Adkins v. Thomas Solvent Co., 487 N.W.2d 715, 723 (Mich. 1992); Meat Producers, Inc. v. McFarland, 476 S.W.2d 406, 411 (Tex.Civ.App. 1972). Although the Colorado Supreme Court has not considered this issue, I have no reason to believe it would take a different path and omit this fundamental consideration from the "gravity of harm versus utility of conduct" balancing test it has declared for deciding whether an interference with use and enjoyment of property is "unreasonable" in a nuisance action for damages. See Van Wyk, 27 P.3d at 382, 392 (in a nuisance action for damages, "a finding of unreasonableness" requires "[a] determination that the social utility of the act causing the invasion that interferes with the use and enjoyment of the land does not outweigh the harm of that invasion").

See also infra Section II.B (regarding Defendants' proposed nuisance Instruction No. 6 and the definition of "unreasonable" interference under Colorado law); infra Section II.C.2 (regarding Defendants' proposed revisions to Instruction No. 3.12).

No. 11 (unreasonable and substantial defined by normal community member standard): I rejected this proposed instruction in favor of instructions I prepared, Nos. 3.8 (introduction to substantial and unreasonable interference) and 3.9 (substantial interference), which accepted the definition advanced by Plaintiffs in this proposed instruction, but, to avoid juror confusion, assigned this definition to the determination of whether an interference is substantial, rather than both "substantial" and "unreasonable." See Instruction No. 3.9. The concept of an "unreasonable" interference was addressed separately in Instruction Nos. 3.10 through 3.12.

Application of the "normal community member" standard to determine whether an interference is "substantial" is consistent with Colorado authority, see Lowder, 601 P.2d at 658; Northwest Water Corp. v. Pennetta, 479 P.2d 398, 400 (Colo.Ct.App. 1970), and with the Restatement's separate treatment of the concepts of "significant" or substantial interference, see Restatement § 821F (cited with approval in Van Wyk, 27 P.3d at 391), and "unreasonable" interference, see Restatement § 826 (also cited with approval in Van Wyk, 27 P.3d at 391, 392). The Tenth Circuit has also treated the requirements that the interference be "substantial" and "unreasonable" as separate requirements under Colorado law, and defined "substantial" interference by reference to the community member standard. Haas v. Lavin, 625 F.2d 1384, 1389 (10^th Cir. 1980).

Treating the "substantial" and "unreasonable" requirements separately also eliminates the confusion inherent in the Van Wyk court's statement of the two different Restatement tests, § 821F's community member standard and § 826's harm versus utility balancing test, for determining whether an interference is "unreasonable," without stating any test for determining when an interference is also "substantial." See Van Wyk, 27 P.3d at 391.

No. 12 (lower property values as evidence of substantial and unreasonable interference): I rejected this proposed instruction but incorporated one of the concepts it advanced, that evidence of a depreciation in property values is evidence that an interference is substantial, in Instruction No. 3.9 (defining "substantial" interference). See also infra Section II.B (regarding Defendants' proposed nuisance Instruction No. 9).

I also rejected the implication in this proposed instruction that a decrease in property value, in combination with other factors, could establish the separate element of interference with the use and enjoyment of property. This implication is contrary to my subsequent ruling in the May 2005 Order that a decrease in market value is not an interference with the use and enjoyment of property or evidence that an interference has occurred. May 2005 Order at 8-9; see Cook IX, 273 F. Supp. 2d at 1209. The jury was instructed consistent with this ruling in Instruction No. 3.7 (interference defined).

No. 13 (balancing harm and utility): I rejected this proposed instruction in favor of an instruction I prepared, No. 3.10 (balancing test), which incorporates many of the concepts proposed here by Plaintiffs and further instructs the jury that they must determine the unreasonableness of the interference using an objective standard. See Restatement § 826 cmt. c.

No. 14 (gravity of the harm): I rejected this proposed instruction in favor of an instruction I prepared, No. 3.11 (gravity of harm), which incorporates Plaintiffs' proposal and expands on it consistent with Restatement § 827 and its commentary.

No. 15 (utility of conduct): I rejected this proposed instruction in favor of Instruction No. 3.12 (utility of conduct), in which I incorporated Plaintiffs' proposal and expanded on it consistent with Restatement § 828 and its commentary. For the reasons stated in connection with Plaintiffs' proposed nuisance Instruction No. 10 above, I also instructed the jury in Instruction No. 3.12 that one of the factors to be considered in assessing the utility of Defendants' conduct was whether it was unreasonable for this conduct to harm Class members, that is, interfere with Class members' use and enjoyment of their properties, without compensation.²⁴ No. 16 (separate findings for each defendant): I accepted this instruction, but revised it to apply to both the trespass and nuisance claims. The final instruction on this topic is Instruction No. 3.19 (separate findings).

24 Instruction Nos. 3.10-3.12 defined the "harm" to Class members for purposes of the gravity of the harm versus utility of the conduct balancing test as any proven interference with Class members' use and enjoyment of their properties.

Supplemental Proposed Limiting Instruction: Utility versus Harm (submitted September 23, 2005 in Doc. 1456): I rejected this proposed instruction in favor of Instruction Nos. 3.10 (balancing test) and 3.12 (utility of conduct), which provided a more complete explanation of the balancing test used to determine whether an interference with the use and enjoyment of property is unreasonable and the factors to be considered in evaluating the utility of the conduct as part of that balancing test. See discussion in this section regarding Plaintiffs' proposed nuisance Instruction Nos. 10 and 15.

B. Defendants' Proposed Nuisance Instructions ²⁵ No. 1 (elements of nuisance liability): I accepted the form of this proposed instruction over that proposed by Plaintiffs, see supra Section II.A (regarding Plaintiffs' proposed nuisance Instruction No. 1), but rejected its statement of the elements of the nuisance claims in favor of the more complete and accurate statement of these elements in Instruction No. 3.6. I also rejected this proposed instruction's statement of various affirmative defenses and suggestion that liability for nuisance would be tried on an individual rather than class basis because they were contrary to the law of the case. See, e.g., May 2005 Order at 3-10; Cook X, 358 F. Supp. 2d at 1004, 1013; May 2004 Order at 5-10; April 2004 Order at 6-10. Defendants' concerns regarding individual as opposed to class-wide liability were addressed by the definition of the class-wide interferences to be tried. See May 2005 Order at 3-11; Instruction No. 3.7 (interference defined).

25 Unless otherwise noted, these proposed instructions were submitted in Defendants' Submission of Nuisance Jury Instructions and Jury Verdict Forms, and Defendants' Objections to Plaintiffs' Nuisance Jury Instructions, dated August 6, 2004.

No. 2 (interference based on diminution in value): I rejected the form of this proposed instruction, but accepted the concepts it stated, which I included in Instruction No. 3.7 (interference defined) and No. 3.13 (actionable conduct).

No. 3 (interference based solely on contamination): I rejected the form of this proposed instruction, but accepted the concept it stated, which I incorporated in Instruction No. 3.7 (interference defined). Nos. 4 5 (interference based on unfounded fears or threat of future harm): I rejected these proposed instructions in a bench ruling at the September 8, 2004 jury instruction conference because both instructions were contrary to the law of the case. Sept. 8, 2004 Tr. (Doc. 1279) at 18; see Cook IX, 273 F. Supp. 2d at 1202-08. In addition, Defendants' proposed nuisance Instruction No. 4 was unnecessary in light of my subsequent determination that interference based on Class members' fears and concerns would not be decided in the class trial. See May 2005 Order at 7.

No. 6 (definition of substantial and unreasonable): I rejected this proposed instruction because it was an incomplete and incorrect statement of applicable law.

I rejected the proposed instruction's statement of a single definition for the concept of "substantial and unreasonable" interference for the reasons stated above in connection with Plaintiffs' proposed nuisance Instruction No. 11. See supra Section II.A. I addressed the concept of "substantial" interference separately in Instruction No. 3.9 and defined it by reference to the "normal member of the community" consistent with Colorado precedent. See supra Section II.A (regarding Plaintiffs' proposed nuisance Instruction No. 11).

With respect to the requirement that an interference be "unreasonable" for nuisance liability to attach, Colorado law follows Restatement § 826(a) in requiring plaintiffs to prove unreasonable interference by demonstrating that the gravity of the harm outweighs the utility of the conduct that caused the harm. See Van Wyk, 27 P.3d at 391, 392. Defendants' interpretation of this test in this proposed instruction would have precluded a finding of substantial and unreasonable interference, and hence a finding of nuisance, any time the utility of a defendant's enterprise to the general public outweighed the harm to individual plaintiffs.

The Colorado Supreme Court has not specifically addressed the scope or content of the gravity of the harm versus utility of conduct test. It has indicated, however, that it follows the Restatement on this issue, see id., and neither the Restatement section upon which Van Wyk relies nor related Restatement provisions and commentary support the simplistic interpretation of this test advanced by Defendants. The Restatement identifies a variety of factors that should be considered in determining whether the gravity of the harm outweighs the utility of the conduct, only one of which, the "social value" of the conduct causing the harm, is included in Defendants' proposed instruction. See Restatement § 828 cmt. e (one factor to be considered in determining the utility of the conduct causing an interference is the "social value" served by this conduct, that is the degree to which the conduct advances or protects the public good). The Restatement specifically recognizes that a high social utility is not determinative, especially in an action for damages. See, e.g., Restatement § 828 (identifying three factors, social value of the conduct, its suitability to the locality and the impracticability of preventing or avoiding the invasion, as important to utility of conduct determination); id. § 828 cmt. c (conduct must have utility from the standpoint of all factors to outweigh the gravity of the harm it causes, so the fact that conduct has utility from the standpoint of one factor is not controlling); id. § 826 cmt. e (in damages action, utility of conduct may be greatly reduced by fact that neighbors are not being compensated for harm done to them). Other jurisdictions have also rejected the notion that an enterprise that interferes with the use and enjoyment of neighboring properties is not "unreasonable" or a nuisance in an action for damages if it serves a sufficiently important public purpose. See, e.g., Walsh, 736 A.2d at 819-20 (relying on Restatement § 826 and related comments to reject this notion); Atlas Chem. Indus., Inc. v. Anderson, 514 S.W.2d 309, 316 (Tex.App. 1974); Jost v. Dairyland Power Cooperative, 172 N.W.2d 647, 651, 653-54 (Wis. 1970); see also Prosser Keeton § 88 at 626 ("It is not necessarily a justification on the issue of damages that the social value or utility of the defendant's conduct outweighs the gravity of the harm that is being done.").²⁶ Defendants have not cited any Colorado precedent suggesting the Colorado courts would ignore this authority and the Restatement to adopt the rule advocated by them.

26 As one court succinctly stated:

We know of no acceptable rule of jurisprudence which permits those engaged in important and desirable enterprises to injure with impunity those who engaged in enterprises of lesser economic significance. The costs of injuries resulting from pollution must be internalized by industry as a cost of production and borne by consumers and shareholders, or both, and not by the individual.

Atlas Chem. Indus., Inc. v. Anderson, 514 S.W.2d 309, 316 (Tex.App. 1974). That the enterprise in question here is a government facility rather than a private enterprise does not alter this analysis. See, e.g., Walsh, 736 A.2d at 820 (same in context of municipal sewage treatment plant).

In addition, under the Restatement, one of the factors to be considered in assessing the utility of a defendant's conduct is whether it was practicable for the defendant to prevent or avoid the interference with the use and enjoyment of neighboring properties. Restatement § 828(c) cmt. h. Consistent with this principle, the Colorado Supreme Court has declared that "it would be a sorry condition of the law if the courts were compelled to hold that the property of another might be taken because it would be either inconvenient or expensive to the one committing the nuisance to restrain or prevent its continuance." Krebs v. Hermann, 6 P.2d 907, 910 (Colo. 1931) (quotations omitted). Defendants' proposed definition of what constitutes an "unreasonable" interference ignores this principle and Restatement factor and thus is inconsistent with Colorado law as well.

Accordingly, I rejected the definition of "substantial and unreasonable" proposed by Defendants in their nuisance Instruction No. 6 and prepared Instruction Nos. 3.8-3.12 instead to provide the jury with a more complete and accurate definition of "substantial" and "unreasonable" based on the Colorado law, the Restatement (Second) of Torts §§ 821F, 822, 826-28 and related comments, and the other authority cited above. See also supra Section II.A (regarding Plaintiffs' proposed nuisance Instruction Nos. 10-15).

No. 7 (finding of unreasonableness requires showing of non-compliance with state and federal standards): I rejected this proposed instruction because Defendants failed to produce any authority supporting it. Defendants based this instruction and their proposed nuisance Instruction Nos. 14-15, 17-19 on their assertion that, as a matter of Colorado law, compliance with applicable state or federal regulatory standards conclusively establishes that an interference with use and enjoyment of property is reasonable and therefore not a private nuisance.²⁷ Defendants' authority for this assertion was the Colorado Supreme Court's decision in Van Wyk v. Public Service Co, 27 P.3d 377 (Colo. 2001).

27 To the extent Defendants relied on federal preemption of the state duty of care to support these instructions, this contention was rejected in Cook IX. See 273 F. Supp. 2d at 1199.

In Van Wyk, the plaintiffs asserted that the defendant's upgrade of an electrical transmission line adjacent to their properties constituted a private nuisance. In order to upgrade the line, the defendant had been required by statute to apply to the Colorado Public Utility Commission ("PUC") for approval. Colo. Rev. Stat. § 30-28-127 (2004). As required by statute, the PUC reviewed the defendant's application to determine whether the proposed upgrade was "reasonable," using much the same gravity of harm versus utility of conduct balancing test as is applied in the nuisance context to determine whether an interference is reasonable or unreasonable. Id.; see Douglas County Bd. of Comm'rs v. Pub. Utils. Comm'n ("Douglas County I"), 829 P.2d 1303, 1305-06 (Colo. 1992). The PUC determined after receiving evidence and testimony in a five-day public hearing and in written post-hearing statements that the proposed upgrade, including the anticipated noise and electromagnetic fields emitted by the upgraded line, was reasonable under this standard. Douglas County I, 829 P.2d at 1305-06. The PUC's quasi-judicial determination of reasonableness, id. at 1307, was then heavily litigated in the courts and ultimately affirmed by the Colorado Supreme Court. See Douglas County I, 829 P.2d 1313 (reversing and remanding appeal of PUC's decision); Douglas County Bd. of Comm'rs v. Pub. Utils. Comm'n ("Douglas County II"), 866 P.2d 919, 921-22 (Colo. 1994) (affirming PUC decision).

Under these circumstances, when the plaintiff property owners brought a separate action alleging the noise and electromagnetic fields from the upgraded transmission line were an unreasonable interference with their use and enjoyment of property, the Colorado Supreme Court found that the PUC's adjudicatory determination that the upgraded line was reasonable, as previously affirmed by the Colorado Supreme Court, established that the alleged interference was reasonable as a matter of law to the extent that the PUC had anticipated and considered the noise and electromagnetic fields actually caused by the now operating transmission line in making this determination. Van Wyk, 27 P.3d at 393-94, 396-97. Van Wyk, therefore, does not stand for the general proposition that compliance with state or federal regulatory standards establishes the reasonableness of a claimed interference in a private nuisance action. Instead, it teaches that a state agency's quasi-judicial determination that a specific activity is reasonable,²⁸ performed pursuant to statute and employing much the same utility versus harm balancing test as applies in the nuisance context, especially when affirmed by the courts on appeal, establishes that the specific activity so approved is reasonable in a subsequent nuisance action.

28 The Colorado Supreme Court concluded the PUC's determination was adjudicative in nature because it affected specific parties and resolved particular issues of disputed fact between these parties by applying previously determined rules or policies. Douglas County I, 829 P.2d at 1307-08.

The state and federal standards identified by Defendants in their proposed nuisance Instruction No. 7 and in their subsequent briefing, that is the state regulatory standard for plutonium contamination in soil for construction purposes²⁹ and a variety of federal regulatory standards for the release of plutonium into the environment, share virtually none of the characteristics of the adjudicated determination of reasonableness relied upon by the Van Wyk court. Instead, these regulatory standards are more akin to zoning regulations and ordinances, compliance with which the Colorado courts have held does not defeat a claim of nuisance. See, e.g., Hobbs v. Smith, 493 P.2d 1352, 1354 (Colo. 1972) (approving generally accepted rule that an activity may constitute a nuisance regardless of compliance with zoning regulations); Allison, 695 P.2d at 794 ("Even if a particular use complies with zoning regulations, it may still constitute a private nuisance if there is substantial interference with a plaintiff's use and enjoyment of his land."). Further, the Colorado Supreme Court has affirmed a judgment of private nuisance even though the act in question was permitted by zoning regulations, done with reasonable care and skill and, of particular relevance here, performed in compliance with health regulations. Hobbs, 493 P.2d at 1354-55, 1356.

29 The state regulation in question, 6 Colo. Code Regs. 1007-1 § 4.60.1 (2005), requires that special construction techniques be used when plutonium contamination in soil exceeds two disintegrations per minute of plutonium per dry gram of soil or square centimeter of surface area. Id.

I was also persuaded by the additional grounds stated in Plaintiffs' September 1, 2004 reply brief (Doc. 1269) and November 8, 2004 response brief (Doc. 1292) that the state and federal regulations cited by Defendants are not the legal measure of what constitutes an unreasonable interference with the use and enjoyment of property under Colorado law.

For all of these reasons, I found no basis in Colorado law for Defendants' contention that Plaintiffs must prove that plutonium releases from Rocky Flats exceeded the cited state and federal standards in order to establish that the claimed interference with use and enjoyment of property was unreasonable and substantial. As a result, I rejected Defendants' proposed nuisance Instruction No. 7.

No. 8 (definition of substantial interference): I rejected this proposed instruction because it misstated the standard for determining substantial interference under Colorado law, see, e.g., Cook IX, 273 F. Supp. 2d at 1202 (stating Colorado test); Van Wyk, 27 P.3d at 391; Haas, 625 F.2d at 1389 (applying Colorado law), and improperly interjected a subjective and individual component to this determination. The instruction I prepared defining this requirement is Instruction No. 3.9. See also supra Section II.A (regarding Plaintiffs' proposed nuisance Instruction No. 11), Section II.C.2 (regarding Defendants' proposed revisions to Instruction No. 3.9).

No. 9 (unreasonableness and reduction in property value): I rejected this proposed instruction because it incorrectly stated that Plaintiffs were required to prove that Defendants' interference with the use and enjoyment of property caused a reduction in the value of Class properties as part of their burden of proving a substantial and unreasonable interference. While this factor is evidence of a substantial interference, see Cook IX, 273 F. Supp. 2d at 1209, it is not required to prove this element of Plaintiffs' nuisance claims.

The authorities cited by Defendants in support of this proposed instruction rely on the same passage in § 88 of Prosser and Keeton on Torts, which states that the substantial interference requirement is intended "to satisfy the need for a showing that the land is reduced in value because of the defendant's conduct." Id. at 623. In support of this statement, Prosser and Keeton cite comment c to Restatement § 821F. Id. However, neither this comment nor anything else in this Restatement section or its commentary, which define and explain the substantial interference requirement, supports Prosser and Keeton's statement. In Van Wyk, the Colorado Supreme Court relied on § 821F in defining what constituted a substantial and unreasonable interference under Colorado law, see 27 P.3d at 391, and there is no mention in other Colorado cases discussing this requirement that diminution in property value is a necessary component of it. See, e.g., Lowder, 601 P.2d at 658; Northwest Water Corp., 479 P.2d at 400.

When a plaintiff in a private nuisance action seeks to recover "permanent" damages, which are measured by the diminution in property value caused by the nuisance, then obviously proof of damages in this form is required for the plaintiff to prevail on his claim. That was the case in Van Wyk ³⁰ and is the case in this action. It does not mean, however, that such proof is also required to establish the separate "substantial and unreasonable" element of nuisance liability, and to do so would be nonsensical given that the law permits recovery of a variety of damages in a private nuisance action. See Cook IX, 273 F. Supp. 2d at 1210 (other damages that may be recovered in appropriate cases include the reasonable cost of repairing damage caused by the nuisance, lost rent and the like). Accordingly, Instruction No. 3.9 in this case instructed the jury that diminution in Class property value may be evidence that a substantial interference exists, but is not required to make this finding.

30 I believe this fact explains the Van Wyk court's subsequent statement that the plaintiffs in that case were required to prove a "substantial invasion . . . reducing the value of the land." 27 P.3d at 392.

No. 10 (unreasonableness and priority in time): I rejected this proposed instruction because it was contrary to Colorado law. I had previously held that "coming to the nuisance" is not a defense to nuisance liability under Colorado law. See May 2004 Order at 6-7. In this instruction, Defendants asserted that whether a plaintiff knowingly came to the nuisance is nonetheless a factor for the jury to consider in deciding whether a claimed interference with the use and enjoyment of property is substantial and unreasonable enough for nuisance liability to attach. The only Colorado authority Defendants cited in support of this proposition, the Colorado Supreme Court's 1885 decision in Platte Denver Ditch Co. v. Anderson, 6 P. 515 (Colo. 1885), did not support this assertion.³¹ In addition, the Colorado Supreme Court and Court of Appeals have since affirmed that being first in time does not "in any measure operate to protect" a defendant from nuisance liability. Krebs, 6 P.2d at 910; see Allison, 695 P.2d at 794 ("it is no defense to an action for nuisance that the plaintiff `came to the nuisance' by knowingly acquiring property in the vicinity of the defendants' premises"; quotation omitted). Restatement § 840D also does not support Defendants' proposed rule,³² and to the extent it does it is contrary to established Colorado law as just described. The same is true with respect to Defendants' reliance on the cited selection from Prosser and Keeton on Torts. No. 11 (cause and intervening cause): The first paragraph of this proposed instruction was undisputed, see Pls.' Submission re: Nuisance Instructions at 1 (Aug. 6, 2004), and was therefore accepted as set forth in Instruction No. 3.18 (causation). See also supra Section I.A.1 (regarding revisions to parties' causation instruction).

31 In this case, the Colorado Supreme Court considered whether a property owner could maintain a public nuisance claim based on the existence of a lawfully constructed and maintained ditch along the public street in front of his house. Platte Denver Ditch Co., 6 P. at 517-21. The Court held the property owner could not recover on this claim because he failed to prove he had suffered specific damages as required for an individual to recover for an alleged public nuisance. Id. at 520, 522. In the course of its discussion, the Court also noted that a person who buys property adjacent to ground lawfully dedicated to a public use such as a street or ditch easement takes that property subject to all the annoyances incident to the purposes of this dedication, while also making it clear that such annoyances did not include any damages resulting from "unlawful, improper, or negligent" operation of the public use. Id. at 521. These statements simply cannot be extrapolated to establish the general rule asserted by Defendants, especially in light of the other Colorado authority cited above.

32 This section and its commentary actually confirms that "coming to the nuisance" in itself will not bar recovery because "the defendant is required to contemplate and expect the possibility that the adjoining land may be settled, sold or otherwise transferred and that a condition originally harmless may result in an actionable nuisance when there is later development." Restatement § 840D cmt. b. Under this section, "coming to the nuisance" is only one factor to be considered in limited circumstances, see id. cmt. c, none of which were present in this action.

I rejected the second paragraph of this proposed instruction, which would have instructed the jury that Defendants' conduct was not the legal cause of any alleged effect if an intervening cause also contributed to the effect. My decision was based on Defendants' failure to demonstrate an intervening cause instruction was warranted for either the trespass claim, see supra Section I.A.1, or the nuisance claim.

With respect to the nuisance claim, Defendants identified three alleged intervening causes: high wind events, the population boom in northwest Denver and the 1989 FBI raid on Rocky Flats. See Defs.' Mem. re: Intervening Cause Instruction (Doc. 1316) at 2-5. In order to be an intervening cause, the cause of the harm must not be reasonably foreseeable. Ayala, 846 F. Supp. at 1441; Jones, 701 P.2d at 86. For the reasons stated earlier, Defendants did not present evidence that the high wind events cited were not reasonably foreseeable. See supra Section I.A.1. Defendants' argument that it was unforeseeable that the Denver metro area would expand towards Rocky Flats was not supported by evidence, and the notion that a population boom in this area "caused" the alleged trespass or nuisance in any part defies logic.³³ Defendants' assertion that the FBI raid constituted an intervening cause for the claimed interferences with Class members' use and enjoyment of their properties was similarly unsupported.

33 Even if the private lands around Rocky Flats had remained lightly populated during Rocky Flats' nearly 40 years of operation, any trespass or nuisance caused by these operations would still have affected these lands and the property rights of their owners.

No. 12 (negligence defined): I rejected this proposed instruction because it was not consistent with my subsequent determination that the activities at issue were inherently dangerous and therefore subject to a higher standard of care. See supra Section II.A (regarding Plaintiffs' proposed nuisance Instruction No. 7B); see also Instruction No. 3.15 (defining negligent conduct).

No. 13 (no presumption of negligence): I accepted this proposed instruction and incorporated it in Instruction No. 3.16 (accident not presumptive negligence), while also including some clarifying language drawn from the Colorado Supreme Court's decision in Remley v. Newton, 364 P.2d 581, 583 (Colo. 1961). See Colo. Jury Instructions (Fourth) Civ. § 9:12 note (2002). Plaintiffs' objection, based on their unsuccessful request for a res ipsa loquitur instruction, was overruled. Nos. 14 15 (Plaintiffs' burden to prove non-compliance with federal standards): I rejected these proposed instructions in bench rulings made at the September 8, 2004 jury instruction conference because both instructions were contrary to my prior rulings in Cook IX. Sept. 8, 2004 Tr. (Doc. 1279) at 18; see Cook IX, 273 F. Supp. 2d at 1179-99. To the extent these instructions relied on the Colorado Supreme Court's Van Wyk decision, they were rejected for the reasons stated earlier in this section with respect to Defendants' proposed nuisance Instruction No. 7.

No. 16 (statute of limitations defense): I rejected this proposed instruction for the reasons stated in Cook X, 358 F. Supp. 2d 1003 (D. Colo. 2004).

Nos. 17-18 (compliance with federal standards defense): I rejected these proposed instructions because they were contrary to my prior rulings in Cook IX, 273 F. Supp. 2d at 1179-99, and for the reasons stated earlier in this section with respect to Defendants' proposed nuisance Instruction No. 7.

No. 19 (compliance with state standards defense): I rejected this proposed instruction for the reasons stated earlier in this section with respect to Defendants' proposed nuisance Instruction No. 7.

No. 20 (prescriptive easement defense): I rejected this proposed instruction in a bench ruling at the September 8, 2004 conference because it was contrary to my May 2004 ruling barring this defense. See Sept. 8, 2004 Tr. at 18; May 2004 Order at 7-10.

Proposed Supplemental Nuisance Instruction No. 1 (substantial and unreasonable — plaintiffs' knowledge) (submitted Sept. 23, 2005 in Doc. 1455): This proposed supplemental instruction is a variation on Defendants' August 2004 proposed nuisance Instruction No. 10 (substantial and unreasonable — priority in time), and Defendants cited the same authority in support of both instructions. I rejected this supplemental proposed instruction for the same reasons I rejected Defendants' first proposed instruction on this topic. See supra this section (regarding proposed nuisance Instruction No. 10).

Proposed Limiting Instruction No. 7 (no emotional distress claims) (submitted Sept. 23, 2005 in Doc. 1455): I rejected this proposed instruction because it was unnecessary in light of Instruction Nos. 3.7 (interference defined) and 3.28 (additional questions), which both directed the jury not to consider or decide whether Class members had suffered any fear, anxiety or other emotional disturbance as a result of Defendants' activities.

C. Parties' Proposed Revisions to Nuisance Instructions at End of Trial

1. Plaintiffs' proposed revisions Instruction Nos. 3.6 (elements of nuisance claim), 3.7 (interference defined), 3.17 (continuing nuisance): Plaintiffs proposed that I revise each of these instructions to reflect that the jury need not find that the non-trespassory invasion continued to the time of trial. See Pls.' Proposed Revisions to Jury Instructions (Doc. 1978) at 7-13. I rejected these proposed revisions for the reasons stated with respect to Plaintiffs' similar proposed revisions to the trespass instructions. See supra Section I.C.1 (regarding Plaintiffs' proposed revisions to Instruction Nos. 3.2-3.4).

Instruction No. 3.7 (interference defined): Plaintiffs proposed two additional revisions to this instruction during and near the end of trial. The first proposed revision instructed the jury that while Plaintiffs were required to prove that all Class members were subject to some form of interference with their use and enjoyment of property, it need not be the same form of interference for all Class members. The second proposed revision addressed and defined interference as it related to Class members who did not live on their Class property. See Pls.' Proposed Revisions to Jury Instructions at 1-3 (Doc. 1885); Pls.' Proposed Revisions to Jury Instructions (Doc. 1978) at 10-11. Defendants did not object to these proposed revisions, which were consistent with my other instructions to the jury and supported by relevant authority. Accordingly, I accepted these revisions and incorporated them in the final version of Instruction No. 3.7.

2. Defendants' proposed revisions ³⁴ Instruction No. 3.6 (elements of nuisance claim): I rejected Defendants' proposed revisions to this instruction. The proposed revisions directing the jury to decide the nuisance claims based on the evidence as a whole and with respect to the Class as a whole were unnecessary in light of other instructions addressing these points. See, e.g., Instruction Nos. 1.1, 1.4 1.5; Final Instructions, No. 3.1; supra Section I.C.2 (regarding Defendants' proposed revisions to Instruction Nos. 3.2 through 3.4). Defendants' proposal to define the requirement of "substantial" interference by reference to a "substantially increased health risk" was not supported by any Colorado authority and was contrary to Colorado and other authority defining "substantial" interference by reference to the "normal community member" standard set out in Instruction No. 3.9. See supra Section II.A (regarding Plaintiffs' proposed nuisance Instruction No. 11), Section II.B (regarding Defendants' proposed nuisance Instruction No. 6).

34 These proposed revisions were set forth in Defendants' Proposed Changes to Preliminary Jury Instructions (Doc. 1958), filed January 10, 2006.

I rejected on multiple grounds Defendants' proposal to redefine interference based on the "risk of future harm" to require proof that it is "more likely than not that the Class Area will be placed at a substantially increased health risk in the future by the continuing operation of the Rocky Flats plant." First, I had previously held that a risk of future harm can constitute an interference with the use and enjoyment of property. See, e.g., Cook IX, 273 F. Supp. 2d at 1208; May 2005 Order at 6. A "risk" of future harm by definition means the "possibility" or "chance" of future injury or loss, Webster's Third New Int'l Dictionary 1961 (1976); Random House College Dictionary 1139 (1980), or "the element of uncertainty" regarding such future harm. Black's Law Dictionary 690 (5th ed. 1983). Defendants' proposed revision would improperly require Plaintiffs to prove a certainty, that the Class Area "will be placed at a substantially increased health risk," rather than that there is a risk that some future harm will occur.³⁵ Defendants' further proposal that the type and magnitude of future harm that might give rise to an interference be limited to "a substantially increased health risk" was also inconsistent with my previous rulings on this subject. See, e.g., Cook IX, 273 F. Supp. 2d at 1202-03, 1208; May 2005 Order at 5-6.

35 Defendants' proposal that Plaintiffs prove this condition was "more likely than not" to occur merely repeated Plaintiffs' burden with respect to each element of their nuisance claim. See Instruction No. 1.8 (burden of proof). Deleting this surplus language from Defendants' proposed revision demonstrates that the effect of Defendants' proposed revision would have been to require that Plaintiffs prove "the Class Area will be placed at a substantially increased health risk," rather than that there is "chance" or "possibility" that this (or some other harm) could occur in the future.

The two cases cited by Defendants in support of their proposed redefinition of interference based on the risk of future harm were inapposite and unpersuasive for a number of reasons, including that both concerned recovery of damages in negligence actions based on enhanced risk of disease and/or emotional distress resulting from this risk. See Boryla v. Pash, 937 P.2d 813 (Colo.Ct.App. 1996) (medical malpractice action), rev'd, 960 P.2d 123 (Colo. 1998); Potter v. Firestone Tire Rubber Co., 863 P.2d 795 (Cal. 1993). Instruction No. 3.6 addressed liability for nuisance, not recovery of damages for this or some other claim. Further, the jury was specifically instructed at the start of trial in this instruction and in Instruction No. 3.7 (interference defined) that it should not consider Class members' fears or other emotional disturbance in deciding whether Defendants had interfered with Class members' use and enjoyment of property, and that interference based on a "risk of future harm" must be based on the existence of objective conditions that pose a demonstrable risk of future harm to the Class Area.

Instruction No. 3.7 (interference defined): I rejected Defendants' proposed revisions to this instruction for the reasons stated above with respect to their proposed revisions to Instruction No. 3.6.

Instruction No. 3.8 (introduction to "substantial" and "unreasonable" concepts): I rejected Defendants' proposed revision to this instruction because it was unnecessary in light of other instructions. See, e.g., Final Instructions, No. 3.1 (trespass and nuisance claims must be proved for the Class as a whole); see also supra this section (regarding Defendants' proposed revisions to Instruction No. 3.6).

Instruction No. 3.9 ("substantial" interference defined): I accepted Defendants' proposal to add a paragraph to this instruction directing the jury to decide whether any proven interference was "substantial" based only on the interference that was common to the class as a whole. See Final Instructions, No. 3.9 (second paragraph). This revision was consistent with an equivalent direction included in Instruction No. 3.11 regarding the jury's determination of whether any proven interference was "unreasonable." See Start of Trial Instruction No. 3.11; May 2005 Order at 5.

I rejected Defendants' additional proposal that I replace the direction that an interference was "substantial" if a normal member of the community would find it "offensive, annoying or inconvenient," with a standard requiring that a normal member of the community find the interference "definitely offensive, seriously annoying, or intolerable." Defendants asserted this same standard in their August 2004 proposed nuisance instructions, which I rejected before trial because the proper standard for determining substantial interference under Colorado law is the "offensive, annoying or inconvenient" language stated in Instruction No. 3.9. See supra Section II.B (regarding Defendants' proposed nuisance Instruction No. 8); Cook IX, 273 F. Supp. 2d at 1202 (stating Colorado test).

Defendants misstated my decision in Cook IX when they asserted that I "recognized in Cook IX [that] the interference must be `definitely offensive, seriously annoying, or intolerable'" to be "substantial" under Colorado law. Defs.' Proposed Changes to Prelim. Jury Instructions (Doc. 1958) at 61 (citing Cook IX, 273 F. Supp. 2d at 1203-04). The passage they cited reports the standard set out in § 821F of the Restatement, and makes no finding that this standard has been adopted in Colorado. My finding on the "offensive, annoying or inconvenient" standard employed by the Colorado courts and the Tenth Circuit (applying Colorado law) for determining a "substantial" interference is clearly stated earlier in Cook IX. See 273 F. Supp. 2d at 1202 (citing Van Wyk, 27 P.3d at 391 and Haas, 625 F.2d at 1389).

Instruction No. 3.10 (balancing test for "unreasonable" interference): I rejected Defendants' proposed deletion of the second paragraph of this instruction because this paragraph was an accurate statement of law and I deemed it necessary to prevent juror confusion in applying the gravity of harm versus utility of conduct test for unreasonable interference. See, e.g., supra Section II.B (regarding Defendants' proposed nuisance Instruction No. 7).

Instruction No. 3.11 (gravity of the harm defined): I rejected Defendants' proposed revision to the "character of the harm" portion of this instruction because it was confusing and unnecessary. Instruction No. 3.11 defined "harm" as any proven interference. See Instruction No. 3.11 (first paragraph). Under this and other instructions, therefore, the jury would only consider the gravity of this interference if it had already found interference was proved. See id.; Instruction No. 3.8; Jury Verdict Form, ¶¶ C, D.

Instruction No. 3.12 (utility of conduct defined): I accepted Defendants' proposed revision to the first paragraph of this instruction to clarify that it applied to the utility of the conduct that caused any proven interference.

I rejected Defendants' proposed revisions to numbered paragraph 2 because the original language more accurately stated this factor as set forth in the Restatement. See Restatement § 828(b) cmt. g.

I rejected Defendants' proposed revisions to the third paragraph for several reasons. First, the Restatement provides that "the conduct for which the utility is being weighed includes both the general activity and what is done about its consequences." Restatement § 826 cmt. e; see id. § 828(c) cmt. h. There was no basis, therefore, to delete the language to this effect from this instruction as Defendants proposed.

Defendants further proposed the addition of language to this and numbered paragraph 3 that would have precluded the jury from considering the steps Defendants took to address the consequences of its conduct unless the jury first found that Defendants knew their conduct would interfere with Class members' use and enjoyment of their property. In support of these proposed revisions, Defendants cited comment h to Restatement § 828, which, like the rest of the Restatement's discussion of the "unreasonableness" requirement, states that this requirement only applies to interferences that result from intentional conduct.³⁶ See, e.g., Restatement § 822 cmts. c, g; id. §§ 826-828. As discussed earlier in this opinion, however, the Restatement's gravity of harm versus utility of conduct balancing test is the measure of unreasonableness under Colorado law for all alleged private nuisances, including those based on negligent conduct or a combination of negligent and intentional conduct. See supra Section II.A (regarding Plaintiffs' proposed nuisance Instruction No. 1). Accordingly, consistent with Colorado law, I prepared this and the other instructions regarding the jury's determination of the utility of Defendants' conduct and the whole of the unreasonableness determination to apply to any proven interference caused by Defendants' intentional or negligent conduct. This treatment is consistent with Van Wyk, the Restatement and other authority for the reasons stated with respect to Plaintiffs' proposed nuisance Instruction No. 1. See id. Defendants' proposal that a portion of the jury's unreasonableness determination be limited based on a distinction between intentional and negligent conduct was inconsistent with these determinations and was therefore rejected.

36 Defendants' proposed revisions, however, assumed a more limited definition of "intentional conduct" than that set out in the Restatement or Colorado law. See, e.g., Restatement § 825; Van Wyk, 27 P.3d at 394-95; see also Instruction No. 3.14 (defining "intentional" conduct based on these authorities).

Defendants proposed that in numbered paragraph 3 the jury be instructed that any interference Defendants caused was practicably avoidable only if they could have substantially reduced the harm "consistent with their obligations to the Department of Energy." Defendants cited no authority in support of this proposed revision, and I am not aware of any that would support it. This proposed revision appears to be an attempt to interject something akin to a government contractor defense into this case, see Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (recognizing and defining government contractor defense to tort claims), notwithstanding Defendants' failure to pursue this affirmative defense.³⁷ See infra Section IV.C.6 (regarding Defendants' proposed instruction regarding evidence of contractual obligations).

37 Although Defendants asserted the government contractor defense in their 1991 Answers to the Second Amended Complaint, neither pursued the defense or identified it as an issue to be tried as required in the pretrial planning process. See May 2004 Order at 2-3, 4 (summarizing Defendants' pretrial representations regarding affirmative defenses to be tried). Defendants also specifically disclaimed they were asserting this defense before trial. See July 29, 2005 Hr'g Tr. (Doc. 1433) at 299-300.

Defendants further proposed that a sentence be added to numbered paragraph 3 directing the jury that "if it would have been necessary to cease the operation of the Rocky Flats Plant in order to avoid all harm to the Class members, the invasion was not practicably avoidable." Defs.' Proposed Changes to Prelim. Jury Instructions (Doc. 1958) at 69. I rejected this proposed revision for two reasons. First, no evidence was presented that would support a finding that it was necessary to cease operations at Rocky Flats to avoid all interference with Class members' use and enjoyment of their properties. Second, the authority cited in support of this proposed revision, a sentence in comment h to Restatement § 828, is addressed to on-going operations that would have to be discontinued to reduce the harm materially. This concern does not exist in a situation such as this, in which operations ceased more than fifteen years ago.

Defendants also proposed deletion of all language in numbered paragraph 3 that instructed the jury that if it determined it was practicable for Dow or Rockwell to avoid causing any interference but that they did not take the measures necessary to do so, then the law would consider their conduct to have no utility. Defendants cite no authority for deleting this language, which is consistent with the Restatement's direction on this point. See, e.g., Restatement § 828 cmt. h. I therefore rejected this proposed revision.

Finally, Defendants proposed revisions to numbered paragraph 4 of this instruction based on Restatement § 826(b), which states that an interference is unreasonable if the harm caused by the defendant's conduct "is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible." This test for unreasonable interference, however, is an alternative to the gravity of harm versus utility of conduct balancing test stated in Restatement § 826(a). See Restatement § 826.

The jury instructions, consistent with Colorado law and both parties' August 2004 proposed nuisance instructions, directed the jury to apply § 826(a)'s balancing test to determine whether any proven interference was unreasonable. See Van Wyk, 27 P.3d at 392; Instruction No. 3.10 (balancing test). In an action seeking damages for a private nuisance, the Restatement contemplates that, as part of this balancing test, a jury may consider whether the defendant has interfered with the plaintiff's use and enjoyment of property without compensating the plaintiff for this harm, and that this factor may greatly reduce the legal utility of defendant's conduct. See Restatement § 826 cmt. e (commenting on § 826(a)'s gravity versus utility balancing test); see also supra Section II.A (regarding Plaintiffs' proposed nuisance Instruction No. 10). Instruction No. 3.12 as provided to the jury at the start of trial included this direction. Restatement § 826(b)'s separate test for unreasonable interference did not warrant any revision to this instruction. Instruction No. 3.13 (intentional or negligent conduct): Defendants proposed that this instruction be revised to require that Plaintiffs prove any interference with the use and enjoyment of Class Properties caused by Defendants resulted from either intentional acts or negligent acts, and not from a combination of acts, some of which were negligent and others intentional. I rejected this proposed revision because neither common sense nor the only authority cited by Defendants, Van Wyk, 27 P.3d 377 (Colo. 2001), supported it.

Instruction No. 3.14 ("intentional" conduct defined): I rejected Defendants' proposed revisions to this instruction because the original text of this instruction was a correct statement of Colorado law, see Van Wyk, 27 P.3d at 394, 395, and other instructions directed the jury to decide Plaintiffs' claims for the Class as a whole. See, e.g., Final Instructions, No. 3.1; see also supra this section (regarding Defendants' proposed revisions to Instruction No. 3.6).

Instruction No. 3.15 (negligent conduct defined): I based this instruction on the standard Colorado jury instruction defining negligence and the standard of care for inherently dangerous activities. See Colo. Jury Instructions (Fourth) Civ. § 9:7 (2003). Defendants proposed to rewrite this standard instruction to change the standard of care from the "highest possible degree of skill, care, diligence and foresight" to the "highest practicable degree of skill, care, diligence and foresight" and to insert additional language regarding the foreseeability of their actions. I rejected both proposed changes because they were inconsistent with Colorado's standard instruction on this subject and not supported by Colorado law.

I also rejected Defendants' attempt to define their standard of care in this instruction by reference to their obligations to the Department of Energy. This legal contention was not supported by authority, and was inconsistent with Defendants' decision not to pursue a government contractor defense in this action. See supra note 37 and accompanying text; infra Section IV.C.6 (regarding Defendants' proposed instruction regarding evidence of contractual obligations).

Instruction No. 3.17 (continuing nuisance): Defendants proposed that this instruction be revised to require Plaintiffs to prove that Defendants continue at the present time to undertake activities at Rocky Flats that substantially and unreasonably interfere with Class members' use and enjoyment of their properties. I rejected this proposed revision based on Colorado law holding that the cessation or continuance of the conduct causing the property invasion is immaterial to determining whether a continuing property invasion exists. Hoery, 64 P.3d at 221. The relevant inquiry is whether the property invasion, i.e., the substantial and unreasonable interference in the nuisance context, is continuing. See id.

I also rejected Defendants' proposal to revise this instruction to insert their proposed redefinition of what constitutes an interference with the use and enjoyment of property for the reasons stated earlier in this section with respect to Defendants' proposed revisions to Instruction Nos. 3.6 and 3.7.

III. Instructions on Damages

In Cook IX, I held that compensatory or actual damages, if any, in this action would be determined in accordance with Restatement § 930, and that the amount of these damages to the Class would be determined in the same trial at which any liability to the Class was decided. See 273 F. Supp. 2d at 1212, 1213. I also reiterated previous rulings rejecting Defendants' argument that Plaintiffs were barred from seeking punitive damages in this action. Id. at 1211-12.

I subsequently ordered Plaintiffs to prepare a plan for determining compensatory damages to the Class that addressed Defendants' arguments that various individual damages factors must be considered in deciding and awarding Class damages. See May 2004 Order at 12-14. Plaintiffs complied in July, 2004, and both parties provided additional briefing on the plan and Defendants' opposition to it. Subsequently, in September, 2004, both parties filed proposed instructions regarding the determination of damages in this action, a verdict form for damages and objections to each other's proposed damages instructions and verdict form.

Following a thorough review of the parties' briefs and proposed damages instructions, I ruled on the major issues presented by the parties' competing positions in May 2005. See May 2005 Order at 14-20. In summary, I held that the jury at the upcoming class trial would determine aggregate damages for Class members who, pursuant to Restatement § 930(1), were entitled to seek damages for any diminution in their properties' value caused by a continuing trespass or nuisance.³⁸ May 2005 Order at 15-16. I found the measure of these damages would be that stated in Restatement § 930(3)(b), that is the decrease in the value of the land caused by the continuing trespass or nuisance "measured at the time when the injurious situation became complete and comparatively enduring." Restatement § 930(3)(b). I further found that the primary individual damages factor asserted by Defendants, that some Class members had purchased their properties at a discount because of the continuing trespass or nuisance, was properly viewed as the affirmative defense of setoff, and rejected the remainder of Defendants' asserted individual damages factors. See May 2005 Order at 17-20. I also concluded that the fact of any compensatory damages suffered by the Class, the amount of any such damages, and the facts necessary to determine any setoff for such damages could and would be determined by the jury at the class trial. See id. Finally, I held that the jury would be instructed to determine the amount of any compensatory damages for three categories of land — residential, vacant and commercial — and to express its findings regarding the amount of compensatory damages for each category in terms of both aggregate damages and an average percentage diminution in value. Id.

38 The members of this sub-class consist of Class members who owned property within the Class Area on the later of: (i) January 30, 1990, when this action was filed; or (ii) the date on which the jury, per Restatement § 930(1), found that it appeared the trespass and/or nuisance committed by Defendants would continue indefinitely. See Restatement § 930(1) cmt. b; see also Order re: Instruction No. 3.28 (Doc. 2064) at 4-9 (explaining basis for sub-class under these authorities).

Based on these determinations and the parties' proposals, I prepared jury instructions regarding compensatory and punitive damages that were presented to the jury at the start of trial in October, 2005. See Start of Trial Instructions, Nos. 3.20-3.27. In preparing these instructions, I also relied on my standard instructions on damages where appropriate.

During and at the close of trial, the parties proposed additional and/or revised instructions to the jury regarding the determination of actual and punitive damages, which I considered in preparing my final instructions to the jury. My rationale for accepting or rejecting the parties' specific proposed jury instructions on damages is summarized below.

A. Plaintiffs' Proposed Damages Instructions ³⁹ No. 1 (damages introduction): I rejected this proposed instruction in favor of an instruction I prepared, No. 3.20 (damages — introduction), which was based on my standard introductory damages instruction and included both the substance of Plaintiffs' proposed instruction and additional direction to the jury on the determination of actual damages.

39 Unless otherwise noted, these proposed instructions were submitted in Plaintiffs' Proposed Phase III Jury Instructions, Verdict Form, and Objections (Doc. 1272), filed September 3, 2004.

No. 2 (compensatory damages): I rejected this proposed instruction in favor of Instruction No. 3.21 (damages — actual or nominal), which includes the substance of Plaintiffs' proposed instruction and additional direction tailored to the damages determination in this case.

No. 3 (measure of damages): I rejected this proposed instruction in favor of Instruction No. 3.22 (measure of actual damages), in which I included the substance of Plaintiffs' proposed instruction and additional, tailored direction on the measure of damages based on Restatement § 930 and Plaintiffs' final statement of claims before trial. See Pls.' Statement of Claims (Doc. 1419) at 5-6.

No. 4 (no double recovery): I rejected this instruction in favor of a revised version of Defendants' proposed instruction on this issue. See infra Section III.B (regarding Defendants' proposed damages Instruction No. 3.14). The instruction I prepared based on Defendants' proposed instruction and my standard instruction barring mulitiple recovery is Instruction No. 3.26.

No. 5 (mathematical certainty not needed): I rejected this proposed instruction but included some of the language it proposed in Instruction No. 3.20 (damages — introduction) where it was in accordance with my standard introductory damages instruction.

No. 6 (measuring diminution in value): I rejected this proposed instruction in favor of an instruction I prepared, No. 3.22 (measure of actual damages), which provided a more complete statement of the measure of damages under Restatement § 930(3)(b), tailored to reflect Plaintiffs' theory of the case as stated in their final pretrial statement of claims. See Order re: Instruction No. 3.28 (Doc. 2064) at 3-4 (discussing Instruction No. 3.22 and its basis in Restatement § 930(3)(b)); Pls.' Statement of Claims (Doc. 1419) at 5-6. In Instruction No. 3.22, I also clarified, as requested by Defendants, that the jury only consider any diminution in the value of Class properties caused by a continuing trespass and/or nuisance proved by Plaintiffs, and included a more complete statement of the "but for" test for determining whether any trespass or nuisance had caused a diminution in these properties' values.

My instruction on the measure of damages in the class trial and Plaintiffs' burden in this regard generally followed that stated in the May 2005 Order, but also simplified the damages determination set out therein in several respects. As relevant to Instruction No. 3.22, this included requiring Plaintiffs to prove by a preponderance of the evidence that the time for measuring any actual damages, i.e., the time at which the injurious situation became "complete" and "comparatively enduring," was some time between June 6, 1989, when the FBI and U.S. Environmental Protection Agency raided Rocky Flats, and March 26, 1992, when Rockwell pled guilty to certain environmental crimes at Rocky Flats. This requirement was based on Plaintiffs' final pretrial statement of their theory of the case. See Pls.' Statement of Claims (Doc. 1419) at 5-6. The jury was instructed that if it found Plaintiffs had failed to prove that the "CCE" time fell within this window, then it could not award actual damages.⁴⁰ See Instruction No. 3.22; Verdict Form, ¶¶ E, F (Question Nos. 1, 6, 11). This was a narrower standard than was contemplated in the May 2005 Order, which would have allowed Plaintiffs to prove and recover actual damages measured at any point in time the jury found the injurious situation became complete and comparatively enduring. See May 2005 Order at 16-17.

40 In the May 2005 Order, I also referred to the point in time at which actual damages should be measured as the CCE "date," rather than the CCE "time" or "time period" as stated in Instruction No. 3.22. May 2005 Order at 16. It was not my intention in sometimes using the short-hand phrase "CCE date" to suggest that Plaintiffs were required to prove the injurious situation became "complete" and "comparatively enduring" as of a specific date. The Restatement does not include this requirement, but rather identifies the " time when the injurious situation became complete and comparatively enduring" as the point at which the decrease in property value caused by a continuing invasion should be measured. Restatement § 930(3)(b) (emphasis added).

No. 7 (aggregate damages and percentage reduction): I accepted this proposed instruction subject to some minor, clarifying revisions. The revised instruction is Instruction No. 3.23.

Plaintiffs' proposed instruction and Instruction No. 3.23 both simplified the damages determination process stated in the May 2005 Order by allowing the jury to determine and report the amount of aggregate damages to each property category, and the corresponding average diminution in property value, without the intermediate multiplication step set out in the May 2005 Order. See May 2005 Order at 16-17. I found this simplified treatment consistent with the May 2005 Order.

Before accepting this proposed instruction, I considered and rejected Defendants' objections to it, most of which were based on their ultimately unsuccessful contention that damages could not be determined on a class-wide basis. See May 2005 Order at 19-20. Two other objections asserted by Defendants, however, warrant a brief response.

First, Defendants asserted that permitting the jury to decide aggregate damages based on statistical proof would permit the jury to determine compensatory damages by "extrapolation" in the same manner that the Fifth Circuit disapproved in Cimino v. Raymark Industries, Inc., 151 F.3d 297, 319-21 (5^th Cir. 1998). I disagree. For reasons I will describe in a moment, the determination of aggregate damages as provided in this proposed instruction and adopted in Instruction No. 3.23 bears no resemblance to the damages determination disapproved in Cimino. Defendants' further assertion that statistical proof of damages is per se impermissible under Cimino, and that only individual, non-statistical evidence may be used to prove damages in a class action, was unsupported and unsupportable.

In Cimino, the Fifth Circuit considered the validity of a three phase trial in personal injury and wrongful death suits brought by more than 2000 asbestos workers and their survivors against various manufacturers and suppliers of asbestos-containing products. In the last phase of this trial, two different juries decided whether 160 individual class members, who were selected as "sample cases," suffered from an asbestos-related injury or disease and, if so, the amount of wage loss, pain and suffering or other damages they incurred as a result. Following this trial and a bench hearing, the district court determined that the 160 sample cases were reliably representative of all cases involving like diseases and on this basis ruled each of the remaining 2128 cases would receive individual final judgments and damages based on the average of the verdicts rendered in the 160 sample cases involving their disease category. See 151 F.3d at 299-300, 302-305. As a result no trial on damages was held in these additional cases. See id. at 319-20. On appeal, the Fifth Circuit held, among other things, that the district court's extrapolation of the averaged results of the 160 sample damages cases to decide damages in the more than 2000 cases that not been tried violated the defendants' "Seventh Amendment right to have the amount of legally recoverable damages fixed and determined by a jury." Id. at 320.

This Seventh Amendment concern did not exist under Plaintiffs' proposed instruction or Instruction No. 3.23 because both directed that the amount of damages (if any) to be awarded to the Class was to be tried to and determined by the jury. Specifically, Instruction No. 3.23 directed the jury to consider and decide whether any proven trespass or nuisance by one or both Defendants caused a diminution in value of Class Properties (defined as the properties owned by Class members within the Class Area), and, if so, the amount of this diminution in value expressed in the aggregate and in terms of the average percentage diminution in value suffered by these properties. See Instruction Nos. 3.22 3.23; Verdict Form, ¶¶ E, F. The parties presented evidence consistent with these directions and the jury decided these questions. There was no violation, therefore, of Defendants' Seventh Amendment right to have the amount of the legally recoverable damages caused by any proven trespass or nuisance fixed and determined by a jury. That the jury considered evidence derived through multiple regression analysis or other statistical techniques in making this determination is of no consequence under Cimino or the Seventh Amendment.

Defendants also argued in their objections to this proposed instruction that their Seventh Amendment right to have a single jury decide their liability and damages would be violated if the jury in the class trial was allowed to determine aggregate damages but allocation of these damages to individual Class members was deferred to a later proceeding. Again, I disagree. The jury instructions in toto required the jury to determine Defendants' liability to the Class for trespass and/or nuisance, and the amount of damages to the Class as a whole caused by any trespass or nuisance. How these damages are allocated to individual Class members will not require that these determinations be revisited. The post-trial allocation of any aggregate damages awarded by the jury is not, therefore, a matter that implicates Defendants' Seventh Amendment right to have fact issues decided by a single jury.

No. 8 (punitive damages): I rejected this proposed instruction in favor of Instruction No. 3.27, which incorporates most of Plaintiffs' proposed language but is a more complete statement of applicable law. Instruction No. 3.27, for example, instructs the jury regarding what constitutes a "reasonable doubt" and that it could not consider Defendants' conduct relating to plutonium and other radioactive materials after August 20, 1988 in deciding whether to award punitive damages. See, e.g., Cook IX, 273 F. Supp. 2d at 1211 (explaining basis for August 20, 1988 limitation).

No. 8 (sic) (pre-August 20, 1998 occurrences): I rejected this proposed instruction but incorporated its content in Instruction No. 3.27 (punitive damages).

Proposed Instruction on "Setoff" (submitted Sept. 6, 2005 in Doc. 1436): I rejected this proposed instruction in favor of Instruction No. 3.25 (affirmative defense of setoff), which is a more accurate and complete statement of this affirmative defense as delineated in the May 2005 Order. See May 2005 Order at 17-19.

B. Defendants' Proposed Damages Instructions ⁴¹

41 Unless otherwise noted, these proposed instructions were submitted in Defendants' Submission of Phase III Jury Instructions and Jury Verdict Forms (Doc. 1271), filed September 3, 2004.

Most of Defendants' proposed instructions on damages assumed damages would not be decided on a class-wide basis and were rejected for this reason alone. Many also contained additional direction to the jury on the substantive elements of Plaintiffs' trespass and nuisance claims, which was unnecessary and potentially confusing to the jury in the damages context. Many of Defendants' statements regarding the substantive law of trespass and nuisance in their proposed damages instructions were also contrary to my prior rulings or other applicable law, and sometimes differed even from Defendants' previously proposed instructions on these claims. Defendants' proposed damages instructions ignored the law of the case in other respects as well. I accepted the few damages instructions proposed by Defendants that did not suffer from these or other defects and rejected the rest, as summarized below.

No. 3.1 (damages introduction): I accepted most of this proposed instruction, which was based on my standard introductory damages instruction. I omitted additional language Defendants proposed for this instruction because it was unnecessary in light of other instructions and also assumed damages would only be decided for individual plaintiffs. The introductory damages instruction I prepared is Instruction No. 3.20.

No. 3.2 (no speculative damages): I rejected this proposed instruction because it was unnecessary given the direction on this point in Instruction No. 3.20. Defendants' proposed language regarding prospective loss was also confusing and unnecessary given other, more precise instructions I prepared defining Plaintiffs' burden of proof with respect to damages. See, e.g., Instruction Nos. 3.21-3.24.

No. 3.3. (damages causation): I rejected this proposed instruction for several reasons, including that it posited that damages would not be decided on a class-wide basis. It also misstated Plaintiffs' burden of proof by requiring that damages not be awarded unless they were "definitively established" and "traceable to and a direct result of" a defendant's trespass or nuisance. I included the requirement that the jury determine actual damages based only on damages caused by any proven trespass or nuisance in several other instructions. See Instruction Nos. 3.21 (damages — actual or nominal), 3.22 (measure of actual damages), 3.24 (matters not relevant to determining actual damages). No. 3.4 (no damages based on proximity): I accepted the principle stated in this proposed instruction and incorporated it in Instruction No. 3.24 (matters not relevant to determining actual damages).

Nos. 3.5 (permanent v. continuing trespass): I accepted the first paragraph of this proposed instruction to the extent that it described actual and nominal damages. This description was incorporated in Instruction No. 3.21 (damages — actual or nominal).

The second paragraph of this proposed instruction, which directed the jury to decide whether plutonium from Rocky Flats could be removed from an individual Plaintiff's property by reasonable measures and at a reasonable cost, reasserted Defendants' position that the question of whether the trespass alleged here is permanent or continuing is a jury issue to be determined based on this standard. I rejected this proposed language because I held in Cook IX, 273 F. Supp. 2d at 1211, and confirmed in Cook X, 358 F. Supp. 2d at 1004-09, that the Colorado Supreme Court's decision in In re Hoery, 64 P.3d 214 (Colo. 2003), established that the trespass alleged by Plaintiffs was a continuing trespass. See also April 2004 Order at 12-15 (discussing issue). Defendants' proposed language in this paragraph was also unacceptable because it unnecessarily and incorrectly restated the elements of Plaintiffs' trespass claim and assumed that damages would decided on an individual basis.

No. 3.6 (damages for permanent trespass): I rejected this proposed instruction for the reasons stated above with respect to the second paragraph of Defendants' proposed damages Instruction No. 3.5.

No. 3.7 (damages for continuing trespass): I rejected this proposed instruction on multiple grounds, including that it lacked legal or logical coherence and was generally unworkable as a direction to a jury. Specific deficiencies in this instruction included its unnecessary and inaccurate restatement of the elements of Plaintiffs' trespass claim and incorrect direction that only damages for individual Plaintiffs should be decided. This proposed instruction also unnecessarily required the jury to make a second finding that the trespass was continuing; did not correctly define the "complete and comparatively enduring" concept, see Instruction No. 3.22 (measure of actual damages); Order re: Instruction No. 3.28 (Doc. 2064) at 3-4 n. 3; and incorporated a temporal limit on recoverable damages that was implicitly rejected in Cook IX, see 273 F. Supp. 2d at 1209-10 (adopting Restatement § 930(3)(b)'s standard for measuring damages caused by a continuing invasion), and expressly rejected in Cook X, 358 F. Supp. 2d at 1010-13. I rejected this instruction's treatment of any "prior market discount" based on my subsequent ruling that this issue is an affirmative defense and not part of Plaintiffs' burden of proof. See May 2005 Order at 17-19. Defendants' attempt in this instruction to address the issue of Class members who sold their property before the right to seek damages under Restatement § 930(1) accrued or was exercised was not successful and in any event was rendered unnecessary by my subsequent management of this issue through the use of sub-classes. See May 2005 Order at 15-16; Order re: Instruction No. 3.28 at 5-9. To the extent this proposed instruction included any relevant and accurate principles of law, I included them in Instruction No. 3.22 (measure of actual damages).

No. 3.8 (trespass — fears without scientific foundation): I rejected this proposed instruction because Defendants failed to produce authority supporting its asserted rule that damages for diminution in value are not recoverable if the decrease in value was caused by fears without scientific foundation. In Defendants' primary authority, Boughton v. Cotter Corp., 65 F.3d 823, 833 (10th Cir. 1995), the issue considered and decided was "whether unfounded fears of disease are a form of recoverable annoyance and discomfort damages" under Colorado law in a trespass or nuisance action. Id. at 831-32. Plaintiffs did not seek damages here for annoyance and discomfort, but rather for the decrease in the value of Class Properties as a result of the alleged continuing trespass and nuisance, which is a separate and unrelated category of damages under Colorado law. See Cook IX, 273 F. Supp. 2d at 1206 nn. 33 34.

The only other authority cited by Defendants does not concern damages at all, but rather what must be proved under North Carolina law to establish liability for contaminating property. See Brooks v. E.I. Du Pont de Nemours Co., 944 F. Supp. 448 (E.D.N.C. 1996). Even as to liability, this authority departs from Colorado law, which I have held does not require proof of a scientifically demonstrated health risk to establish liability for nuisance or a physical trespass. See Cook IX, 273 F. Supp. 2d at 1200-01 (trespass), 1202-08 (nuisance); see also supra Section II.B (regarding Defendants' proposed nuisance Instruction Nos. 4 5).

Nos. 3.9 (permanent v. continuing nuisance), 3.10 (permanent nuisance), No. 3.11 (continuing nuisance), No. 3.12 (nuisance — fears without scientific foundation): These proposed instructions mirror Defendants' proposed damages Instruction Nos. 3.5 through 3.8 (regarding damages for trespass) and suffer from the same flaws. I, therefore, rejected these proposed instructions for the reasons stated in this section with respect to Defendants' proposed damages Instruction Nos. 3.5 through 3.8.

No. 3.13 (reasonable market value): I rejected this proposed instruction because it defined a term that was not used in or necessary to any of the damages instructions. In addition, if I had found it necessary to use and define this concept in the jury instructions, the proper formulation, under Defendants' own authority, would have been "fair market value," not "reasonable market value."

No. 3.14 (multiple recovery prohibited): I accepted this proposed instruction but revised it to reflect that damages would be decided on a class-wide basis and to consolidate the first two paragraphs as proposed by Plaintiffs in their objections. See Instruction No. 3.26 (multiple recovery prohibited).

No. 3.15 (exemplary damages): I accepted the last paragraph of this proposed instruction, which defined "reasonable doubt," and included it in Instruction No. 3.27 (punitive damages). I rejected the remainder of this proposed instruction because it directed that punitive damages be decided only for individual plaintiffs, incorrectly asserted that Plaintiffs did not seek punitive damages in connection with their nuisance claim, and contradicted at least two decisions in this case defining what incidents and conduct could be considered in deciding punitive damages. See Cook IX, 273 F. Supp. 2d at 1211-12; Cook v. Rockwell Int'l Corp. ("Cook I"), 755 F. Supp. 1468 (D. Colo. 1991).

Proposed Supplemental Instruction Nos. 2 3 (prior market discount defense — trespass and nuisance) (submitted September 16, 2005 in Doc. 1445): I rejected these proposed instructions because, among other things, they did not fully define this affirmative defense, did not state its elements in a manner that could be readily followed by the jury and did not inform the jury that this was an affirmative defense on which Defendants bore the burden of proof. These proposed instructions also unnecessarily required the jury to make findings on a year-by-year basis. The instruction I prepared and used in lieu of this proposed instruction, Instruction No. 3.25, provided a more complete and accurate statement of this affirmative defense consistent with my prior rulings. See May 2005 Order at 17-18.

Proposed Supplemental Damages Instruction No. 1 (damages not based on past harm) (submitted Sept. 23, 2005 in Doc. 1455): I rejected this proposed instruction because it was unnecessary in light of the damages instructions I prepared. Under these instructions, as well as the jury verdict form, the jury would not consider whether to award actual damages unless it had already determined that Plaintiffs had proved a continuing trespass and/or nuisance. See, e.g., Instruction Nos. 3.2 (elements of trespass claim), 3.6 (elements of nuisance claim), 3.20 (damages — introduction); Jury Verdict Form ¶¶ E, F. In addition, the only damages the jury was directed to consider in this action, diminution in property value caused by a continuing trespass and/or nuisance, see Instruction Nos. 3.22 (measure of actual damages), is by definition the measure of damages for the prospect of the harm continuing into the future. See, e.g., Restatement § 930 cmt. d (depreciation in value of land caused by prospect that invasion will continue indefinitely is usual standard of compensation for continuing invasions).

Proposed Supplemental Damages Instruction No. 2 (stigma) (submitted Sept. 23, 2005 in Doc. 1455): I rejected this proposed instruction because it was unnecessary in light of Instruction No. 3.22, which directed the jury that it could only award actual damages if it found the proven trespass or nuisance had caused a diminution in the value of Class Properties.

Proposed Instruction Regarding Stigma Evidence (submitted Dec. 7, 2005 and amended Dec. 11, 2005 in Doc. 1783): I rejected this proposed instruction, which Defendants requested during trial, because it was unnecessary in light of the direction provided to the jury in Instruction Nos. 3.21, 3.22 and 3.24 (regarding actual damages), as well as Instruction Nos. 3.2 and 3.6 (defining requirements for finding liability for trespass or nuisance). Defendants' primary authority for this proposed instruction was, in fact, Instruction Nos. 3.21, 3.22 and 3.24, thus demonstrating that this additional instruction was redundant of direction already provided to the jury.

Proposed Instruction Regarding the Type of Damages That Can Be Awarded (submitted Dec. 8, 2005 in Doc. 1768): I rejected this proposed instruction, which Defendants requested during trial, because it was unnecessary given the direction in Instruction No. 3.22 (measure of actual damages) and the Verdict Form, ¶¶ E, F, that the jury consider and award actual damages based on their findings regarding any diminution in property values caused by a proven trespass or nuisance.

C. Parties' Proposed Revisions to Damages Instructions at End of Trial

1. Plaintiffs' proposed revisions ⁴² Instruction No. 3.22 (measure of actual damages): I revised this instruction consistent with Plaintiffs' proposal because Plaintiffs had presented evidence of damages during the larger 1988-95 time period and thus were entitled to recover actual damages (assuming all other prerequisites were proved) if the jury found the injurious situation became complete and comparatively enduring at any point during this period.

42 These proposed revisions were submitted in Plaintiffs' Proposed Revisions to Jury Instructions (Doc. 1978), filed January 13, 2006.

In objections filed January 18, 2006, after I had finalized the instructions and provided them to the jury, Defendants objected to this revision, arguing that they relied on Plaintiffs' assertion of a June 6, 1989 to March 26, 1992 window for determining actual damages in selecting the evidence they would present at trial. The only example of this alleged reliance and resulting prejudice given by Defendants, however, was that they would have more vigorously cross-examined Plaintiffs' witnesses Mr. Hunsperger and Dr. Radke about the 1988 to June 1989 and April, 1992 to 1995 periods if they had known the jury could consider whether the injurious situation became complete and comparatively enduring sometime during these periods and award damages on this basis. See Defs.' Objs. to Jury Instructions (Doc. 2015), Ex. A at 130-32.

As the transcript excerpts cited by Defendants themselves demonstrate, Defendants cross-examined both of these witnesses about their findings and conclusions regarding these periods. I also note that Defendants' cross-examination of Mr. Hunsperger and Dr. Radke was nothing if not vigorous in all respects. This cross-examination and Defendants' previous Daubert motions challenging the testimony of these witnesses also demonstrated that Defendants were fully aware that Plaintiffs would present evidence regarding damages from 1988-1995. I therefore found no prejudice in revising Instruction No. 3.22 as requested by Plaintiffs. See also supra Section III.A (regarding Plaintiffs' proposed damages Instruction No. 6 and the initial 1989-92 time period).

Instruction No. 3.25 (setoff affirmative defense): I rejected Plaintiffs' proposed revision to this instruction because, by definition, all Class members purchased their properties on or before June 7, 1989. See Cook v. Rockwell Int'l Corp. (Cook IV), 151 F.R.D. 378, 382 (D. Colo. 1993) (defining property class by ownership of Class property on this date). Accordingly, any benefit Class members received in purchasing their property, i.e., any then existing diminution in property value caused by the continuing trespass or nuisance, necessarily occurred before this date as well. For purposes of deciding this affirmative defense, therefore, it was unnecessary for the jury to consider any such "prior market discount" that might have existed after June 7, 1989. 2. Defendants' proposed revisions ⁴³ Instruction No. 3.21 (actual or nominal damages): I rejected Defendants' proposed revision to this instruction because it was unnecessary. Instruction No. 3.21 as I drafted it directed the jury to determine whether the Plaintiff Class incurred actual damages, and other instructions also directed the jury to decide Plaintiffs' claims for the Class as a whole. See, e.g., Final Instructions, No. 3.1; see also supra Section II.C.1 (regarding Defendants' proposed revisions to Instruction No. 3.6). Defendants' concern that the jury would determine actual damages based on a finding of average diminution in value was not warranted because, under the damages instructions and related special interrogatories in the Verdict Form, the jury would only consider the average diminution in the value of Class properties if it had already found the Class as a whole incurred actual damages in the form of a diminution in the value of their properties as a result of the trespass and/or nuisance committed by one or both of the Defendants. See, e.g., Instruction Nos. 3.22 (numbered paragraph 2) 3.23; Final Instructions, No. 3.1; Verdict Form, ¶¶ E, F.

43 Unless otherwise stated, these proposed revisions were submitted in Defendants' Proposed Changes to Preliminary Jury Instructions (Doc. 1958), filed January 10, 2006.

Instruction No. 3.21A (types of damages to be awarded): Defendants originally proposed this supplemental new instruction on December 8, 2005. See Defs.' Proposed Instruction re: Type of Compensatory Damages (Doc. 1768). I rejected it for the reasons stated earlier in this opinion. See supra Section III.B (regarding same proposed supplemental instruction).

Instruction No. 3.22 (measure of actual damages): I rejected Defendants' proposed revisions to this instruction because they were unnecessary. Defendants' request that the instruction be revised to emphasize at five different points that the damages were to be decided for the Class as a whole was redundant of the direction in Final Instruction No. 3.1 and other instructions on this point. See supra Sections II.C.2 (regarding Defendants' similar proposed revisions to Instruction No. 3.6). Their proposed revisions to the second paragraph of this instruction were unnecessary because the original text of this paragraph defined the concept of "comparatively enduring" consistent with the Restatement, see Restatement § 930 cmts. b, d, and the additional proposed revision did not define this term but rather was a matter for counsel's argument. The revisions Defendants proposed for the fourth paragraph of this instruction were unnecessary because they were included when I first instructed the jury and provided them with a copy of the jury instructions at the start of trial. See Oct. 11, 2005 Trial Tr. at 426-27; Start of Trial Instructions, No. 3.22.

Defendants' proposal that Instruction No. 3.22 be revised to direct the jury first to determine whether the injurious situation ever became complete and comparatively enduring, and then to determine whether Plaintiffs had proved it became complete and comparatively enduring within a specified time period was also rejected as unnecessary. The first numbered paragraph in the original, Start of Trial Instruction No. 3.22 already covered both concepts. That is, if the injurious situation never became complete and comparatively enduring or did not do so during the specified time period, then the jury would answer "no" to the first numbered paragraph of Start of Trial Instruction No. 3.22. If the injurious situation became complete and comparatively enduring and did so during the specified time period, then the jury would answer "yes" to this question. Defendants' proposed revision, therefore, did not add anything to this instruction. As a result of my final review of Instruction No. 3.22 at the close of trial, I revised its second and third numbered paragraphs to clarify that if the jury found the injurious situation became complete and comparatively enduring at some time during the specified time period, then its determination of the fact and amount of any actual damages were to be made as of the time it found the injurious situation became "complete and comparatively enduring." See Final Instructions, No. 3.22.

Instruction No. 3.22A (stigma evidence): Defendants originally proposed this supplemental new instruction on Dec. 7, 2005. See Defs.' Proposed Instruction re: Stigma Evidence (Doc. 1755), amended Dec. 11, 2005 (Doc. 1783). I rejected it for the reasons stated earlier in this opinion. See supra Section III.B (regarding same proposed supplemental instruction).

Instruction No. 3.23 (aggregate damages and percentage diminution): Defendants did not propose any revisions to this instruction in their January 10 comprehensive review of the jury instructions governing this action. On January 18, however, after I had finalized these instructions in response to the parties' proposed revisions and provided them to the jury, Defendants for the first time objected to this instruction's direction that the jury should decide damages to commercial property in the Class Area. See Defs.' Objs. to Jury Instructions and Verdict Form (Doc. 2015), Ex. A at 133-36. As grounds for this objection, Defendants cited Plaintiffs' failure to mention damages to commercial property in their August 2005 statement of claims. See id. They also asserted that Plaintiffs' evidence of a diminution in the value of commercial properties was insufficient for this issue to go to the jury. See id.

Plaintiffs' proposed damages Instruction No. 7, submitted in September, 2004, directed that damages be determined for commercial properties in the Class Area. See Pls.' Proposed Phase III Jury Instructions (Doc. 1272) at 14. Defendants did not object to this proposed language. See Defs.' Submission of Phase III Jury Instructions (Doc. 1271), Ex. B at 40 (asserting five objections to Plaintiffs' proposed damages Instruction No. 7, none of which pertained to its direction regarding damages to commercial property). Given this lack of objection, I included this direction in the May 2005 Order, see id. at 16, and the jury instructions I prepared and provided to the jury at the start of trial in October, 2005. See Start of Trial Instructions, No. 3.23. Defendants did not object to this direction at any point before or during trial or by the January 9 deadline I set for Defendants' proposed revisions to the Start of Trial Instructions. Order on Jury Instruction Submissions (Doc. 1929). They also, without objection, included damages to commercial properties in the proposed Verdict Forms they submitted near the end of trial. See Defs.' Proposed Jury Verdict Forms (Doc. 1963). Neither did Defendants seek judgment on the issue of damages to commercial property, or mention the issue at all, in their motions for judgment as a matter of law filed at the close of Plaintiffs' case and again at the close of evidence.

Under these circumstances, I find Defendants waived any objection to this instruction's direction regarding damages to commercial properties, and to the submission of this issue to the jury. Even if this were not the case, I find that Plaintiffs' submission of proposed jury instructions containing this direction and other statements of their case over the years provided Defendants with ample notice that the issue of damages to commercial property in the Class Area would be tried, and that Plaintiffs presented sufficient evidence to allow this issue to go to the jury.

Instruction No. 3.24 (matters not relevant to determining actual damages): I rejected Defendants' proposed revision to the first paragraph of this instruction because it and Instruction No. 3.22 already adequately defined the requirement that Plaintiffs prove the damages they sought were caused by a proven trespass or nuisance. Defendants' proposed revision was also inconsistent with my ruling in Cook IX that the jury could consider and rely on evidence that Class Properties had a lower value than properties not in proximity to Rocky Flats, along with evidence of Defendants' tortious invasion of properties proximate to the plant, to infer that Defendants' trespass and/or nuisance had caused a diminution in Class property values. See 273 F. Supp. 2d at 1210.

I rejected Defendants' proposed revisions to the second paragraph of Instruction No. 3.24 because they eliminated my direction to the jury that Plaintiffs were not required to prove any diminution in value caused by Defendants' continuing trespass and/or nuisance came into existence before or after the FBI raid or some other specific event. This direction was dictated by my 2003 decision denying Defendants' long-held contention that Plaintiffs were required as a matter of law to make such a "before and after" showing in order to recover actual damages in this case. See Cook IX, 273 F. Supp. 2d at 1209-1210. Instead, I ruled that the "but for" measure of damages set forth in Restatement § 930 applied here. See id. Defendants did not offer any rationale for eliminating this direction, which was necessary (especially in light of Defendants' arguments at trial) to avoid jury confusion on this point.

Defendants further requested that I revise this instruction to direct the jury that the timing of any diminution in the value of Class properties relative to the FBI raid or other events might be relevant to other issues, such as whether and when the injurious situation became complete and comparatively enduring. This additional proposed instruction, was, in my judgment, both unnecessary and inappropriate. Defendants were fully capable of arguing, and did in fact argue during trial, that various evidence rebutted Plaintiffs' contention that any injurious situation resulting from the alleged trespass and nuisance became complete and comparatively enduring after the FBI raid and the controversy it engendered. Instruction No. 3.22 and the other damages instructions provided the jury with the direction necessary to decide this question and whether Plaintiffs had otherwise carried their burden of proving actual damages.

Instruction No. 3.25 (affirmative defense of setoff): I rejected Defendants' proposed revisions to this instruction because they were unnecessary. The language Defendants sought to strike and replace was sufficient and consistent with my rulings on this defense. See May 2005 Order at 17-19.

Instruction No. 3.27 (punitive damages): I accepted Defendants' proposal that this instruction be revised to instruct the jury that any sum awarded as punitive damages could not be more than the amount awarded as actual damages. See Colo. Jury Instructions (Fourth) Civ. § 5:3; Colo. Rev. Stat. § 13-21-102(1)(a).

I rejected Defendants' proposal that this instruction be revised to direct the jury that it could award punitive damages only for intentional conduct that it found was willful and wanton, and not for any negligent conduct it found met this standard. While it is true that "mere negligence" cannot support an award of punitive damages under Colorado law, see Jacobs v. Commonwealth Highland Theatres, Inc., 738 P.2d 6, 10 (Colo.Ct.App. 1986), punitive damages may be awarded for negligent acts or omissions a jury finds rose to the level of willful and wanton conduct under the definition stated in this instruction. See Colo. Jury Instructions (Fourth) Civ. § 9:30 n. 2 (defining "willful and wanton negligence"); Jacobs, 738 P.2d at 10 (exemplary damages may be awarded where negligent conduct is also found to be willful and wanton). Defendants' proposed revisions on this point, therefore, were contrary to Colorado law.

IV. Other Disputed Instructions and Issues

The parties proposed approximately 45 instructions in addition to those already discussed. Some of these proposed instructions were stipulated, but most were not. The additional disputed instructions focused on topics such as the nature of the case and evidentiary matters. Defendants also proposed significant revisions to many of these additional instructions during and at the end of trial. My rulings on these additional disputed instructions are set forth in summary fashion below.

A. Instructions Regarding the Nature of the Case

The parties submitted competing instructions stating the nature of the case in September 2004. See Pls.' Proposed Phase III Jury Instructions (Doc. 1272), No. 1.1; Defs.' Submission of Phase III Jury Instructions (Doc. 1271), No. 1.1. I relied on the parties' proposed instructions, their August 2005 statements of their theories of the case and the law of the case to prepare a Statement of the Case instruction that described the nature of the case, Plaintiffs' claims and Defendants' denial of these claims in neutral language that was consistent with my rulings on the scope of the class trial and the more detailed instructions that followed. See Instruction No. 1.1. I rejected Defendants' January 10, 2006 proposed revisions to this instruction because the revisions were unnecessary and improperly assumed that Plaintiffs had failed to present evidence that hazardous substances other than plutonium were used and disposed of at Rocky Flats and could pose a risk of future harm.

Defendants also proposed a number of additional instructions regarding the nature of the case which I rejected. Defendants' September 3, 2004 Proposed General Instruction No. 1.9 (included in Doc. 1271), regarding determination of a claim made by multiple plaintiffs, was inappropriate in a class trial. Their September 23, 2005 Proposed Supplemental General Instruction No. 2 (included in Doc. 1455), which would have directed the jury that "each class member" was required to prove "the elements of his or her trespass and nuisance claims" against each defendant, was also improper in a class trial and was unnecessary because other general and substantive instructions stated Plaintiffs' burden of proof with respect to the class claims and class damages. See, e.g., Instruction Nos. 1.1, 3.2, 3.6, 3.22; Final Instructions, No. 3.1. Defendants' September 23, 2005 Proposed Supplemental General Instruction No. 1 (included in Doc. 1455), which would have informed the jury that their verdict "will not result in a final judgment for any of the class members," was unnecessary and also inaccurate, because the jury's verdict on liability and class damages would result in "final judgment" for class members, even if additional, post-class trial proceedings were necessary to apportion any class damages to individual class members.

B. Instructions Regarding Burden of Proof

The parties stipulated to my standard instruction on burden of proof, see Pls.' Proposed Phase III Jury Instructions (Doc. 1272) at 19 (regarding No. 1.8); Defs.' Submission of Phase III Jury Instructions (Doc. 1271), Ex. A, No. 1.9, which was provided to the jury in Instruction No. 1.8 and the first paragraph of Instruction No. 1.9.

During and at the end of trial, Defendants proposed two additional instructions that they characterized as going to the burden of proof. The first proposed that the jury be informed that Defendants were not permitted to talk to most class members before trial, while Plaintiffs had been allowed to do so as class counsel, and that the jury could consider this disproportionate access in judging the testimony of class members. See Am. Defs.' Proposed Instructions (Doc. 1783), Ex. A at 3; Defs.' Proposed Changes to Prelim. Jury Instructions (Doc. 1958), No. 1.9B. I rejected this proposed instruction because it improperly suggested that adverse evidentiary inferences could be drawn from the standard prohibition on ex parte contacts between defendants and class members represented by class counsel. See Order (Doc. 583) (stating general rule against ex parte contact). The proposed instruction was also misleading in suggesting that Defendants were absolutely barred from seeking discovery from all class members, when in fact Defendants were permitted to seek discovery from individual Class members upon a showing of need. See id.

I rejected Defendants' second additional proposed instruction in this category, a separate instruction regarding speculation and uncertainty, see Defs.' Proposed Changes to Prelim. Jury Instructions (Doc. 1958), No. 1.8A, because it was unnecessary in light of the existing instructions. See, e.g., Instruction Nos. 1.4, 1.8, 1.9, 3.20, 3.25.

C. Limiting and Other Evidentiary Instructions

1. Classified information

One of the more hotly disputed issues before and during trial was how to instruct the jury regarding relevant information about contamination at Rocky Flats that was unavailable in discovery and at trial because it had been classified as secret by the plant owner, the U.S. Department of Energy ("DOE"). Based on DOE's status as Defendants' indemnitor and other circumstances, Plaintiffs requested that I treat DOE's decision to classify such information in the same manner as spoliation of evidence, which would warrant an instruction advising the jury that it was permitted to infer that the classified information would have been unfavorable to Defendants if DOE had made it available. See, e.g., Pls.' Proposed Supplemental Instructions (Doc. 1436), Proposed Instruction on Spoliation; Pls.' Br. on Statute of Limitations, State Regulatory Standards, Ultrahazardous Liability, Spoliation (Doc. 1254) at 18-19; Pls.' Reply Br. (Doc. 1269) at 9.

Defendants, in turn, argued that there was no basis for a spoliation instruction regarding DOE's classification decisions, see, e.g., Defs.' Objs. to Pls.' Supplemental Jury Instructions (Doc. 1445), Ex. B at 24-30; Defs.' Resp. to Pls.' Br. (Doc. 1263) at 31-44. They also asserted the jury should be instructed that, as a factual matter, there was no evidence that either Defendants or their counsel had any involvement in DOE's classification decisions or were involved in trying to conceal evidence through this process. See Defs.' Am. Submission of Supplemental Jury Instructions (Doc. 1455), Ex. A, Proposed Limiting Instruction No. 3; Defs.' Submission of Limiting Instruction Pursuant to 10/7/05 Hearing (Doc. 1499); Defs.' Mem. in Supp. of Mot. for Mistrial or Alternative Proposed Instructions (Doc. 1903), Ex. A. Defendants further proposed that I instruct the jury, again as a matter of fact, that DOE had provided Plaintiffs, Defendants and their respective counsel with equal access to all relevant information in DOE's custody, see Defs.' Am. Submission of Supplemental Jury Instructions (Doc. 1455), Ex. A, Proposed Limiting Instruction No. 3; Defs.' Mem. in Supp. of Mot. for Mistrial or Alternative Proposed Instructions (Doc. 1903), Ex. A; Defs.' Proposed Changes to Prelim. Jury Instructions (Doc. 1958), Proposed Instruction No. 1.9A, and that the jury could not draw any inferences from the fact that the information remained classified. Defs.' Mem. in Supp. of Mot. for Mistrial or Alternative Proposed Instructions (Doc. 1903), Ex. A; Defs.' Proposed Changes to Prelim. Jury Instructions (Doc. 1958), Proposed Instruction 1.9A.

After considering the parties' pre-trial arguments on the classified information issue, I determined that a spoliation instruction was not warranted. I also determined that the jury needed to be informed why classified information was not available for their consideration, and that the parties should be placed on an even basis with respect to this issue.⁴⁴ Accordingly, I prepared an instruction, No. 1.9, that addressed these points in the context of the standard instruction that a party's burden of proof does not require it to produce all possible evidence relevant to their claims or defenses. See Start of Trial Instructions, No. 1.9. At the close of trial, I revised this instruction to clarify to the jury that it could not and should not decide the propriety of any of the DOE's classification decisions and should not speculate about what the classified information might be. See Final Instructions, No. 1.9.

44 I also determined it was inappropriate to include the unsupported factual declarations Defendants sought in their proposed instructions.

2. Other evidence relating to DOE

Defendants proposed additional limiting instructions regarding DOE's involvement with Rocky Flats. One set of proposed instructions would have informed the jury that DOE was not on trial and that any wrongful conduct by DOE was irrelevant to determining the liability of either Defendant. See Defs.' Am. Submission of Supplemental Jury Instructions (Doc. 1455), Ex. A, Proposed Limiting Instruction No. 1; Defs.' Proposed Changes to Prelim. Instructions (Doc. 1958), Proposed Instruction No. 1.10A. I rejected these proposed instructions because they were unnecessary and inaccurate. They were unnecessary because other instructions identified Dow and Rockwell as the defendants in this action, and neither the jury instructions nor the verdict form called for the jury to make any findings regarding DOE or its conduct. The proposed instructions were inaccurate because DOE's conduct was relevant to events and operations at Rocky Flats during each Defendant's tenure there, including events and operations relevant to Defendants' alleged liability for trespass and nuisance. DOE also generated or funded studies, reports and other documents that were admitted into evidence and employed witnesses who testified at trial, which rendered its conduct relevant to the jury's interpretation and weighing of this evidence.

Defendants also proposed instructions stating that DOE was financially responsible for this litigation as Defendants' indemnitor, see Defs.' Am. Submission of Supplemental Jury Instructions (Doc. 1455), Ex. A, Proposed Limiting Instruction No. 2, and directing the jury not to consider this fact in determining Defendants' liability. See id.; Defs.' Proposed Changes to Prelim. Instructions (Doc. 1958), Proposed Instruction No. 1.10B. These instructions were unnecessary because the jury was properly instructed elsewhere regarding the elements necessary to establish Defendants' liability, none of which involve DOE's indemnity. Counsel also questioned the jurors extensively regarding DOE's indemnification of Defendants during voir dire, and all jurors confirmed during this process that they would not consider this indemnification in determining Dow and Rockwell's liability. See Oct. 6, 2005 Trial Tr. at 235-49. It was not necessary under these circumstances to instruct the jury as proposed by Defendants.

3. Evidence regarding the FBI raid, grand jury investigation and Rockwell plea agreement

Defendants proposed instructions limiting the jury's consideration of evidence regarding the FBI's June 6, 1989 raid on Rocky Flats and the grand jury investigation and plea agreement that followed. See Defs.' Am. Submission of Supplemental Jury Instructions (Doc. 1455), Ex. A, Proposed Limiting Instruction Nos. 4, 5. This evidence was the subject of several of Defendants' motions in limine, which I granted in part and denied in part before trial. See Aug. 22, 2005 Tr. at 5-8; Mem. Op. re: Daubert Mots. and Mots. in Limine, Section I.E.1 (Dec. 7, 2006). Defendants' proposed instructions were not fully consistent with my rulings because, among other things, their instructions could be read as barring the jury from considering any evidence arising from the FBI raid and grand jury investigation. Their proposed instructions also did not provide the jury with guidance in considering the Department of Justice's decision not to prosecute Rockwell for any other crimes, which I had addressed in pretrial rulings. See Aug. 22, 2005 Tr. at 5-8. Accordingly, I did not accept the instructions proposed by Defendants regarding this evidence and instead prepared Instruction Nos. 2.4 and 2.5, which more accurately conveyed the limitations I imposed during the pretrial process on the presentation and consideration of these categories of evidence. See Aug. 22, 2005 Tr. at 5-8; Mem. Op. re: Daubert Mots. and Mots. in Limine, Section I.E.1 (Dec. 7, 2006).

Defendants subsequently proposed that Instruction No. 2.5 be revised to allow the jury to consider the Department of Justice's decision not to prosecute Rockwell for additional misconduct. See Defs.' Proposed Changes to Prelim. Instructions (Doc. 1958), Ex. A, No. 2.5. I rejected this proposed change because it contradicted my previous express ruling on this issue, see Aug. 22, 2005 Tr. at 6-7; Mem. Op. re: Daubert Mots. and Mots. in Limine, Section I.E.1 (Dec. 7, 2006), and because I found no merit in Defendants' contention that during trial Plaintiffs had "opened the door" to the jury's consideration of this evidence. As I ruled before trial, Defendants' assertion that the Department of Justice (DOJ) "exonerated" Rockwell of additional alleged misconduct by entering into a plea agreement that did not address this alleged misconduct, and Plaintiffs' rebuttal that the DOJ acted improperly in concluding the criminal investigation in this manner, were not matters that needed to or should be litigated and considered in this action. See Aug. 22, 2005 Tr. at 6-7. Plaintiffs did nothing during trial to change this conclusion.

4. Evidence of other lawsuits

Defendants proposed that I instruct the jury not to consider Dow's or Rockwell's involvement in other lawsuits in determining whether they engaged in any of the conduct alleged by Plaintiffs. See Defs.' Am. Submission of Supplemental Jury Instructions (Doc. 1455), Ex. A, Proposed Limiting Instruction No. 6. I accepted this instruction after revising it to address Plaintiffs' objection, which was to clarify that it applied to civil suits. See Instruction No. 2.6. This revision prevented an inconsistency with Instruction No. 2.5 and potential juror confusion about whether they could consider Rockwell's guilty plea in the criminal suit brought against it for conduct at Rocky Flats.

Defendants proposed a second limiting instruction relating specifically to the civil lawsuit brought by Marcus Church against the United States, Dow and Rockwell in 1975. Defs.' Submission of Limiting Instructions Pursuant to 10/7/05 Hearing (Doc. 1499), Proposed Limiting Instruction No. 2. I rejected this proposed instruction as unnecessary in light of the direction provided in Instruction No. 2.6 regarding Defendants' involvement in civil lawsuits generally.

5. Evidence of media coverage

Before trial, Defendants proposed a limiting instruction regarding evidence of media coverage. See Defs.' Am. Submission of Supplemental Jury Instructions (Doc. 1455), Ex. A, Proposed Limiting Instruction No. 8. I accepted the first two sentences proposed by Defendants, and revised the remainder of their proposed language to state the relevance of this evidence more directly and neutrally. See Instruction No. 2.7.

I rejected Defendants' proposed revisions to Instruction No. 2.7 at the close of trial, see Defs.' Proposed Changes to Prelim. Instructions (Doc. 1958), No. 2.7, because I was not persuaded the revisions were necessary or appropriate.

6. Evidence of Defendants' contractual obligations

Defendants proposed I instruct the jury that it could consider evidence of Defendants' contractual obligations to the federal government in determining whether Plaintiffs had proved each Defendant committed a trespass or nuisance. See Defs.' Am. Submission of Supplemental Jury Instructions (Doc. 1455), Ex. A, Proposed General Instruction No. 3.⁴⁵ I rejected this proposed instruction because Defendants failed to demonstrate it had any basis in law.

45 Although the heading to this instruction also referenced "regulatory obligations," neither the text of the instruction nor the authority cited by Defendants in its support addressed this subject.

Defendants' sole authority for this instruction was a Tenth Circuit decision holding that a government contractor acting in accord with its contractual duties can assert a qualified immunity defense. See id. (citing DeVargas v. Mason Hanger-Silas Mason Co., 844 F.2d 714 (10^th Cir. 1988)). Defendants waived any such affirmative defense long before trial, however, as they acknowledged several months before proposing this instruction. See July 29, 2005 Hr'g Tr. at 299-300.⁴⁶

46 Defendants asserted an immunity defense in their 1991 Answers to the Second Amended Complaint, but waived the right to pursue the defense during the pretrial planning process. See May 2004 Order at 1-10 (describing pretrial process identifying affirmative defenses to be tried and barring defenses not identified by Defendants during this process). There is also some question whether the Tenth Circuit's statement of this defense in DeVargas was superseded by the Supreme Court's subsequent statement of the government contractor defense in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), and whether a government contractor defense under either authority is available in an action such as this brought under the Price-Anderson Act, see 42 U.S.C. § 2014(hh).

Even if this were not the case, Defendants' proposed instruction did not properly instruct the jury on any version of the government contractor defense to tort liability, because it did not identify the elements of this defense or assign Defendants the burden of proving these elements. Nothing in the DeVargas decision or in Boyle v. United Technologies Corp., the seminal Supreme Court decision on the government contractor defense, suggests that a defendant may avoid tort liability based on compliance with government contracts except through successful assertion of this affirmative defense. See DeVargas, 844 F.2d at 721-22; Boyle v. United Techs. Corp., 487 U.S. 500 (1988). Defendants' proposed instruction improperly suggested otherwise and was rejected for this reason as well.

7. Expert opinion evidence

The parties stipulated to Instruction No. 2.2, regarding opinion evidence and expert witnesses, as it was provided to the jury at the start of trial. Near the close of trial, Defendants proposed that this instruction be revised to clarify that some witnesses with specialized training had not testified as expert witnesses. See Defs.' Proposed Changes to Prelim. Instructions (Doc. 1958), No. 2.2. I revised the first paragraph of Instruction No. 2.2 to clarify this point.

Near the end of trial, Defendants also proposed a new instruction regarding corporate retention of experts. See Defs.' Proposed Instruction (Doc. 2009). I revised Defendants' proposed language and provided it to the jury as Instruction No. 2.2AA. The purpose of my revisions was to make the instruction more balanced and to remove the implication that an expert's litigation history and client base were irrelevant to assessing the expert's credibility.

The parties also proposed several instructions dealing with particular expert witnesses. I accepted Defendants' proposed instruction regarding the live and deposition testimony of Dr. James Flynn.⁴⁷ See Final Instructions, No. 2.2A; Defs.' Proposed Instruction re: Dep. Test. of Dr. James Flynn (Doc. 1679). I rejected Defendants' proposed instruction regarding the expert testimony of Dr. S. Paul Slovic, Defs.' Mot. for a Limiting Inst. re: Test. of Dr. S. Paul Slovic (Doc. 1595), because it was unnecessary in light of existing instructions. See, e.g., Nov. 8, 2005 Trial Tr. at 4446; Instruction Nos. 3.2, 3.6, 3.7, 3.22, 3.28. I granted Plaintiffs' motion to strike certain testimony by defense expert Dr. John Till, and prepared a jury instruction informing the jury of this decision. See Final Instructions, No. 2.2B; Jan. 17, 2006 Trial Tr. at 10188; Mem. Op. re: Defs.' Theory of Plutonium Removal at 8-12 (Dec. 7, 2006).

47 Defendants proposed this instruction as a result of Dr. Flynn's inability to complete his live testimony due to illness.

8. Demonstrative exhibits

I instructed the jury regarding counsel's use of charts, summaries and other graphic materials at the start of trial. See Start of Trial Instruction No. 2.3. During trial, a number of such materials were admitted for demonstrative purposes only. Following discussions with the parties and proposed revisions from Defendants, I revised this instruction to clarify for the jury what was meant by this designation. See Final Instruction No. 2.3; Jan. 6, 2006 Trial Tr. at 9225-30; Defs.' Proposed Changes to Prelim. Instructions, No. 2.3.

D. Miscellaneous Instructions

1. Joint and several liability and comparative fault

Just before the close of trial, the parties for the first time raised the issue of whether Dow and Rockwell were jointly and severally liable for the alleged harm to the Class and, if not, how damages caused by each Defendant were to be determined. Plaintiffs asserted Defendants were jointly and severally liable for all damages under the common law tort rule that where tortfeasors contribute to an indivisible harm, they are jointly and severally liable. See Pls.' Proposed Verdict Form (Doc. 1947) at 2; see, e.g., Restatement (Second) of Torts § 875 (1979) (stating rule). Defendants argued that joint and several liability was merely a collection doctrine with no application here, and that any damages attributable to each Defendant's trespass or nuisance should be decided separately. See Defs.' Proposed Jury Verdict Forms (Doc. 1963) at 2.

The Colorado legislature abrogated the common law rule of joint and several liability in Colorado Revised Statute § 13-21-111.5, which provides that "[i]n an action brought as a result of a death or an injury to person or property, no defendant shall be liable for an amount greater than that represented by the degree or percentage of the negligence or fault attributable to such defendant that produced the claimed injury, death, damage, or loss." Colo. Rev. Stat. § 13-21-111.5(1) (2005); see Barton v. Adams Rental, Inc., 938 P.2d 532, 535-36 (Colo. 1997) (holding statute abrogated common law rule); Brochner v. Western Ins. Co., 724 P.2d 1293, 1299 (Colo. 1986) (same).⁴⁸ The Colorado statute further requires that the jury make special findings determining the percentage of negligence or fault attributable to each of the parties so that damages can be assessed based on the pro rata liability of the defendants. See Colo. Rev. Stat. § 13-21-111.5(2).

48 The statute recognizes certain exceptions that allow the imposition of joint and several liability, none of which apply here. See Colo. Rev. Stat. § 13-21-111.5(1), (4).

Based on the Colorado statute and related authority, I therefore rejected Plaintiffs' assertion of joint and several liability in this action and prepared a new instruction, No. 3.19A, directing the jury to determine the percentage of fault for each Defendant if they found both liable for trespass or for nuisance. This new instruction was modeled on relevant portions of Colorado's standard instructions for actions involving multiple defendants. See Colo. Jury Instructions (Fourth) Civ. §§ 9:29 — 9:29B (2002 Supp. 2004). I was not persuaded by the parties' subsequent objections to this instruction and corresponding special interrogatories. See Defs.' Objs. to Additional and Revised Jury Instructions (Doc. 2023) at 16; Pls.' Objs. to Jury Instructions (Doc. 2027) at 4.

2. Additional questions

The parties also submitted proposed instructions regarding a class-wide question of relevance to possible future proceedings regarding Plaintiffs' nuisance claim: whether Defendants' activities at Rocky Flats and the conditions resulting from them were capable of causing Class members to suffer fear, anxiety or other mental or emotional discomfort. See May 2005 Order at 7 (discussing question); April 2004 Order at 7-8 (same). I rejected both parties' proposed instructions on this "generic causation" question in favor of Instruction No. 3.28, which limited and defined this question in a manner that was more consistent with my prior orders.⁴⁹ In Instruction No. 3.28, I also directed the jury that it was not to consider the "generic causation" question, or the further "specific causation" question of whether these activities or conditions actually caused individual Plaintiffs or Class members to suffer this form of interference with the use and enjoyment of property, in deciding whether Plaintiffs had proved their class-wide nuisance claim. See Instruction No. 3.28; see also May 2005 Order at 7; April 2004 Order at 7-8.

49 Instruction No. 3.28 also included additional questions directed at defining the members of the Class that would be entitled to receive any damages awarded in the class trial. See supra note 38. Defendants' tardy objections to these additional questions were addressed in a previous order. See Order re: Instruction No. 3.28 (Doc. 2064).

E. Defendants' Final Objections

In their final objections to the jury instructions I prepared, Defendants complained that the instructions were not impartial because I informed jurors not to consider certain arguments and assertions in deciding various issues. See Defs.' Renewed Objs. to Jury Instructions and Verdict Form (Doc. 2029) at 2. Most of the instructions cited by Defendants in this regard directed the jury not to consider certain legal arguments or interpretations advanced by Defendants which I had rejected during the long pretrial process necessary to define the issues to be tried and the law applicable to them. See Instruction Nos. 3.3, 3.5, 3.10, 3.24. Defendants nonetheless, in the jury instruction process, in pretrial motion practice, in their Rule 50(a) motions and before the jury, refused to adapt their theory of the case to many such rulings and instead repeatedly reasserted legal arguments, theories and interpretations that had been rejected and were thus contrary to the law of the case. The instructions Defendants complain of accurately informed the jury of the law of the case on these points, and were necessary to prevent the jury from becoming confused by arguments and insinuations that different legal standards applied.⁵⁰

50 The other instructions cited by Defendants as being biased, Instruction Nos. 3.4 (continuing trespass) and 3.12 (utility of conduct), are statements of law based on Colorado common law and/or the Restatement, see Cook X, 358 F. Supp. 2d 1003 (Colo. 2004) (continuing trespass under Colorado law); supra Section I.D.2 (regarding Instruction No. 3.4); Section II.A (regarding Plaintiffs' proposed nuisance Instruction Nos. 10 15), Section II.B (regarding Defendants' proposed nuisance Instruction No. 6), Section II.C.2 (regarding Defendants' proposed revision to No. 3.12), or are based on my determination that operation of a nuclear weapons plant constitutes an inherently dangerous activity. See Instruction No. 3.15; supra Section II.A (regarding Plaintiffs' proposed nuisance Instruction No. 7B), Section II.C.2 (regarding Defendants' proposed revisions to No. 3.15).
I also note that Defendants make no complaint about instructions they proposed and that I accepted that direct the jury not consider or rely on certain matters in a manner that would appear to favor Defendants. See, e.g., Instruction Nos. 3.7 (individual fear or other emotional disturbance not to be considered), 3.13 (Plaintiffs must prove more than that existence of Rocky Flats interfered with the use and enjoyment of property), 3.16 (accident not presumptive negligence), 3.24 (no damages to be awarded based on mere proximity to Rocky Flats).

V. Verdict Form and Related Instructions

The parties proposed special verdict forms for the trespass and nuisance claims and for damages in conjunction with their original proposed jury instructions on each of these topics. I rejected these proposals because none were consistent with the applicable law as stated in my prior and subsequent orders and/or the jury instructions I ultimately prepared.

I also rejected the parties' original proposed verdict forms because they did not reflect their subsequent agreement to a less-than-unanimous verdict.⁵¹ This agreement was incorporated in Instruction Nos. 4.2 and 4.5 as provided to the jury at the start of trial, and both parties submitted proposed jury instruction revisions consistent with their stipulation and these instructions after one of the jurors was excused over the holiday break, see Pls.' Proposed Revisions to Jury Instructions (Doc. 1978), No. 4.5; Defs.' Proposed Changes to Prelim. Jury Instructions (Doc. 1958), No. 4.5, and after a second juror was excused early in deliberations, see Pls.' Proposed Supplemental Jury Instruction (Doc. 2052); Jan. 25, 2006 Trial Tr. at 10765-66. I accepted these proposed revisions. See Final Instruction Nos. 4.2, 4.5, 4.6.

51 The parties agreed to accept a non-unanimous verdict for a jury of ten to twelve if there were no more than two dissenters to the verdict. If the jury was less than ten, then the jury could reach a verdict with up to one dissenter. See Sept. 22, 2005 Tr. at 16-18; Defs.' Statement Re: Jury Verdict (Doc. 1473); see also Fed.R.Civ.P. 48 (permitting parties to stipulate to less than a unanimous verdict).

Near the close of trial, I directed the parties to submit revised proposed verdict forms that were consistent with the jury instructions of record. Both parties submitted proposed forms, see Pls.' Proposed Verdict Form (Doc. 1947); Defs.' Proposed Jury Verdict Forms (Doc. 1963), none of which were acceptable for a variety of reasons. These reasons included the parties' failure to set out each substantive element or question to be decided by the jury along with appropriate cross-references to relevant instructions, as well as inconsistencies and other problems in the parties' directions for deciding compensatory and punitive damages. Accordingly, I prepared and provided the jury with a verdict form that incorporated appropriate elements of the parties' proposals, but more closely mirrored the jury instructions and provided the jury with a better "roadmap" to the questions it was to consider and decide to reach its verdict. See Jury Verdict (Doc. 2117).

Conclusion

Preparation of the jury instructions in this action was a substantial and challenging task. My goal was to state the issues and applicable law accurately and neutrally, in logical sequence and in the plainest language possible under the circumstances, so that the jury could understand the issues to be decided and apply the law fairly and intelligently to reach its verdict.

ATTACHMENT A Chronology of Parties' Proposed Jury Instructions and Verdict Forms

Chronology of Parties' Proposed Jury Instructions and Verdict Forms ^1a Date Docket # Document Title ^{2a 3a}

1a This chronology does not include separately filed objections or briefing relating to proposed jury instructions.

2a The parties' August, 2004 proposed nuisance instructions and verdict forms were forwarded to chambers but not filed and docketed when they were submitted. I have separately directed the Clerk's Office to enter both parties' submissions into the case record.
On August 6, 2004, the parties also tendered responses to my July 27, 2004 request for revised trespass instructions. See Order (Doc. 1249). These submissions, which are also not of record, did not proffer any changes to the trespass instructions separately proposed by the parties on July 13, 2004 (Docs. 1244 1245).

3a This proposed instruction addressed the representation of witnesses at depositions. The jury was instructed on this point in different terms after Plaintiffs' submission of this proposal. See Nov. 4, 2005 Trial Tr. at 4101. Neither party proposed that this instruction be included in the final set of jury instructions, and as a result it was not provided to the jury at the close of trial and is not addressed in the attached memorandum opinion.

07/13/2004 Doc. 1244 Plaintiffs' Proposed Jury Instructions and Objections and Proposed Verdict Form — Trespass Claims 07/13/2004 Doc. 1245 Defendants' Submission of Trespass Jury Instructions and Jury Verdict Forms, and Defendants' Objections to Plaintiffs' Trespass Jury Instructions and Jury Verdict Forms 08/06/2004 Doc. ____ Plaintiffs' Proposed Nuisance Jury Instructions and Jury Verdict Forms 08/06/2004 Doc. ____ Defendants' Submission of Nuisance Jury Instructions and Jury Verdict Forms, and Defendants' Objections to Plaintiffs' Nuisance Jury Instructions 09/03/2004 Doc. 1272 Plaintiffs' Proposed Phase III [Damages and Non-substantive] Jury Instructions, Verdict Form, and Objections 09/03/2004 Doc. 1271 Defendants' Submission of Phase III [Damages and Non-substantive] Jury Instructions and Jury Verdict Forms 09/06/2005 Doc. 1436 Plaintiffs' Proposed Supplemental Instructions and Objections to Defendants' Supplemental Instructions 09/16/2005 Doc. 1445 Defendants' Submission of Supplemental Jury Instructions and Jury Verdict Form, and Defendants' Objections to Plaintiffs' Supplemental Jury Instructions 09/23/2005 Doc. 1455 Defendants' Amended Submission of Supplemental Jury Instructions 09/23/2005 Doc. 1456 Plaintiffs' Proposed Limiting Instruction: Utility Versus Harm 10/10/2005 Doc. 1499 Defendants' Submission of Limiting Instructions Pursuant to the 10/7/05 Hearing and a Related Statement by Defendants 11/04/2005 Doc. 1589 Plaintiffs' Proposed Jury Instructions (Miscellaneous) 11/06/2005 Doc. 1595 Defendants' Motion for a Limiting Instruction Regarding the Testimony of Dr. S. Paul Slovic 11/17/2005 Doc. 1679 Defendants' Proposed Instruction Regarding Deposition Testimony of Dr. James Flynn 12/07/2005 Doc. 1755 Defendants' Proposed Instructions Regarding Stigma Evidence and Class Members 12/08/05 Doc. 1768 Defendants' Proposed Instruction Regarding the Type of Compensatory Damages That Can Be Awarded 12/11/2005 Doc. 1783 Amended Defendants' Proposed Instructions Regarding Stigma Evidence and Class Members 12/22/2005 Doc. 1885 Plaintiffs' Proposed Revisions to Jury Instructions 12/28/2005 Doc. 1903 Memorandum in Support of Defendants' Motion for Mistrial Or, in the Alternative, Defendants' Proposed Instructions 01/09/2006 Doc. 1947 Plaintiffs' Proposed Verdict Form 01/10/2006 Doc. 1958 Defendants' Proposed Changes to Preliminary Jury Instructions 01/11/2006 Doc. 1963 Defendants' Proposed Jury Verdict Forms 01/13/2006 Doc. 1978 Plaintiffs' Proposed Revisions to Jury Instructions 01/17/2006 Doc. 2009 Defendants' Proposed Instruction Regarding Corporate Retention of Expert Witnesses 01/25/2006 Doc. 2052 Plaintiffs' Proposed Supplemental Jury Instruction

ATTACHMENT B Jury Instructions dated October 12, 2005 ("Start of Trial Instructions")

90-cv-181-JLK MERILYN COOK, et al., ROCKWELL INTERNATIONAL CORPORATION AND THE DOW CHEMICAL COMPANY, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge John L. Kane Civil Action No. Plaintiffs, v. Defendants.

JURY INSTRUCTIONS

INDEX Section 1 General Instructions Statement of the Case Equality of Parties Status of a Corporation Evidence — General Evidence — Direct and Circumstantial Filing of a Lawsuit or Pleading Credibility of Witnesses Burden of Proof — Generally Burden of Proof and Classified Information Multiple Defendants Juror Conduct Section 2.0 Instructions for Use During Trial Consideration of Deposition Testimony Opinion Evidence and Expert Witnesses Charts, Summaries and Graphic Materials Evidence Regarding FBI Raid and Grand Jury Investigation Evidence Regarding Rockwell's Plea Agreement Evidence Regarding Other Civil Lawsuits Evidence of Media Coverage Section 3 Substantive Instructions Introduction to Plaintiffs' Claims Trespass Claim Elements of the Claim of Trespass First Element: Presence of Plutonium Third Element: Continuing Trespass Matters That Are Not Relevant to Deciding the Trespass Claim Nuisance Claim Elements of the Nuisance Claim First Element: Interference with Use and Enjoyment of Property Second Element: "Substantial" and "Unreasonable" Interference — Introduction Second Element: "Substantial" Interference — Defined Second Element: "Unreasonable" Interference — Balancing Test Second Element: Unreasonable Interference: Factors Regarding Gravity of the Harm Second Element: Unreasonable Interference: Factors Regarding Utility of the Conduct Third Element: "Intentional" or "Negligent" Conduct Third Element: Definition of "Intentional" Conduct Third Element: Definition of "Negligent" Conduct Third Element: Accident Not Presumptive Negligence Fourth Element: Continuing Nuisance Both Claims Causation Separate Findings for Each Defendant Damages — Both Claims Damages — Introduction Damages — Actual or Nominal Measure of Actual Damages Aggregate Damages and Percentage Diminution Matters Not Relevant to Determining Actual Damages Affirmative Defense: Setoff Multiple Recovery Prohibited Punitive Damages Additional Questions Additional Questions Section 4 Final Instructions Jury Deliberations — General Instructions Jury — Deliberations Jury — The Deliberations Process Communications with the Judge Jury Verdict Form ..........................................................1 INSTRUCTION NO. 1.1 ........................................2 INSTRUCTION NO. 1.2 ..........................................6 INSTRUCTION NO. 1.3 ......................................7 INSTRUCTION NO. 1.4 .....................................8 INSTRUCTION NO. 1.5 ..................11 INSTRUCTION NO. 1.6 .............................12 INSTRUCTION NO. 1.7 ....................................13 INSTRUCTION NO. 1.8 ...........................15 INSTRUCTION NO. 1.9 ..................16 INSTRUCTION NO. 1.10 .........................................18 INSTRUCTION NO. 1.11 ...............................................19 ............................................21 INSTRUCTION NO. 2.1 .......................22 INSTRUCTION NO. 2.2 .......................23 INSTRUCTION NO. 2.3 .....................24 INSTRUCTION NO. 2.4 ....................................25 INSTRUCTION NO. 2.5 ................26 INSTRUCTION NO. 2.6 .....................27 INSTRUCTION NO. 2.7 ..................................28 .....................................................29 INSTRUCTION NO. 3.1 ..........................30 INSTRUCTION NO. 3.2 ...........................31 INSTRUCTION NO. 3.3 ........................33 INSTRUCTION NO. 3.4 ..........................34 INSTRUCTION NO. 3.5 .......................................................35 INSTRUCTION NO. 3.6 ..............................36 INSTRUCTION NO. 3.7 ....................................................38 INSTRUCTION NO. 3.8 ...........................41 INSTRUCTION NO. 3.9 ..43 INSTRUCTION NO. 3.10 ..............................................44 INSTRUCTION NO. 3.11 ...............................46 INSTRUCTION NO. 3.12 ............................48 INSTRUCTION NO. 3.13 .........51 INSTRUCTION NO. 3.14 ..........52 INSTRUCTION NO. 3.15 ............53 INSTRUCTION NO. 3.16 ..........54 INSTRUCTION NO. 3.17 .........................55 INSTRUCTION NO. 3.18 ...................................................56 INSTRUCTION NO. 3.19 ........................57 INSTRUCTION NO. 3.20 ................................58 INSTRUCTION NO. 3.21 ...........................59 INSTRUCTION NO. 3.22 ...................................60 INSTRUCTION NO. 3.23 .................63 INSTRUCTION NO. 3.24 ..........64 INSTRUCTION NO. 3.25 .................................65 INSTRUCTION NO. 3.26 ................................68 INSTRUCTION NO. 3.27 ............................................70 INSTRUCTION NO. 3.28 ........................................72 ...........................................................74 INSTRUCTION NO. 4.1 .............75 INSTRUCTION NO. 4.2 ..................................76 INSTRUCTION NO. 4.3 ......................78 INSTRUCTION NO. 4.4 ...............................82 INSTRUCTION NO. 4.5 ...........................................84

Section 1 General Instructions INSTRUCTION NO. 1.1 Statement of the Case

In order to help you understand this case, I will give you a brief summary of the claims and defenses.

The person or "party" who brings a lawsuit is called the plaintiff. The named plaintiffs in this case are Merilyn Cook, William and Delores Schierkolk, Richard and Sally Bartlett, and Lorren and Gertrude Babb. In actuality, there are thousands of plaintiffs in this case. Because it would not be practical to conduct thousands of trials, these individuals filed this case as a class action. In a class action, a few plaintiffs act as the representatives in court for all of the other class members. I will sometimes refer to this group as the "Plaintiff Class" or simply the "Class."

The members of the Plaintiff Class are persons who owned property in a specific, defined area, known as the "Class Area," near the Rocky Flats Nuclear Weapons Plant on June 7, 1989. That means, only persons who owned property within the Class Area on June 7, 1989, are considered plaintiffs, and only those persons can recover damages if the plaintiffs prevail in this action.

The Rocky Flats Nuclear Weapons Plant ("Rocky Flats") is a government-owned facility located on about 6500 acres sixteen miles northwest of downtown Denver. Before operations at Rocky Flats were halted in 1989, nuclear weapons components were manufactured there. The components were fashioned from materials including plutonium, a man-made radioactive element. Other hazardous substances, both radioactive and non-radioactive, were also used or disposed of at Rocky Flats when the plant was in operation.

The defendants in this case are Dow Chemical Company and Rockwell International Corporation. Dow and Rockwell operated the Rocky Flats Nuclear Weapons plant at different times as contractors for the United States Department of Energy. That means, they worked under a contract for the federal government to manage and run the plant. Dow operated the plant between 1952 and 1975, and Rockwell operated the plant from 1975 until 1989.

The plaintiffs make two claims against Dow and Rockwell on behalf of themselves and the rest of the Class. The first claim is for trespass. Trespass is an invasion of a person's property without his permission. Plaintiffs claim Dow and Rockwell caused a trespass because the Class Area is contaminated with plutonium released from Rocky Flats as a result of various accidents, mishaps, and bad environmental practices that occurred during each defendant's period of operation.

Plaintiffs' second claim is for nuisance. A nuisance is something that substantially and unreasonably interferes with another person's use and enjoyment of their land. Plaintiffs claim Dow and Rockwell substantially and unreasonably interfered with Class members' use and enjoyment of their properties because plutonium contamination in the Class Area has led to increased health risk and because there is a risk of additional future releases of plutonium and other hazardous substances into the Class Area from the plant site.

Plaintiffs claim that Dow and Rockwell's trespass and nuisance have depressed the value of properties in the Class Area. The Plaintiffs seek damages to compensate the Plaintiff Class for this lost property value. Plaintiffs also seek punitive damages from both Dow and Rockwell.

Defendants deny plaintiffs' claims and contend that they each operated Rocky Flats in a safe and responsible manner. Defendants admit that plutonium from Rocky Flats is present in the Class Area, but dispute that it is located throughout this area or that they are liable for trespass. They also deny that plutonium is present in the Class Area at levels that pose any significant health risk or that there is a threat of future releases of plutonium or other hazardous substances from the Rocky Flats site to the Class Area. Defendants further deny that any interference with Class members' use and enjoyment of property is substantial and unreasonable enough to constitute a nuisance or that they are otherwise liable for nuisance. Finally, Defendants deny that the alleged trespass or nuisance depressed property values in the Class Area or that plaintiffs and the other Class members suffered any loss of property value as a result of Defendants' operations at Rocky Flats.

INSTRUCTION NO. 1.2 Equality of Parties

All persons are equal before the law regardless of race, national origin, citizenship, or even whether the party is a corporation. I tell you that all parties are equal before the law to remind you that you must base any decision in this case on the law and facts, not outside factors such as race, national origin, citizenship, or corporate status.

INSTRUCTION NO. 1.3 Status of a Corporation

All persons are equal before the law. A corporation is considered by the law to be a person. Corporations are entitled to the same fair and conscientious consideration by you as any physical person.

Corporations can act only through their officers and employees. Any act or omission of an officer or employee while acting within the scope of his or her employment or authority is the act or omission of the corporation.

INSTRUCTION NO. 1.4 Evidence — General

It will be your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You will hear the evidence, decide what the facts are, and then apply those facts to the law I give you. That is how you will reach your verdict. In doing so, you must follow the law whether you agree with it or not.

At no time during the trial will I suggest what I think your verdict should be nor do I want you to guess or speculate about my views of what verdict you should render. You will decide what the facts are from the evidence that the parties will present to you during the trial. That evidence will consist of the sworn testimony of witnesses on both direct and cross-examination, regardless of who called the witness; documents and other things received into evidence as exhibits; and any facts on which the lawyers agree or which I may instruct you to accept as true.

The following things are not evidence and you must not consider them as evidence in deciding the facts of this case:

1. Statements and arguments by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of the facts controls.

2. Questions and objections by the lawyers are not evidence. Lawyers have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by my ruling on it.

3. Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition, I may allow some testimony or exhibits only for a limited purpose, and you must consider such only for that limited purpose.

4. Anything you may see or hear when the Court is not in session is not evidence, even if what you see or hear is done or said by one of the parties or by one of the witnesses. You are to decide the case solely on the evidence received in this courtroom during the trial.

You are to consider only the evidence in the case. But in your consideration of the evidence, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw, from facts that you find have been proved, such reasonable inferences as seem justified in the light of your experience. Inferences are deductions or conclusions your reason and common sense lead you to draw from the facts established by the evidence in the case.

INSTRUCTION NO. 1.5 Evidence — Direct and Circumstantial

There are two kinds of evidence: direct and circumstantial. Direct evidence is testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence; that is, it is proof of one or more facts from which one can find that another fact exists or is true.

You should consider both kinds of evidence in deciding this case. It is for you to decide how much weight to give to any evidence, direct or circumstantial.

There are rules of evidence that control what can be received into evidence. When one lawyer asks a question or offers an exhibit into evidence and another lawyer on the other side thinks that it is not permitted by the rules of evidence, the other lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been.

Sometimes I may order that evidence be stricken from the record and that you disregard or ignore such evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.

INSTRUCTION NO. 1.6 Filing of a Lawsuit or Pleading

The fact that a plaintiff files a lawsuit is not evidence that the other party did anything wrong. The fact that a plaintiff complains that he has been damaged is not evidence that he has been damaged or that the other party violated the law. You cannot say, "Well, there must be something wrong here or the case would not be in court."

INSTRUCTION NO. 1.7 Credibility of Witnesses

In deciding the facts of this case, you will have to decide which witnesses to believe and which witnesses not to believe. You may believe everything a witness says, only part of it, or none of it.

In considering the testimony of any witness, you may consider:

1. The witness's opportunity and ability to see or hear or know the things to which the witness testified;

2. The quality of the witness's memory;

3. The witness's manner while taking the oath and while testifying;

4. Whether the witness had an interest in the outcome of the case or any motive, bias or prejudice;

5. Whether the witness's testimony is contradicted by anything the witness said or did at another time, by the testimony of other witnesses, or by other evidence;

6. How reasonable the witness's testimony was in light of all the evidence; and,

7. Any other facts that bear on believability.

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify to that fact.

If you believe a witness has willfully lied regarding any material fact, you have the right to disregard all or any part of that witness's testimony.

INSTRUCTION NO. 1.8 Burden of Proof — Generally

This is a civil case. Therefore, the Plaintiffs have the burden of proving their claims by what is called a preponderance of the evidence. That means that no matter who produces the evidence, when you consider the Plaintiffs' claim in light of all the facts, you believe their claim is more likely true than not true. To put it differently, if you were to put all of the evidence in favor of the Plaintiffs and all of the evidence in favor of Dow or Rockwell on opposite sides of the scales, Plaintiffs would have to make the scale tip to their side in order for your verdict to be against Dow or Rockwell. If Plaintiffs fail to meet this burden, your verdict must be for Dow and Rockwell.

In defense to Plaintiffs' claims, Dow and Rockwell have each asserted an affirmative defense, which will be described to you more fully later. An affirmative defense is more than a denial of the claim. You should treat Dow and Rockwell's affirmative defenses in the same way you treat the Plaintiffs' claims. That is, Dow and Rockwell, as the parties asserting the affirmative defense, have the burden of proving that defense by the same standard, that is, of proving that the affirmative defense is more likely true than not true.

INSTRUCTION NO. 1.9 Burden of Proof and Classified Information

In evaluating whether Plaintiffs and Defendants have met their respective burdens on their claims and defenses, you need to know that the law does not require parties to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matters to be determined by you from the evidence. Nor does the law require the parties to produce as exhibits all papers or other things mentioned in the evidence in the case.

This is a law that is uniformly applied in all cases as a matter of practical necessity and common sense. It is simply not possible for the law to require proof to the degree of absolute certainty.

In this case, the problem of proof is further complicated because of government imposed secrecy concerning activities at the Rocky Flats installation. The U.S. Department of Energy has classified documents concerning these activities and the resulting classification means that some information is deemed secret and is not available to the public.

The Department of Energy has made some information concerning Rocky Flats available by a process known as "declassification," meaning that some documents and some parts of documents are no longer considered secret.

You will also see some documents that have been made available by the Department of Energy that contain obliterated or marked out words. This process is called "redaction" and it means that the information removed is not available to us in this trial.

For the reasons I've just given, not only are the parties in this case not required to produce as exhibits all papers or other things mentioned in the evidence, they cannot produce some of these documents and things because the DOE has classified that information as secret. While you may not speculate as to what the unavailable or redacted information might be, you may, but are not required, to infer that such unavailable or redacted information would have been favorable, or unfavorable, to one side or the other in this case.

INSTRUCTION NO. 1.10 Multiple Defendants

Although there are two defendants in this action, it does not follow from that fact alone that if one defendant is liable to the Plaintiffs, both defendants are liable. Each defendant is entitled to a fair consideration of the evidence. Neither defendant is to be prejudiced should you find against the other. All instructions I give you govern the case as to each defendant.

INSTRUCTION NO. 1.11 Juror Conduct

I will now say a few words about your conduct as jurors.

First, do not talk with one another about this case or about anyone who has anything to do with it until the end of the case when you go the jury room to decide on your verdict.

Second, do not talk with anyone else about this case or about anyone who has anything to do with it until the trial has ended and you have been discharged as jurors. "Anyone else" includes members of your family and your friends. You may tell them that you are a juror in a case and that I have ordered you not to tell them anything else about the case until I have discharged you.

Third, do not let anyone talk to you about the case or about anyone who has anything to do with it. If someone tries to talk to you, please report it to me immediately.

Fourth, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with the case.

Fifth, do not do any research, such as consulting dictionaries or other reference materials, and do not make any investigation about the case on your own.

Sixth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.

Seventh, each of you will have one or more notebooks containing the names of the witnesses and copies of exhibits. You are free to take notes in order to enhance your memory or assist you in recollecting during your deliberations. I caution you, however, not to become a slave to your notes. It is most important that you observe the witnesses and listen to their testimony. Your note taking should merely assist you.

Section 2.0 Instructions for Use During Trial INSTRUCTION NO. 2.1 Consideration of Deposition Testimony

A deposition is testimony taken under oath before the trial and preserved in writing or on videotape. Deposition testimony can be read into evidence or shown by videotape. You are to give the same consideration to deposition testimony as to live testimony presented here in the courtroom. That is, you are to judge the credibility of the witness and determine the weight to be given to the testimony to the best of your ability under the circumstances, as if the witness had been before you on the witness stand when he made the statement under oath.

INSTRUCTION NO. 2.2 Opinion Evidence and Expert Witnesses

You will hear opinion evidence from people described as experts. People who by knowledge, skill, experience, training or education, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinions.

Expert opinion testimony should be judged just like any other testimony. You may accept it or reject it and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinions, and all of the other factors that you consider when determining the credibility of the other witnesses.

Experts generally rely upon some assumptions in developing their opinions. These assumptions are likewise subject to your evaluation and should be considered along with the rest of the evidence.

In resolving the conflict in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the qualifications and believability of each witness, the reasons for each opinion and the matter upon which it is based.

INSTRUCTION NO. 2.3 Charts, Summaries and Graphic Materials

A number of charts, summaries and other graphic materials will be shown to you in order to help explain the facts and documents in evidence in the case. However, such charts, summaries and materials are not in and of themselves evidence or proof of any facts unless they are admitted into evidence. If such materials are not admitted into evidence, and do not correctly reflect facts or figures shown by the evidence in the case, you should disregard them.

INSTRUCTION NO. 2.4 Evidence Regarding FBI Raid and Grand Jury Investigation

It is undisputed that the FBI and a federal grand jury investigated allegations of criminal misconduct by Rockwell at Rocky Flats. The fact that the FBI and grand jury conducted these investigations or investigated certain allegations does not prove that Rockwell committed any particular acts or wrongs at Rocky Flats. You may, however, consider evidence that was collected in the course of these investigations or was presented to the grand jury in determining whether, based on all of the evidence presented in this action, Rockwell acted, or failed to act, in a particular manner as relevant to the trespass and/or nuisance claims against it. In other words, it is up to you to decide what the evidence presented to you proves.

INSTRUCTION NO. 2.5 Evidence Regarding Rockwell's Plea Agreement

You will hear evidence about the plea agreement between Rockwell and the United States in which Rockwell pled guilty to certain environmental crimes at Rocky Flats. The plea agreement is evidence that Rockwell admitted guilt for the conduct specifically set forth in the plea agreement. This means Rockwell admitted it committed the acts to which it pled guilty, and that no further evidence is required to establish that these acts occurred.

You should not consider the plea agreement or its content, however, or the fact that Rockwell did not plead guilty to additional crimes and that the government did not seek to prosecute Rockwell for any other crimes, in determining whether Rockwell committed any particular conduct at Rocky Flats in addition to the misconduct to which it pled guilty. You should make your determination regarding Rockwell's other alleged conduct based solely on the other evidence presented at this trial.

INSTRUCTION NO. 2.6 Evidence Regarding Other Civil Lawsuits

You should not consider the fact that either Rockwell or Dow has been involved in other civil lawsuits for the purpose of determining whether Rockwell or Dow engaged in any of the conduct alleged by the class members in this lawsuit. You should make your determinations based solely on the evidence presented at this trial.

INSTRUCTION NO. 2.7 Evidence of Media Coverage

You will hear evidence of media coverage relating to Dow and Rockwell and their operations at Rocky Flats. Such evidence of media coverage does not establish the accuracy of any statements made by the media. Evidence of media coverage is relevant, however, to public perceptions that may have influenced the market values of properties in the Class Area.

Section 3 Substantive Instructions INSTRUCTION NO. 3.1 Introduction to Plaintiffs' Claims

Plaintiffs assert two claims in this action on behalf of themselves and the Class members. The first is for trespass and the second is for nuisance. Both claims are asserted against both Dow and Rockwell. It is your responsibility to consider and decide each of these claims separately against Dow and Rockwell.

I will now instruct you about these claims and what you must consider in deciding each one. When the instructions I am about to give you apply to more than one claim, I will tell you that. At the end of my instructions on Plaintiffs' two claims, I will talk to you about determination of damages, which applies to both claims.

INSTRUCTION NO. 3.2 Trespass Claim Elements of the Claim of Trespass

The tort of trespass protects a landowner's right to exclusive possession and control of his property, which includes the right to keep the property free from contamination deposited there by others without the landowner's consent.

In this case, Plaintiffs and Defendants have stipulated that Plaintiffs and other Class members owned property in the Class Area as of June 7, 1989. I will sometimes refer to these properties collectively as the "Class Properties." Plaintiffs and Defendants have also stipulated that Plaintiffs and the other Class members do not consent to plutonium being on their properties.

Given these stipulations, in order for the Plaintiffs and the other Class members to recover from either Dow or Rockwell or both of them on their claim of trespass, you must find Plaintiffs have proved each of the following elements by a preponderance of the evidence:

1. Plutonium from Rocky Flats is present on the Class Properties (see Instruction No. 3.3).

2. Dow or Rockwell or both of them intentionally undertook an activity or activities that in the usual course of events caused plutonium from Rocky Flats to be present on the Class Properties (see Instruction No. 3.18).

3. It appears this plutonium will continue to be present on the Class Properties indefinitely (see Instruction No. 3.4).

You must consider whether the Plaintiffs have proved each of these elements against each Defendant. If you find that an element has not been proved as to a particular Defendant, then your verdict on the trespass claim must be for that Defendant. On the other hand, if you find Plaintiffs have proved all three elements as to a particular Defendant, then your verdict must be for Plaintiffs and against that Defendant.

INSTRUCTION NO. 3.3 Trespass Claim First Element: Presence of Plutonium

The first element of the trespass claim requires that Plaintiffs prove that plutonium is present on the Class Properties. To prove this element, Plaintiffs 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.

INSTRUCTION NO. 3.4 Trespass Claim Third Element: Continuing Trespass

In deciding the third element of Plaintiffs' trespass claim, which is whether it appears that plutonium will continue to be present on Class Properties indefinitely, it is not necessary for you to find that the plutonium will be there forever. Instead, in deciding this element, you should consider whether there is any reason to expect that the plutonium present on Class Properties will be removed at any definite time in the future. If you find there is no reason to expect it will be removed by a definite time, then you must find it appears that plutonium will continue to be present on the Class Properties indefinitely.

INSTRUCTION NO. 3.5 Trespass Claim Matters That Are Not Relevant to Deciding the Trespass Claim

A trespass may exist even though the conduct that originally caused the invasion of the plaintiff's land has ceased. Accordingly, in considering whether Plaintiffs have proved the elements of their trespass claim as stated in Instruction No. 3.2, it is irrelevant that Dow and/or Rockwell ceased any such activities before Plaintiffs brought this suit or that the Rocky Flats plant itself is now shut down.

That Plaintiffs or Class members knew or could have known that plutonium was present on their properties when they purchased them is also irrelevant to determining whether Dow or Rockwell are liable for trespass as stated in Instruction No. 3.2.

You should not consider these irrelevant matters in determining the trespass claim.

INSTRUCTION NO. 3.6 Nuisance Claim Elements of the Nuisance Claim

Plaintiffs claim that Defendants, through their operation of the Rocky Flats plant, caused a nuisance. In order for the Plaintiff Class to recover from either Dow or Rockwell or both of them on their claim of nuisance, you must find Plaintiffs have proved each of the following elements by a preponderance of the evidence:

1. Dow or Rockwell or both of them interfered with Class members' use and enjoyment of their properties in the Class Area in one or both of these two ways:

A. By causing Class members to be exposed to plutonium and placing them at some increased risk of health problems as a result of this exposure (see Instruction Nos. 3.7, 3.18); and/or

B. By causing objective conditions that pose a demonstrable risk of future harm to the Class Area (see Instruction Nos. 3.7, 3.18);

2. This interference with Class members' use and enjoyment of their properties was both "unreasonable" and "substantial" (see Instruction Nos. 3.8 — 3.12);

3. The activity or activities causing the unreasonable and substantial interference were either "intentional" or "negligent" (see Instruction Nos. 3.13 — 3.16); and

4. It appears the unreasonable and substantial interference with the use and enjoyment of property caused by Dow and/or Rockwell's intentional or negligent conduct will continue indefinitely (see Instruction No. 3.17).

You must consider whether the Plaintiffs have proved these elements against each Defendant. If you find that any one of these elements has not been proved as to a particular Defendant, then your verdict on the nuisance claim must be for that Defendant. On the other hand, if you find Plaintiffs have proved each of these elements as to a particular Defendant, then your verdict on the nuisance claim must be for Plaintiffs and against that Defendant.

INSTRUCTION NO. 3.7 Nuisance Claim First Element: Interference with Use and Enjoyment of Property

The purpose of a nuisance claim is to protect a landowner's right to use and enjoy his property. Although there are countless ways that a person or company can interfere with this right, for purposes of deciding the first element of the Plaintiff Class' nuisance claim, you may only consider the two possible forms of interference with Class members' use and enjoyment of their property that I stated in Instruction No. 3.6 and will describe further here.

The first possible form of class-wide interference is whether one or both of Defendants' activities at Rocky Flats interfered with Class members' use and enjoyment of their properties by causing Class members to be exposed to plutonium and placing them at some increased risk of health problems as a result of this exposure. To find that Plaintiffs proved this form of interference, you do not need to find that all Class members were exposed to plutonium at the same time or by the same methods or to the same degree or that they all incurred the same level of health risk as a result of exposure to plutonium. It is enough to find for purposes of this form of interference with use and enjoyment of property that all Class members were exposed to plutonium in some way as a result of one or both Defendants' activities and that all incurred some increment of increased health risk as a result.

The second possible form of interference you must consider in deciding this first element of the Plaintiff Class' nuisance claim is whether one or both of Defendants' activities at Rocky Flats interfered with Class members' use and enjoyment of their properties by creating objective conditions that pose a demonstrable risk of future harm to the Class Area. For example, if plutonium or other hazardous substances present on or in the vicinity of Rocky Flats is at risk of being released to the Class Area — through natural forces, cleanup activity, the conduct of others and/or accidents — and could cause harm to properties in the Class Area by increasing the health risk to residents or impairing the future use of their land in some way, then this would be an objective condition that poses a demonstrable risk of future harm to the Class Area.

In order for you to find interference based on the threat or risk of future harm, you also need not find that the future harm will occur and affect the whole of the Class Area. You need only find that conditions exist that present the potential for such class-wide harm to occur.

In deciding whether either or both forms of possible class-wide interference exists, you should not consider whether individual Plaintiffs or Class members are or might be fearful, anxious or otherwise disturbed by any real or perceived risks relating to Rocky Flats and the Defendants' activities there or the conditions they left behind. Individual reactions to these matters are not relevant to the question of whether a class-wide interference exists.

You also should not consider in deciding this element of the nuisance claim whether Defendants' activities caused any decrease in the value of Class members' properties. The law does not consider a decrease in property value to be an interference with the use and enjoyment of property.

If you find that Plaintiffs have proved either Dow or Rockwell or both of them interfered with Class members' use and enjoyment of property in one or both of the ways I described in Instruction No. 3.6 and in this instruction, then you must find that Plaintiffs have proved the first element of their nuisance claim with respect to the Defendant or Defendants who caused or contributed to the proven interference. If, however, you find that neither Defendant interfered with Class members' use and enjoyment of property in at least one of these ways, then you must find Plaintiffs have not proved this element of their nuisance claim against either Defendant.

INSTRUCTION NO. 3.8 Nuisance Claim Second Element: "Substantial" and "Unreasonable" Interference — Introduction

Practically all human activities interfere to some extent with other people or involve some risk of interference. One such possible interference is with another person's right to use and enjoy his property. The law of nuisance does not attempt to hold an actor liable for all interferences with this right, but rather only for those interferences that are both "substantial" and "unreasonable." That is why this is an element of Plaintiffs' nuisance claim. The definitions of these terms are set out in Instruction Nos. 3.9 and 3.10.

In deciding whether Plaintiffs have proven that the interference they claim is substantial and unreasonable, you may only consider any interference with Class members' use and enjoyment of property you find based on Instruction Nos. 3.6 and 3.7. Thus, if you find Plaintiffs proved that Dow and/or Rockwell interfered with Class members' use and enjoyment of property in only one of the ways stated in these instructions, you may only consider this proven form of interference in deciding whether Plaintiffs have proved a substantial and unreasonable interference. If, however, you find Plaintiffs proved that Dow and/or Rockwell interfered with Class members' use and enjoyment of property in both of the ways stated in these instructions, you should consider these two forms of interference together to decide whether the total interference caused by each Defendant was substantial and unreasonable.

INSTRUCTION NO. 3.9 Nuisance Claim Second Element: "Substantial" Interference — Defined

An interference with a person's right to use and enjoy their land is "substantial" if the interference is significant enough that a normal person in the community would find it offensive, annoying or inconvenient. In this case, that means you must determine whether a reasonable landowner of normal sensibilities would find the proven interference caused by Dow or Rockwell to be offensive, annoying or inconvenient. "Normal sensibilities" for these purposes means a person who is neither unusually sensitive nor unusually insensitive to the interference you are considering.

In deciding whether any interference proven by Plaintiffs is substantial under this test, evidence that the value of Class members' properties has diminished because of this interference is evidence that the interference is substantial. This is so because normal members of the community are part of the market that determines the value of properties, and if they consider an interference with the use and enjoyment of these properties to be offensive, annoying or inconvenient, they may place a lower value on the property than they would if the interference did not exist. Evidence that Class Properties have a lower value because of any proven interference is not necessary, however, for you to find that the interference is substantial under the test I just described to you.

INSTRUCTION NO. 3.10 Nuisance Claim Second Element: "Unreasonable" Interference — Balancing Test

In an action for damages, such as this case, an interference with a person's right to use and enjoy their land is "unreasonable" if the gravity of the harm outweighs the utility of the conduct that caused it. Accordingly, to determine whether a proven interference is unreasonable in this case, you must consider and balance the gravity of the harm to Class members against the utility of the Dow and Rockwell's conduct at Rocky Flats and determine whether the gravity of this harm outweighs the utility of this conduct.

I will tell you more about this balancing test in my next instructions, but I want to caution you now that it does not mean that Dow and Rockwell can interfere with Class members' use and enjoyment of their properties as long as their activities at Rocky Flats served an important purpose or these activities are deemed more valuable or profitable than Class members' use of their land. Instead, you must consider a number of factors as part of the balancing test to decide whether any interference Defendants caused was unreasonable. I will describe those factors for you in a moment. (See Instruction Nos. 3.11 and 3.12.)

In considering these factors and deciding whether any interference by Dow or Rockwell was unreasonable, you must also use an objective perspective. In other words, the question is not how Plaintiffs, Class members or the Defendants would consider the gravity of the harm or the utility of Defendants' conduct, or the judgment they would make about whether any proven interference is unreasonable. Instead, the question is whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider the interference to be unreasonable.

INSTRUCTION NO. 3.11 Nuisance Claim Second Element: Unreasonable Interference: Factors Regarding Gravity of the Harm

The gravity of the harm refers to the gravity of the proven interference with Class members' use and enjoyment of their property. The factors you should consider in assessing the gravity of this harm are:

1. The extent of the harm involved.

The extent of the harm depends on both the degree of the harm and its duration. You can consider both harm that has actually been incurred and the risk of future harm. In assessing the extent of the harm, you must also consider only harm that is common to the class as a whole, and not any more severe harm that may have been suffered by some Class members but not by others.

2. The character of the harm involved.

This factor refers to the kind of harm suffered by the Class members.

3. The social value of the type of use or enjoyment of property that has been has been harmed.

This factor considers the social value of the use to which the Class members' lands are being put. The social value of a particular type of use depends on the extent to which the use or uses advances or protects the general public good.

4. The suitability of the particular use or enjoyment harmed to the character of the locality.

This factor considers whether the particular use or enjoyment the Class members make of their land in the Class Area is suitable to this area.

5. The burden on the Class members of avoiding the harm.

This factor is considered when it is possible for the landowner to take some action to avoid the harm.

INSTRUCTION NO. 3.12 Nuisance Claim Second Element: Unreasonable Interference: Factors Regarding Utility of the Conduct

There are also certain factors you must consider in assessing the utility of the conduct that caused the harm, that is, the proven interference. Some of these factors focus directly on the conduct causing the harm, while other factors focus on any actions Dow or Rockwell have taken to avoid or compensate others for any interference they caused.

The factors focusing on the conduct causing the harm include:

1. The social value of the primary purpose of this conduct.

It is undisputed that the primary purpose of the conduct that allegedly interfered with Class members' right to use and enjoy their properties was to manufacture nuclear weapons components. The social value of this purpose depends on the extent to which it advanced or protected the general public good. The parties agree that the manufacture of nuclear weapons at Rocky Flats, as a general matter, advanced the public good by protecting national security.

2. The suitability of the conduct to the character of the locality.

This factor considers whether the Defendants' conduct is suitable to the area in which it occurred.

In evaluating the utility of the conduct causing the harm, you must also consider whether and to what extent the actor causing the harm took steps to address the consequences of its conduct. Thus, you must consider the following factors focusing on any actions Dow or Rockwell have taken to avoid or compensate others for any interference they caused:

3. The impracticability of preventing or avoiding the interference.

If it was practicable for Dow or Rockwell to avoid causing any interference with Class members' use and enjoyment of property, and they did not take the necessary measures to do so, then the law considers their conduct to have no utility, regardless of its social value. Any interference caused by Dow and/or Rockwell was practicably avoidable if by some means the company could have substantially reduced the harm without incurring prohibitive expense or hardship in its operation of Rocky Flats. If you find it was practicable for Dow or Rockwell to avoid any harm they caused under this test, then you must find the gravity of the harm outweighed the utility of Dow or Rockwell's conduct, and that any interference proved by Plaintiffs was unreasonable.

4. The financial burden to compensate others for any interference caused by Dow and/or Rockwell's activities.

A nuisance action for damages seeks to place the financial burden for any interference with the use and enjoyment of property on the actor that caused this harm. The financial burden of this cost is therefore a significant factor in determining whether the conduct of causing the harm without paying for it is unreasonable. You may find that Dow or Rockwell's conduct lacks sufficient utility to outweigh any interference it caused if you find it would be unreasonable for Class members to bear this cost without compensation.

INSTRUCTION NO. 3.13 Nuisance Claim Third Element: "Intentional" or "Negligent" Conduct

As stated in Instruction No. 3.6, the third element Plaintiffs must prove to prevail on their nuisance claim is that the activity or activities causing the unreasonable and substantial interference were either "intentional" (see Instruction No. 3.14) or "negligent" (see Instruction No. 3.15). Thus, Plaintiff must do more than show that the existence of Rocky Flats interfered with Class members' use and enjoyment of their properties. They must show that either Defendant or both of them engaged in intentional or negligent conduct at Rocky Flats that caused such an interference.

You do not need to find that all of the conduct that caused any substantial and unreasonable interference was intentional or that all of it was negligent in order to find that Plaintiffs proved this element of their nuisance claim. Proof that a substantial and unreasonable interference resulted from a combination of intentional conduct and negligent conduct is sufficient to prove this element.

INSTRUCTION NO. 3.14 Nuisance Claim Third Element: Definition of "Intentional" Conduct

The conduct that results in an interference with another's use and enjoyment of property is considered "intentional" if it meets any of the following three tests:

(1) The defendant knew that its conduct would interfere with others' use and enjoyment of their property; or

(2) The defendant knew it was substantially certain that its conduct would interfere with others' use and enjoyment of their property; or

(3) The defendant learned that its conduct was interfering with or was substantially certain to interfere with others' use and enjoyment of their property and yet continued this conduct.

INSTRUCTION NO. 3.15 Nuisance Claim Third Element: Definition of "Negligent" Conduct

The generation, use, storage and disposal of plutonium and other hazardous radioactive and non-radioactive substances as part of the operation of a nuclear weapons plant are inherently dangerous activities. As a result, Dow and Rockwell were required to exercise the highest possible degree of skill, care, diligence, and foresight in conducting these activities, according to the best technical, mechanical and scientific knowledge and methods that were practical and available at the time. If either Dow or Rockwell or both of them did not fulfill this duty when they performed any activities that caused or contributed to a substantial and unreasonable interference (as defined in these instructions), then their conduct was negligent.

INSTRUCTION NO. 3.16 Nuisance Claim Third Element: Accident Not Presumptive Negligence

The occurrence of an accident does not raise any presumption of negligence on the part of a defendant. Negligence may be established, however, by the facts and circumstances surrounding an accident.

INSTRUCTION NO. 3.17 Nuisance Claim Fourth Element: Continuing Nuisance

As stated in Instruction No. 3.6, the fourth element Plaintiffs must prove to prevail on their nuisance claim is that it appears that the unreasonable and substantial interference with the use and enjoyment of property caused by Dow and/or Rockwell's intentional or negligent conduct will continue indefinitely. In deciding this element, it is not necessary for you to find that the interference meeting these requirements will last forever. Instead, you should consider whether there is any reason to expect that the interference will end at any definite time in the future. If you find there is no reason to expect the interference to end by a definite time, then you must find it appears the interference will continue indefinitely.

INSTRUCTION NO. 3.18 Both Claims Causation

The word "cause" as used in these instructions means an act or failure to act that in natural and probable sequence produced the claimed effect. It is a cause without which the claimed effect would not have happened.

INSTRUCTION NO. 3.19 Both Claims Separate Findings for Each Defendant

You must make a separate determination on both the trespass and nuisance claims against each defendant. If you find that the evidence establishes a trespass or nuisance by one defendant but not the other, you must render separate verdicts on each claim.

INSTRUCTION NO. 3.20 Both Claims Damages — Introduction

I am now going to instruct you on the measure of damages to be awarded if you find in favor of Plaintiffs on either of their claims against Dow and/or Rockwell.

You must determine the amount of damages in accordance with these instructions. The fact I will instruct you on the measure of damages does not mean I am instructing you as to which party is entitled to your verdict or that I am instructing you to award or not award damages. The questions of whether or not damages are to be awarded, and the amount of such damages, are for your consideration alone.

If you decide to award damages, you should fix the amount using calm discretion and sound reason, not sympathy, prejudice, or speculation.

Difficulty or uncertainty in determining the precise amount of damages does not prevent you from deciding an amount. You should use your best judgment based on the evidence.

INSTRUCTION NO. 3.21 Both Claims Damages — Actual or Nominal

If you find in favor of Plaintiffs on either of their claims against Dow and/or Rockwell, then you must award them actual or nominal damages.

Actual damages are a monetary award to compensate a plaintiff for the loss caused by the defendant's wrongful conduct. The goal of an award of actual damages is to make the injured person whole or, in other words, to put them in the position they would have been in if they had not been harmed by the defendant.

To award Plaintiffs actual damages, you must find that Plaintiffs proved by a preponderance of the evidence that: (1) the Plaintiff Class incurred actual damages as a result of the trespass and/or nuisance caused by Dow or Rockwell or both of them (as defined in Instruction Nos. 3.2 and 3.6), and (2) the amount of these actual damages. I will tell you in the next instructions (Nos. 3.22 — 3.24) how to decide these questions.

If you find in favor of Plaintiffs on a particular claim, but do not find any actual damages with respect to that claim, you shall nonetheless award Plaintiffs nominal damages in the sum of one dollar on that claim.

INSTRUCTION NO. 3.22 Both Claims Measure of Actual Damages

Plaintiffs seek an award of actual damages based on the decrease in the value of properties in the Class Area caused by the trespass and/or nuisance committed by Dow or Rockwell or both of them. This type of actual damages is sometimes called diminution in property value.

The diminution in property value that Plaintiffs may recover here is measured by the difference between the actual value of the Class Properties and the value these Properties would have had if Dow or Rockwell or both of them had not committed the trespass and/or nuisance proved by Plaintiffs. In other words, you must compare the actual value of the Class Properties to what their value would have been "but for" the trespass and/or nuisance, and the difference is the diminution in property value that Plaintiffs can recover as actual damages in this case.

In a case like this, the law requires that you measure the amount of any such diminution in Class property values at a particular point in time. That point is the time or time period when the injurious situation became "complete" and "comparatively enduring." The injurious situation is "complete" when the effects of the trespass or nuisance are known to their full extent. It is "comparatively enduring" when there is no reason to expect that these effects will end at a definite time in the future. When the injurious situation became "complete" and "comparatively enduring" in this case is a question you will decide as I will describe in just a moment.

Plaintiffs contend that the diminution in the value of Class properties should be measured as of the period between June 6, 1989, when the FBI and U.S. Environmental Protection Agency searched Rocky Flats as part of their investigation into alleged wrongdoing by Rockwell, and March 26, 1992, when Rockwell pled guilty to certain environmental crimes at Rocky Flats. Plaintiffs allege this is the right time period to measure their actual damages because this is when the injurious effects of Defendants' alleged trespass and nuisance became "complete" and "comparatively enduring."

Accordingly, to decide whether Plaintiffs are entitled to the actual damages they seek in this case, you must determine whether Plaintiffs have proved by a preponderance of the evidence that:

1. The injurious situation became "complete" and "comparatively enduring" (as defined in this instruction) between June 6, 1989, and March 26, 1992; and

2. As of this time, the actual value of the Class Properties was less than the value these Properties would have had but for the trespass and/or nuisance committed by Dow or Rockwell or both of them; and

3. The amount of the difference between the actual value of Class Properties and what their value would have been but for the trespass and/or nuisance (see Instruction No. 3.23).

INSTRUCTION NO. 3.23 Both Claims Aggregate Damages and Percentage Diminution

If you find Plaintiffs have proved actual damages as described in Instruction No. 3.22, you will be asked to report your findings regarding the amount of their actual damages in several ways. First, you will be asked to decide both the total amount of damages suffered by the entire Class as a whole (called "aggregate" Class damages), and the percentage diminution in property values in the Class Area as a whole.

Additionally, you will be asked to decide the amount of actual damages and percentage diminution in Class property values for three different types of property in the Class: vacant land, commercial property and residential property.

You will not be asked to determine the amount of actual damages suffered by any individual Class member. Individual Class members' share of any damages you award will be determined in later proceedings. Therefore, you must only concern yourselves with the total, class-wide measures of actual damages I just described.

INSTRUCTION NO. 3.24 Both Claims Matters Not Relevant to Determining Actual Damages

In determining any actual damages to be awarded in this case, you should not consider or award any diminution in value caused solely by the proximity of the Class Area to Rocky Flats. Instead, you must follow my directions in Instruction No. 3.22 to award damages for diminution in value you find was caused by any trespass or nuisance you find Dow or Rockwell or both of them committed.

In determining whether Plaintiffs have proved actual damages, you also should remember that Plaintiffs are not required to prove that any diminution in value caused by Dow or Rockwell's activities at Rocky Flats came into existence before or after the FBI raid or some other specific event. Instead, as stated in Instruction No. 3.22, the measure of damages to be proved by Plaintiffs is the value the Class Properties would have had "but for" any trespass or nuisance by Dow and/or Rockwell.

INSTRUCTION NO. 3.25 Both Claims Affirmative Defense: Setoff

If you find that the Plaintiff Class has proved actual damages, then you must consider whether Dow and Rockwell have proved their affirmative defense of setoff.

This defense is based on the rule that if the defendant's wrongful conduct has caused harm to the plaintiff, but also has conferred a direct benefit on the plaintiff, then the value of the benefit conferred mitigates, that is reduces, the actual damages that may be recovered for the defendant's wrongful conduct.

In this case, Dow and Rockwell argue that any trespass or nuisance you find harmed the Plaintiff Class by diminishing the value of their properties also conferred a benefit on the Class because all or some Class members purchased their properties at a diminished price as a result of the same trespass or nuisance.

In order to prevail on this affirmative defense of setoff, Dow and Rockwell must prove by a preponderance of the evidence:

1. That the trespass and/or nuisance that damaged the Plaintiff Class by diminishing the value of property in the Class Area also caused a diminution in the value of Class Properties in one or more specific time periods before June 7, 1989; and

2. The amount of any such pre-existing diminution in the value of Class properties, expressed as the percentage decrease in value, for each specific time period or periods for which Defendants proved a pre-June 7, 1989 diminution in Class property values caused by their trespass and/or nuisance.

If you find that Dow and/or Rockwell did not prove both of the elements for setoff by a preponderance of the evidence, then you must find Dow and/or Rockwell failed to prove this affirmative defense.

On the other hand, if you find that Dow and/or Rockwell proved both elements of this defense by a preponderance of the evidence, then you must find they proved this affirmative defense as to the time period or periods you report on the Jury Verdict Form. If you make this finding, then your findings regarding the pre-existing percentage diminution in value for the specific time period or periods will be used in a later proceeding to calculate the amount by which the Plaintiffs' actual damages will be reduced on account of this defense of setoff.

If you find Dow and/or Rockwell has proved this affirmative defense, then you must use calm discretion and sound reason, not sympathy, prejudice, or speculation, in fixing the amount of any pre-existing diminution in Class property values. Difficulty or uncertainty in determining the precise amount of any setoff does not prevent you from deciding an amount. You should use your best judgment based on the evidence.

INSTRUCTION NO. 3.26 Both Claims Multiple Recovery Prohibited

A plaintiff in a civil action may recover only once for the same injury, even though the plaintiff seeks an award for that injury under several claims for relief or against multiple defendants. For example, a plaintiff who lost $100 as a result of the conduct of multiple defendants may recover only $100, even if the plaintiff sought $100 in damages from each defendant on one claim, and $100 in damages from each defendant on a different claim.

In this case, Plaintiffs are seeking to recover from Dow and Rockwell on the their claims of trespass and nuisance on behalf of the Class. Under the rule prohibiting multiple recovery, the Plaintiffs may recover actual damages only once, even if you return verdicts in their favor on more than one claim for relief, or against more than one Defendant.

I am instructing you on the rule prohibiting multiple recovery so that you will be aware of the law on the issue. It is I, rather than you, however, who will apply the rule. You are specifically instructed to consider the Plaintiffs' nuisance and trespass claims against each Defendant independently. That is, you are to consider each of those claims as though it were the only claim in the case. If you find for Plaintiffs on either of these claims against either Dow or Rockwell, you are to write an award of damages on that claim without regard to your finding for or against Dow or Rockwell on any other claim. I will apply the rule prohibiting multiple recovery when I issue my judgment on your verdict, whatever that may be.

Perhaps it bears repeating that nothing in this or any other instruction is meant to suggest what your finding on any or all claims should be. My instructions on damages are only to be applied in the event you find for Plaintiffs on one or more of their claims.

INSTRUCTION NO. 3.27 Both Claims Punitive Damages

If you find for Plaintiffs and award them actual damages on their claims of trespass and/or nuisance against either Dow or Rockwell or both of them, then you must consider whether you should award punitive damages against the same Defendant or Defendants that you found liable for trespass and/or nuisance.

For Plaintiffs to recover punitive damages, they must prove beyond a "reasonable doubt" that the conduct of the Defendant that committed the trespass and/or nuisance was "wilful and wanton." In deciding this question with respect to any conduct relating to plutonium or other radioactive materials, you can only consider the Defendant's conduct up to August 20, 1988, including conduct occurring before this date that resulted in harm on or after that date.

"Willful and wanton" conduct means 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.

"Reasonable doubt" means an uncertainty of mind in which your judgment is not at rest and you can explain this uncertainty based on a fair and thoughtful consideration of all of the evidence, or lack of evidence, in the case.

The purpose of punitive damages is not to compensate the Plaintiffs, but rather to punish the Defendant, and to deter that Defendant and others from committing such acts in the future.

If you find beyond a reasonable doubt that one or both of the Defendants acted in a willful and wanton manner, then you may award a reasonable sum as punitive damages against the Defendant or Defendants you found acted in this manner.

INSTRUCTION NO. 3.28 Additional Questions

In addition to deciding the issues of trespass, nuisance and damages in this action, I will ask you at the end of the trial to answer several additional questions that will help me and the parties in future proceedings in this case. The first two questions are related. They are:

1. Did it appear on or before January 30, 1990, which is the date this case was filed, that the alleged trespass and/or nuisance by Dow or Rockwell or both of them would continue indefinitely? In answering this question, "continue indefinitely" means there was no reason to expect that the trespass and/or nuisance would end at any definite time in the future.

2. If your answer to Question No. 1 is "no," then when did it become apparent that the proven trespass and/or nuisance would continue indefinitely?

The third additional question concerns a form of interference with the use and enjoyment of property. Plaintiffs assert that one of the ways Dow and Rockwell interfered with Class members' use and enjoyment of their land was by causing individual Class members to suffer fear, anxiety or mental discomfort because of concerns about risks created by Defendants' activities at Rocky Flats. Because this is a trial of claims by the whole Class, I earlier instructed you not to consider whether individual Plaintiffs or Class members suffered this form of interference in deciding whether Plaintiffs had proved their class-wide nuisance claim (see Instruction No. 3.7). Nonetheless, to assist me and the parties in deciding how to proceed later in this case, you will be asked to answer the following question:

Have Plaintiffs proved by a preponderance of the evidence that the intentional or negligent conduct of Dow or Rockwell or both of them at Rocky Flats, and/or actual or threatened harms caused by such conduct, created a situation that is capable of causing fear, anxiety or mental discomfort in individual Class members?

In answering this question, you should know that Plaintiffs do not need to show that any actual or threatened future contamination from Rocky Flats poses an actual or verifiable health risk. An individual Class members' fear, anxiety or mental discomfort can also be based on concerns that may be without scientific foundation or other support in fact.

Section 4 Final Instructions INSTRUCTION NO. 4.1 Jury Deliberations — General Instructions

Each of you has a copy of the instructions to consult as you find it necessary. You may keep your copy throughout the trial and in your deliberations.

It is your duty to find the facts from all the evidence in the case. To those facts, you must apply and follow the law as I give it to you whether you agree with it or not. You must base your verdict upon the evidence. You must not be influenced by any personal likes or dislikes, opinions, prejudices or sympathy. That means you must decide the case solely on the evidence before you and according to the law as I give it to you. You have taken an oath promising to do just so.

In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything I may say or do any suggestions as to what verdict you should return. Your verdict is a matter entirely for you to decide.

INSTRUCTION NO. 4.2 Jury — Deliberations

When you go to the jury room to begin your deliberations, you must elect one member of the jury as your Presiding Juror. He or she will preside over your deliberations and speak for you here in court.

You will then discuss the case with your fellow jurors to reach agreements if you can do so. In order to answer any question on the Verdict Form, ten jurors must agree upon the answer. It is not necessary that the jurors who agree on the answer be the same jurors who agreed on the answer to any other question, so long as ten jurors agree to each answer.

Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it with your fellow jurors, and listened to the views of your fellow jurors. I offer some suggestions on how you might do this in the next jury instruction, entitled "Jury — The Deliberations Process."

Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right.

It is important that you attempt to reach agreement to answer the questions on the Verdict Form, but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight of the evidence simply to reach an answer.

INSTRUCTION NO. 4.3 Jury — The Deliberations Process

Once you have elected your Presiding Juror as directed by the previous instruction, you are free to proceed as you agree is appropriate. Therefore, I am not directing you how to proceed, but I offer the following suggestions that other juries have found helpful so that you can proceed in an orderly fashion, allowing full participation by each juror, and arrive at a verdict that is satisfactory to each of you.

First, it is the responsibility of the Presiding Juror to encourage good communication and participation by all jurors and to maintain fairness and order. Your Presiding Juror should be willing and able to facilitate productive discussions even when disagreements and controversy arise.

Second, the Presiding Juror should let each of you speak and be heard before expressing his or her own views.

Third, the Presiding Juror should never attempt to promote nor permit anyone else to promote his or her personal opinions by coercion or intimidation or bullying of others.

Fourth, the Presiding Juror should make certain that the deliberations are not rushed to reach a conclusion.

If the Presiding Juror you select does not meet these standards, he or she should voluntarily step down or be replaced by a majority vote.

After you select a Presiding Juror you should consider electing a secretary who will tally the votes, help keep track of who has or hasn't spoken on the various issues, make certain that all of you are present whenever deliberations are under way and otherwise assist the Presiding Juror. Some juries are tempted at this point to hold a preliminary vote on the case before them to "see where we stand." It is most advisable, however, that no vote be taken before a full discussion is had on the issue to be voted on, otherwise you might lock yourself into a certain view before considering alternative and possibly more reasonable interpretations of the evidence. Experience has also shown that such early votes frequently lead to disruptive, unnecessarily lengthy, inefficient debate and ineffective decision-making.

Instead, I suggest the Presiding Juror begin your deliberations by directing the discussion to establishing informal ground rules for how you will proceed. These rules should assure that you will focus upon, analyze and evaluate the evidence fairly and efficiently and that the viewpoints of each of you is heard and considered before any decisions are made. No one should be ignored. You may agree to discuss the case in the order of the questions presented in the special verdict form or in chronological order or according to the testimony of each witness. Whatever order you select, however, it is advisable to be consistent and not jump from one topic to another.

To move the process of deliberation along in the event you reach a controversial issue, it is wise to pass it temporarily and move on to the less controversial ones and then come back to it. You should then continue through each issue in the order you have agreed upon unless a majority of you agrees to change the order.

It is very helpful, but certainly not required of you, that all votes be taken by secret ballot. This will help you focus on the issues and not be overly influenced by personalities. Each of you should also consider any disagreement you have with another juror or jurors as an opportunity for improving the quality of your decision and therefore should treat each other with respect. Any differences in your views should be discussed calmly and, if a break is needed for that purpose, it should be taken.

Each of you should listen attentively and openly to one another before making any judgment. This is sometimes called "active listening" and it means that you should not listen with only one ear while thinking about a response. Only after you have heard and understood what the other person is saying should you think about a response. Obviously, this means that, unlike TV talk shows, you should try very hard not to interrupt. If one of your number is going on and on, it is the Presiding Juror who should suggest that the point has been made and it is time to hear from someone else.

You each have a right to your individual opinion, but you should be open to persuasion. When you focus your attention and best listening skills, others will feel respected and, even while they may disagree, they will respect you. It helps if you are open to the possibility that you might be wrong or at least that you might change your mind about some issues after listening to other views.

Misunderstanding can undermine your efforts. Seek clarification if you do not understand or if you think others are not talking about the same thing. From time to time the Presiding Juror should set out the items on which you agree and those on which you have not yet reached agreement.

In spite of all your efforts, it is indeed possible that serious disagreements may arise. In that event, recognize and accept that "getting stuck" is often part of the decision making process. It is easy to fall into the trap of believing that there is something wrong with someone who is not ready to move toward what may be an emerging decision. Such a belief is not helpful. It can lead to focusing on personalities rather than the issues. It is best to be patient with one another. At such times slower is usually faster. There is a tendency to set deadlines and seek to force decisions. Providing a break or more time and space, however, often helps to shorten the overall process.

You may wish from time to time to express your mutual respect and repeat your resolve to work through any differences. With such a commitment and mutual respect, you will most likely render a verdict that leaves each of you satisfied that you have indeed rendered justice.

INSTRUCTION NO. 4.4 Communications with the Judge

If it becomes necessary during your deliberations to communicate with me, you may send a folded note through the court security officer, signed by one of you. Do not disclose the content of your note to the court security officer. No member of the jury should hereafter attempt to communicate with me except by signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or orally here in open court. You are not to tell anyone — including me — how the jury stands, numerically or otherwise, until you have reach a verdict or I have discharged you.

If you send a note to me containing a question or request for further direction, please bear in mind that responses take considerable time and effort. Before giving an answer or direction I must first notify counsel and bring them back to the court. I must confer with them, listen to arguments, research the legal authorities, if necessary, and reduce the answer or direction to writing.

There may be some question that, under the law, I am not permitted to answer. If it is improper for me to answer the question, I will tell you that. Please do not speculate about what the answer to your question might be or why I am not able to answer a particular question.

In some instances jurors request that certain testimony be read to them. This cannot be done as it is inappropriate for the court to single out testimony. In those circumstances you must rely upon your own recollection.

INSTRUCTION NO. 4.5 Jury Verdict Form

You will each have copies of a document called a Jury Verdict Form. There is one Jury Verdict Form for each Defendant. You are instructed to answer the questions in each Jury Verdict Form as directed in that form.

In order to answer any question on the Jury Verdict Forms, ten jurors must agree upon the answer. It is not necessary that the jurors who agree on the answer be the same jurors who agreed on the answer to any other question, so long as ten jurors agree to each answer.

Upon arriving at an agreement, your Presiding Juror will insert each answer on the appropriate Jury Verdict Form. After all of the questions have been answered as directed by the Jury Verdict Form, your Presiding Juror will date each Jury Verdict Form, sign it, and then ask all of the other jurors to sign it.

After you have filled out both Jury Verdict Forms in this manner, your Presiding Juror should advise the court security officer stationed outside the jury room that you have reached a verdict.

ATTACHMENT C New and Revised Instructions to Jury at the End of Trial, showing changes between October 12, 2005 "Start of Trial" Instructions (Attachment A to this memorandum opinion) and Final Jury Instructions (Doc. 2121) INDEX TO NEW AND REVISED FINAL JURY INSTRUCTIONS ^1b INSTRUCTION NO. 1.4 Evidence — General (revised) INSTRUCTION NO. 1.9 Burden of Proof and Classified Information (revised) INSTRUCTION NO. 2.2 Opinion Evidence and Expert Witnesses (revised) INSTRUCTION NO. 2.2AA Retention of Expert Witnesses (new) INSTRUCTION NO. 2.2A Consideration of Deposition Testimony of Dr. James Flynn (new) INSTRUCTION NO. 2.2B Dr. Till's Testimony Regarding Removal of Plutonium (new) INSTRUCTION NO. 2.3 Charts, Summaries and Graphic Materials (revised) INSTRUCTION NO. 2.5 Evidence Regarding Rockwell's Plea Agreement (revised) INSTRUCTION NO. 2.7 Evidence of Media Coverage (revised) INSTRUCTION NO. 3.1 Introduction to Plaintiffs' Claims (revised) INSTRUCTION NO. 3.5 Matters That Are Not Relevant to Deciding the Trespass Claim (revised) INSTRUCTION NO. 3.7 First Element: Interference with Use and Enjoyment of Property (revised) INSTRUCTION NO. 3.9 Second Element: "Substantial" Interference — Defined (revised) INSTRUCTION NO. 3.12 Second Element: Unreasonable Interference: Factors Regarding Utility of the Conduct (revised) INSTRUCTION NO. 3.17 Fourth Element: Continuing Nuisance (revised) INSTRUCTION NO. 3.19A Apportioning Fault Between Defendants (new) INSTRUCTION NO. 3.22 Measure of Actual Damages (revised) INSTRUCTION NO. 4.2 Jury — Deliberations (revised) INSTRUCTION NO. 4.5 Jury Verdict Form (revised) INSTRUCTION NO. 4.6 Number of Jurors Necessary to Reach Agreement (new)

INSTRUCTION NO. 1.4 Evidence — General

It is your duty to decide from the evidence what the facts are. You, and you alone, are the judges of the facts. You have heard the evidence, and now it is time for you to decide what the facts are, and then apply those facts to the law I give you. That is how you will reach your verdict. In doing so, you must follow the law whether you agree with it or not.

At no time during the trial did I suggest what I think your verdict should be nor do I want you to guess or speculate about my views of what verdict you should render. You will decide what the facts are from the evidence that the parties have presented during the trial. That evidence consists of the sworn testimony of witnesses on both direct and cross-examination, regardless of who called the witness; documents and other things received into evidence as exhibits; and any facts on which the lawyers agreed or which I may instruct you to accept as true.

The following things are not evidence and you must not consider them as evidence in deciding the facts of this case:

1. Statements and arguments by lawyers are not evidence. The lawyers are not witnesses. What they say in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of the facts controls.

2. Questions and objections by the lawyers are not evidence. Lawyers have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by my ruling on it.

3. Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. In addition, I have allowed some testimony or exhibits only for a limited purpose, and you must consider such only for that limited purpose. For example, I have instructed you that newspaper articles and other media reports were admitted for the limited purpose of showing that the information contained in these articles was available to the public, but not for the purpose of proving the facts stated in these articles and reports were true. I will remind you of this and other limiting instructions in a few minutes.

4. Anything you may see or hear when the Court is not in session is not evidence, even if what you see or hear is done or said by one of the parties or by one of the witnesses. You are to decide the case solely on the evidence received in this courtroom during the trial.

You are to consider only the evidence in the case. But in your consideration of the evidence, you are not limited solely to what you see and hear as the witnesses testify. You are permitted to draw, from facts that you find have been proved, such reasonable inferences as seem justified in the light of your experience. Inferences are deductions or conclusions your reason and common sense lead you to draw from the facts established by the evidence in the case.

INSTRUCTION NO. 1.9 Burden of Proof and Classified Information

In evaluating whether Plaintiffs and Defendants have met their respective burdens on their claims and defenses, you need to know that the law does not require parties to call as witnesses all persons who may have been present at any time or place involved in the case, or who may appear to have some knowledge of the matters to be determined by you from the evidence. Nor does the law require the parties to produce as exhibits all papers or other things mentioned in the evidence in the case.

This is a law that is uniformly applied in all civil cases as a matter of practical necessity and common sense. It is simply not possible for the law to require proof to the degree of absolute certainty.

In this case, the problem of proof is further complicated because of government imposed secrecy concerning activities at the Rocky Flats installation. The U.S. Department of Energy has classified documents concerning these activities and the resulting classification means that some information is deemed secret and is not available to the public. The authority of the Department of Energy to classify information as secret is firmly established by laws enacted by the Congress of the United States. Neither this court nor the jury in this case has the authority to decide whether such classification was proper irrespective of any reasons or allegations made challenging that process.

The Department of Energy has made some information concerning Rocky Flats available by a process known as "declassification," meaning that some documents and some parts of documents are no longer considered secret. The propriety of these declassification decisions is likewise not a matter to be decided in this action.

You will also see some documents that have been made available by the Department of Energy that contain obliterated or marked out words. This process is called "redaction," which means that the information removed is not available to us in this trial.

For the reasons I've just given, not only are the parties in this case not required to produce as exhibits all papers or other things mentioned in the evidence, they cannot produce some of these documents and things because the Department of Energy has classified that information as secret.

You may not speculate or guess about what the unavailable or redacted information might be. Such unavailable or redacted information might have been favorable, or unfavorable, to one side or the other in this case, but you must confine your evaluation to the evidence presented to you and base your decision solely on the evidence received during trial.

INSTRUCTION NO. 2.2 Opinion Evidence and Expert Witnesses

You have heard opinion evidence from people I held were qualified to testify as experts. People who I found are expert in some field by knowledge, skill, experience, training or education may state their opinions on matters in that field and may also state the reasons for their opinions. Witnesses who I did not identify as expert witnesses are not to be considered experts in any field, even if they have specialized training or advanced degrees.

Expert opinion testimony should be judged just like any other testimony. You may accept it or reject it and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinions, and all of the other factors that you consider when determining the credibility of the other witnesses.

Experts generally rely upon some assumptions in developing their opinions. These assumptions are likewise subject to your evaluation and should be considered along with the rest of the evidence.

In resolving the conflict in the testimony of expert witnesses, you should weigh the opinion of one expert against that of another. In doing this, you should consider the qualifications and believability of each witness, the reasons for each opinion and the matter upon which it is based.

INSTRUCTION NO. 2.2AA Retention of Expert Witnesses

Some of the expert witnesses from whom you have heard were retained on behalf of Dow and Rockwell, both of whom are corporations, and others were retained on behalf of the Class. In judging the testimony of these expert witnesses, you should remember that all persons are equal before the law regardless of race, national origin, citizenship, or whether the party is a corporation or an individual. All parties involved in this litigation, whether they are individuals or corporations, are entitled to retain and to pay experts.

INSTRUCTION NO. 2.2A Consideration of Deposition Testimony by Dr. James Flynn

In light of his illness, Dr. James Flynn was unavailable to testify any further in this trial. The live testimony offered by Dr. Flynn on his direct examination therefore was stricken, because the Defendants did not have the opportunity to cross-examine Dr. Flynn on that testimony. You are not to consider Dr. Flynn's live testimony for any purpose.

Dr. Flynn's report is still in evidence. Also, the parties have each designated testimony from Dr. Flynn's earlier deposition to be read into evidence. I instruct you, however, that the Defendants did not have the same opportunity to cross-examine Dr. Flynn at his deposition that they would have had at trial, because one of the purposes of a deposition is to help a party prepare for the witness's cross-examination. In judging the evidence you have received from Dr. Flynn and determining how much weight to give it, you should consider that Defendants did not have a full opportunity to cross-examine Dr. Flynn.

INSTRUCTION NO. 2.2B Dr. Till's Testimony Regarding Removal of Plutonium

I have stricken from the evidence the testimony of Dr. Till in which he stated or suggested that plutonium present in the Class Area has been removed by bulldozing and other construction and development activities. You are not to consider Dr. Till's testimony on this subject for any purpose.

INSTRUCTION NO. 2.3 Charts, Summaries, Graphic Materials and Demonstrative Exhibits

Counsel have shown you a number of charts, summaries and other graphic materials in order to help explain the facts and documents in evidence in the case. Such charts, summaries and graphic materials are not in and of themselves evidence or proof of any facts unless they are admitted into evidence.

You have heard me say throughout trial that many of these charts, summaries and graphic materials are admitted "for demonstrative purposes only." This means that these "demonstrative exhibits" are not necessarily based on the evidence presented at trial, and that they may relate solely to arguments or statements or interpretations of evidence by counsel. "Demonstrative exhibits" are not evidence and were presented only to assist you in understanding the argument, statement or interpretation being made. All exhibits admitted for this limited purpose will be marked "demonstrative." You should consider "demonstrative exhibits" only as visual aids to understanding counsel's arguments, statements or interpretations of the evidence. You may disregard "demonstrative exhibits" if you do not find them helpful, and must disregard them if the facts, figures or other information they contain do not correctly reflect facts shown by the evidence in the case.

INSTRUCTION NO. 2.5 Evidence Regarding Rockwell's Plea Agreement

You have heard evidence about the plea agreement between Rockwell and the United States in which Rockwell pled guilty to certain environmental crimes at Rocky Flats. The plea agreement is evidence that Rockwell admitted guilt for the conduct specifically set forth in the plea agreement. This means Rockwell admitted it committed the acts to which it pled guilty, and that no further evidence is required to establish that these acts occurred.

You should not consider the plea agreement or its content, however, or the fact that Rockwell did not plead guilty to additional crimes and that the government did not seek to prosecute Rockwell for any other crimes, in determining whether Rockwell committed any particular conduct at Rocky Flats in addition to the misconduct to which it pled guilty. You should make your determination regarding Rockwell's other alleged conduct based solely on the other evidence presented at this trial.

INSTRUCTION NO. 2.7 Evidence of Media Coverage

You have heard evidence of media coverage relating to Dow and Rockwell and their operations at Rocky Flats. Such evidence of media coverage does not establish the accuracy of any statements made by the media. Evidence of media coverage is relevant, however, to public perceptions that may have influenced the market values of properties in the Class Area.

INSTRUCTION NO. 3.1 Introduction to Plaintiffs' Claims

Plaintiffs assert two claims in this action on behalf of themselves and the Class members. This means Plaintiffs' claims are made and must be proved for the Class as a whole as stated in the instructions for each claim that I am about to give you. Individual claims by individual Plaintiffs are not to be decided in this trial.

Plaintiffs' first claim is for trespass and the second is for nuisance. Both claims are asserted against both Dow and Rockwell. It is your responsibility to consider and decide each of these claims separately against Dow and Rockwell.

I will now instruct you about these claims and what you must consider in deciding each one. When the instructions I am about to give you apply to more than one claim, I will tell you that. At the end of my instructions on Plaintiffs' two claims, I will talk to you about determination of damages, which applies to both claims.

INSTRUCTION NO. 3.5 Trespass Claim Matters That Are Not Relevant to Deciding the Trespass Claim

A trespass may exist even though the conduct that originally caused the invasion of the plaintiff's land has ceased. Accordingly, in considering whether Plaintiffs have proved the elements of their trespass claim as stated in Instruction No. 3.2, it is irrelevant that Dow and/or Rockwell ceased any such activities before Plaintiffs brought this suit or that the Rocky Flats plant itself is now shut down.

That Plaintiffs or Class members knew or could have known that plutonium was present on their properties when they purchased them is also irrelevant to determining whether Dow or Rockwell are liable for trespass as stated in Instruction No. 3.2.

You have also heard argument that plutonium has been removed from properties in the Class Area as a result of bulldozing, soil excavation and other disturbance during real estate construction and development activities in the Class Area. You are to disregard all such argument because I recently ruled that it cannot be presented or considered in deciding the trespass claims. For purposes of deciding the trespass claims, therefore, the notion that plutonium has been removed from the Class Area through development and construction activities is irrelevant.

None of the irrelevant matters described in this instruction should be considered in determining the trespass claim.

INSTRUCTION NO. 3.7 Nuisance Claim First Element: Interference with Use and Enjoyment of Property

The purpose of a nuisance claim is to protect a landowner's right to use and enjoy his property. Although there are countless ways that a person or company can interfere with this right, for purposes of deciding the first element of the Plaintiff Class' nuisance claim, you may only consider the two possible forms of interference with Class members' use and enjoyment of their property that I stated in Instruction No. 3.6 and will describe further here.

The first possible form of class-wide interference is whether one or both of Defendants' activities at Rocky Flats interfered with Class members' use and enjoyment of their properties by causing Class members to be exposed to plutonium and placing them at some increased risk of health problems as a result of this exposure. To find that Plaintiffs proved this form of interference, you do not need to find that all Class members were exposed to plutonium at the same time or by the same methods or to the same degree or that they all incurred the same level of health risk as a result of exposure to plutonium. It is enough to find for purposes of this form of interference with use and enjoyment of property that the Class members were exposed to plutonium in some way as a result of one or both Defendants' activities and incurred some increment of increased health risk as a result.

There may be some nonresident Class members — that is, Class members who owned property within the Class Area but without living there. If you find that occupancy of their properties would have resulted in exposure to plutonium in some way, causing some increment of increased health risk, as a result of one or both Defendants' activities, then you should find that these Class members too suffered an interference with the use and enjoyment of their properties.

The second possible form of interference you must consider in deciding this first element of the Plaintiff Class' nuisance claim is whether one or both of Defendants' activities at Rocky Flats interfered with Class members' use and enjoyment of their properties by creating objective conditions that pose a demonstrable risk of future harm to the Class Area. For example, if plutonium or other hazardous substances present on or in the vicinity of Rocky Flats is at risk of being released to the Class Area — through natural forces, cleanup activity, the conduct of others and/or accidents — and could cause harm to properties in the Class Area by increasing the health risk to residents or impairing the future use of their land in some way, then this would be an objective condition that poses a demonstrable risk of future harm to the Class Area.

In order for you to find interference based on the threat or risk of future harm, you also need not find that the future harm will occur and affect the whole of the Class Area. You need only find that conditions exist that present the potential for such class-wide harm to occur.

You need not find that all Class members were subject to the same form of interference with use and enjoyment of their properties. It is enough if you find the Class members were all subject to at least one form of interference described in this instruction, even if some Class members were subject only to the first form of interference, others only to the second, and still others to both.

In deciding whether either or both forms of possible class-wide interference exists, you should not consider whether individual Plaintiffs or Class members are or might be fearful, anxious or otherwise disturbed by any real or perceived risks relating to Rocky Flats and the Defendants' activities there or the conditions they left behind. Individual reactions to these matters are not relevant to the question of whether a class-wide interference exists.

You also should not consider in deciding this element of the nuisance claim whether Defendants' activities caused any decrease in the value of Class members' properties. The law does not consider a decrease in property value to be an interference with the use and enjoyment of property.

If you find that Plaintiffs have proved either Dow or Rockwell or both of them interfered with Class members' use and enjoyment of property in one or both of the ways I described in Instruction No. 3.6 and in this instruction, then you must find that Plaintiffs have proved the first element of their nuisance claim with respect to the Defendant or Defendants who caused or contributed to the proven interference. If, however, you find that neither Defendant interfered with Class members' use and enjoyment of property in at least one of these ways, then you must find Plaintiffs have not proved this element of their nuisance claim against either Defendant.

INSTRUCTION NO. 3.9 Nuisance Claim Second Element: "Substantial" Interference — Defined

An interference with a person's right to use and enjoy their land is "substantial" if the interference is significant enough that a normal person in the community would find it offensive, annoying or inconvenient. In this case, that means you must determine whether a reasonable landowner of normal sensibilities would find the proven interference caused by Dow or Rockwell to be offensive, annoying or inconvenient. "Normal sensibilities" for these purposes means a person who is neither unusually sensitive nor unusually insensitive to the interference you are considering.

In deciding whether any interference proven by Plaintiffs is substantial under this test, you must consider only the magnitude or level of interference that is common to the Class as a whole, and not any more severe level of interference that may have been suffered by some Class members but not by others.

Evidence that the value of Class members' properties has diminished because of any interference proven by Plaintiffs is evidence that the interference is substantial under the test stated in this instruction. This is so because normal members of the community are part of the market that determines the value of properties, and if they consider an interference with the use and enjoyment of these properties to be offensive, annoying or inconvenient, they may place a lower value on the property than they would if the interference did not exist. Evidence that Class Properties have a lower value because of any proven interference is not necessary, however, for you to find that the interference is substantial under the test I just described to you.

INSTRUCTION NO. 3.12 Nuisance Claim Second Element: Unreasonable Interference: Factors Regarding Utility of the Conduct

There are also certain factors you must consider in assessing the utility of the conduct that caused the harm, that is, any proven interference. Some of these factors focus directly on the conduct causing the harm, while other factors focus on any actions Dow or Rockwell have taken to avoid or compensate others for any interference they caused.

The factors focusing on the conduct causing the harm include:

1. The social value of the primary purpose of this conduct.

It is undisputed that the primary purpose of the conduct that allegedly interfered with Class members' right to use and enjoy their properties was to manufacture nuclear weapons components. The social value of this purpose depends on the extent to which it advanced or protected the general public good. The parties agree that the manufacture of nuclear weapons at Rocky Flats, as a general matter, advanced the public good by protecting national security.

2. The suitability of the conduct to the character of the locality.

This factor considers whether the Defendants' conduct is suitable to the area in which it occurred.

In evaluating the utility of the conduct causing the harm, you must also consider whether and to what extent the actor causing the harm took steps to address the consequences of its conduct. Thus, you must consider the following factors focusing on any actions Dow or Rockwell have taken to avoid or compensate others for any interference they caused:

3. The impracticability of preventing or avoiding the interference.

If it was practicable for Dow or Rockwell to avoid causing any interference with Class members' use and enjoyment of property, and they did not take the necessary measures to do so, then the law considers their conduct to have no utility, regardless of its social value. Any interference caused by Dow and/or Rockwell was practicably avoidable if by some means the company could have substantially reduced the harm without incurring prohibitive expense or hardship in its operation of Rocky Flats. If you find it was practicable for Dow or Rockwell to avoid any harm they caused under this test, then you must find the gravity of the harm outweighed the utility of Dow or Rockwell's conduct, and that any interference proved by Plaintiffs was unreasonable.

4. The financial burden to compensate others for any interference caused by Dow and/or Rockwell's activities.

A nuisance action for damages seeks to place the financial burden for any interference with the use and enjoyment of property on the actor that caused this harm. The financial burden of this cost is therefore a significant factor in determining whether the conduct of causing the harm without paying for it is unreasonable. You may find that Dow or Rockwell's conduct lacks sufficient utility to outweigh any interference it caused if you find it would be unreasonable for Class members to bear this cost without compensation.

INSTRUCTION NO. 3.17 Nuisance Claim Fourth Element: Continuing Nuisance

As stated in Instruction No. 3.6, the fourth element Plaintiffs must prove to prevail on their nuisance claim is that it appears that the unreasonable and substantial interference with the use and enjoyment of property caused by Dow and/or Rockwell's intentional or negligent conduct will continue indefinitely. In deciding this element, it is not necessary for you to find that the interference meeting these requirements will last forever. Instead, you should consider whether there is any reason to expect that this interference will end at any definite time in the future. If you find there is no reason to expect this interference to end by a definite time, then you must find it appears the interference will continue indefinitely.

INSTRUCTION NO. 3.19A Apportioning Fault Between Defendants

If you find both Dow and Rockwell committed a trespass and/or nuisance in this action, and that Plaintiffs have proved actual damages resulted from both Defendants' trespass and/or nuisance under the instructions I will give you in a moment (see Instruction Nos. 3.20-3.22), then you must also determine to what extent Dow's trespass or nuisance and Rockwell's trespass or nuisance contributed to the Class' actual damages. In making this determination, you must express Dow's contribution to the Class' damages (if any) and Rockwell's contribution to the Class' damages (if any) as a percentage of 100.

If you find only one of the Defendants liable for trespass and/or nuisance, then you will only decide the actual damages caused by that Defendant's trespass and/or nuisance.

The questions on the jury verdict form will guide you through these circumstances.

INSTRUCTION NO. 3.22 Both Claims Measure of Actual Damages

Plaintiffs seek an award of actual damages based on the decrease in the value of properties in the Class Area caused by the trespass and/or nuisance committed by Dow or Rockwell or both of them. This type of actual damages is sometimes called diminution in property value.

The diminution in property value that Plaintiffs may recover here is measured by the difference between the actual value of the Class Properties and the value these Properties would have had if Dow or Rockwell or both of them had not committed the trespass and/or nuisance proved by Plaintiffs. In other words, you must compare the actual value of the Class Properties to what their value would have been "but for" the trespass and/or nuisance, and the difference is the diminution in property value that Plaintiffs can recover as actual damages in this case.

In a case like this, the law requires that you measure the amount of any such diminution in Class property values at a particular point in time. That point is the time or time period when the injurious situation became "complete" and "comparatively enduring." The injurious situation is "complete" when the effects of the trespass or nuisance are known to their full extent. It is "comparatively enduring" when there is no reason to expect that these effects will end at a definite time in the future. When the injurious situation became "complete" and "comparatively enduring" in this case is a question you will decide as I will describe in just a moment.

Plaintiffs contend that the diminution in the value of Class properties should be measured as of the period between June 6, 1989, when the FBI and U.S. Environmental Protection Agency searched Rocky Flats as part of their investigation into alleged wrong-doing by Rockwell, and March 26, 1992, when Rockwell pled guilty to certain environmental crimes at Rocky Flats. Plaintiffs allege this is the right time period to measure their actual damages because this is when the injurious effects of Defendants' alleged trespass and nuisance became "complete" and "comparatively enduring."

Plaintiffs have also presented evidence, however, of the injurious effects of the alleged trespass and nuisance in the larger period of 1988 through 1995. If you find these effects became "complete" and "comparatively enduring" at any time during this period, therefore, you may award actual damages to Plaintiffs measured as of the time you find the effects became "complete" and "comparatively enduring." If you do not find the injurious effects of the alleged trespass and/or nuisance became "complete" and "comparatively enduring" some time during the 1988-1995 period, then you should not award actual damages to Plaintiffs.

Accordingly, to decide whether Plaintiffs are entitled to the actual damages they seek in this case, you must determine whether Plaintiffs have proved by a preponderance of the evidence that:

1. The injurious situation became "complete" and "comparatively enduring" (as defined in this instruction) sometime between January 1, 1988 and December 31, 1995; and

2. As of the time you find the injurious situation became "complete" and "comparatively enduring," the actual value of the Class Properties was less than the value these Properties would have had but for the trespass and/or nuisance committed by Dow or Rockwell or both of them; and

3. As of the time you find the injurious situation became "complete" and "comparatively enduring," the amount of the difference between the actual value of Class Properties and what their value would have been but for the trespass and/or nuisance (see Instruction No. 3.23).

INSTRUCTION NO. 4.2 Jury — Deliberations

When you go to the jury room to begin your deliberations, you must elect one member of the jury as your Presiding Juror. He or she will preside over your deliberations and speak for you here in court.

You will then discuss the case with your fellow jurors to reach agreements if you can do so. In order to answer any question on the Verdict Form, eight jurors must agree upon the answer. It is not necessary that the jurors who agree on the answer be the same jurors who agreed on the answer to any other question, so long as eight jurors agree to each answer.

Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it with your fellow jurors, and listened to the views of your fellow jurors. I offer some suggestions on how you might do this in the next jury instruction, entitled "Jury — The Deliberations Process."

Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right.

It is important that you attempt to reach agreement to answer the questions on the Verdict Form, but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight of the evidence simply to reach an answer.

INSTRUCTION NO. 4.5 Jury Verdict Form

You will each have copies of a document called a Jury Verdict Form. You are instructed to answer the questions in each Jury Verdict Form as directed in that form.

In order to answer any question on the Jury Verdict Forms, eight jurors must agree upon the answer. It is not necessary that the jurors who agree on the answer be the same jurors who agreed on the answer to any other question, so long as eight jurors agree to each answer.

Upon arriving at an agreement, your Presiding Juror will insert each answer on the Jury Verdict Form. After all of the questions have been answered as directed by the Jury Verdict Form, your Presiding Juror will date Jury Verdict Form, sign it, and then ask all of the other jurors to sign it.

After you have filled out the Jury Verdict Forms in this manner, your Presiding Juror should advise the court security officer stationed outside the jury room that you have reached a verdict.

INSTRUCTION NO. 4.6 Number of Jurors Necessary to Reach Agreement

Yesterday, I re-read certain instructions to all of you. As you are aware from a note I sent you that same day in response to a question from you, the instructions I reread to you are now incorrect in one respect. That respect is that now that a second juror has been excused, and there are ten of you remaining rather than eleven, it is no longer necessary for nine of you to agree to reach a decision on questions on the verdict form. Only eight of you must now agree.

Along with this new instruction No. 4.6, I am providing you with revised copies of Instruction Nos. 4.2 and 4.5 that have been corrected to show that the agreement of eight jurors is necessary to answer the questions on the Jury Verdict Form. You should continue your deliberations with this change in mind.